Wendy Kaminer, one of America’s most respected free speech warriors and the author of numerous books, has joined spiked as a columnist. Her column, on life, liberty and politics in the US, will appear monthly. In this third instalment, she argues against the censorship of words just because elements on the right – or the left – don’t like them.
For Americans beset with financial fears, the culture war may be a luxury, but their government still indulges in it.
On election day, while voters cast ballots in what they hoped were their economic interests, the Supreme Court was considering the Bush administration’s efforts to protect us from indecency. With only a few snickers, the justices heard arguments in FCC v Fox, a convoluted case involving the Federal Communications Commission’s crackdown on the broadcast of four-letter words, specifically ‘fuck’ and ‘shit’ – delicately referenced by and before the court as the ‘F-word’ and ‘S-word’. A transcript of the argument is available online (click here), and you might have to read it to appreciate the unabashed seriousness with which federal bureaucrats and judges imagine the dangers of profanity and their consequent obligations as language policers.
The case began when the FCC found NBC and Fox Television in violation of its indecency standards when the words ‘fuck’ and ‘shit’ were uttered during live broadcasts. In 2002, Cher accepted a Billboard Music Award with a message for her critics: ‘Fuck ’em.’ In 2003, award presenter Nicole Ritchie referred to the ‘fucking’ difficulties of getting ‘cow shit out of a Prada purse’, and in 2004, Bono pronounced his Grammy award ‘fucking brilliant’. Sensing a serious danger to the republic, the FCC decided that broadcasters could be held liable for airing ‘fleeting expletives’ uttered during live broadcasts.
The networks were not fined for their transgressions because the FCC rule represented a change in policy. (They can expect to be fined in the future, if the new policy stands.) Previously, ‘isolated or fleeting use’ of four-letter words was not considered ‘indecent’. The FCC was authorised to censor indecency, but its authority was defined fairly narrowly, by a famous 1978 case, FCC v Pacifica Foundation, involving the late George Carlin’s purposefully provocative ‘seven dirty words’ monologue, aired on radio in 1973:
‘I was thinking one night about the words you couldn’t say on the public, ah, airwaves, um the ones you definitely wouldn’t say, ever’, Carlin riffed. ‘Bastard you can say, and hell and damn, so I have to figure out which ones you couldn’t… and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker and tits. Those are the ones that will curve your spine, grow hair on your hands and maybe, even bring us, God help us, peace without honour um, and a bourbon.’ (1)
The Supreme Court was duly offended and especially solicitous of minors; in a five-to-four decision, the court held that Carlin’s monologue, though not obscene (and therefore not bereft of First Amendment protection), was indecent, and broadcasters could be sanctioned for airing it when children might be listening. Federal law explicitly bars the FCC from censoring broadcasters, so the court simply declared that punishing the deliberate airing of repeated indecencies was not censorship; at the same time it took pains to ‘emphasise the narrowness’ of this decision and its questionable applicability to an ‘occasional expletive’, as opposed to Carlin’s ‘verbal shock treatment’.
So, for about 30 years, the FCC refrained from punishing broadcasters for airing isolated, spontaneous outbursts, like Bono’s ‘fucking brilliant’. But the Bush administration made prosecuting pornography and obscenity offences a priority; as FCC chair Kevin Martin explained, protesting a federal appeals ruling against his effort to ban ‘fleeting expletives’ (the ruling now before the Supreme Court), ‘If we can’t prohibit the use of the words “fuck” and “shit” during prime time, Hollywood will be able to say anything they want, whenever they want’ (2). Martin was ridiculed for repeating the words he sought to ban: an AP report slyly noted that he ‘used the F-word six times and the S-word four times in his statement’. Less amusing was his un-self-conscious horror of free speech. If the administration was intent on spreading freedom around the globe, the FCC commissioner was unaware that Americans are supposed to be able to say ‘anything they want, whenever they want’.
But Martin is hardly alone in his belief that free speech should be limited to speech deemed fit for children, especially when disseminated over the airwaves. Federal officials have long enjoyed the power to regulate broadcast speech, partly because the airwaves were considered a limited resource. Obviously, new media have undermined the scarcity rationale for censoring broadcasters – except in the view of federal officials, who can find excuses for censorship in either the limitation or expansion of media: ‘We actually think the fact that there are now additional mediums like the internet and cable TV, if anything, underscores the appropriateness of a … safety zone for broadcast TV’, US solicitor general Gregory Garre explained to the court in FCC v Fox. ‘Americans who want to get indecent programming can go to cable TV, they can go to the internet.’ (Garre neglected to mention the FCC’s interest in regulating indecency on cable TV as well, or previous efforts by Congress to restrict indecency on the internet.)
Why is indecency, exemplified by the words ‘fuck’ and ‘shit’, so dangerous? Addressing the court, General Garre confidently noted: ‘Everyone acknowledges that a word like the F-word is one of the more graphic, explicit and vulgar words in the English language for sexual activity… even the non-literal use of a word like the F-word… inevitably conjures up a core sexual image.’
