Obscenity Case Files: FCC v. Pacifica Foundation (George Carlin’s Seven Dirty Words)

2360When George Carlin recorded an expletive-laden 12-minute monologue before a live audience in a California theatre, he probably didn’t expect it to become the basis of a key Supreme Court decision. But in 1973, the monologue was aired as part of a radio broadcast, and it was heard by a man who complained to the FCC when his young son heard the curses. This started a series of events that led to the FCC v. Pacifica Foundation decision. Not only has Pacifica become the cornerstone case for the regulation of indecent speech and the seminal Supreme Court case that authorized the FCC to restrict content, but it is also considered by some as one of the worst decisions on First Amendment rights.

2_carlin-1960sGeorge Carlin was born on May 12, 1937. After a short stint in the Air Force as a radar technician (during which he was he was court martialed three times before being labeled an “unproductive airman” by his superiors) and a job as a radio DJ, Carlin found his true calling: comedy. In the 1960s, Carlin began appearing on television variety shows like The Ed Sullivan Show and The Tonight Show. In fact, Carlin would regularly fill in for host Johnny Carson.

During this period, Carlin appeared in suits and had conservatively short cropped hair. Then something happened: He became edgier. Perhaps it was the fact the Carlin was present for Lenny Bruce’s arrest for obscenity (for a full description of that case, see the thorough article written by fellow CBLDF writer Rick Marshall at http://cbldf.org/2013/02/obscenity-case-files-lenny-bruce/). When the police arrested Bruce, they asked Carlin for his identification. After Carlin told them that he did not believe in government-issued IDs, he was arrested and shared a ride to the police station with Bruce. Soon afterwards, Carlin had a new look and a new attitude. Carlin’s philosophy: “I think it’s the duty of the comedian to find out where the line is drawn and cross it deliberately.”

This new attitude was embodied in his best-known routine, “Seven Words You Can Never Say on Television.” This monologue, which lasted only 12 minutes, began as follows:

I love words. I thank you for hearing my words. I want to tell you something about words that I uh, I think is important. I love…as I say, they’re my work, they’re my play, they’re my passion. Words are all we have really.

We have thoughts, but thoughts are fluid. You know, [humming]. And, then we assign a word to a thought, [clicks tongue]. And we’re stuck with that word for that thought. So be careful with words. I like to think, yeah, the same words that hurt can heal. It’s a matter of how you pick them.

There are some people that aren’t into all the words. There are some people who would have you not use certain words. Yeah, there are 400,000 words in the English language, and there are seven of them that you can’t say on television. What a ratio that is. 399,993 to seven. They must really be bad. They’d have to be outrageous, to be separated from a group that large. All of you over here, you seven. Bad words. That’s what they told us they were, remember? ‘That’s a bad word.’ ‘Awwww.’ There are no bad words. Bad thoughts. Bad Intentions.

While audiences loved the routine, the “Seven Words You Can Never Say on Television” monologue (recorded on his album Class Clown) did not sit well with authority figures. In July of 1972 Carlin was arrested after performing this routine at Milwaukee’s Summerfest and charged with violating obscenity laws. The case was eventually dismissed in December of the same year, with the Court declaring that the language was indecent but Carlin had the freedom to use it as long as he caused no disturbance. As a result of this case, Carlin changed the name of the bit to “The Milwaukee Seven.”

But Carlin’s brush with the law would not compare to what would happen in the next year where his dirty words would begin a path that would take him all the way to the Highest Court in the Land. This is the story of FCC v Pacifica Foundation, a landmark decision in the area of free speech law.

wbaiThe Pacifica case began simply enough. On October 30, 1973 at around 2:00 p.m., John H. Douglas was driving in his car with his 15-year-old son. They were listening to radio station WBAI, one of the affiliated stations of the Pacifica Radio. The station was playing Carlin’s the “Seven Words You Can Never Say on Television.”

Douglas became so incensed at what he had heard during the broadcast that he drafted a letter to the SEC on December 3, 1973 that read:

On October 30th, in the early afternoon (from approximately 1:30 to 2:30 p.m.,) while driving in my car, I tuned to radio station WBAI in New York City.

I heard, among other obscenities, the following words: [he listed some profanity] and a whole host of others. This was supposed to be part of a comedy monologue.

