concurring:
Although I agree with the result reached by Judge Tamm, I believe it is necessary to determine whether the Commission’s Order abridges the First Amendment. I will discuss why this issue must be reached and then explain why the Commission’s definition of “indecent” speech is unconstitutional.
I.
Judge Tamm concludes that the Commission’s definition of “indecent” must be invalidated because it authorizes censorship forbidden by 47 U.S.C. § 326. Section 326 provides that nothing in the Communications Act shall be understood as giving the Commission “power of censorship” or authority to “interfere with the right of free speech.” I agree with Judge Tamm that *19the Commission has censored.1 The Commission has banned the broadcast of certain words during all but the late night hours, and possibly during those times as well.2 The statute is thus facially violated, even though the ban is not absolute (as the Commission puts it, objectionable speech has merely been “channeled” into certain hours).3 By its terms, § 326 is not limited to rules that totally ban the broadcast of certain materials; it bans any Commission censorship.4 Indeed, channeling may have substantially the same effect as an absolute ban. Channeling material into a small enough time slot would prevent many sta*20tions from airing that material5 and would effectively make it unavailable to many potential listeners.6
However, determining that the Commission has violated the literal command of § 326 does not, as Judge Tamm assumes, end the matter. Although the language of § 326 is very broad, the scope of that section is apparently limited by 18 U.S.C. § 1464 and 47 U.S.C. § 503(b)(1). Section 1464 provides criminal punishments for “[wjhoever utters any obscene, indecent, or profane language by means of radio,” and § 503(b)(1) empowers the Commission to impose forfeitures on licensees who violated § 1464. In Illinois Citizens Committee for Broadcasting v. F.C.C., 169 U.S.App.D.C. 166, 515 F.2d 397 (1974), the petitioners claimed that an obscenity forfeiture assessed by the Commission under the latter provisions violated both the First Amendment and § 326.7 This court found that the Commission had properly found that the program was constitutionally unprotected obscenity under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The forfeiture was upheld without comment on whether § 326 barred the Commission’s action. The clear implication is that § 326 does not provide greater protection of speech than the First Amendment, at least with respect to offensive speech. If the court had thought otherwise, it could not have upheld the forfeiture simply by finding that the speech in question was unprotected under the First Amendment. Thus, to determine whether the Commission may regulate speech within its definition of “indecent,” it is necessary to determine first whether such speech would be protected by the Constitution in other media; and if so, whether the unique character of broadcasting justifies the proposed expansion of government speech control.8
II.
Several years ago, I felt compelled to write that “the FCC has demonstrated what one can most charitably describe as a *21total ignorance of the constitutional definition of obscenity.” Illinois Citizens Committee, supra, statement of Bazelon, Chief Judge, as to why he voted to grant rehearing en banc, 515 F.2d at 418. Unfortunately, this case would seem to confirm that view. The Commission’s definition of “indecent” speech that may be banned from the air-waves is massively overbroad under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, rehearing denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973). Nor has the Commission demonstrated why offensive speech that otherwise would be protected may be regulated at all when broadcast over the airwaves — or, specifically why the additional restrictions imposed are tailored to serve the justifications relied on for regulation.
Regulation of obscenity has produced “a variety of views among the members of the [Supreme] Court unmatched in any other course of constitutional adjudication.” Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704-05, 88 S.Ct. 1298, 1314, 20 L.Ed.2d 225 (1968) (Harlan, J., concurring and dissenting). In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), a majority of the Court, although aware that “ideas having even the slightest redeeming social importance . . . have the full protection” of the First Amendment, concluded that there was a category of obscene speech that could be freely regulated because it lacked redeeming social importance. 354 U.S. at 484-85, 77 S.Ct. at 1309. After Roth, a majority of the Court retained the belief that obscene speech lies outside the First Amendment, the Court dividing over the difficult task of formulating a standard for distinguishing obscenity from that which is merely offensive. In the absence of a majority test, the Court initiated the practice, utilized thirty-one times, of summarily reversing convictions for the dissemination of materials that at least five Justices, applying their individual tests, found to be constitutionally protected. Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414,18 L.Ed.2d 515 (1967); Miller, 413 U.S. at 22, n. 3, 93 S.Ct. 2607. The Chief Justice believes this division of views “is not remarkable, for in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political or scientific expression.” Miller, 413 U.S. at 22-23, 93 S.Ct. at 2614.
The Supreme Court’s most recent attempt to resolve this uncertainty came in Miller v. California, supra. Acutely aware of the dangers inhering in any suppression of expression, the Court stated that the realm of permissible regulation must be “carefully limited.” 413 U.S. at 23-24, 93 S.Ct. 2607. A jury may find a work obscene “under contemporary community standards” only if the work (1) when taken as a whole (2) appeals to the prurient interest, (3) portrays sexual conduct in a patently offensive way (4) and lacks serious literary, artistic, political or scientific value. 413 U.S. at 24, 93 S.Ct. 2607.9 The Court further held that obscenity could be regulated only under a specifically defined law,10 as written or authoritatively construed.11 The Court said it had limited *22obscenity regulation to materials that “depict or describe patently offensive, ‘hard core’ sexual conduct.” Id. at 27, 93 S.Ct. at 2616. See also, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1972).
