Joshua J. Borger
Partner Berliner Cohen LLP
Email: Joshua.Borger@berliner.com
Boston College Law School; Newton MA
Josh practices commercial and civil litigation in a variety of areas, including unfair business practices, breach of contract, trademarks, trade secrets, fraud, employment, insurance coverage and litigation, Proposition 65, and general business litigation. In addition to his litigation work, Josh represents companies in nonlitigation matters, including employment matters and licensing agreements.
"You are all diseased." There, got your attention. Well, less me than George Carlin in his comedy skit in which the legendary comedian tackles airport security and our fear of germs.
Comedians today are reflecting on Carlin's satire about the use and misuse of words as their own comedy butts heads with an ever more politically correct environment, creating a clash between the First Amendment and so-called "cancel culture." Dave Chappelle sparked the latest controversy when he unapologetically mocked transgender people in a Netflix special "The Closer."
The timing of this brouhaha couldn't be better since 2022 marks the 50th anniversary of Carlin's famous 1972 monologue, "Seven Words You Can Never Say on Television." There's only one question that everyone -- comedians and the public alike -- must ask: WWCD. That is, What would Carlin do?
My fascination with Carlin started when I was about seven. My father was asleep in his chair. I turned on the television and stopped on the channel showing a man who swore at me. Forbidden fruit syndrome.
My mother walked in and yelled, "What are you letting him watch?"
My father awoke, looked at the TV, and shrugged.
My education as to a "civil" war began that night.
Fast forward 20 years. I walked into the living room to find my niece watching Carlin who, to my surprise, was playing a train conductor in a children's TV show. I waited with bated breath for an expletive laden rant but it never came. If he had, he would have been arrested based on precedent from his own U.S. Supreme Court decision.
"Seven Words You Can Never Say on Television"
Picture it. May 27, 1972. Santa Monica Civic Auditorium in Southern California. George Carlin takes the stage for a defining moment in broadcast history. He debuts his monologue the "Seven Words You Can Never Say on Television." Carlin, who professionally tested the boundaries of the First Amendment, dared to rattle off these seven words: shit, piss, fuck, cunt, cocksucker, motherfucker and tits.
The bit wasn't meant just to shock. Carlin shocked to illuminate. He highlighted the absurdity that these seven words of all the words would corrupt us: "There are 400,000 words in the English language, and there are seven of them you can't say on television. What a ratio that is. Three hundred and ninety-nine thousand nine hundred and ninety-three to seven. They must really be bad. They'd have to be outrageous to be separated from a group that large." These "are the ones that will infect your soul, curve your spine, and keep the country from winning the war." Carlin forced us to rethink the values we attribute to language.
FCC v. Pacifica Foundation
On October 30, 1973, a radio station in New York City aired a broadcast of Carlin's "Seven Dirty Words" as part of a program about societal attitudes towards language. A father filed a complaint with the Federal Communications Commission, which, in turn, censured the radio station for violating broadcast regulations that prohibited airing indecent material. The station appealed and the battle made its way to the U.S. Supreme Court.
The Supreme Court held that the FCC has the power to regulate a radio broadcast that is "indecent but not obscene." The court concluded that the First Amendment does not protect all speech in all contexts: "Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas." FCC v. Pacifica Found., 438 U.S. 726, 746 (1978).
Yet, the Supreme Court noted that broadcasting has the most limited First Amendment protection of all forms of communication. Broadcasting, unlike other forms of communication, is uniquely pervasive in our lives: It extends into the privacy of one's home, and it is impossible completely to avoid those that are patently offensive. The ease with which children may obtain access to broadcast material, coupled with other concerns, justified special treatment of indecent broadcasting. As with obscenity, the court held that Carlin's profanity was not an essential part of any expression of protected ideas and had little social value. Therefore, any benefit derived from them was clearly outweighed by the social interest in order and morality.
Justice William Brennan issued a sharp dissent in which he held that the decision merely forces the minority to conform to the majority: "Today's decision will thus have its greatest impact on broadcasters desiring to reach, and listening audiences composed of, persons who do not share the Court's view as to which words or expressions are acceptable and who, for a variety of reasons, including a conscious desire to flout majoritarian conventions, express themselves using words that may be regarded as offensive by those from different socio-economic backgrounds. In this context, the Court's decision may be seen for what, in the broader perspective, it really is: another of the dominant culture's inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking."
Is Pacifica still applicable?
Assume I resurrect George Carlin and he delivers the "Seven Dirty Words" on Netflix. Now what? He goes free.
