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:

1. children have access to radios and in many cases are unsupervised by parents;
2. radio receivers are in the home, a place where people's privacy interest is entitled to extra deference;
3. unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast;
4. 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.

Justice Stevens wrote the majority opinion, in which he was joined by Chief Justice Burger, Justice Rehnquist (later Chief Justice), Justice Blackmun, and Justice Powell. Stevens helpfully divided his opinion into four parts, as follows:

[W]e must decide: (1) whether the scope of judicial review encompasses more than the Commission's determination that the monologue was indecent "as broadcast"; (2) whether the Commission's order was a form of censorship forbidden by § 326; (3) whether the broadcast was indecent within the meaning of § 1464; and (4) whether the order violates the First Amendment of the United States Constitution.

I. "As broadcast." Despite the broad language in the FCC's order, this was just an opinion about one particular broadcast, and that, Stevens wrote, was all the Court would review.

II. Is this "censorship" within the meaning of § 326? No. Recall, from the previous post, that the prohibition against FCC censorship and the ban on bad language, which are now in two separate sections, were originally, in the 1927 Radio Act, in a single section:

Nothing in this chapter shall be understood or construed to give the licensing authority 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 licensing authority which shall interfere with the right of free speech by means of radio communications. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication.

"Licensing authority" was later changed to "Commission" (i.e., the FCC), but otherwise the language from the 1927 Radio Act largely went into the 1934 Communications Act unchanged, and the division into two sections didn't happen until 1948. Looking at it that way, it's clear that the ban on indecent communication can't be censorship, or else the original section would be nonsensical, or at least weird. (Well, I suppose one could argue that the second sentence is just moral exhortation to the people, so people shouldn't utter such language but the FCC is powerless to stop them....)

III. Are the "filthy words" indecent? Recall that the FCC had defined "indecent" in its opinion:

[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.

Pacifica's argument was that really, "indecent" in the statute actually means the same as "obscene," so as long as the Carlin monologue isn't obscene (which everyone agreed with, since it lacked an appeal to the "prurient interest"), it can't be indecent either. The basis for Pacifica's argument was the Court's opinion in Hamling v. United States, where the phrase "obscene, lewd, lascivious, indecent, filthy or vile" in 18 U.S.C. § 1461 was interpreted to just mean "obscene." (Justice Stewart's dissent, see below, agrees with this theory.) No dice, Justice Stevens says; "[t]he reasons supporting Hamling's construction of § 1461 do not apply to § 1464." Thus, the Court agreed with the FCC's conclusion that the Carlin monologue was, in fact, indecent.

IV. The First Amendment. O.K., now the part you've all been waiting for, where, having decided that the Carlin monologue was in fact prohibited by the statute, the Court decides whether that prohibition comports with the First Amendment. Pacifica's arguments were (1) an overbreadth argument — the FCC's interpretation of the statute was so broad that, even if the Carlin monologue itself was unprotected, the FCC's interpretation should be struck down because it covers too much protected speech — and (2) the argument that broadcast of non-obscene language is protected. Here, Stevens says three things:

A. (Not joined by Blackmun or Powell, so Stevens is writing for three:) The overbreadth argument fails because we're only decided whether this particular broadcast could be prohibited. Yes, this may lead to some self-censorship, but only as regards "the broadcasting of patently offensive references to excretory and sexual organs and activities," which "surely lie at the periphery of First Amendment concern."

B. (Also not joined by Blackmun or Powell, so again not part of the majority opinion:) Yes, this is speech, and yes, the FCC's prohibition was content-based; but there's no absolute rule against content-based restrictions. For instance, the government can prohibit incitement, regulate commercial speech more stringently, punish libels of private citizens more severely than libels of public officials, prohibit obscenity, etc. In the case of the Carlin monologue, the words "offend for the same reasons that obscenity offends." They have an extremely low place "in the hierarchy of First Amendment values." So we need to examine the context.

C. (O.K., back to writing for a majority:) "[E]ach medium of expression presents special First Amendment problems," and broadcasting gets the most limited protection. Here, Justice Stevens stressed some of the same concerns highlighted by the FCC in its order. "First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans," not just in public but also in the home, where privacy rights are paramount and where prior warnings can't adequately protect you. "Second, broadcasting is uniquely accessible to children." While Cohen's "Fuck the Draft" jacket "might have been incomprehensible to a first grader," the Carlin monologue "could have enlarged a child's vocabulary in an instant." Justice Stevens closed by emphasizing the narrowness of the holding and repeating the analogy of indecency regulation with traditional regulation of nuisances.