The Commission did not find that the Carlin monologue was obscene under Miller. Rather, it found that certain words repeated in the monologue were “indecent.”12 The Commission offered several justifications for “authoritatively construing” the statutory term “indecent,” one of which was a desire to reformulate its earlier construction of that term in light of Miller.13 Although the Commission alternatively argues that Miller is not the exclusive test for regulation of offensive language, see Section III infra, analysis of the Commission’s definition must begin with Miller. To begin with, Miller establishes when speech in other media may be regulated because it is offensive in a lewd or vulgar way, see note 22 infra. Furthermore, the Commission has in the past attempted to define indecency in terms of the Supreme Court’s standard for obscenity, 51 F.C.C.2d at 433, and has theorized that unregulated, indecent speech will cause social harm similar to that which is commonly associated with unregulated obscenity.14 Since the Supreme Court has held that the concerns underlying obscenity justify only limited regulation, regulation of indecency must be subject to similar restraints absent other, compelling justifications.
Judge Leventhal’s dissent is based in part on his view that the Commission attempted “to define ‘indecent’ in terms of the same underlying considerations as those which prompted the Supreme Court in Miller.” (dissenting draft at 3). Although the motivations for regulating “indecent” and obscene speech do seem similar, the Commission’s definition of indecency is massively over-broad under Miller. In fact, the Commission’s definition disregards every Miller requirement but one.
To begin with, the Commission does not test the “indecency” of speech under “local community standards,” but rather on the basis of what it terms “contemporary community standards for the broadcast medium.” 51 F.C.C.2d 433. The search for a national standard is understandable. Justice Brennan’s argument, rejected in Miller, that a national standard of obscenity is appropriate under a national constitution is telling. See Jacobellis v. Ohio, 378 U.S. 184, 193-95, 84 S.Ct. 1676, 12 L.Ed.2d 793. And *23Miller can be read as merely holding that application of local standards is constitutionally permissible rather than constitutionally required. 413 U.S. at 30-39, 93 S.Ct. 2607. Finally, it may be that only a national standard is administratively feasible for the Commission. When scrutinized closely, however, the Commission’s national standard appears chimerical. The Commission never solicited a jury verdict or expert testimony.15 Nor did it rely on polls or letters of complaint.16 The Commission simply recorded its conclusion that the words were indecent, thereby creating the suspicion that its national standard is in fact either the composite of the individual Commissioner’s standards or what they suppose are the national standards.
The Commission’s definition of indecency also disregards or distorts each of the other Miller requirements. First, appeal to the prurient interest is not to be considered. Second, a work is not judged as a whole. Rather, a work is banned if it contains “obnoxious, gutter language” that could be used offensively to describe sexual or excretory activities or organs. 51 F.C.C.2d 433.17 Finally, a work containing indecent language cannot be broadcast even if the entire work has tremendous overriding literary, artistic, political or scientific value. Id18
The only Miller requirement observed by the Commission is that the banned language be patently offensive. But uprooting this element from the others distorts its meaning. Under the Commission’s definition, its Order could not itself be read over the airwaves even though it is not obscene under Miller. The Order has no appeal to the prurient interest and, as a whole, has serious value. Despite this, it would be banned because it contains words the Commission claims “debas[e] and brutaliz[e] human beings by reducing them to their mere bodily functions.” 51 F.C.C.2d at 433.
The Commission’s definition of indecent speech that may be freely regulated thus goes well beyond Miller and is prima facie unconstitutional, notwithstanding the Commission’s attempts to minimize the significance of the Order. In addition to its point about channelling, see text and notes at notes 1-6 supra, and its claim that only a few words will be affected, the Commission disclaimed any intent “to stifle, robust, free debate.” 51 F.C.C.2d at 434. The implication is that only words and not ideas are being suppressed. However, the Supreme Court has rejected this very argument. “[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.” Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1970). Since words “are often chosen as much for their emotive as cognitive force,” id., a person’s choice of words is an important and protected ele*24ment of the overall message sought to be communicated.
The Commission euphemistically characterizes its definition of indecency as “variable obscenity,” citing Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195. Under variable obscenity, the state can regulate dissemination of material to children that is obscene as to them, though not obscene as to adults. Variable obscenity “simply adjusts the definition of obscenity ‘to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests .’ of such minors.” Ginsberg, 390 U.S. at 638, 88 S.Ct. at 1279, citations omitted. Even assuming that variable obscenity can be regulated under § 1464, the Commission’s definition of indecency is not a proper application of that concept.19 To illustrate, the Commission did not purport to find that the Carlin monologue, when taken as a whole, appeals to the prurient interests of minors or that it was without serious value to minors. And even if the Commission had properly found that the monologue came within this definition, that finding alone would not justify absolute or near absolute suppression; the material might not be obscene as to adults. Regulation of speech that is obscene as to children but that adults are constitutionally entitled to hear would present difficult problems of accommodation, problems that the Commission has not squarely faced because of its assumption that its broad regulation of indecent speech is constitutional.20
In sum, the tight limits on obscenity regulation carefully formulated by the Supreme Court in Miller have been thoroughly disregarded. The Commission’s definition can be affirmed only if, as it alternatively argues, there exists an additional category of offensive speech that is unprotected when broadcast.
