Holy Shit: Did He Really Say That?

(Warning - This article may contain words that may offend you, however it may be worth a "fleeting" moment of your time)

We named this column "FCC Uncensored" because one of the greatest issues of concern to broadcasters today is FCC censorship of speech it deems to be indecent. This issue is now before the U.S. Supreme Court, and I am pleased to report that I made a contribution on behalf of broadcasters.

In 1978, the Supreme Court held in FCC v. Pacifica Foundation that the First Amendment permits the FCC to regulate expletives aired on broadcast media when tantamount to "verbal shock treatment." The case dealt with the George Carlin routine: The Seven Words You Can Never Say On TV. (See Endnote)

Since that case, the FCC has used its authority under the criminal code, 18 U.S.C. §1464 to shut down broadcast speech it deems indecent. However, until relatively recently it recognized the express limitation that Pacifica did not address the situation where the use of an expletive was not deliberate and repetitive or did not suggest an excretory or sexual function -- the so-called "fleeting expletives."

Beginning in 2004 with the Golden Globes case, the FCC reversed this longstanding policy that fleeting expletives, even when uttered before the 10pm safe harbor, would not be actionably indecent under the Commission's indecency standard. During a prime-time live broadcast of the Golden Globes Awards show, U2 singer Bono declared the receipt of his award was "really, really fucking brilliant." Under the policies employed by the Commission under Pacifica, this declaration would not have been actionably indecent, but the FCC held that for the first time that "[t]he fact that the use of [an indecent] word may have been unintentional is irrelevant," and fined the stations that carried it. To "clarify" things, the FCC later went back to review earlier broadcasts, and found that earlier broadcasts of award shows where Cher and Nicole Richie used similar spontaneous and fleeting expletives were also actionably indecent.

On behalf of 11 state broadcaster associations, we at Womble Carlyle Sandridge & Rice, PLLC joined with Kathleen Sullivan of the Stanford Law School Constitutional Law Center to file a brief in support of broadcasters and opposing the FCC position. We were honored to have Kathleen Sullivan as Counsel of Record, as she is widely recognized as one of America's leading scholars in constitutional law. Here is the essence of our argument....

Radio and television stations across the Nation are now forced by the FCC's new fleeting expletives policy to engage in the impossible task of expensive monitoring and policing of live broadcasts to assure that a possible stray word slip out over the air, no matter how isolated and devoid of sexual or excretory meaning. To err could be painful, since the fine can be $325,000 per incident. For many broadcasters, the chilling effect is profound and discourages live programming altogether, with attendant loss to valuable and vibrant programming that has long been part of American culture.

Nothing in the Pacifica case authorizes or requires this result. Pacifica allowed the FCC to sanction indecent language only where it was so repetitive and sexual and excretory in context as to amount to "verbal shock treatment." Pacifica expressly declined to reach the question whether this exceptional treatment under the First Amendment is appropriate to a mere occasional or fleeting expletive.

Moreover, nothing in Pacifica authorized the FCC to engage in the vague, selective or arbitrary regulation of indecent language that is the unavoidable result of this new approach. Yet the current policy allows unpredictable exceptions for "artistic" and "news" purposes that force broadcasters to guess at what programming is and is not actionable, and therefore necessarily to steer far wide of the forbidden zone.

The inexorable result is widespread broadcaster self-censorship that deprives the public of valuable and traditionally accessible live news, sports, talk and entertainment programming. Precautionary measures as tape delays are expensive, cumbersome and hardly foolproof, as the facts underlying this case illustrate. And the cost and risk associated with such measures can be prohibitive, depending on station and market size.

The pall thus cast on live broadcasting is needless. Filtering technologies have increasingly enabled parental self-help with respect to television as well as cable and the Internet. They are available for television and could easily be offered for radio. Such alternatives are far preferable to the FCC's restrictive policies, and reinforce the conclusion that there is no need to expand the First Amendment limits set forth in Pacifica.

For all these reasons, the FCC's indecency policy, at a minimum, raises serious and unavoidable First Amendment concerns. The FCC's authority to impose the new policy should be read narrowly and the Circuit Court decision below to overrule the FCC should be affirmed.

Another brief was filed by a several esteemed former FCC officials, including former Chairmen Mark Fowler, Newton Minow, Alfred Sikes and James Quello, former FCC Commissioner Glen O. Robinson, former NTIA Administrator Henry Geller and other former FCC senior staff officials, including Jerald Fritz and Kenneth Robinson. What makes that group remarkable is that they represent all sides of the political spectrum: Democrats and Republicans. Making many of the same points very poignantly, their brief also included a very clever footnote that underscored the essential fact of language: That words contain no inherent meaning in themselves, but only the meaning ascribed to them by context and use, which ironically enough was really the essential point of the Carlin monologue in the first place. Here's the footnote:

Given the Commission's view that excretory words inherently satisfy at least the first prong of its indecency test, presumably the same holds for the word "poop" -- a word that is prominent in the title of a number of popular children's books, such as "Everyone Poops," "Where's the Poop," "The Dog Poop Initiative" and "The Truth About Poop." No doubt the Commission would say that while "poop" satisfies the first prong, it does not satisfy the second, "patently offensive," prong. Words like "ass" and "piss" and their derivatives are included in the Commission's catalog of "sexual or excretory activities," but they have been ruled not patently offensive -- at least in the context presented ... Thus, according to the Commission, it is offensive to call someone a "bullshitter" ... but it is all right to call him an "ass," ... or even a "dickhead" ... You may never say "fuck ´em" -- even in an off-handed way ... but it is at least sometimes okay to say "up yours" with all deliberate intensity. (The FCC is silent as to whether the presence or absence of an accompanying digital gesture is relevant.)

Kind of makes the point, doesn't it!

The Government argued that Court review should focus only on whether the FCC's change in policy was arbitrary and capricious, and if so, the case should be sent back to the FCC. However, others argue that even if the Court agrees with the FCC position that the first issue is the administrative procedures act question of arbitrariness, the Court would leave the case incomplete by not reaching the constitutional question, because it bears directly on the rationality of the agency's action and whether any deference is due the agency. The former FCC officials argue that the deference that is normally accorded agency policy judgments cannot be defined or applied without evaluating how the FCC's new indecency policy affects First Amendment values. On that latter issue, the agency bears a heavy burden of persuasion for which deference is inappropriate.

The case will be argued later this term and we are hopeful that a decision will find that the FCC has overstepped its First Amendment bounds. Many of us are hoping that the Court will follow the broadcasters and former FCC officials' reasoning, and hold that the FCC's authority under the indecency statute does not reach fleeting expletives and that its actions did indeed exceed rationality and the bounds of the First Amendment.

Endnote:

If you've never actually heard that routine, here is a link to the full monologue: http://www.lyricsbox.com/george-carlin-lyrics-the-seven-words-you-can-never-say-on-tv-268qwb7.html ;

And here's a link to a verbatim transcript of "Filthy Words" prepared by the Federal Communications Commission.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/filthywords.html

Here is a YouTube link to the monologue delivered by George Carlin:

http://www.youtube.com/watch?v=GDWTp5as1vE

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.