There's a lot we could quarrel with in Part IV, but as I said in the previous post, that's not important right now. Now consider Justices Powell and Blackmun, who didn't join Parts IV-A and IV-B. In Powell's concurrence (joined by Blackmun), Powell repeats many of the same considerations that Stevens already covered. Why didn't he join those two sections? Because he did "not subscribe to the theory that the Justices of this Court are free generally to decide on the basis of its content which speech protected by the First Amendment is most 'valuable' and hence deserving of the most protection, and which is less 'valuable' and hence deserving of less protection." Rather than engage in this "value" calculus, he preferred to simply analyze whether the broadcast media had unique characteristics that, in light of society's interest in protecting children, justified stronger regulation. Which is what Part IV-C was all about.

Justice Stewart dissented, arguing that, based on Hamling v. United States, "indecent" should cover only obscene speech. (This dissent comes at the end, but I'm discussing it out of order.)

Justices Brennan and Marshall dissented, agreeing with Stewart on the statutory analysis (see why I took it out of order?) but also taking issue with the majority's First Amendment analysis. It's a good opinion, but because we're interested in FCC v. Pacifica insofar as it helps us understand last week's FCC v. Fox Television Stations opinion, I'll skip it. But as they say on the blogs, read the whole thing.

[UPDATE: Oh why not, let's do the Brennan dissent. He says, quite sensibly, that the majority's two rationales for regulation — (1) radio's intrusion into the home and (2) the protection of children — don't hold up.

As to the intrusion point, radio listeners voluntarily let the radio communications into their home, and can turn the radio off if they want; and moreover, what about the rights of the transmitters and those who actually want to receive the transmissions?

As to the protection of children, previous cases, Brennan says, had only endorsed restrictions where obscenity — that is, at a minimum, something erotic — was involved; and a recent case had even said that "[s]peech 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 for them." Moreover, the FCC's prohibition here has the effect of also making the material unavailable to adults. The idea that parents should be able to control the upbringing of their children is correct, but it supports the idea that parents, not the government, should be able to control what their kids listen to. "As surprising as it may be to individual Members of this Court, some parents may actually find Mr. Carlin's unabashed attitude towards the seven 'dirty words' healthy, and deem it desirable to expose their children to the manner in which Mr. Carlin defuses the taboo surrounding the words."

The Brennan dissent goes on to point out that the majority opinion contains no principled limits on how far this FCC censorship can go, and, "[t]aken to their logical extreme, these rationales would support the cleansing of public radio of any 'four-letter words' whatsoever, regardless of their context," including from Shakespeare, Joyce, Hemingway, ... , and Chaucer! (Given the FCC's later "fleeting expletives" policy announced in 2004, this turns out to not be a silly concern.) In the last sections of the dissent, Brennan does a "the medium is the message" riff (rebutting claims that the same ideas could be expressed in less vulgar language), and — citing linguistic sources on Black English — accuses the majority of "acute ethnocentric myopia" in thinking that everyone thinks and uses words like they do.]

So what's the bottom line? The FCC adopted a interpretation of the Communications Act under which broadcasts like the Carlin monologue could be prohibited. The Supreme Court said this was a permissible interpretation of the Act, and it was not prohibited by the First Amendment. Next time, we'll jump forward a quarter century and see how the FCC changed its policy in 2004 to go after "fleeting expletives."

The FCC's opinion is short. Recall the relevant sections of the Communications Act of 1934 — basically, § 326, which prohibits the FCC from censoring program material, and 18 U.S.C. § 1464, which prohibits obscenity and indecency. (Those sections are quoted and explained in the first installment of this series.) The Commission's rules thus prevent obscenity at all times, and indecency from 6 a.m. to 10 p.m. This is because the FCC's definition of "indecency" refers to the composition of the audience, so a broadcast that's indecent at 5 p.m. might not be indecent at midnight:

The Commission defines indecent speech as language that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium.

(Note that the FCC states here that, even though indecency regulation has been upheld, "the First Amendment is a critical constitutional limitation that demands that, in such determinations, we proceed cautiously and with appropriate restraint.")

Let's start with Step 1, whether the material describes "sexual or excretory organs or activities." Even though NBC's use of the "F-Word" was "as an intensifier," the FCC said that, "given the core meaning of the 'F-Word,' any use of that word or a variation, in any context, inherently has a sexual connotation, and therefore falls within the first prong of our indecency definition."