Whereas I can perhaps understand an “X-rated” phonograph record’s being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control. Any child could have been turning the dial, and tuned in to that garbage.

Some time back, I read that “topless” radio stations were fined for suggestive phrases. If you fine for suggestions, should not this station lose its license entirely for such blatant disregard for the public ownership of the airwaves?

Can you say this is a responsible radio station that demonstrates a responsibility to the public for its license?

I’d like to know, gentlemen, just what you’re going to do about this outrage, and by copy, I’m asking our elected officials the same thing. Incidentally, my young son was with me when I heard the above, and unfortunately, he can corroborate what was heard.

Adam M. Samaha, in his article, The Story of FCC v. Pacifica Foundation (and Its Second Life), explains that there was probably more behind Mister Douglas’ complaint than simple audience dissatisfaction:

As for the only person who filed a complaint about the Lunch Pail broadcast, he was not part of WBAI’s target market. In his letter to the FCC, John Douglas wrote that he tuned to WBAI while in his car and heard the Filthy Words routine. He called the monologue “garbage,” and mentioned that his “young son” was with him. Douglas later acknowledged that his son was fifteen-years old at the time. Apparently the two were returning from a road trip to Yale, which was a college prospect for Douglas’s son. Douglas was living in Long Island, working for CBS, and, on the side, a dedicated defender of decency. He had joined a campaign to eliminate sexually explicit movie theaters from Times Square, and he was a national planning board member of Morality in Media (MIM). Nor was this Douglas’s first encounter with WBAI. “I was listening to Pacifica constantly,” he now recalls, “to see how far they would pull the curtain back.” Although Douglas says that he appreciated Carlin’s “clever wordplay” and “laughed out loud” while listening to the Filthy Words routine, he did not appreciate WBAI’s “smart-alecky” on-air provocations.

Douglas’s connection to MIM was significant and not really concealed; the organization was carbon-copied on Douglas’s complaint. MIM had been founded in the 1960s by three clergymen to restrict access to pornography. In 1978, the organization claimed 50,000 members. The FCC tends to rely on third-party complaints, and groups such as MIM can quickly generate a wave of them. Douglas characterizes MIM as “the vehicle” for complaining to the FCC at that time, but he maintains that he took the initiative and drafted the Pacifica complaint. Regardless, neither Douglas’s nor the organization’s commitment to keeping broadcasts safe for social conservatives can be questioned.

Once the Federal Communications Commission (FCC) received this complaint, it opened an investigation. Here is a description of their investigation process from www.FCC.gov:

fccEnforcement actions in this area are based on documented complaints received from the public about obscene, indecent or profane material. FCC staff will review each complaint to determine whether it contains sufficient information to suggest that there has been a violation of the obscenity, indecency or profanity laws. If it appears that a violation may have occurred, the staff will start an investigation, which may include a letter of inquiry to the broadcast station.

If the description of the material contained in the complaint is not sufficient to determine whether a violation of the statute or FCC rules regarding obscene, indecent and profane material may have occurred, FCC staff will send the complainant a dismissal letter explaining the deficiencies in the complaint and how to have it reinstated. In such a case, the complainant has the option of re-filing the complaint with additional information, filing either a petition for reconsideration, or, if the decision is a staff action, an application for review (appeal) to the full Commission.

If the facts and information contained in the complaint suggest that a violation of the statute or FCC rules regarding obscenity, indecency and profanity did not occur, FCC staff will send the complainant a letter denying the complaint, or the FCC may deny the complaint by public order. In either situation, the complainant has the option of filing either a petition for reconsideration or, if the decision is a staff action, an application for review (appeal) to the full Commission.

If the FCC determines that the complained-of material was obscene, indecent and/or profane, it may issue a Notice of Apparent Liability (NAL), which is a preliminary finding that the law or the FCC’s rules have been violated. Subsequently, this preliminary finding may be confirmed, reduced or rescinded when the FCC issues a Forfeiture Order.

In accordance with its rules, the FCC sent the complaint to Pacifica, which prepared the following response:

Mr. Douglas’ complaint is based upon the language used in a satirical monologue broadcast of a regularly scheduled live program “Lunchpail,” hosted by Paul Gorman. The selection was broadcast as part of a discussion about the use of language in society. The monologue in question was from the album, “George Carlin, Occupation: FOOLE,” On October 30, the “Lunchpail” program consisted of Mr. Gorman’s commentary as well as analysis of contemporary society’s attitudes toward language. Mr. Gorman played the George Carlin segment as it keyed into a general discussion of the use of language in our society.