III.
According to the Commission, certain qualities unique to the broadcast medium justify suppression of otherwise constitutionally protected speech.21 Conceptually, the Commission’s claim is that speech meeting its definition of “indecent” constitutes, when broadcast, an additional, previously unrecognized category of unprotected speech.22 No single Supreme Court decision *25directly forecloses this argument. However, considerable guidance is contained in the several opinions in which the court has considered conceptually similar justifications. All of the relevant case law directly opposes the action under review.
A. Offensive speech may offend the privacy interests of unconsenting adults in their homes
Two of the characteristics cited by the Commission are so closely intertwined that they should be considered together. The Commission fears that “unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast.” It then observes that radio receivers are typically found in the home, where privacy interests are especially high, citing Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). Since warnings can be aired prior to the broadcast of offensive material, the Commission evidently believes an adult listener should be able to indiscriminately scan the dial without chancing upon a program, even momentarily, he finds offensive.23
“The plain, if at times disquieting, truth is that in our pluralistic society, constantly proliferating new and ingenious forms of expression, ‘we are inescapably captive audiences for many purposes.’ ” Erznoznik v. City of Jacksonville, 422 U.S. 205-210, 95 S.Ct. 2268, 2273 (1974). Nevertheless, the Supreme Court has consistently held that the First Amendment generally prohibits government from “cleans[ing] public debate to the point where it is gramatically palatable to the most squeamish among us.” Cohen, 403 U.S. at 25, 91 S.Ct. at 1788. In Erznoznik, for example, the Court held that a city ordinance banning the showing of movies containing nudity on drive-in screens visible from the street could not be *26upheld in order to protect the sensibilities of involuntary passers-by. The Court said those who were offended could simply “avert their eyes.” 422 U.S. at 211, 212, 95 S.Ct. 2268. Similarly, in Cohen, supra n. 22, the Court held that offensive language could not be proscribed to protect the sensibilities of persons who might involuntarily be exposed to it:
[T]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.
403 U.S. at 23-34, 91 S.Ct. at 1786.
In Cohen, as in Erznoznik, the Court held the invasion on the privacy of unwilling viewers was not “intolerable” because of their ability to avert their eyes.
The Commission evidently believes that radio broadcast of offensive language constitutes an “intolerable invasion of substantial privacy interests.” Radio waves are, as the Commission suggests, “intrusive” in some sense. They are “in the air” whether we like it or not.24 But radio waves are not intrusive in the same sense as “raucous emissions of sound trucks blaring outside . residences,” which was cited as an example of an “intolerable invasion” in Cohen, 403 U.S. at 21, 91 S.Ct. at 1786.25 Unlike the sound truck whose noise cannot be eliminated from the home even if desired, radio makes no sound unless a person voluntarily purchases it, bring it home and then switches it “on.” Having done these things, having elected to receive public air waves, the scanner who stumbles onto an offensive program is in the same position as the unsuspecting passers-by in Cohen and Erznoznik; he can avert his attention by changing channels or turning off the set.26
There is language in Cohen, however, “that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, e. g. Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970).” 403 U.S. at 21, 91 S.Ct. at 1786. Although relied on by the Commission, Rowan does not in fact justify its Order. As the enunciation of the relevant test, citation of Rowan, and discussion of examples in Cohen suggest, id. at 21-22, 91 S.Ct. 1780, the location of the *27unwilling listener is only one factor to be considered in determining whether speech is protected. Although a person can claim a greater privacy interest when at home, that interest is reduced when he “opens up his home” by turning on the radio. Indeed, when walking on the street one rarely receives prior warning of an offensive conversation.
Furthermore, the Commission’s action is of an entirely different nature than that upheld in Rowan. There the Court upheld the constitutionality of a statute which enabled a person to require that a mailer remove his name from its mailing lists and stop all future mailings to the householder.27 Rowan enables a person who is offended by mail sent from a certáin source to avoid further offense from that source. This privacy interest is similar to that naturally enjoyed by the radio listener — the right not to listen to stations he finds offensive. The Rowan Court noted that similarity of these interests when it wrote that invalidating the statute,
would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home.
397 U.S. at 737, 90 S.Ct. at 1490. More importantly, as the Rowan Court noted, by empowering the homeowner to determine what mail he will not receive, Congress avoided the Constitutional problems involved in “vesting the power to make any discretionary evaluation of the material in a governmental official.” Id. The Commission, by assuming this very power, has gone well beyond Rowan.
