The Supreme Court and the Filthy Words You Still Can't Say on TV

Broadcasters want to be able to live in the same dirty world the rest of us do, but the justices seem unsympathetic.



What lawyer would want to work amid nudity and filth?  

Four Justices of the Supreme Court made clear Tuesday that they would not. Their determination did not waver even when former Solicitor General Seth Waxman, representing the ABC-TV network, pointed out that the famous frieze surrounding the Court's chamber depicts various undraped figures that might subject a broadcaster who showed them on TV to hefty fines.

Waxman's waving finger of shame -- one of the most dramatic moments in Supreme Court argument since Daniel Webster shed tears over the fate of Dartmouth College -- drew gasps and laughter from the crowd. It is not clear, however, that it budged the Court's Decency Caucus, made up of Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito. They all but begged America's broadcasters to remain an island of decency in a sea of filth.  

America, by and large is the least censored society on earth -- since at least the 1960s, dialogue in this country has not only been "robust, uninhibited, wide-open," but dirty as well. TV broadcasters, though, live in an alternate society, under the watchful censorial eye of the Federal Communications Commission. Since 2004 at least, the FCC has taken seriously its strange mission, which is to purge the airwaves of indecency that might corrupt the young. (I say the airwaves by design, because the FCC's statutory mandate runs only to broadcast television and radio. Cable and satellite are immune.) 

The Supreme Court in recent years has refused to permit governments to suppress "virtual" child pornography, "crush" videos of animal cruelty, or vile, abusive picketing of veterans' funerals. All this builds on  Cohen v. California, a 1971 case in which the Court reversed the conviction of a protester who entered a courthouse wearing a shirt reading FUCK THE DRAFT.  "Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us," wrote Justice John Marshall Harlan in that case.

Broadcast TV and radio, however, is the exception. Under a 1978 case called  FCC v. Pacifica Foundation, the Commission can in fact require broadcasters to purge broadcasts -- at least between 6 a.m. and 10 p.m. -- of an ill-defined category called "indecency." Broadcasting, Justice Stevens wrote in Pacifica, is "uniquely pervasive" and more available to children than other media, and thus could be censored in ways other media can't.

So there's a contradiction. Almost everyone, and every medium of expression, lives in Cohen world. Broadcast TV is in Pacifica world.   

Tuesday's case arises out of a 2004 policy change by the FCC. After years of agitation from decency crusaders, it decided to do more to enforce the  Pacifica precedent. That case arose when a San Francisco radio station broadcast the famous "Filthy Words" routine by George Carlin during the afternoon. A listener complained, and the Commission for the first time issued a mild reprimand. Pacifica took the case to the Court, which held that the Commission could reprimand the station for not playing the routine during late-evening hours.

For a quarter-century, the FCC enforced that decision narrowly, basically saying that if a station used those specific words a whole lot during the day, it would be in a heap of trouble.  After 2004, however, the FCC broadened its forbidden-expression category and decided that even one brief transgression, if dirty enough, would be enough to get a broadcaster in hot water. 

One that was before the Court was against Fox, for an awards show in which Nicole Richie asked "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." Another ran against ABC, for a scene from NYPD Blue in which a young boy blunders into a bathroom and sees a naked woman bathing. The Second Circuit had reversed the fines, holding that the FCC policy was so vaguely worded that networks could never know whether they were violating it or not -- a big no-no in First Amendment law. The Court of Appeals, of course, was bound by Pacifica. But on Tuesday, former Solicitor General Carter Phillips, representing Fox, asked the Court to overturn Pacifica.  

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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