For The Supreme Court, An Indecent Proposal

Posted: August 07, 2012

The Supreme Court let us down again by deciding recently in Fox TV v. FCC that it will not decide whether censoring speech on public airways is unconstitutional.

Thirty-four years ago, the court ruled that the Federal Communications Commission could punish broadcasters on the public airways for speech that is "indecent" — but not obscene. That case involved George Carlin's popular monologue of seven words that you could never say on radio and television. His point was the hypocrisy of the government in banning some expressions and not others that may have included the same words, but used in a way that sex could be implied. "Ass" was permissible if talking about the Savior riding into town on a holy day, but not if buttocks was intended.

The case arose when a parent complained to the FCC that the satire came on the radio while he was driving his car with his young son on board.

He could have turned off the radio.

Carlin's monologue was about a serious public issue: whether the government can bar you from speaking on the airways because "you don't talk right."

There was no issue of "obscenity" as defined by the Supreme Court, and the FCC never so claimed. The FCC termed some words "indecent," a term that the Supreme Court has never defined. That alone would violate not only the First Amendment protection of speech but also the due process clause of the Fifth Amendment for being too vague to be understood. The same principle would apply to "indecent." The case against George Carlin should have been dismissed for the additional reason mentioned above, namely, that Carlin the social critic was denied freedom of speech on the subject of freedom of speech! More sinister, Justice Brennan hinted at the racist implications of the decision because some groups express themselves in the manner that the FCC might condemn as "indecent."

Punishing broadcasters could amount to a death sentence because the FCC has the power to take away the license and end the career of the broadcaster.

Since the Carlin decision in 1978, the indecency standard has become even more indefensible because cable TV, nonpublic radio and the Internet have become available, all of which the FCC cannot regulate. Those who can afford to pay get to hear speech, and others do not; access to what the First Amendment was supposed to protect has become a matter of money.

Stephen Colbert and Jon Stewart on the public airways are required to bleep out so many words that one wonders what the studio audience is laughing at. Howard Stern had enough of FCC sanctions and switched to nonpublic radio, where his popularity has soared. As for nudity, it is available on the Internet and cable TV with no government prosecutions because the courts have held that nudity is not "obscene." In addition, one may solicit sexual messages from many sources, such as Playboy, and the court has ruled that communication is protected under the First Amendment.

WHYY, the local National Public Radio station, asked novelist Sapphire how she chooses words in her stories and bleeped out the answer. Every June 16, Bloomsday readings from Ulysses are read throughout the world, but in Philadelphia — where the original manuscript of the James Joyce novel is — not a word of it is heard on public airways.

Although the court in Fox TV ducked the First Amendment question, Justice Ruth Bader Ginsburg wrote that the 1978 Carlin decision should be reconsidered because it was wrong when it was decided and became outdated by subsequent technology as pointed out by Justice Clarence Thomas the last time Fox TV was before the court. The FCC will have to try again to define "indecent." Maybe next time the court will have the courage to rule "indecent" itself unconstitutional, both as too vague under the Fifth Amendment and a violation of freedom of speech under the First Amendment.

Meanwhile, the sword hangs over the heads of broadcasters. WHYY is terrified of the FCC and will take the lesson from the Supreme Court decision that the First Amendment is essentially no longer in the Constitution.

Others will conclude from putting FCC v. Fox TV together with Citizens United that the Supreme Court extends First Amendment protection to corporations to spend billions to buy elections — which is not only indecent but obscene — but does not give protection to the world's greatest literature because some words might offend little kids riding in their parent's cars.

FCC v. Fox TV results from TV programs many years ago when Cher and Nicole Richie, in their enthusiasm, uttered common expletives and "NYPD Blue" showed bare buttocks for 7 seconds.

Those who stand up for liberty should prefer to bleep out the faces of those who menace our freedom rather than the rear end of those who do not.

Burton Caine is a professor of law at Temple University's Beasley School of Law.

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