Lee first what he thinks about it. As I understand it, there is a provision in the criminal code which says:

With that very plain language in the statute, I wonder why a license like this was issued. Perhaps we can ask Commissioner Lee some of his opinions on it.

DISCUSSION AMONG COMMITTEE MEMBERS AND COMMISSIONER ROBERT E. LEE

Mr. ROBERT E. LEE. Mr. Chairman, I would prefer not to get too much into the merits of a specific case. I think that this matter of obscenity is an emerging one and goes across the board and certainly requires the attention, and the close attention, of the Commission.

I might say that I have been perusing through the files the last few days, and I find that in other services, such as the Marine and the American Amateur, we have this problem of profanity. There have been a number of prosecutions, there have been a number of fines on the part of our agency, and I think that it is basically unfair to pick on the shrimpboat captain and permit the broadcaster to go off free. The heart of the difference in the use of obscenity, indecency, and profanity in TV and radio as distinguished from the print or the theater media lies in the ground rules applicable to the broadcast media. Broadcasting operates under, as you know, a Federal license. The Supreme Court has repeatedly supplied the answer. Access to broadcasting is not available to everyone who might wish to use it and because it cannot be used by all some who wish to use it must be denied. Recently this philosophy was again upheld in the Red Lion case. In short, the scarcity of channels forces the FCC to pick and choose among applicants who meet the public interest, convenience, or necessity. Printed material is not subject to any such restriction.

As mentioned, title 18 of the United States Code makes it a criminal offense to utter any obscene, indecent, or profane language by means of radio communication. We also have in section 326 of the Communications Act a prohibition against censorship. A prohibition against broadcasting of lotteries is neither censorship nor an interference with free speech, so it is obvious that the right of free speech is not unlimited in broadcasting.

It is clear from the history of our act, the legislative history, that the FCC has the authority and the duty to give full consideration to program service in its determination of the public interest. If a broadcaster violates the trust placed in him by the community and the Commission, such as broadcasting obscene material which offends the communities served and results in continuous and repeated complaints to the FCC or broadcast any other legally objectionable matter, the Commission then has the duty to concern itself with such programs. I have heard the argument that there is poetic license in a work of so-called literary merit, and that four-letter words or indecent descriptive matter are necessary to protect the artistic sense. But I believe tolerance for sexual frankness is obviously less on broadcast media than is that which is acceptable in books. Radio and television

programs enter the home and are readily available not only to the normal adult, but also to children, the emotionally immature, or the disturbed element.

When the four-letter word or the utterance of indecent language is broadcast, this promptly for me, upon complaints from the public, raises a serious question of programing contrary to the public interest under the Communications Act and is also a violation of the criminal code. The Supreme Court in 1966 recognized that in judging obscenity of a book the methods used by the vendor in trying to sell the publications could be considered rather than the content of the book alone. The specific question of a different test for broadcasting obscenity than the printing of such matter in books is still open, but we know that a difference can exist even with books, depending upon how they are presented to the public.

We must face the broadcasting of obscenity now. I would welcome a court test on this but in the absence of such decision I believe we should now proceed against such programing under the public interest standard, especially when the volume of complaints from the public has been high.

I have with me my dissent in the case you mentioned, and I think it is interesting to note that it was inserted in the Congressional Record, but the offending poem was omitted. I think if something is fit to go over the air, it ought to be fit to go into the print medium. This has not happened.

I would like to make just brief reference to two speeches that I made on this subject several years ago, primarily motivated by my concern at what would happen when the current movies now being shown in the theaters would become available to TV. I think this moment is rapidly upon us. This one speech was a first Friday luncheon meeting at Washington on May 6, 1966, which I labeled "Obscenity, Indecency, and Profanity" which I would like to leave with the committee, and a more recent speech entitled "Self-Regulation on Censorship" that I gave July 31, 1969, before the Association of Broadcasting Executives of Texas. I think that would handle my general statement. I think that we need a dialog on it and more than that some affirmative action.