Pacifica remains good law despite challenges over the years. The FCC may prohibit indecent content on broadcast TV and radio, which uses public airways between 6 a.m. and 10 p.m., because there's a reasonable risk that children may be in the audience. However, these same rules would not apply to Carlin's Netflix special because the rules for indecency do not apply to cable, satellite TV and satellite radio since they are subscription services.
In United States v. Playboy Entertainment Group, 529 U.S. 803 (2000), the U.S. Supreme Court held unconstitutional Section 505 of the Telecommunications Act of 1996, which required cable operators who provide channels "primarily dedicated to sexually oriented programming" to scramble or block those channels completely, or to "time channel" their transmission, i.e., limit their availability to hours between 10 p.m. and 6 a.m., when, in Congress' view, children are unlikely to be viewing television. By this provision, Congress sought to prevent children's exposure to content contained on such channels as a result of "signal bleed."
The Supreme Court determined that Section 505 constituted a "significant restriction of [protected] communication between speakers and willing adult listeners." The court held that this provision failed strict scrutiny because Congress had available to it an effective, less restrictive means of achieving its ends.
In particular, Congress had provided for an "opt-out" provision whereby a cable subscriber could request the cable company to scramble fully or block completely the receipt of sexually explicit channels. The court rejected arguments that parents' ignorance of this option, its underutilization, or its inability to be 100% effective rendered targeted blocking an ineffective alternative: "It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act."
The Supreme Court further noted that "[t]echnology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us." As a result, the court determined that the government could not ban the speech since the targeted blocking was a feasible and effective means of furthering its compelling interests.
At least one court has subsequently ruled that applying the First Amendment differently depending on whether the speech comes from broadcast or cable television is no longer relevant. In Fox TV Stations, Inc. v. FCC, 489 F.3d 444 (2nd Cir. 2007), the 2nd U.S. Circuit Court of Appeals concluded that the proliferation of satellite and cable television channels -- not to mention internet streaming services -- has begun to erode the "uniqueness" of broadcast media, while at the same time blocking technologies such as the V-chip have empowered viewers to make their own choices about what they do and do not want to see on television. The U.S. Supreme Court reversed the 2nd Circuit on different grounds.
Justice Ruth Bader Ginsburg later urged the Supreme Court to reconsider Pacifica in her concurrence in FCC v. Fox TV Stations, Inc., 567 U.S. 239, 259 (2012): "In my view, [the Pacifica decision] was wrong when it was issued. Time, technological advances, and the commission's untenable rulings in the cases now before the court show why Pacifica bears reconsideration."
The 2nd Circuit and Justice Ginsburg are right. To the extent it was ever correct, Pacifica's reasoning now fails. Children can easily hear any off-color language from cable television and the internet with its proliferation of social media platforms (YouTube, Twitter and Facebook). It's difficult to classify an internet site on a smartphone as being "invited" into one's house any more than broadcast TV. Plugging in a TV is no harder than clicking on a website. There is also filtering technology for all platforms. They are indistinguishable. Therefore, Pacifica should apply the same strict scrutiny as Playboy because there is a less restrictive alternative to banning the speech.
What's actually banned?
But, Pacifica is still the law of the land. So, what's banned depends on the whims of the FCC under a content-based test with an amorphous standard.
The FCC's test for indecency involves a two-pronged review. The FCC first examines the material to determine whether it fits within the "subject matter scope" of indecency, which requires that there be a depiction or description of a sexual or excretory organ or activity.
If it falls within prong one, the FCC then assesses whether the reference is "patently offensive as measured by contemporary community standards for the broadcast medium." The standard is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant. The FCC acknowledges that this is a highly contextual analysis which requires determining, inter alia, whether the speech is used for "shock value."
It's not clear who the "average broadcast viewer" is given the country's diverse ethnic and religious makeup. The standard also subjects the speech to the political whims of the FCC which assesses (or censors) the speech based on whether the government determines that the foul language is an essential part of the expressed idea or of no social value. Contrary to Playboy, the FCC decides what acceptable viewing for children is rather than parents. Given the lack of guidance, people and stations will find out after the fact whether they violated the law.
Final thoughts
My back hurts, because I walk hunched over and we've lost a few wars, none of which is because of the infamous seven words. I don't want my children hearing those words or many others which, per Carlin, may make me a hypocrite since I support the First Amendment. At the same time, technology will allow me to support Carlin, the First Amendment, and my kids. But the law hasn't accepted this balance. So, 50 years later we're stuck where Carlin knew we'd be.
WWCD? There's a brilliant monologue about the government in there which only he could deliver. Happy anniversary, George.