B. Presence of Children in the Radio Audience
The argument advanced most strenuously by the Commission is that the ban on “dirty words” is necessary to prevent “the exposure of children to language which most parents regard as inappropriate for them to hear.” 51 F.C.C.2d at 433. The Commission theorizes that regulation is necessary because parents will frequently be unable to shield their children from such programming. No one would dispute that there is a public interest in stations airing programming suitable for children or that government has greater power to regulate speech aimed at children than speech aimed at adults, Ginsberg v. New York, supra. However, it does not follow that the regulation under review is permissible.
First of all, the Commission incorrectly assumes that material regulatable for children can be banned from broadcast.28 In Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957), the Court invalidated a state statute that absolutely banned the publication, sale or distribution of reading materials inappropriate for children. The Court said,
The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual . . that history has attested as the indispensable conditions for the maintenance and progress of a free society.
352 U.S. at 383-84, 77 S.Ct. at 526.
The Commission’s Order has substantially the same effect. Adults with normal sleeping habits will be limited to programs “fit for children.” Should the Commission choose to regulate variable obscenity in the future, it must accommodate the right of government to regulate material that is obscene as to children with the rights of adults to hear speech protected as to them. If the Commission finds it impractical to accommodate these interests, any regulation must err on the side of under- rather than over-regulation. Any harm from under-regulation may be minimized by pre*28program warnings and parental supervision. Any harm from over-regulation, on the other hand, is irremediable.
In any event the Commission has not shown that the proposed regulation is permissible even with respect to children. Its position is based on several undocumented assumptions. The most basic assumption is that most parents consider any mention of dirty words to be unsuitable for their children. On top of this, the Commission assumes that parents frequently are unable to control their children’s listening habits. A critical additional assumption (which I find difficult to accept) is that parents are less able to control their children’s access to television and radio than to such media as books and newspapers. If this assumption is unfounded, then the major support for the Commission’s argument that radio-TV should be distinguished from other media for speech regulation purposes is groundless.
Moreover, even if valid, those assumptions do not validate the Order since it rests on the premise that the Commission may censor material found by parents to be objectionable for their children. This unprecedented assumption29 “seems inherently boundless,” Cohen, 403 U.S. at 25, 91 S.Ct. 1780. Parents might also wish to shield their children from programs advancing controversial political or religious beliefs or programs discussing difficult contemporary problems such as abortion. If the Commission can act in loco parentis by banning dirty words because they are objectionable, then the same logic justifies a ban on these and other types of programs.
Many parents believe — and perhaps rightly so — that children should not hear programs containing dirty words, and they may, of course, prevent their children from doing so. However, the Constitution limits the government’s power to select programming for children. Although government may adopt more stringent controls with respect to children than adults on the theory that children lack the full capacity for choice that is the presupposition of First Amendment guarantees, Ginsberg v. New York, supra, esp. (Stewart, J. concurring), 390 U.S. at 649-50, 88 S.Ct. at 1285, “[mjinors are entitled to a significant measure of First Amendment protection . and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” Erznoznik, supra, 422 U.S. at 212, 95 S.Ct. at 2274. See also Tinker v. Des Moines School Disk, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). In fact,
Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable.
Erznoznik, 422 U.S. at 213-14, 95 S.Ct. at 2275.
Thus the Order is clearly overbroad insofar as it is based on protection of children. As noted above, see text and note at note 19 supra, the Commission cannot plausibly claim that speech meeting its definition of “indecent” satisfies the constitutional test of obscenity, even as adjusted for children. In order to find that dirty words were obscene as to children, the Commission would at least have to find that their use, in context, appeals to youthful prurient interest. This has not been done and, frankly, I do not see how individual words could ever be found obscene, even as to children.30
*29Nor can this broad restriction be justified by any other governmental interest pertaining to minors. In fact, the Commission’s motivation in protecting children from dirty words is essentially that which Erznoznik forbids, namely a desire to shield children from what the legislature deems offensive.
In reaching this conclusion, I am not championing the “cause” of indecent speech. The use of dirty words on the air, like the prevalence of violence, is a serious concern. Without a heightened sensitivity of the media, the pressure on First Amendment values will continue to grow. Violence in programming, however, may be more objectionable than the use of off-colored language; after all, children do not learn to kill each other with dirty words. Nevertheless, the Commission recently refused to ban violence on television, citing First Amendment concerns. Report on the Broadcast of Violent, Indecent, and Obscene Material, 51 F.C.C.2d 418, 420 (1975).
C. Scarcity of Spectrum Space
The final feature of broadcasting relied .on by the Commission is the natural scarcity of broadcast channels. This reliance is misplaced. The ban on censorship in 47 U.S.C. § 326 reflects a Congressional judgment that scarcity does not justify content regulation. Indeed, although scarcity has justified increasing the diversity of speakers and speech, it has never been held to justify censorship.