Senator GURNEY. The poem was well sprinkled with four-letter filthy words that are generally recognized as not acceptable in general conversation; would you say that was true? They are generally regarded as obscene, are they not?

Mr. ROBERT E. LEE. I think that would certainly fit my definition. Now the eminent lawyers on the Commission will argue that the Supreme Court's definition of obscenity would remove this particular poem from that definition.

Senator GURNEY. We might get into the legal discussions of it somewhat later, but I am simply saying that the poem did contain four-letter words generally regarded as filthy and as smut.

Mr. ROBERT E. LEE. Yes, I would certainly agree.

Senator PASTORE. It goes a step further than that. Doesn't it involve the Lord in a perverted act?

Mr. ROBERT E. LEE. Yes.

Senator PASTORE. In the last two lines of the poem?

Mr. ROBERT E. LEE. Yes, that is certainly profane in the extreme. Senator GURNEY. You could say the poem in that respect was antireligious, is that not true?

Mr. ROBERT E. LEE. I would so interpret it.

Senator GURNEY. This was before the Commission when it granted the license to the Pacifica Foundation in Houston as an example of part of their programing in other stations in Los Angeles and New York, is that not correct?

Mr. ROBERT E. LEE. Yes.

Senator GURNEY. In other words, the Commission knew that programing done by this foundation was programing of this sort and this was a good example of it.

Mr. ROBERT E. LEE. That is quite right, and part of the application for Houston, and it is the reason I wrote the dissent in this fashion, was that programing used on other stations of Pacifica would be used in Houston. I would point out, too, that this is hardly an isolated instance. There are any number of complaints in our file.

Senator GURNEY. As I understand it from your prepared statement, you have stated that the Commission has moved against amateur broadcasters who have used this kind of language and either prosecuted them criminally under this statute or revoked their license; is this correct?

Mr. ROBERT E. LEE. That is correct. We have a very good record in the nonbroadcast field of enforcement.

Senator GURNEY. Then, why in your opinion did they grant this license to this station? Are they drawing a line between amateur broadcasters and commercial broadcasters?

Mr. ROBERT E. LEE. I think part of the reasoning would be, and I suppose the majority should speak for themselves, is that in the safety and special services field-for example, in the marine fielda typical example would be a shrimp-boat captain talking to one of his counterparts. I think they typically use very strong language which is really the way they communicate. In these cases we have a rule, as I understand it, against this, and we levy a fine. We do not have such a rule in broadcasting. These cases are generally presented to the local U.S. attorney at the local level who prosecutes perhaps not expecting a court appeal on the constitutional question, whereas in the broadcast area we rely on the criminal statute. We present these cases to the Department of Justice who invariably fail to prosecute. They will feel under the Supreme Court standards they could not sustain a conviction.

Senator GURNEY. At least in your opinion-I am only asking for yours your reason for the dissent here and your opinion that Pacifica should not be granted a license was that in their programing they had indeed been in violation of this criminal statute, is that correct? Mr. ROBERT E. LEE. That certainly is my judgment, yes.

Senator GURNEY. Let's turn to one of the other Commissioners.

How about Commissioner Cox, would you like to comment on that? As I understand it, you were in favor of granting the license.

Mr. Cox. That is correct, Senator. I was in favor of it because I do not believe that the broadcast violated 18 U.S.C. 1464. The Commission had at the time it acted a letter from the Department of Justice indicating that they had reviewed this they said:

We have reviewed the exhibits attached to your letter and agree that the facts do not warrant consideration of a criminal prosecution. Not only is the reading of the poem an inappropriate subject matter for an obscenity prosecution, but, it is evident that the station took steps to insure that the listening audience would contain few, if any, minors or other persons who would be offended by listening to its reading.

Senator GURNEY. How could they be assured that there would be no minors listening to the radio?