So that's a significant step. "Fuck" always has an inherent sexual meaning. Let's just pause and ask ourselves whether that describes our own experience with the use of that word. Now let's move on to Step 2, whether the material is "patently offensive." We have to look at the context; and "context," says the FCC, means the full context in which the material appears, so we consider:

(1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.

Here, says the FCC, the word "fuck" is always patently offensive:

The "F-Word" is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language. Its use invariably invokes a coarse sexual image. The use of the "F-Word" here, on a nationally telecast awards ceremony, was shocking and gratuitous.

Wow. Invariably. By "contemporary community standards." Hmm. Moreover, the fact that this was unintentional is irrelevant; it has the same effect of exposing children. "Our action today furthers our responsibility to safeguard the well-being of the nation's children from the most objectionable, most offensive language."

Interestingly, the FCC notes that NBC was on notice that this could happen — just the previous year, Cher had said "fuck 'em" during the broadcast of the Billboard Awards Ceremony, and Bono himself had said "fuck" during the 1994 Grammys! So basically, entertainment award ceremonies are perilous grounds. The FCC also remarked, by way of support, that technological advances — a delay and bleep system — make it possible to avoid broadcasting offending words now.

The FCC, with this opinion, retracted its previously held view that "isolated or fleeting broadcasts of the 'F-Word' such as that here are not indecent or would not be acted upon." (It said this in a series of 1987 cases including one involving, like the 1975 case, the Pacifica Foundation.)

Also interesting here is an independent ground for the opinion: the word is "profane" language, which is also prohibited under the same statute, 18 U.S.C. § 1464. (This holding is also a change from previous policy, which had demanded some blasphemous religious context, like darning someone to heck.) This actually seems like a more defensible ground than their main ground. In fact, it seems pretty reasonable to say that isolated uses of "fuck" are profane and therefore prohibited by the statute. (Though whether the statute is constitutional to the extent it does that is another matter.)

Because this was a change of policy, the FCC decided not to enforce the statute against NBC and the other broadcasters. (Under NLRB v. Wyman-Gordon Co., that makes this proceeding an invalid rulemaking, though one the agency can rely on in the future... but that's another story.) The FCC closed by noting that the decision "is not inconsistent with the Supreme Court ruling in Pacifica," which "explicitly left open the issue of whether an occasional expletive could be considered indecent."

The main opinion was followed by the statement of Chairman Michael K. Powell (Colin Powell's son, by the way), supporting the new use of the profanity section, noting that he wouldn't have supported a retroactive fine, and urging caution in the use of enforcement lest free speech be chilled. Kathleen Q. Abernathy wrote separately, also applauding the FCC's anti-"fuck" stand, and noting that, for notice reasons, she wouldn't have supported a fine. Jonathan Adelstein wrote in support of the profanity argument, said that "fuck" was offensive "whether it is used as an adjective, adverb, verb or gerund," and, like the others, said that a fine would have been inappropriate — even though assessing a fine was his "strong preference here."

O.K., weren't there at least some dissents here? Yes, two Commissioners approved in part and dissented in part. First, there was Michael Copps, who dissented on the grounds that a fine should have been assessed. Same goes for the last separate statement, by Kevin J. Martin.

1. Sanctionable indecency or profanity

• Video Musicales (2002), WSJU-TV, San Juan, Puerto Rico. One of the songs played on this show was from the album Fatal Fantassy and featured the group Trebol Clan. But, just to show how uncool the FCC is, they spelled "Fantasy" instead of "Fantassy," and it looks like they think the song title is "Feat, Trebol, Clan" rather than "feat. [featuring] Trebol Clan." Anyway, the lyrics, translated from Spanish, go like this:

  When I had been barely born, I instantly knew where I had come from. Since then until I grew up, I have always yearned to be inside a similar hole. In elementary school they called me Mr. Cormer. In intermediate school they called me "little masturbator" because this is where my vice of rubbing myself incessantly began.

  Hmm, I guess it loses something in the translation. (Their translation of another song from the same album, played on the same show, features "I will give it to you through the ass.") Anyway, here, the FCC had no trouble finding that this referred to sexual activity, and as to the "patently offensive" prong, satisfied the conditions of dwelling on the material and pandering/titillating.

  This section of the opinion also reveals that "the buttocks . . . are sexual and excretory organs."