The Commission relies on Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), where the Supreme Court upheld the constitutionality of the personal attack and political editorializing portions of the Commission’s fairness doctrine. There the Court balanced the interests of broadcasters in freedom from control against the public’s right to receive diverse viewpoints on matters of political importance. In this case, on the other hand, there is no divergence of First Amendment interests. The broadcasters’ interest in freedom from content regulation is not incompatible with each member of the broadcast audience’s interest in selecting his own programs and perhaps thereby attempting to influence the broadcaster’s offerings. In fact, the Red Lion Court anticipated this situation when it wrote:
There is no question here of the Commission’s refusal to permit the broadcaster to carry a particular program or to punish his own views; ... of government censorship of a particular program contrary to § 326; or of the official government view dominating public broadcasting. Such questions would raise more serious First Amendment issues.
395 U.S. at 396, 89 S.Ct. at 1810.
D. Miscellaneous Justifications
The Commission also advances several subsidiary justifications for its action that are easily put aside. First, as Judge Tamm observes, the fear that filth will flood the airwaves without Commission regulation ignores economics. Popular tastes should be sufficient to ensure that the populace is not inundated with programming it finds objectionable.
Nor can the Commission’s actions rest on its statutory obligation to promote the larger and more effective use of radio in the public interest. 47 U.S.C. § 303(g). The Commission’s statutory authority is not superior to the First Amendment. At most, specific components of the public interest can be relied on, as the Commission sought to do, to justify modifications in established First Amendment principles.
*30Finally, support for the Commission’s action cannot be found in the fact government could have denied the public access to the airwaves altogether. I have long found such an argument puzzling. See Brandy-wine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305,473 F.2d 16, 67-68 (Bazelon, C. J., dissenting); Emerson, The System of Freedom of Expression, 660-61 (1970). Government also owns parkland and other facilities commonly used as public fora. Although the government may, in certain circumstances, forbid the use of certain locations altogether for public dialogue, any regulation it employs once it opens up a particular location for speech purposes must be content neutral. Police Dept, of City of Chicago v. Mosley, supra; Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).
CONCLUSION
The impact of television31 and radio has grown at an astonishing rate, and broadcasting promises to become by far the most influential medium; of communications in our society. As its power continues to grow, preservation of free speech will hinge largely on zealously protecting broadcasting from censorship. As Chief Justice Warren once observed, the impact of a particular medium constitutes no basis for subjecting that medium to greater suppression:
This is the traditional argument made in the censor’s behalf; this is the argument advanced against newspapers at the time of the invention of the printing press. The argument was ultimately rejected in England, and has consistently been held to be contrary to our Constitution. No compelling reason has been predicated for accepting the contention now.
Times Film Corp. v. City of Chicago, 365 U.S. 43, 77, 81 S.Ct. 391, 409, 5 L.Ed.2d 403 (1969) (Warren, C. J., dissenting).
. Unfortunately, I am unable to agree with Judge Tamm’s related conclusion that the Commission customarily honors the limitations on its authority to regulate constitutionally protected speech. See WUHY-FM, 24 F.C.C.2d 408 (1970); Palmetto Broadcasting Co., 33 F.C.C. 250 (1962), recon. denied, 34 F.C.C. 101 (1963) , affirmed on other grounds sub nom. Robinson v. FCC, 118 U.S.App.D.C. 144, 334 F.2d 534, cert. denied, 379 U.S. 843, 85 S.Ct. 84, 13 L.Ed.2d 49 (1964). See also Armond J. Rolle, 31 F.C.C.2d 533 (1970); the “raised eyebrow” harassment of KRAB-FM in Jack Straw Mem. Foundation, 21 F.C.C.2d 833, hearing ordered on recon., 24 F.C.C.2d 266 (1970), license renewed, 29 F.C.C.2d 334 (1971); Mile High Stations, Inc., 28 F.C.C. 795 (1960); WREC Broadcasting Service, 19 F.C.C. 1082 (1955); Note, Filthy Words, the FCC and the First Amendment: Regulating Broadcast Obscenity, 61 Va.L.Rev. 579 (1975); Note, Offensive Speech and the FCC, 79 Yale L.J. 1343, 1349, 1359-68 (1970), and cases cited. Ironically, one case where the Commission honored the limitations on its authority involved the same licensee, Pacifica Foundation, 36 F.C.C. 147 (1964) .
. The ban is not limited to words “as broadcast,” as the dissenter asserts, (draft at p. 1-2), for the Order provides that language that is indecent under the Commission’s standard may never be broadcast when children are likely to be listening. Instead of merely considering the words “as broadcast,” the Commission adopted a legislative-type rule which it then applied to the facts of the case. As the Commission itself noted, it issued a declaratory order in this case because such a procedure is “admirably suited to terminatfing] the present controversy . . and to clarifying] the standards which the Commission utilizes to judge ‘indecent language.’ ” 51 F.C.C.2d at 434. It is true, though, that the adopted rule may not be applied at all times. During the late night hours, the Order cryptically states, a “different standard might conceivably be used.” 51 F.C.C.2d at 433 (emphasis added). The Order does not specify at what time the number of children in the audience will be sufficiently low to permit use of a relaxed standard. However, the Commission’s own statistics show that in Washington, D. C., teenagers comprise 14.1 percent between 11:00 p. m. and midnight. In re WUHY-FM, 24 F.C.C.2d 408, 411 n. 6 (1970).