‘The word “shit” is indecent because it refers to excretory activities’, Justice Scalia helpfully observed. References to sex and excrement are what give these words their ‘zing’, he added. As the argument ended, Justice Stevens (who authored the opinion in FCC v Pacifica) asked if ‘use of the word “dung” would be indecent’. It would probably not be considered ‘patently offensive’, the solicitor general replied. Apparently ‘dung’ lacks ‘zing’.
The arbitrariness of such distinctions, and the FCC’s insistence on exercising discretion in deciding when ‘fleeting expletives’ are indecent, raise obvious First Amendment problems, notably the unpredictability of punishment and the chilling effect on broadcasters likely to refrain from airing live broadcasts or documentaries and feature films in which the words ‘fuck’ or ‘shit’ are uttered. (Never mind the underlying assumption that references to sex and excretion are sufficiently harmful to warrant federal regulation.) The FCC found, for example, that a Martin Scorsese documentary on the blues was indecent because musicians portrayed in it used expletives that the agency considered gratuitous. Steven Spielberg’s Saving Private Ryan, however, was not condemned as indecent because film critics at the FCC decided that the expletives it included were ‘integral to the film’s objective’.
Chief Justice Roberts was sympathetic to the FCC’s subjective, contextual approach to censorship: ‘It’s one thing to use the word in, say, Saving Private Ryan, when your arm gets blown off’, he explained. ‘It’s another thing to do it when you’re standing up at an awards ceremony.’
It’s difficult not to scoff at the spectacle of agency officials and Supreme Court justices spending time and tax dollars weighing the artistic necessity or news value of four-letter words, but the consequences of these exercises aren’t funny. Federal law and individual liberty are partly shaped by absurdities like the FCC’s new ‘fleeting expletives’ rule.’In reviewing it, the Supreme Court may focus on mundane matters of administrative law presented by the government’s appeal, to avoid formally addressing the First Amendment rights at issue; but it cannot avoid affecting those rights.
Nor are the justices likely to avoid the influence of their own views on linguistic etiquette in reaching a decision. ‘These words’ have entered the vernacular, Fox counsel Carter Phillips pointed out, suggesting that they can no longer be considered indecent. But to Justice Scalia, changing standards of indecency seem less an argument against censorship than another reason to punish broadcasters. ‘Fuck’ and ‘shit’ may be regularly heard at ballgames, as Phillips noted, but, Scalia complained, ‘You don’t have to present them as something that is normal in polite company, which is what happens when it comes out in television shows. This is a coarsening of manners that is produced by these shows.’
You can share Scalia’s disdain for vulgarity without sharing his apparent impulse to police it. But relatively few people do. Instead, they generally favour restricting whatever speech they consider harmful. The civil libertarian mantra that the remedy for ‘bad’ speech is ‘good’ speech (or the silence of a turned-off TV) has little power to persuade people who are accustomed to seeking legal solutions to cultural or social problems. This impulse to censor is non-partisan, common on both the right and the left. Liberals who consider the words ‘kike’, ‘nigger’ or ‘cunt’ actionable or, at least, unprintable should refrain from mocking conservatives who want to ban the words ‘fuck’ and ‘shit’.
In fact, the more you say the words, the less they matter. Firing off forbidden words deprives them of their power. George Carlin’s ‘dirty words’ monologue did less to advance vulgarity than debunk the basic notion of it. Lenny Bruce’s use of epithets was not an expression of racism but an interrogation of it. The great civil libertarian Nat Hentoff reminisced in an interview in the year 2000 that Bruce ‘used to come into the Vanguard Stage, and at this time, that was probably the most integrated audience of all kinds, sexual preference, colour, religion, no religion. He’d come up and look around and say, “Any kikes here tonight? Any niggers? And spicks?” The place would freeze. What dybbuk got into this guy? Then he’d say, “All right, now, why do you get paralysed by words? Why don’t you try to figure out why those words have that effect?”’ (3)
Bruce was a martyr to his words, as Hentoff recalled. Convicted of obscenity charges after he provoked New York’s Catholic district attorney by insulting the Church, he became virtually unemployable and died two years later of an overdose. Bruce was posthumously exonerated; his First Amendment rights were vindicated, but not his insights into the uses of presumptively abusive speech. It’s not the right to speak that is to blame for cultural coarseness or bigotry; it’s the disinclination to think.
Wendy Kaminer is a lawyer, writer and free speech activist. She is the author most recently of Free for All: Defending Liberty in America Today, published by Beacon Press. (Buy this book from Amazon(UK).) Her forthcoming book is Worst Instincts: Cowardice, Conformity, and the ACLU.
(1) FCC v. PACIFICA FOUNDATION 438 U.S. 726 (1978), Find Law - Cases and Codes
(2) FOX TELEVISION STATIONS v. FCC (2007), Centre for democracy and technology
(3) Nat Hentoff ‘Speaking Freely’ transcript - (taped 28 November 2000), First Amendment Centre