The selection from the Carlin album was broadcast towards the end of the program because it was regarded as an incisive satirical view of the subject under discussion. Immediately prior to the broadcast of the monologue, listeners were advised that it included sensitive language which might be regarded as offensive to some; those who might be offended were advised to change the station and return to WBAI in 15 minutes. To our knowledge, Mr. Douglas is the only person who has complained about either the program or the George Carlin monologue. . . .

George Carlin is a significant social satirist of American manners and language in the tradition of Mark Twain and Mort Sahl. Carlin, like Twain and Sahl before him, examines the language of ordinary people. In the selection broadcast from his album, he shows us that words which most people use at one time or another cannot be threatening or obscene. Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words.

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.

The FCC then investigated the complaint. More than 15 months after the program aired, on February 21, 1975, the FCC finally issued it ruling. After characterizing the language as patently offensive, though not necessarily obscene, the FCC issued a declaratory order granting the complaint, but not imposing any formal sanctions. This order read:

Broadcasting requires special treatment because . . . (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; and (4) there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest.

[W]ords such [the ones used in the monologue] in a manner patently offensive by contemporary community standards . . . and are accordingly “indecent” when broadcast on radio or television. These words were broadcast at a time when children were undoubtedly in the audience (i.e., in the early afternoon). Moreover, the pre-recorded language with the words repeated over and over was deliberately broadcast.

The FCC also explained its decision to issue a declaratory order instead of a Notice of Apparent Liability:

A declaratory order is a flexible procedural device admirably suited to terminate the present controversy between a listener and the station, and to clarify the standards which the Commission utilizes to judge “indecent language.” Such an order will permit all persons who consider themselves aggrieved or who wish to call additional factors to the Commission’s attention to seek reconsideration. If not satisfied by the Commission’s action on reconsideration, judicial review may be sought immediately.

In short, the FCC found that that the language in Carlin’s monologue was indecent and prohibited by the statute that prohibited the broadcast of obscene, indecent or profane language. And while the FCC didn’t impose a fine on the radio station, it said that if any more complaints were received, it would take them into account at the time Pacifica applied to renew their radio license.

It also bears mentioning that not all of the FCC Commissioners agreed. As Samaha explains:

Two commissioners would have held that the language in question was inappropriate for broadcast at any hour. “Garbage is garbage,” one of them wrote. Two others were a notch less statist than the majority. They explained that the case was difficult for them, and they assured readers that they would treat nighttime broadcasts more leniently. But even these commissioners warned of a coarsening culture. They observed doctrinal trends making it more difficult for sensitive audiences to insulate themselves. “[P]ublic use of certain words relating to sex and excretion are taboo,” they added, quoting Freud for the proposition that “taboo prohibitions lack all justification and are of unknown origin.” An awkward foundation for modern administrative action, but telling nonetheless.

After the order was issued, a Petition for Clarification or Reconsideration was filed with the FCC. The FCC then issued a second opinion stated that it “never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.” This opinion also provided a more flexible standard and explained that cases would exist when newscasters covered live events where offensive speech could likely be used without an opportunity for journalistic editing. In these situations, “it would be inequitable for [the FCC] to hold a licensee responsible for indecent language.” Finally, the FCC assured Pacifica that its order was limited to the facts in the case before it.

300px-US-CourtOfAppeals-DCCircuit-SealPacifica appealed the Commission’s ruling to the Court of Appeals for the D.C. Circuit, arguing that the FCC was improperly censoring them. In response, the FCC argued that Carlin’s monologue was indecent. The FCC defined “indecent” speech as “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.”