The Commission also found that in New York and Los Angeles, children of ages 11-17 comprise 13 percent of the 9:00 to 11:00 p. m. television audience, while those 6-11 comprise 5 percent. Id. This vagueness supports invalidation, not affirmation of the Commission’s action.
The dissent recognizes that the Commission cannot constitutionally apply its rule at night when parents can supervise their children. (Dissenting draft at 10-11.) Under this logic, a similar conclusion would presumably be required when children are in school, possibly except during lunch hour and recess. The Carlin monologue was broadcast at 2:00 p. m. on Tuesday, October 30. Order at 431.
. The Commission relies on Williams v. District of Columbia, 136 U.S.App.D.C. 56, 419 F.2d 638 (1969), and Von Sleichter v. United States, 153 U.S.App.D.C. 169, 472 F.2d 1244 (1972), for the proposition that regulation of offensive language should be governed by principles analogous to nuisance law. To the extent these cases permit a “nuisance” statute which proscribes words not obscene under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), see text accompanying notes 7-9, infra, I think they are overruled by Lewis v. City of New Orleans, 415 U.S. 130, 134, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), and Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). In any event, the Commission misapprehends the meaning of “nuisance” as used in those cases. Williams and Von Sleichter do not hold that offensive words are a nuisance per se that can therefore be regulated. Rather, they relied heavily on the context in which the words were uttered, distinguishing the case of a stone-mason who, after dropping a stone on his foot, utters swear-words that can publicly be heard, from the case of a person who verbally, rather than physically, assaults a person in a public place.
. The Senate Report regarding the 1948 amendment to § 326 states:
[S]ection 326 . . . makes clear that the Commission has absolutely no power of censorship over radio communications and that it cannot impose any regulation or condition which would interfere with the right of free speech by radio.
S.Rep.No.1567, 80th Cong., 2d Sess. 13014 (1948) (emphasis added).
. Amicus curiae, Committee for Open Media, San Francisco Chapter, asserts that roughly one-half of the nation’s AM licensees (2,294 out of 4,488) operate only during the daytime. (Am.Br. at 18.)
. If material could only be shown after midnight, it would be missed by many people who have already gone to sleep. According to Nielsen, 70 percent of television households watch television between 9:00 and 10:00 p. m., 46 percent at 11:00 p. m., and 25 percent at midnight. Nielsen Television, 1975, p. 7.
. It is not entirely clear that the Commission is authorized to impose a forfeiture under § 503(b)(1) without a prior jury determination that § 1464 has been violated. The Illinois Citizens Committee court did not reach that issue. That appeal had been brought by a citizen group, rather than the fined licensee, and the court concluded the group lacked standing to raise the issue. 515 F.2d at 403 n. 13. The issue was not urged on this appeal. I merely note in passing that originally, the FCC was given enforcement powers over obscene broadcasts. See Duncan v. United States, 48 F.2d 128 (9th Cir.), cert. denied, 283 U.S. 863, 51 S.Ct. 656, 75 L.Ed. 1468 (1931). In 1948, the prohibition on obscene broadcasts was moved to Title 18 and nothing in Title 47 authorized the FCC to consider obscenity in a forfeiture proceeding. In 1960 Congress added § 503 to Title 47, Public Law 86-752, 74 Stat. 889. It was not stated whether the FCC was to have coordinate enforcement power with the Department of Justice. In any event, imposition of a fine would have been preferable to the “raised eyebrow” tactic the Commission used here. The chilling effect of “associating” a finding of violation and threatening future unmentioned sanctions if the licensee’s behavior does not improve is unmeasurable.
. Although the Commission evidently assumes that § 1464 authorizes it to assert control over speech that would be forbidden in other media, 51 F.C.C.2d at 432, neither the text nor the legislative history of § 1464 supports this view. But regardless of Congress’ intent in passing § 1464, the grant of power to the FCC cannot exceed the bounds of the First Amendment. I will assume that the First Amendment sometimes may permit government to regulate broadcast speech more tightly than other speech, and that § 1464 empowers the Commission to assert the maximum amount of control over offensive speech permitted by the Constitution. On these assumptions it is not necessary to define all the modifications, assuming there are any, in traditional First Amendment principles that may be justified by the unique character of broadcasting. It is only necessary to determine whether the additional regulation embodied in the Commission’s definition of “indecent” is permissible.
. The fourth prong represents the major departure from prior case law. Previously, proof of obscenity required establishing that the material was “utterly without redeeming social value,” Memoirs v. Massachusetts, 383 U.S. 413, 419, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). The Miller majority abandoned this strict test on the ground that it required the prosecution to do the impossible, namely, to prove a negative. 413 U.S. at 22, 93 S.Ct. 2607.
. The Miller framework was followed in companion cases to assess the validity of federal regulation, United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973).
