More Than Seven Dirty Words

Human Rights

One again, culture warriors are pressuring the Federal Communications Commission to crack down on "indecency" in broadcasting. Uniquely among government agencies, the FCC has the power to censor talk shows, political dialogue, and artistic endeavors on radio and television if it finds them too raunchy. But the zealousness with which it performs this job tends to vary with the political winds.

The winds today are decidedly censorial. While it appears that Congress may thwart at least part of the FCC's plan to increase media consolidation, less attention has been given to its tough new stance against "indecent" words and ideas. In a Notice of Apparent Liability, or "NAL," issued to Infinity Broadcasting earlier this year, it threatened the equivalent of capital punishment -- that is, revocation of broadcast licenses -- for any TV or radio station that strays from propriety as the agency perceives it.

Admittedly, the broadcast that occasioned this radical escalation in enforcement rhetoric was pretty gross. The January 9, 2002 episode of the call-in radio show, "Deminski and Doyle" on WKRK-FM in Detroit, consisted of male callers describing bizarre sexual practices, some of which involve excrement, and which go by such colorful names as "The Stranger," "the Cleveland Steamer," "Manhattan Hot Platter," and "Rusty Trombone." (Courtesy of our government, you can learn what these practices are in the agency's decision, at fcc.gov.)

Despite the colorful descriptions, the most offensive part of this particular exercise in "Animal House"-style sex talk was actually the radio host's repeated warning that not only children, but women as well, should not be listening. Whose tender ears did this crew think they were shielding, given that all of the practices described involved consenting women as well as men? For whatever anthropological interest or amusement value the show may have had, surely women were entitled to decide for themselves whether they wanted to hear it.

The importance of this case, though, lies neither in the host's oddly incongruous male chivalry nor in the callers' equally odd sexual interests, but in the FCC's threats. The agency not only warned Infinity that it might lose its license if it does not clean up its act, but announced that any broadcaster who runs afoul of the vague indecency standard will face "strong enforcement actions, including the potential initiation of revocation proceedings." And this announcement came at a time when the constitutionality of the FCC's censorship regime is more doubtful than ever.

The FCC's power to censor the airwaves goes back to the beginning of radio, when it was necessary for some authority to assign different frequencies so that broadcast signals did not collide. Because of this initial need for licensing, and because the airwaves were thought to be a public trust, it was assumed that broadcasters did not enjoy the same First Amendment right to be free of government interference with their content as did publishers of newspapers or books. When the FCC began in the 1930s to sanction radio stations for vulgar content -- for example, the use of such words as "damned" and "by God" -- it relied on a general law forbidding "obscenity" or "indecency" on the airwaves.

It had no definition of "indecency," though. Many pundits thought it meant the same as obscenity -- that is, so sexually explicit and lacking in redeeming value as not to be constitutionally protected. But the FCC had a broader view. In the famous "seven dirty words" case, FCC v. Pacifica Foundation, it announced the indecency definition that it still uses today: any depiction or description of "sexual or excretory activities or organs" in a manner that it deems "patently offensive as measured by contemporary community standards for the broadcast medium."

It did not matter to the FCC whether the material in question had artistic merit or other social value. In the Pacifica case, the offending work was George Carlin's "Filthy Words" monologue, a hilarious social commentary satirizing taboos on common four-letter words.

The Supreme Court's 1978 decision in Pacifica upheld the FCC's power to censor broadcasting under the broad, vague "patently offensive" definition. The primary justification, said Justice John Paul Stevens for the Court's 5-4 majority, was to protect children who, he assumed, would be harmed by Carlin's bawdy language. In any case, said Stevens, the government wasn't really banning vulgar speech; it was only requiring that it be aired late at night, when children are unlikely to be listening.

The Pacifica decision was indefensible as a matter of constitutional law, but its practical effect at the time was insignificant. Television was already steering clear of the risque so as not to offend any part of its national audience, while radio, which was sometimes more daring, could nevertheless be reasonably safe from FCC sanction if it simply avoided the "seven dirty words" and a few others of similar ilk.

All this changed in 1987, when the FCC, under pressure from the religious right, abandoned the "bright line" dirty-words test and announced that henceforth it would prohibit any broadcast it considered "patently offensive," regardless of specific language or redeeming social value. Again, a progressive, counter-cultural Pacifica station was among the targets of the FCC's displeasure. (It had broadcast a program about gay rights.)

Constitutional challenges to the new enforcement regime made little headway in the courts until 1997, when the Supreme Court, in Reno v. ACLU, struck down the "Communications Decency Act." This law, Congress's first attempt to censor the Internet, essentially criminalized any online speech that was "indecent" or "patently offensive" as measured by "contemporary community standards." The Court -- acknowledging what had been obvious from the start -- ruled that this standard was far too vague and broad to pass First Amendment muster.

The Reno decision did not, however, inspire the FCC to reconsider its indecency standard. On the contrary, in 2001 the agency saw fit to fine another nonprofit station, KBOO in Oregon, for playing the feminist rap artist Sarah Jones's “Your Revolution,” a song that affirms female independence (with lines like: “Your revolution will not happen between these thighs”) while mocking the misogyny of many male rappers. The agency confidently concluded that Jones's poetry was "patently offensive" and "designed to pander and shock" despite its literary value and resonance with inner-city women.

The FCC reversed itself this year, in belated response to a lawsuit by Jones. This change of heart, along with a similar reversal in 2001 regarding a "clean" version of Eminem's "Real Slim Shady," are good examples of the agency's own difficulty applying its highly subjective indecency standard. Its initial rulings effectively banned the songs from the airwaves -- in Jones's case, for almost two years. The new threat of license revocation, issued in the Infinity case, means that few if any radio stations will risk coming close to the dim and shifting indecency line.

The FCC's censorship of call-in radio shows that dwell on the far side of sexual invention may not generate widespread outrage. But giving any government agency unbridled power to censor whatever it deems "patently offensive" or "indecent," -- depending on the political climate -- is a dangerous proposition. Historically, FCC censorship has often targeted the radical or counter-cultural voices that, as one dissenting commissioner said years ago in protesting an indecency ruling against Jerry Garcia of the Grateful Dead -- the commission "fears because it does not understand."

In the face of increasing questions about the constitutionality of its indecency standard for broadcasting, and its obvious incongruity with contemporary sexual candor on the Internet, the print media, and cable TV, the FCC has now chosen to raise the stakes dramatically. Its energies would be better spent if it used its licensing power to increase diversity on the airwaves, rather than imposing archaic, indistinct, and unconstitutional standards of propriety.

Heins is the Director of the Free Expression Policy Project (www.fepproject.org) and the author of Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth (Hill & Wang, 2001).

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