Obscenity has been restricted in broadcast communication since the beginning. In 1973, the Miller Test was created to define what obscenity really meant. That same year, George Carlin used a Pacifica radio station to break convention - and the law - with a seven minute rant discussing his belief that the restriction of words was preposterous. He picked out the following taboo words to express his outrage: Shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. At two o’clock in the afternoon on October 30, 1973, George Carlin offended the senses and sensibilities of the many Americans who were tuned into WBAI radio with his comedy sketch about the seven words you could never say on television. This sketch led to a variety of outbursts, complaints, and court hearings, which in turn ultimately ended up in defining the FCC’s control over the radio waves and forever changed obscenity laws for broadcast in America.
George Carlin was a famous American stand-up comedian and social critic most famous for his humor which was often filled with comments on politics, philosophy, religion, and taboo subjects. His most controversial routine was his “Filthy Words” sketch (see Appendix 1). In October 1973, a Pacifica Foundation FM radio station broadcast this routine in New York City in the middle of the afternoon. Soon after, a father complained that his son had heard the appalling comedy sketch by accident on their drive home. Due to this complaint, Pacifica received a letter from the FCC sanctioning them for violating FCC regulations by broadcasting “indecent material”. This was the starting point of a long and heated debate over what should and should not be considered indecent, how much control the government should have over broadcasts, and where the freedom of speech granted by the First Amendment ended. Five years later the debate finally came to a conclusion in the 1978 U.S. Supreme Court FCC versus Pacifica Foundation case, where George Carlin’s “Filthy Words” were a main focal point of the discussions. The station claimed protection under the First Amendment while the FCC argued it was a breach under Section 1464 which included the FCC’s right “to regulate a radio broadcast that is indecent but not obscene” (Cohen, 2003 : 18). In an incredibly close five to four decision, it was ruled that government had the power to regulate indecent material on the public airways – a ruling that still holds true today.
Despite the United States great emphasis on every individual’s freedom of expression, it was concluded that higher restrictions can be placed on broadcasts because “the broadcast media have established a uniquely pervasive presence in the lives of all Americans … confront(ing) the citizen, not only in public, but also in the privacy of the home” and also because “broadcasting in uniquely accessible to children” (Cohen, 2003: 18).
The FCC vs Pacifica case and its controversy also led to long-absent definitions of indecency and profanity. Obscenity had been determined a few years prior in the 1973 Miller vs. California case to be any material that met the following three standards:
(1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest (i.e., material having a tendency to excite lustful thoughts); (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. (Main, 1987: 1159).
In America, indecency is less serious than obscenity, but also more difficult to define. The Federal Communications Commission defines indecency as any material that “depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium” where juries are used to decide contemporary community standards (FCC, 2010). In addition, “Profane language includes those words that are so highly offensive that their mere utterance in the context presented may, in legal terms, amount to a nuisance” (FCC, 2010). Since both profanity and indecency are agreeably at a lower level that obscenity, it is protected at a higher extent by the First Amendment and may not be banned entirely.
In the last 32 years since the FCC vs Pacifica case, the government has maintained this control, but at varying extents. Immediately following the case the FCC was quick to insist they never intended to put an absolute ban on this type of language in broadcasting, but rather that they wanted to channel it to more appropriate times of day. In 1988 Congress required the FCC to ban all indecent broadcasts 24 hours a day (Cohen, 2003 : 19). However, these regulations never came into effect because the court of appeals declared the ban unconstitutional. It was then agreed in 1992 that the FCC could “promulgate regulations that prohibit indecent programming on radio and TV from 6am until midnight except for public radio and TV stations that go off the air at or before midnight, which may broadcast such material beginning at 10pm”. This ruling lasted a year before being overturned in early 1993. On June 30, 1995, today’s “Safe Harbor” standards of no indecent material between 6am and 10pm were passed for both public and non-public stations (Cohen, 2003 : 19). Also in 1995, the Communications Decency Act was created to modernize existing protections as well as to increase maximum fines from $10,000 to $100,000 for both radio and cable television infractions (Emeritz, 1996: 191-192). In 1996, the Communications Act was edited to include telecommunications and internet publications. In the last few years, the FCC has toughened their enforcement by proposing monetary penalties for each indecent utterance in broadcast rather that a single penalty for the whole broadcast.
Those who feel these decisions are an attack on Constitutional rights are given the response concluded in the Red Lion Broadcasting Co vs FCC Case of 1969 in which the FCC sued the Red Lion Company for not applying the Fairness Doctrine in their attack of a local cook. This case found that “where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak write or publish” (Cohen, 2003: 18). The government also asserts that it is their responsibility to support parents in preventing minors from being exposed to indecent material. Those in favor of looser regulations are should also remember that the FCC does not regulate violence, does not interfere with any paid programming services, is constitutionally forbidden from monitoring specific radio or television programs, and, contrary to George Carlin’s monologue, there is no set list of offensive words (FCC, 2010).
