FCC v. Fox Television Stations, Part I: The Late, Great George Carlin.
"I've also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** 'em." That's Cher, during the 2002 Billboard Music Awards, aired live on Fox. And here's Nicole Richie in the 2003 Billboard Music Awards, also aired on Fox: "Why do they even call it 'The Simple Life'? Have you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple."
Viewers complained to the Federal Communications Commission, and in 2006, the FCC issued Notices of Apparent Liability for these two broadcasts and others, in which it explained that the expletives at issue were indecent. This was a change of course for the FCC, which previously hadn't gone after isolated expletives.
On Tuesday, the Supreme Court released its opinion in FCC v. Fox Television Stations, upholding this change of policy against an administrative-law challenge. Scalia wrote the opinion, and the quotes above, including the asterisks, are courtesy of him. (There's a First Amendment challenge in there somewhere, but the Court didn't reach it this time around.)
This is a potentially important administrative law case; Jonathan Adler has already blogged about the effects of the ruling on the Obama Administration's regulatory initiatives, and Eugene has blogged about Scalia's use of "glitteratae" and F-Word capitalization. I've decided to put up a series of posts giving the Deep Background of the case, from the original FCC policy and its litigation to the new FCC policy and its litigation, taking a detour through administrative law along the way to check out the standards for judging administrative agencies' changes of course. This will help to evaluate the various opinions in the Fox Television case.
So we'll begin in 1972, when the late, great George Carlin delivered his "Seven Words You Can Never Say on Television" routine. The live monologue appeared on his 1972 album Class Clown and, in revised form, on his 1973 album Occupation: Foole. (The 1973 version was recorded live at the now-defunct Circle Star Theater in San Carlos, California.) You can read a transcript of the routine here, and learn not only the seven words, but also the three auxiliary words! You can also watch similar versions of the monologue, say, here or here. I find it a bit over the top, but it definitely has funny bits, especially when you're not just reading the transcript.
On October 30, 1973, the monologue was played on a 2 p.m. broadcast of the radio show "Lunch Pail," hosted by Paul Gorman, on WBAI radio, 99.5 FM, a Pacifica affiliate in New York City. About five weeks later, the FCC gets a complaint from a New Yorker who heard the broadcast in the company of his young son. In response to the complaint, the radio station responded:
George Carlin is a significant social satirist of American manners and language in the tradition of Mark Twain and Mort Sahl. Like Twain, Carlin finds his material in our most ordinary habits and language—particularly those “secret” manners and words which, when held before us for the first time, show us new images of ourselves. . . . Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words.
As with other great satirists—from Jonathan Swift to Mort Sahl—George Carlin often grabs our attention by speaking the unspeakable, by shocking in order to illuminate. Because he is a true artist in his field, we are of the opinion that the inclusion of the material broadcast in a program devoted to an analysis of the use of language in contemporary society was natural and contributed to a further understanding on the subject.
All this talk about Mort Sahl apparently didn't satisfy the FCC, which gets to administer the
Communications Act of 1934. On the one hand, they can't censor us, because
section 326, now at 47 U.S.C. § 326, says:
Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.
This was taken pretty much verbatim from the 1927 Radio Act. On the other hand, what Congress giveth with one hand, Congress taketh partly away in the very next sentence of the 1927 Act:
No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication.
That language carried over into the 1934 Act, and in 1948 was transferred, together with penalty provisions, into a separate section, which is now at
18 U.S.C. § 1464:
Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.
So these two sections, 47 U.S.C. § 326 and 18 U.S.C. § 1464, are what the FCC had to work with. In its 1975 opinion relating to the citizen's complaint against WBAI over the Carlin monologue (you can get this at 56 F.C.C.2d 94 if you have Westlaw), the FCC explained that, because of the unique characteristics of the broadcast medium, more regulation is justified than, say, if this were print. Here are their four main arguments (citations omitted):
Broadcasting requires special treatment because of four important considerations:
- children have access to radios and in many cases are unsupervised by parents;
- radio receivers are in the home, a place where people's privacy interest is entitled to extra deference;
- unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast;
- there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest. Of special concern to the Commission as well as parents is the first point regarding the use of radio by children.
Whoa!, I hear the libertarians in the audience saying.
Kids can listen to radio?
Without adult supervision? These evil radio companies are forcing their products
into people's homes, where we're
forced to listen to them? We might tune into a station
without our consent? Unlike every other good in the economy, spectrum space is
scarce???
Indeed. I agree that we ought to smash the FCC. (This is not a call to violence, boys and girls; let's just smash it through legal means like getting Red Lion overruled, or repealing the offending parts of the Communications Act, or eviscerating the agency through other means.) But that's not important right now.