• The Blues: Godfathers and Sons (2004), KCSM-TV, San Mateo, Calif. This show was a documentary containing "the 'F-Word,' the 'S-Word' and various derivatives of those words." Here, the FCC was unimpressed by the claim that the language was necessary to "provide a window" into the world of the subjects of the documentary, "all of which becomes an educational experience for the viewer." The FCC used this opportunity to hold that not only the "F-Word," but also the "S-Word," because of their "core meanings," "inherently [have] sexual or excretory connotations" and therefore satisfy the first prong of the indecency definition. "Use of the 'S-Word,'" they wrote, "invariably invokes a coarse excretory image" (emphasis added).

  As an alternative holding, they held that, moving on to the "profanity" prohibition, "the 'S-Word' is a vulgar excretory term so grossly offensive to members of the public that it amounts to a nuisance and is presumptively profane." The presumption of profanity can be rebutted, but "only in unusual circumstances . . . not present here." (By way of comparison, the FCC stated that "this case is unlike Saving Private Ryan, where the offensive words really were necessary for the film experience.)

• The Pursuit of D.B. Cooper (2003), KTVI-TV, St. Louis, Mo. Same analysis here, where an auto mechanic says he will have someone's car running "slicker 'n owl shit" and "smoother 'n owl shit." In addition to "owl shit," there was also "bullshit," and "shit" generally. All of these fell within the "shit" category described above.

2. Indecency or profanity that is not sanctioned

• The 2002 Billboard Music Awards (2002), Fox stations. This is where Cher said, "People have been telling me I'm on the way out every year, right? So fuck 'em." This was found indecent, but not sanctioned because it was broadcast under the previous regime, where isolated uses weren't sanctionable.

• The 2003 Billboard Music Awards (2003), Fox stations. This is where Nicole Richie talked about "get[ting] cow shit out of a Prada purse." Same analysis as the Cher quote. One of the offending words was bleeped out; the FCC noted specially that Fox could have delayed the broadcast long enough to be able to bleep out all the occurrences.

• NYPD Blue (2003), ABC network. Several episodes of this show involved the words "dick," "dickhead," and "bullshit." Follow carefully now: "'[B]ullshit,' whether used literally or metaphorically, is a vulgar reference to the product of excretory activity" and therefore satisfies the first indecency prong. Same goes for "dick" and "dickhead," which are references to a sexual organ. However, because the "S-Word" is just so vulgar and graphic (always invoking a coarse excretory imagine, for instance in the philosophical book by Harry Frankfurt!), "bullshit" ends up also satisfying the "patently offensive" prong, whereas "dick" and "dickhead" just aren't "sufficiently vulgar, explicit, or graphic."

  Again, while "mere dramatic effect does not justify use of patently offensive expletives," this case is still unlike Saving Private Ryan, where it was necessary! Go figure.

3. No indecency or profanity

This section involves a number of different shows, where characters are "kissing, caressing and rubbing against each other" accompanied by off-camera music and without "depictions of sexual organs"; an episode of Will and Grace that involves the gag of people adjusting Grace's breasts upward as she heads off on a date; a character on Two and a Half Men hitting on a female doctor while she's holding his scrotum in her hand; an episode of The Oprah Winfrey Show where an expert on teen sex discusses "tossed salad" and "booty calls"; a political advertisement referring to a judicial candidate's ruling in a case involving rape and sodomy; various shows featuring the words "bitch," "slut," "ass," "damn," "hell," and others; an episode of Family Guy in which "penis" and euphemisms therefor are repeated; an episode of The Simpsons where Mr. Burns goes to a strip club... you get the picture.

In one of the separate opinions (most of which I'm not summarizing here), Commissioner Deborah Tate suggested that the cartoon nature of The Simpsons shouldn't necessary count against a finding of indecency.

Well, that's the FCC's take on what its new policy means. On the one hand, it's good that they actually gave concrete guidance to the regulated community, and declined to fine broadcasters operating under the previous regime. On the other hand, looking at these applications really gives one a sense of how arbitrary these things are. "Bullshit" is patently offensive because, as a variant of "shit," is inherently excretory and highly vulgar, while "dick" and "dickhead" are not because, even though they're variants of the sexual term "dick," they're not sufficiently vulgar? Mere use of vulgar words for dramatic effect isn't enough... unless it's Saving Private Ryan?

In any event, this is where matters stood when the FCC v. Fox Television Stations case was heard. In the next post, though, I'm going to talk about the general issue of what an agency has to do, as a matter of administrative law, to justify itself when it changes policy.