On March 16, 1977, the D.C. Circuit Court vacated and reversed the order, holding that “Despite the Commission’s professed intentions, the direct effect of its Order is to inhibit the free and robust exchange of ideas on a wide range of issues and subjects by means of radio and television communications.” Judge Tamm wrote the opinion for the D.C. Circuit Court, which determined that the FCC’s regime to be unconstitutionally vague and overbroad and expressed its concern that the FCC’s proposed definition of indecent speech would result in unconstitutional censorship. Judge Tamm specifically rejected the FCC’s argument that that the timing of the broadcast was important in determining whether language was indecent and wrote, “In fact the Order is censorship, regardless of what the Commission chooses to call it.” The Court highlighted that ratings that showed over one million children were watching television until 1:00 a.m.. Instead, the court agreed with Pacifica argument that the “Commission’s action proscribes the uncensored broadcast of many of the great works of literature including Shakespearian plays and contemporary plays which have won critical acclaim, the works of renowned classical and contemporary poets and writers, and passages from the Bible.”

Chief Judge Bazelon concurred in the judgment, writing that he based his decision on the Constitution and was he was persuaded that any prohibition against censorship was inapplicable to broadcasts forbidden by the law prohibiting “obscene, indecent or profane language by means of radio communications.” However, he concluded that the statute must be narrowly construed to cover only language that is obscene or otherwise unprotected by the First Amendment. Judge Leventhal dissented and emphasized that the early time frame (which was in the afternoon) in which the monologue was broadcast played a crucial role in his analysis. He stated that, to him, the only issue was whether the commission could regulate the language “as broadcast.” So, while Court of Appeals reversed the Commission’s Order, there was certainly no consensus among the three judges on the panel as demonstrated by the fact that there were three separate opinions written (including one dissenting).

Angela Cambell pointed to some procedural peculiarities for what happened next in her article, Pacifica Reconsidered: Implications for the Current Controversy over Broadcast Indecency in the Federal Communications Law Journal:

The FCC filed its petition for certiorari on October 7, 1977. Normally, the Solicitor General’s office would represent the FCC in seeking review in the Supreme Court. Here, although the DOJ joined the FCC in defending its Order in the D.C. Circuit, it did not join in the petition for certiorari. This change of position may have been due to the change in administration. Democrat Jimmy Carter became President in January 1977, and in March, he appointed Wade H. McCree to replace Robert H. Bork as Solicitor General. However, the Republican Chairman of the FCC, Richard Wiley, served until October 13, just a few days after the FCC’s certiorari petition was filed.

In support of certiorari, the FCC argued that the Court should take the case in order to decide whether the unique quality of the broadcast media justified its action. In response, Pacifica argued that the D.C. Circuit was correct and Justice’s decision not to support certiorari clearly demonstrated that the case was notimportant. At a conference on January 6, 1978, the Justices voted whether to hear the case. Chief Justice Burger and Justices White, Rehnquist, and Stevens voted yes. Justices Powell and Blackmun voted that they would vote in favor of hearing the case if three others did (this is referred to a “join 3” vote); Justices Brennan, Stewart, and Marshall voted to deny certiorari. As a result, the Court approved certiorari.

The FCC made two primary arguments to the Supreme Court. First, the FCC argued that word “indecent” in the statute had a special meaning when applied to broadcasting. To support this argument, the FCC pointed out the ease of access by children to radio, the fact that broadcasts intrude in people’s homes, the fact that listeners could accidentally tune into indecent programming, and the licensing requirements. Second, the FCC argued that it reasonably concluded that the Carlin monologue was “indecent.” To support this, the FCC stated, “[Pacifica] abused its special trust by broadcasting for nearly twelve minutes a record which repeated over and over words which depict sexual and excretory organs and activities in a manner patently offensive by its community’s contemporary standards in the early afternoon when children were in the audience.”

In response, Pacifica argued the standard set by the FCC’s ruling prohibited the “unexpurgated broadcast of great works of classical and contemporary literature, including even passages from the Bible.” Pacifica also argued that the word “indecent” should be “subsumed” by the definition of “obscene.” Therefore, the Court should apply the Miller Test. The Office of the Solicitor General also filed a unique brief that argued that FCC could not prohibit free speech, while maintaining that Pacifica’s argument that indecent should be subsumed into obscenity was incorrect. (The oral argument can be found at http://www.c-span.org/Events/C-SPAN-Event/10737426386/.)

imagesCAUBAVE6Basically, there were several issues before the Court:

(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 of a form of censorship forbidden by law;

(3) whether the broadcast was indecent within the meaning of the FCC law; and

(4) whether the order violates the First Amendment of the United States Constitution

However, what the case boiled down to was a single question: Does the First Amendment deny government any power to restrict the public broadcast of indecent language under any circumstances? In a five to four decision, the Court found the answer to that question to be “no” and reversed the decision of the D.C. Circuit Court. The Court held that there were a variety of circumstances in which limited civil sanctions could constitutionally be invoked against a radio broadcast of patently offensive words dealing with sex and execration. The words need not be obscene to warrant sanctions. Other factors, such as audience, medium, time of day, and method of transmission should be considered in determining whether to invoke sanctions. The Court wrote: “[W]hen the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.”

