The First Amendment provides that government "shall make no law abridging the freedom of speech." The language is absolute and there is no exception for "indecency" or any other expression.
Only speech that people hate needs protection, and the purpose of the First Amendment was to provide it. Censorship of any kind is unconstitutional. Nevertheless, the court has invented categories of speech that receive little or no protection.
In 1978, the court denied First Amendment protection to a radio broadcast of George Carlin's monologue of "seven words you could never say on radio or TV." The court found the words "indecent" and harmful to children. Carlin's point was that if you don't speak right in the eyes of government, you can't speak on the public airways. Justice Brennan dissented and said that the decision discriminated against minorities whose speech is unacceptable to the majority.
The Carlin and Fox cases apply only to broadcasting on the public airwaves; those who can afford cable can hear and see what they want unless it is "obscene," and the censors made no such claim.
The damage to the First Amendment is so serious that Justice Clarence Thomas hinted in an earlier stage of Fox v. FCC that the Carlin case should be reconsidered and that speech on public airways should be free and not punished.
The FCC has intimidated National Public Radio. NPR used to broadcast readings from James Joyce's Ulysses and bleeped sexual allusions. On Bloomsday (June 16), the day that the novel describes, there are readings from the book worldwide, including at the Rosenbach Library, in Philadelphia, where the original manuscript is. Prominent persons, including public officials, participate. There is no censorship there, and children can hear all the words. But when NPR aired readings, so many words were bleeped, Joyce's text was devastated. In response to objections of censorship, NPR banned the reading of Ulysses altogether. Long ago, a federal court ruled that the book was protected by the First Amendment. But that doesn't faze the FCC and the Supreme Court when it comes to public broadcast of one of the greatest works in Western literature.
WHYY, the NPR affiliate in Philadelphia, bleeps even more speech and will not permit any discussion of its censorship policy. Rarely does it even answer criticism. In June 2011, it featured an interview with Sapphire, the celebrated novelist, and asked how she chooses her words, which have earned her such public acclaim. The answer was so extensively censored, the public will never know the author's genius. If the question was relevant, so was the answer.
Protecting children against language they hear and use all the time, and especially on cable, is not only folly, but convinces children that there is something wrong with adults. Sometime ago, WHYY broadcast children speaking on the street about a stolen car and bleeped out words to protect children from their own speech!
Freedom of speech is the most fundamental freedom, even if it were not proclaimed in the First Amendment. It is time for public radio, which receives free license to broadcast, to practice and protect that right not only for itself but, more importantly, for all. That should motivate the public to stand up and protest censorship. The Occupy movement shows that when government is forced to listen, it will. Doing nothing is death to liberty. As Justice Brandeis proclaimed, "The greatest menace to freedom is an inert people!"
Burton Caine, a professor at Temple University's Beasley School of Law, teaches courses in constitutional law, the First Amendment, political and civil rights, and antitrust.