The Volokh Conspiracy - 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.

(click here to see the rest of the post)

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.

(click here to hide most of the post)

UPDATE: I've corrected WBAI's frequency.

	[Sasha Volokh, April 30, 2009 at 5:10pm] Trackbacks 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. (click here to see the rest of the post) 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. (click here to hide most of the post) UPDATE: I've corrected WBAI's frequency. Related Posts (on one page): FCC v. Fox Television Stations, Part IV: The FCC's new standards in action. FCC v. Fox Television Stations, Part III: Bono and the FCC's change of course. FCC v. Fox and the Demise of Local Broadcasting: FCC v. Fox Television Stations, Part II: The FCC v. Pacifica case. FCC v. Fox Television Stations, Part I: The Late, Great George Carlin. Is Scalia's "F-Word" Opinion Good News for Obama? Glitteratae: Holy F-Word, Batman: