Lawyers used to joke that free speech includes the right to shout “fuck” in a crowded theater. But can Bono shout “fuck” at a crowded awards ceremony? Does the First Amendment still mean, as the late Justice John Marshall Harlan once wrote, that “the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us”?
Next term the Supreme Court will hear Federal Communications Commission v. Fox Television Stations, which pits aggressive puritans in the Bush Administration against aggressive sleazemongers in the Murdoch empire. But the stakes for American culture are much higher than the party lineup would suggest; at issue is whether a government bureaucracy is the legal arbiter of what is “legitimate” news coverage or “genuine” art.
In 1973 a progressive New York radio station broadcast a George Carlin monologue on “the seven words you can never say” on the public airwaves (in current FCC parlance, those would be “the S-word, the P-word, the F-word, the C-word, the C-sucker word, the M-F word and the T-word”). A member of a “decency in media” organization filed a complaint. The FCC disciplined the station for violating a federal statute that forbids broadcast licensees from transmitting “any obscene, indecent, or profane language by means of radio communications.” The Court held that the commission could not totally ban speech like Carlin’s, but it could require broadcasters to transmit it late at night, when it is unlikely children would be listening.
In a 1971 case, Cohen v. California, the Court had held that a citizen could not be punished for wearing a jacket emblazoned with the motto “Fuck the Draft.” In the opinion in which he denied government the power to “cleanse public debate,” Justice Harlan noted that “one man’s vulgarity is another’s lyric.” For nearly twenty-five years, the two decisions coexisted uneasily in broadcasting. The FCC fashioned the “fleeting expletive” rule: a station couldn’t be punished for one or two “filthy words” in the course of a news report or drama.
Conservative members of Congress and right-wing advocacy groups never accepted this compromise. They wanted “indecent” speech off the air altogether. Conservatives also tried to extend the FCC’s writ to policing cable-TV content as well as broadcast. That effort failed, but their “decency in broadcasting” crusade began to bear fruit with the accession of the current Administration. In 2003 the FCC rescinded the fleeting expletive rule, announcing that any use of bad words before 10 pm is forbidden. The commission threatened massive future fines against Fox, ABC and CBS for offenses like Bono’s acceptance speech at the Golden Globes (“fucking brilliant”), Cher’s salty words about her critics (“fuck ’em”), NYPD Blue‘s Detective Sipowicz’s cop argot (“dickhead”) and Nicole Richie’s remarks about The Simple Life (“Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”) Last year, a panel of the Court of Appeals for the Second Circuit blocked the fines, reasoning that the FCC’s change of heart on fleeting expletives was “arbitrary and capricious.” On March 17 the Supreme Court scheduled the case for a hearing next term.
It’s hard to summon a lot of sympathy for Fox TV, which has pushed the envelope in exploitative trashy content. Bono, Cher and Nicole Richie can also probably take care of themselves. But there are ominous words in the government’s petition for Supreme Court review: the FCC “has pending before it hundreds of thousands of complaints regarding the broadcast of expletives.” That’s no exaggeration. In 2000 the FCC received 111 complaints about “indecency” on broadcast TV. In 2006 that number had soared to 327,198. Much of the increase is driven by advocacy groups like the Parents Television Council, which sense an opportunity in the right-wing drift of the commission under Bush. Complaints have targeted popular programs like Friends, a broadcast of Saving Private Ryan and (I’m not making this up) NBC coverage of the Athens Olympic Games, in which actors in bodysuits depicted nude classical statues. The commission has dismissed some; for example, a CBS Early Show puff piece about Survivor: Vanuatu that used the word “bullshitter” was OK because it was part of a “bona fide news interview.”
This kind of judgment is part of the problem. Legal scholar Thomas Emerson noted that “the function of the censor is to censor. He has a professional interest in finding things to suppress.” Official judgments about “bona fide” news threaten important speech. Rupert Murdoch can fight for his celebrities’ right to swear (in fact, Murdoch recently announced that Fox would refuse to pay a new round of fines, for pixelated nudity during the forgettable reality series Married by America). But local broadcasters–including public radio and TV–can’t afford to battle the prudes, and thus self-censorship is already under way nationwide. (Popular commentator Sandra Tsing Loh was purged by public radio station KCRW when an engineer forgot to bleep “fuck” out of a commentary.)
Censorship is the real “C-word.” Will the Roberts Court now empower the “grammatically squeamish” to dictate what the rest of us can watch?