. To guide legislatures, the Court suggested two definitions of conduct that would satisfy the “patent offensiveness” prong of the test. The examples are:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
413 U.S. at 25, 93 S.Ct. at 2615. Judge Leventhal asserts that by including these examples *22the Miller Court was authorizing “a stretch of the prohibition to go beyond the lewd obscene to the excretory indecent.” (Dissenting draft at 4). This was not the Court’s intent. Just one paragraph before it offered these examples of patently offensive behavior, the Court explicitly held that the standards for measuring obscenity are conjunctive — all must be met to suppress speech. By giving flesh to the meaning of “patent offensiveness,” the Court was not abandoning this holding.
. In constitutional interpretation the customary deference to agency regulations is inappropriate. See e. g. National Broadcasting Co., Inc. v. FCC, 170 U.S.App.D.C. 173, 516 F.2d 1101 (1974).
. The Commission also cited Illinois Citizens Committee, supra, as a case that compelled reconsideration of an earlier definition of indecency. However, that case simply involved judicial review under Miller, the court expressly refusing to consider the constitutionality of that definition and application of the term “indecent.” 515 F.2d at 403-04, n. 14.
. The Supreme Court has never definitively explained the justification for regulation of obscenity. Professor Kalven listed five possible justifications, all of which he found troubling;
(1) the incitement to antisocial sexual conduct; (2) psychological excitement resulting from sexual imagery; (3) the arousing of feelings of disgust and revulsion; (4) the advocacy of improper sexual values; and (5) the impact of obscenity on character and hence, slowly and remotely, on conduct.
Kalven, Metaphysics of the Law of Obscenity, 1960 S.Ct.Rev., 1. Little would be served by charting the history of the Supreme Court’s acceptance or rejection of these and conceptually similar concerns. All that bears noting is the similarity of the Commission’s fears regarding unregulated indecent speech:
Obnoxious, gutter language describing these matters [sexual and excretory activities or organs] has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions. .
51 F.C.C.2d at 433. The Commission offered no empirical support for this proposition.
. Although a jury verdict is evidently not required in obscenity cases in general, Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973); Illinois Citizens Committee, supra, 515 F.2d at 406, it would seem to be an exceptionally sturdy mechanism for soliciting community standards.
. I seriously doubt, in any event, that letters of complaint would provide reliable guidance as to what offends national standards of obscenity. Since a person is more apt to write a letter concerning a broadcast he finds offensive than one he does not, even a significant number of complaints might only reveal the sentiments of only a small minority of viewers.
. Carlin’s use of the “dirty words” was designed in part to demonstrate that they have acquired many popular meanings, apart from their literal meanings. For example, the phrase “I’m shit-faced” has nothing to do with an excretory activity or organ. It means, “I am drunk.” The irony of the Order is that non-“obnoxious” synonyms for the dirty words (such as “feces” for “shit”) are not banned even though such synonyms are only understood in their literal, “obnoxious,” sense.
. Judge Leventhal argues that judicial review of Commission obscenity determinations compensates for the missing jury because
[¡judicial review would ensure the protection afforded by the Constitution to works professing literary, artistic, political or scientific value.
(dissenting draft at 9). This statement is puzzling because, except possibly during the late night hours, a work containing indecent speech is banned regardless of its social value. 51 F.C.C.2d 433.
. See note 30 infra.
. The Order bans indecent speech whenever it is “reasonably likely” that children will be in the audience, which is all but the late night hours. Consequently, protected speech will not reach all who have a right to hear it, unless they are willing to forego sleep. See Young v. American Mini Theatres, 96 S.Ct. 2453, 2455 (1976) (Powell, J., concurring). See note 30 infra.
. 51 F.C.C.2d at 432. The Commission relied on the following language from Burstyn v. Wilson, 343 U.S. 495, 502-03, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952):
[E]ach method [of expression] tends to present its own peculiar problems.
The Commission evidently concludes from this statement that different First Amendment standards govern regulation of speech in different media. However, the entire passage reads:
[E]ach method tends to present its own peculiar problems. But the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary.
. Supreme Court authority suggests that obscenity is to be the sole category of speech that is unprotected because it may offend the sensibilities of listeners. First of all, the Court’s twenty-year struggle to define obscenity suggests that the Court does not intend to recognize an additional category under a different heading. Furthermore, beginning with Roth, the Court has used the term “obscenity” as a legal short-hand to describe what government may constitutionally regulate under statutes that proscribe, for example, “obscene, lewd, lascivious, or filthy [books] of an indecent character.” Roth, 354 U.S. at 476, n. 1, 77 S.Ct. at 1306. See, e. g., Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. 12 200-Ft. Reels of Super 8mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962). Furthermore, there is an abundance of dicta in the Supreme Court’s cases supporting this suggestion.
Miller furnishes several examples:
The States have a legitimate interest in prohibiting dissemination of exhibition of obscene material . . . It is in this context that we are called upon to define the standards which must be used to identify . [what] a State may regulate.
*25413 U.S. at 19-20, 93 S.Ct. at 2612.
We acknowledge, however, the dangers inherent in undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. . . As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct.
Id. at 23-24, 93 S.Ct. at 2614. And:
Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct
Id. at 27, 93 S.Ct. at 2616.