Mr. Cox. The program is normally carried at 10:30 in the morning, and on this occasion it was rescheduled for 10:30 at night. The Commission and the industry generally have long regarded this as an appropriate step to take with respect to programing involving mature themes, violence, the use of words which some people find offensive; and in this case the station undertook the precaution of rescheduling the program and then before they read the poem, they announced to anyone who might then be listening to the station that if there were children in the room they might want to ask them to leave.

Senator GURNEY. Why should they do that? If this is not obscene language, why should you worry about who is listening to it?

Mr. Cox. I think it is quite clear, Senator, that there are many things that are not obscenity that offend some people, and that if the station wishes to protect those people from being offended it is to be commended for that.

Senator PASTORE. May I interrupt for a moment?
Senator GURNEY. Indeed, Mr. Chairman.

Senator PASTORE. Would you read this poem in your parlor to a group of your invited adult friends?

Mr. Cox. I think, depending on the selection of my friends, I might, Senator.

Senator PASTORE. You are evading my question. I asked you, would you read it?

Mr. Cox. Yes.

Senator PASTORE. Would you read it to your 16-year-old daughter? Mr. Cox. I do not happen to have one. I do not know whether I would. But I may say that I listened to the tape of this program and I listened to a couple of callers who had read the poem to teenage children, including daughters, and who reported their reactionswhich varied. I think the reactions of the people indicated that it was not obscene. I have listened to the entire tape of this 212-hour program. I may say that there were a good many callers who objected to the poem, who objected to its use in teaching an English class in a college which occasioned the dismissal of the author, which had given rise to the public controversy which the Pacific station was trying to deal with in putting on this discussion program-but not a single caller

to the station objected to the broadcast, or objected to the fact that the poem had been read over the air. Some of them did complain that they thought it improper for a teacher in a junior college to present such matter to her students, but, as I say, no one who called in to the program and there were a good many callers in that length of timefound the presentation of a program discussing this controversy, and including the reading of the poem offensive. Certainly, just as Commissioner Lee found it necessary to print the poem in order to make his dissent understandable, the management of the station believed that it would be necessary to read the poem in order to have the ensuing discussion understood by the audience.

Senator PASTORE. Is it not a fact that this poem characterizes parts of the human body in gutter language?

Mr. Cox Yes; I suppose so. I think it uses language

Senator PASTORE. Does it, or does it not? Do you think it does or does not?

Mr. Cox. If you will point out the words you are addressing yourself to, I will give an opinion. I think there is language in this poem that I do not use in my daily conversation. You asked me whether I might read it to someone in my home. My only occasion for reading it to someone in my home would be to get their reactions to a controversial alleged work of art. I am not sufficiently qualified in the literary field to know whether it is or not. On the program in question there were two professors of literature and one professor of clinical psychology. The two professors of literature, both of whom were practicing Catholics, found the poem in good taste. They were also citing analysis by other experts, including a Trappist monk, who found the poem-I think the word was "beautiful." I do not have to agree with that judgment of the work of art in order to say that my function as a member of the FCC does not include meting out penalties to a station which broadcast this poem, I think in a serious effort to enlighten its audience about a controversy facing the community which it serves.

Senator PASTORE. If I asked you to read this poem out loud in this room, would you feel comfortable in doing it?

be.

Mr. Cox. I would read it, but I am not sure how comfortable I would

Senator PASTORE. If you read it, I would be ashamed of you.

Mr. Cox. I would not want you to be that, Senator, so I assume you would not ask me to.

Senator SCOTT. Commissioner, will you tell me where you find redeeming social value in this poem?

Mr. Cox. Again, Senator Scott, I do not think it is the function of Commissioners of the FCC to make the judgment that there is redeeming social value in any particular work. That is certainly something we would have to consider as a possibility.

We inquired of the Department of Justice, and they indicated that they did not feel that this poem was an appeal to prurient interest, and as I understand the law of obscenity, it was not. It does not so describe sexual acts as to arouse the reader or the audience.