The Federal Communications Commission becomes actively involved in about ten to fifteen cases each year and has the authority to issue civil monetary penalties, revoke a license or deny a renewal application or place a maximum two year prison sentence on the broadcaster (FCC, 2010). In 2004, $8,000,000 was collected in fines, however, no one has ever been sent to prison in America for violating the indecency code. In the United Kingdom, punishments are harsher than US condemnations, including up to three years in prison and unlimited fines. The People’s Republic of China and Great Britain are the only two countries to jail first offenders for obscenity (Robertson and Nichol, 2008: 226). However, unlike the US, Great Britain does not have a set profanity law.
Even so, the laws in the United Kingdom are comparable to those of the United States despite the fact that there is no guaranteed right to the freedom of expression and speech. The UK Human Rights Act asserts a necessity to receive and impart information and ideas. The United Kingdom also separates material into obscene and indecent just as in America. Obscene is defined by section 1 of the Obscene Publications Act as those broadcasts whose “effect, if taken as a whole, tend(s) to deprave or corrupt persons who are likely, in all circumstances, to read, see or hear the matter” where deprave means the “ability to make morally bad, to pervert, to debase, or corrupt morally” (Robertson and Nichol, 2008: 198). It has been argued that it is impossible for any material to actually “deprave” any individual, but, as in the United States, juries are trusted with the ability to take contemporary standards of ordinary people into account. Another way in which the UK law parallels the US law is the exclusion from intellectual, artistic, and scientific materials from the definition of obscene. However, the UK law differs from US law in that obscenity may refer to more than just sexually explicit material. While the US law is confined, courts in Britain “have interpreted the statutory definition of obscene to encompass encouragements to take dangerous drugs and to engage in violence” – two topics Americans can avoid FCC censorship on with their claim to First Amendment protection (Robertson and Nichol, 2008: 215). Indecency on the other hand still escapes an easy definition and is simply said to mean any topic which may “offend the ordinary modesty of the average man” (Robertson and Nichol, 2008: 239). Decency standards change with time and are something that cannot be proven or disproven and are therefore the sole result of jury deliberation.
With these changing standards, many of the words originally ranted about by George Carlin have since been uttered on the public airwaves without consequence. A 1995 study compared the prime time offerings of January 1990 to those of March 1994. The offensive language of the programs changed vastly even in that short amount of time from “God” “hell” “sucks” and “damn” to later include “butt” and “ass” (Wells and Hankanen, 1997: 468). While the FCC still sees “fuck” as highly offensive and will often declare its use both obscene and profane, many other so-called bad words fill the broadcasting world. The 1995 research found more than six instances of offensive language per hour, and despite the unspoken ban on “fuck”, the word does find its word into live broadcasts, subtitles, documentaries, and in countless innuendos (Wells and Hankanen, 1997: 468). In 2002, during episode four of The Wire, there is an entire scene in which the only spoken word is “fuck”. The 1995 analysis, making reference to Carlin’s “Filthy Words”, pointed out the use of both “tit” and “shit” without consequence in 1994. The word “piss”, generally used in the phrase “piss off”, has been standard since the 1980’s, and “shit” was heard for the first time in an episode of Chicago Hope in the late 1990s, but has since been used very infrequently on non-cable programming (Wells and Hankanen, 1997: 470). As society continues to evolve and change, so will its use and connotations of words. While some of the seven words originally named by George Carlin no longer make us cringe, others are still deemed by humanity at large as indecent. Some may argue that it does not matter if it is indecent and that all broadcasters should have the right to air whatever they please and the FCC is overstepping boundaries by stripping radio and television of full constitutional rights. However, the simple fact of the matter is that the protection of the innocence of children has always been at the forefront of importance in law in both the United Kingdom and in the United States. This need to protect the vulnerable justifies to government’s interference with broadcast by putting a blanket ban on societal-judged “indecent” and “profane” material during “Safe Harbor” hours, and as long as it is left up to juries to define indecent, most concur that the government is not going too far.
References:
Cohen, H. (2003) Obscenity: Constitutional Principles and Statutes Novinka Books, Hauppauge, NY.
Emeritz, E. (1996) The Telecommunications Act of 1966: Law and Legislative History Pike and Fischer, Silver Spring, MD.
Main, E.J. (1987) The Neglected Prong of the Miller Test for Obscenity: Serious Literary, Artistic, Political, or Scientific Value New York, NY.
Robertson, G & Nichol A. (2008) Media Law (5th Ed) Penguin Books, London.
Wells, A and Hakanen, E (Eds.) (1997). Mass Media and Society JAI Press, London.
*The paper was also presented in-class in a 10-15 minute discussion*