The implication of these and similar statements is that permissible regulation of offensive speech is co-extensive with Miller.
Finally, in several cases, perhaps best represented by Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780,29 L.Ed.2d 284 (1971), the Court has overturned convictions based on offensive speech. In Cohen, a young man was prosecuted for walking through a courthouse wearing a jacket bearing the slogan “fuck the draft” and was convicted under a California statute that proscribed “maliciously and wilfully disturb [ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct.” Finding that the case did not involve obscenity, fighting words, a captive audience or any other category of speech that may be regulated, the Court was squarely faced with the question of whether the state could regulate words simply because they were offensive. The Court stated that offensive language was a necessary side effect of promoting the broader First Amendment value of open-ended debate and that the “principle [of selective suppression] contended for the State seems inherently boundless.” 403 U.S. at 25, 91 S.Ct. at 1788. It concluded that Cohen’s conviction was unconstitutional. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (display of nudity on a drive-in movie screen); Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (utterance of vulgar epithet); Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (utterance of vulgar remark); Papish v. University of Missouri Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (indecent remarks in campus newspaper); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (utterance of racial slurs); or Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (alluring portrayal of adultery as proper behavior). Cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), where a majority of the Court did not endorse the proposition that offensive though non-obscene expression may be regulated in some ways if not altogether banned.
. According to the Commission, millions scan the dial every day. Sonderling Broadcasting Corp., 27 P&F RR 2d 285, 288, recon. denied 41 F.C.C.2d 777 (1973), affirmed sub nom. Illinois Citizens Committee for Broadcasting, supra; . WUHY-FM, Eastern Educ. Radio. 24 F.C.C.2d 408, 411 (1970).
. In its brief, the Commission quotes the following language from my opinion in Banzhaf v. FCC for the proposition that broadcast audience are “captive”:
Written messages are not communicated unless they are read; and reading requires an affirmative act. Broadcast messages, in contrast, are ‘in the air.’
132 U.S.App.D.C. 14, 405 F.2d 1082, 1100-1101 (1968), cert, denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969).
Banzhaf, however, is totally inapposite. The Banzhaf court relied squarely on the announced policy of both the executive and legislative departments, which were themselves based on convincing evidence, that cigarettes are carcinogens. Hence the court weighed a relatively minor intrusion on free speech against an officially documented threat against life itself, 405 F.2d at 1097-99. Furthermore, the case was not based on a captive audience rationale; the court merely suggested that a television viewer must make an affirmative effort to disregard the commercial interruptions on a program he is watching. Id. at 1100.
. The Court has in other cases added that while it is permissible to regulate the raucous emissions of sound trucks on the theory that people are entitled to have the tranquility and privacy of their homes protected from intrusions which they are themselves powerless to prevent, governmental regulation of the “time, place and manner” of expression must be content-neutral. Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Erznoznik, supra; Shuttlesworth v. City of Birmingahm, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948); Martin v. City of Struthers, 319 U.S. 141, 151, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) (Murphy, J., concurring).
. In Lehman v. City of Shaker Heights, 418 U.S. 298, 302, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974), the Court noted, “The radio can be turned off, but not so the billboard or street car placard,” quoting Packer Corporation v. Utah, 285 U.S. 105, 110, 52 S.Ct. 273, 76 L.Ed. 643 (1932).
. 39 U.S.C. § 4009 (1964 ed., Supp. IV).
. Since the Order only states that a more relaxed standard “might conceivably be used” during the late night hours, see note 2 supra, I assume the Commission believes it could impose an absolute ban. Nevertheless, for the rest of this paragraph I will assume the Commission will allow “indecent” speech to be aired late at night.
. The Commission improperly relies upon Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), where the Supreme Court held that an Amish parent’s decision not to send his children to secondary school for religious reasons was constitutionally protected. Yoder recognizes that parents are entitled to make certain decisions respecting their children. This interest is infringed rather than promoted by the Commission’s Order which replaces parental authority with governmental authority.
. Ginsberg v. New York, supra, which established the principle that obscenity could be assessed in relation to children, was decided before Miller. In Erznoznik the Court observed it had not had occasion to determine the effect of Miller on Ginsberg. However, the Court stated that not all nudity could be regarded as obscene as to children, because to be obscene *29expression must be in some way erotic. 422 U.S. at 213, n. 10, 95 S.Ct. 2268. This statement implies that a finding of variable obscenity requires at least that the offensive material be judged in context and found to be prurient. In fact, there is language in Miller suggesting that the presence of children does not justify any additional regulation of speech:
This Court has recognized that the States have a legitimate interest in prohibiting dissemination of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. (Cites omitted). It is in this context, that we are called on to define the standards which must be used to identify obscene material that a State may regulate . . .
413 U.S. at 19-20, 93 S.Ct. at 2612 (emphasis added).
. The Commission construes § 1464 as applying to spoken words that are broadcast. Thus § 1464 applies to television dialogue. The Commission has asked Congress to update the statute to refer explicitly to video depiction. Report on VioIen[ce], supra, 51 F.C.C.2d at 424.