The FCC went on to interpret the word "indecent" in section 1464, and decided that it's not the same as "obscene" — the radio station had argued that, because the Carlin monologue was concededly not obscene, it didn't fall within the indecency prohibition. The FCC's concept of indecent was the following (paragraph breaks added, citations omitted):
[T]he concept of "indecent" is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.
Obnoxious, gutter language describing these matters has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions, and we believe that such words are indecent within the meaning of the statute and have no place on radio when children are in the audience.
In our view, indecent language is distinguished from obscene language in that (1) it lacks the element of appeal to the prurient interest, and that (2) when children may be in the audience, it cannot be redeemed by a claim that it has literary, artistic, political or scientific value.
Note, in particular, that "indecency" is defined partly with regard to the audience, so the exact same monologue broadcast at midnight wouldn't be indecent. You could imagine a definition where "indecency" wouldn't depend on the audience, but you could consider the composition of the audience in determining how indecency would be regulated; but the FCC decided to adopt a definition where the audience was part of the very concept.
So what was the result for the radio station itself? Nothing direct:
No sanctions will be imposed in connection with this controversy, which has been utilized to clarify the applicable standards. However, this order will be associated with the station's license file, and in the event that subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress [(e.g., license revocation or fines)].
The opinion is followed by a verbatim transcript of the monologue; a concurrence by
Charlotte T. Reid and one by
James H. Quello, each expressing the view that the broadcast would have been inappropriate at any time, even in the dead of night; and a concurrence by Glen O. Robinson, joined by
Benjamin Hooks.
The Robinson concurrence stressed the First Amendment implications of the decision and urged a narrow reading of the statute under which offensive speech could be regulated "to the extent it constitutes a public nuisance," i.e., if it's "purveyed widely, publicly, and indiscriminately in such a manner that it cannot be avoided without significantly inconveniencing people or infringing on their right to choose what they will see and hear." How does this differ from the main opinion? Apparently Robinson was unwilling to go further than requiring either nighttime broadcasts or "suitable measures . . . to warn adults that possibly offensive programming is about to be presented."
Well, there's the FCC's 1975 ruling on the Carlin broadcast. Next time, we'll see what the Supreme Court did with this three years later in FCC v. Pacifica.
UPDATE: I've corrected WBAI's frequency.
The difficulty is that children are not adults, duh, and a mode of social behaviour constructed to work well for adults doesn't work well for children, any more than a system of cash rewards that works well for laborers ("$20 extra if you plow this next quarter acre in 10 minutes!") would work equally well for a team of draft horses.
It's necessary for children to begin, when young, with a degree of trust in parents and adults that is wholly unjustified by the facts available to them. Nothing else is safe, because nothing else gets them to obey strictures ("Don't run in the street to get the ball!") that don't, according to their own (immature) reasoning, make sense.
Part of the problem with obscenity is that it's offensive to parents (if it weren't, George Carlin wouldn't say it), but we demand they tolerate it anyway. For the child, this brings several difficult propositions into play: (1) Mom &Dad are right about everything (of course), but their values aren't the world's values, which raises the scary proposition that Mom &Dad might not actually be all-powerful, they might not be able to protect me against the monsters under the bed. (2) Mom &Dad are right about everything, but some other adults are wrong. Uh oh, how do I know which other adults are OK? Is Miss Foobar at kindergarten trustable? Maybe I shouldn't listen to her when she tells me not to go down the slide at midday because I'll burn myself on the hot metal.
To be sure, as the child grows, it is also necessary for the parents to gradually and steadily expose him to the complexities of real life. For the child to learn that Mom &Dad are not all-powerful, that not all adults are to be trusted, that the 100% perfect moral code has not yet been worked out and put in place. But the key word here is "gradually." You can't do it at age 3, and you can't even do all of it until at least, say, age 15 or 16, when the madness of the early hormone years subsides.
What makes parents grit their teeth about radio and TV, or latterly video games and YouTube, in particular, when (as the libertarians routinely point out) they cope OK with the neighbor peeping Tom, or Uncle Frim with a foul mouth when drunk, et cetera? Hypocrisy? I don't think so. I think it's more that these are (or were at the time of the controversies) new modes of communication, or at least modes being used in new ways. As such they were socially exciting, in the news, widely discussed and attended to, what in the context of pool-fencing laws are called "attractive nuisances" to children. The parents are, in essence, asking for the owners of the attractive nuisance to bear some of the cost and constraint of putting up the necessary fence.
To be noticed is that in 2009, when broadcast of "antiestablishment" comedy rants is as commonplace (and interesting) as crabgrass, the complaint is heard less often. Parents complain about other stuff, whatever is now the "attractive nuisance."
