Edward Tamm; Judge in FCC Obscenity Case

The appellate court judge who ruled in 1977 that the Federal Communications Commission had overstepped its authority when it banned seven sexual and excretory words from the airwaves, is dead at age 79.

Judge Edward A. Tamm, a former FBI official who was first elevated to the bench in 1948 and became a strong supporter of First Amendment rights, died Sunday of cancer at his home here.

Tamm, a native of St. Paul, Minn., came to Washington in 1928 and graduated from Georgetown University law school two years later.

He joined the FBI in 1930, was appointed assistant director in 1934, and served from 1940 to 1948 as assistant to FBI Director J. Edgar Hoover.

His first judicial appointment was to the U.S. District Court in 1948 and then to the appeals court for the District of Columbia in 1965.

In the well-publicized 1977 case, Tamm set aside an FCC ruling that the seven words, referring to such things as sexual activities and portions of the female anatomy, could not be used by radio and television stations. He wrote that the FCC order carried the agency into the “forbidden realm of censorship.”

The language was on an album by comedian George Carlin and broadcast over New York station WBAI, a non-commercial station licensed by the Pacifica Foundation.

A New York father driving with his young son heard the flurry of obscenities and brought suit.

Pacifica unsuccessfully fought the ban, but Tamm said that the lower court’s ruling would not only prohibit the airing of the record at issue, but also certain of Shakespeare’s plays and portions of the Bible.

Tamm’s decision, however, was overturned by the U.S. Supreme Court in 1978 in a 5-4 ruling that concluded that neither the First Amendment guarantee of free speech or federal law against broadcast censorship barred the FCC from revoking the license of any station that aired epithets during daytime or early evening hours.