Supreme Court Report
Fines, Fox, FCC ... and other F-Words
30 years after ‘7 Words,’ the court hears fleeting expletives
Posted Nov 1, 2008 9:40 PM CST
By John Gibeaut
As a young comedian, George Carlin recognized that even in television’s early days some racy language was liable to wend its way through the airwaves and into viewers’ homes.
But surely TV had its limits, and Carlin set out to test them. First he had to identify the extremes.
“Bastard you can say, and hell and damn,’ so I have to figure out which ones you couldn’t ever,” Carlin told an audience during a 1970s show. “It came down to seven.”
He went on and described his famous “Seven Words You Can Never Say on Television” as “the ones that will curve your spine [and] grow hair on your hands.”
Carlin and his list became infamous in late 1973 when a New York City radio station played a recording in the middle of the afternoon. That provoked a complaint from a motorist who said he heard the 12-minute piece as he drove with his young son.
The man took his beef to the Federal Communications Commission, which held the broadcast indecent—though not necessarily obscene—calling the language “patently offensive” and noting that it aired at a time when children were likely to be in the audience. The agency threatened the radio station with fines and license revocation if it happened again.
In their 1978 decision FCC v. Pacifica Foundation, the U.S. Supreme Court not only agreed with the FCC’s indecency holding but went on to declare that the agency hadn’t violated the station’s First Amendment right to free speech. Unlike other forms of expression, the court reasoned, uninvited broadcasts over the public airwaves can become unwelcome intruders into people’s homes and are easily accessible to children.
WHEN CELEBS IMPROVISE
Now, 30 years later, the justices have an opportunity to revisit Pacifica in FCC v. Fox Television Stations Inc., scheduled for oral argument in early November. However, instead of ruling on the carefully planned yet vulgarity-laden routines of Carlin and other comics, the justices in Fox are expected to rule on the unscripted and isolated single remarks of expletives by celebrities appearing on awards shows.
The case applies only to broadcast. The FCC has no jurisdiction over cable or satellite transmission, which supplies more than 85 percent of U.S. homes with their video fare.
But with fines having increased tenfold since 2006—to $325,000 per occurrence—the case commands the attention of broadcasters, who once regarded the few and meager fines issued by the FCC as merely the cost of doing business. In the background lies the prospect that Congress one day may merge cable and satellite enforcement with broadcast and hand it all over to the FCC.
“This is serious money, even for these companies,” says Andrew Jay Schwartzman, president and CEO of the Washington, D.C.-based Media Access Project, which advocates in the regulatory agencies and the courts for the right of viewers and speakers to engage in diverse, free-flowing electronic public discourse. He wrote an amicus brief in Fox for the Center for Creative Voices in Media, which represents writers, directors, producers, actors and other creative professionals.
Besides chilling his clients’ speech, an adverse decision could mean disaster for small, community FM radio stations, usually nonprofits supported by donations. “This could put them out of business,” Schwartzman says.
The case before the Supreme Court involves the 2002 and 2003 Billboard Music Awards.
In the 2002 show, singer Cher recalled critics who for decades claimed she was on her way out: “So fuck ’em. I still have a job and they don’t.” The next year, The Simple Life co-stars Nicole Richie and Paris Hilton showed up as presenters. Said Richie: “Why do they even call it The Simple Life? Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
The case arrives at the Supreme Court not as a First Amendment confrontation but as a test of the FCC’s regulatory powers under the Administrative Procedure Act. A split panel of the 2nd U.S. Circuit Court of Appeals at New York City held that the FCC arbitrarily and capriciously tried to enforce a changed position in its self-described “fleeting expletives” policy without adequately informing broadcasters.
In CBS Corp. v. FCC, a second case brought by the FCC suffered a similar demise in July in the Philadelphia-based 3rd Circuit. The ruling erased $550,000 in fines against CBS Corp. in an action involving the exposure of singer Janet Jackson’s breast for 9⁄16 of a second during the 2004 Super Bowl halftime show.
Immediately after Pacifica was decided, the FCC took the Carlin dirty-words bit and held it out as the quintessential example of broadcast indecency—to be accompanied by an enforcement policy expressly limited to the questioned words and directed against only the vilest offenders.
NEW ERA OF ENFORCEMENT
Except for litigation over a late-night window that allowed broadcasters to air adult material when children usually are asleep, things remained calm until the 1990s. The commission continued to view the indecency problem as one chiefly caused by a handful of rogues, such as radio’s Howard Stern. That changed in 2004, when then-FCC Chairman Michael Powell told Congress the agency was about to embark on an aggressive enforcement campaign.
The FCC had plenty of help. By urging their members to complain en masse via e-mail, many conservative religious organizations almost immediately caused significant spikes in the numbers of indecency complaints the agency received. Before 2000, the FCC recorded its annual indecency gripes as negligible. By 2004, the year of the Super Bowl “wardrobe malfunction,” the number climbed to 1.4 million, though critics say the FCC counted many of the complaints more than once.
Meanwhile, the commission began to expand indecency beyond the seven words Carlin initially identified. Though the commission traditionally had considered the contexts in which words were used, it also declared two, fuck and shit, inherently indecent in any setting.
Commissioners also began considering as violations even single, spontaneous outbursts—the fleeting expletives—and counted each utterance as a separate violation. In addition, the FCC has gone beyond a traditional focus on talk radio to examine other broadcast offerings such as television series, live events and even some documentaries.
Current FCC Chairman Kevin J. Martin declined a request for an interview, citing the pending litigation.
However, the 1.3 million-member Parents Television Council favors enforcement. “What we want is a clear set of goalposts,” says Tim Winter, president of the Los Angeles-based organization.
Though the lawyers in the case are sticking with the Administrative Procedure Act issue, which may avoid a wide-ranging but rigid constitutional holding, the PTC has filed an amicus brief that asks the justices to endorse the FCC’s enforcement policy on the same First Amendment grounds that support Pacifica.
Of course, if the court comes out the other way, Winter may find himself sitting down to a big plate of First Amendment jurisprudence crawling with dirty words he’d probably rather not eat.
“Is it risky? Sure,” Winter says, “but it’s better than the muddiness we have now. I’d rather have clarity.”
But others, including former FCC officials, say the commission has allowed pressure groups to dictate its enforcement policy. While courts are supposed to show wide deference to regulatory agencies and their expertise, a dozen former commissioners argue in an amicus brief that the FCC doesn’t merit any slack.
“A determination of what constitutes indecency does not entail any such expertise,” the former commissioners wrote in their brief. “But even if it did, the FCC has not exercised any. It has simply capitulated to public clamor and political pressure. No expertise is involved in reading e-mails sent by angry viewers who want the FCC to act as surrogate parents.”
Carlin died June 22 at age 71. Though Powell described Carlin’s act as “verbal shock treatment,” his muses were simple. In an interview published just after his death, Carlin suggested that critics overestimate the power of words.
“I used to point out that when I was a little boy in the ’40s, I was told to look up to and admire soldiers and sailors, policemen, firemen and athletes,” Carlin told Psychology Today for the magazine’s September-October issue.
“[They] were objects of childhood hero worship. We all know how they talk. So apparently those words don’t corrupt morally.”