Basically, the Court applied a lower standard of review to a challenge of the FCC’s authority to regulate the broadcasting medium. Under this lower standard, the Court affirmed the FCC’s ability to sanction broadcast licensees for airing indecent content at times when children are likely to be in the audience. The Court apparently applied this lower standard of review because broadcasting is “uniquely pervasive” and “uniquely accessible to children.” As a result, because broadcasting may be distinguished from other media — especially because it is uniquely pervasive and uniquely accessible to children — government may restrict broadcasters’ actions when to do so would serve the public interest.

With regards to the First Amendment, the Court held that regulating indecent broadcasting was consistent with the First Amendment, noting that “each medium of expression presents special First Amendment problems” and that “of all forms of communication, it is broadcasting that has received the most limited First Amendment protection.” The Court concluded that the government’s interest in safeguarding “the well-being of its youth and in supporting parents’ claim to authority in their own household,” combined with the “ease with which children may obtain access to broadcast material,” justified the regulation of indecent broadcasts.

The significance of the decision in Pacifica is important for two reasons. First, it was the first time that the Supreme Court reviewed power of the FCC to impose penalties to prohibit the broadcast of obscene, indecent, or profane language. The decision, at the very least, broadened the authority of the FCC to control programming. After Pacifica, the FCC had the power and ability to enforce the law. Second, the decision is also important because the Court created a new class of speech and allowed government regulation of non-obscene constitutionally protected speech. Viewed in this light, the Pacifica decision has the unfortunate effect of limiting the application of’ First Amendment freedoms to broadcast mediums like radio.

2360James H. Hslung, in his article, Indecent Broadcast: An Assessment of Pacificas Impact in Censorship, Secrecy, Access, and Obscenity, highlighted the effect of the decision:

It was a shock to the broadcast industry when the U.S. Supreme Court upheld the Federal Communications Commission’s (FCC) decision on FCC v. Pacifica Foundation (Pacifica) in 1978. The industry and many critics were afraid that this newly created FCC rationale to regulate indecent programming would increase censorship of broadcast content, chill broadcast licensees, and curtail the first amendment rights of broadcasters. Broadcasting wrote, “There are fears that door has been opened for commission interference in numerous programming areas.” Publishers Weekly indicated that this case “has brought cries of censorship from broadcasters and a warning from dissenting Justices that it could set a precedent for banning genuine works of literature from the airwaves if they contained ‘four-letter words.’”

It should be mentioned that some commentators consider Pacifica one of the worst Supreme Court decisions on the First Amendment. Thomas G. Krattenmaker and L.A. Powe, Jr., wrote in Televised Violence that the Pacifica opinion was a “decision to war with several key strands of First Amendment thought.” Even Supreme Court Justice Ruth Bader Ginsburg disagreed with Pacifica, as shown when she wrote in her opinion in the FCC v. Fox case: “In my view, [the Pacifica decision] was wrong when it was issued. Time, technological advances, and the commission’s untenable rulings in the cases now before the court show why Pacifica bears reconsideration.”

George Carlin died on June 22, 2008. He wrote about the case in his autobiography, Last Words.

FCC vs Pacifica has become a standard case to teach in communications classes and many law schools. I take perverse pride in that. I’m actually a footnote to the judicial history of America.

Of course, critics of the decision would also probably agree with another of his famous quotes:

Think of how stupid the average person is, and realize half of them are stupider than that.Carlin large groups

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Joe Sergi is a life-long comics fan and author who has written short stories, novels, comics, and articles in the horror, science fiction, super hero, and young adult genres. When not writing, he works as a Senior Litigation Counsel in an unnamed US government agency. More information can be found at http://www.joesergi.net