Personally, as someone who treasures the First Amendment, I would have Carlin's silly little monologue suppressed. A freedom that is fundamentally scary and threatening to people, as free speech is, should be used sparingly, lest gratuitous use provoke backlash. Part of the continual failure of libertarianism to take general hold is the curious belief among many libertarians that people in general will be forced by some internal-consistency circuitry to accept propositions that are logically consistent and well-argued -- but which are emotionally repellent. Turns out that's not how people work.
You propose active suppression of speech because you and/or others find it offensive. Such a rule would encourage, if not require, endless censorship.
Also, saying that you treasure the First Amendment so much that you wish to protect it by censoring offensive speech is a non-sequitur.
That's an entirely different issue from whether the government ought to be able to suppress, or to punish, the exercise of that freedom.
You don't treasure it enough.
We've paid for the fence -- every TV has a v-chip at this point and so, by your logic, Family Guy should be able to use the word "fuck" and show frontal nudity. It's rated MA (the highest rating) after all.
I've paid for my fence give me my goddamned obscenity!
In essence, they want to be everyone's mother.
Yes, maybe watching George Carlin [or whatever] is "bad" for a 5-year old child, but maybe what's really bad is that the 5-year old child is watching trash TV at 11 o'clock at night.
This kind of censorship does nothing to benefit the education or morals or wellbeing of children.
You leave insufficient latitude for those who do not treasure it.
THANK YOU. As a parent, allow me to also point out that - quite apart from the V-chip and the control mechanisms on cable - leaving one's children alone in front of the television is one's own choice. If you do not like what is on TV, don't let your kids watch without supervision. If you have too many children to keep an eye on, that was your choice.
I do not say this lightly nor on the basis of any simplistic ideology. Of course, our cultural situation is such that kids often 'will' be left in front of the TV on their own. But there is no reason that parents should acquiesce in that. And, true, it is difficult to restrict what younger children watch when their older siblings are in control of the remote. But, again, parents can set rules for the older children, as well as the younger. Simply pointing out to my daughter that her much younger brother was watching ‘X’ got her to change her viewing habits when he was around.
Look, I am disgusted by much that is on TV these days. Nonetheless, I would rather set limits for my children and counsel them about what they do watch than have someone else decide what is or is not appropriate for my family.
I can remember when some politicians were arguing that civil rights protests should not be shown on TV because they might be disturbing to [white] children. I am grateful I was able to watch those video reports – with my parents – although they were, indeed, disturbing and still haunt my psyche, today. Really, if I were required to come up with some standards for censorship, ‘vulgarity’ would not be my top priority.
It is difficult under an honest application of this standard, to see how government laws concerning health care could withstand scrutiny. It seems completely irrational, utterly arbitrary, that some people should get sick and die, while other people who logically seem equally suitable for sickness stay healthy. Jogging vegetarians get lung cancer and chain-smokers live to ripe old ages. Nature is utterly arbitrary and capricious at times. If government action truly cannot have arbitrary and capricious motivations, if government can only be permitted to respond to things that the human intellect finds comprehensible, government action motivated by nature's primally arbitrary and incomprehensibly capricious elements, such as sickness, death, and disaster, could not stand.
Are human emotions natural phenomena? Should they be regarded as natural phenomena? When we find a conflict between our emotional nature and how we might want things to be if it didn't exist, should we try to change our emotional makeup to comport with what we think it ought to be, or we sometimes accept our emotional makeup as part of what ties us to the rest of the biological world and live accordingly? Justice Stephens has a clear answer to the question of course. But is he right? And what authority does he have to impose his view?
It is of course part of the nature of our emotional make-up that certain concepts described with primal emotional affect have greater emotional influence than the same concepts described more cerebreally. Perhaps it's not fair or reasonable or just that human beings should live such an existence or have such emotions, just as it may not be fair or just or reasonable that our cerebral life should be interruptible by hunger or disease or death. But why should we, or our government be required to go about simply pretending that those aspects of our lives that strike the more cerebral among us as insufficiently cerebral simply don't exist? Why shouldn't we be permitted to deal with things as they are, and us as we are, independently of whether we think our lives or particular aspects of our lives are or are not rational?
The empirical cannot be simply wished away because one finds it inconvenient. If government has a rational interest in those aspects of human emotions involving indecency, as Justice Stephens concedes, it can rationally address those aspects of our emotions as it empirically finds them: empiricism is a defense to a charge of irrationality. Human life, and human nature, is not always so transcendental. It is not irrational to sometimes accept it and deal with it as one finds it rather than as one may think it rationally ought to be.