Bono, Nicole Richie, and The F-Word
The Insanity of Broadcast Indecency Law

By JULIE HILDEN
julhil@aol.com
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Tuesday, Dec. 23, 2003

In January, during the Golden Globe awards, music group U2's lead singer Bono received an award and exclaimed joyfully, "This is really, really fucking brilliant."

In October, the Federal Communications Commission (FCC) ruled that Bono's remark did not violate rules prohibiting indecent or obscene speech during broadcasts. The FCC reasoned that there was no violation because Bono was simply using the word "fucking" as a superlative, not in a sexual way.

This month, during the Billboard Music Awards, "Simple Life" stars Nicole Richie and Paris Hilton were involved in the following exchange: Hilton told Richie, "Now, Nicole, remember, this is a live show, watch the bad language." Jokingly, Richie immediately exclaimed "Fuck!" She was bleeped.

Later in the broadcast, Richie swore again, remarking, "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." This time, however, she avoided the bleep censor. Viewers heard her expletives loud and clear -- and some, especially parents of young children, were furious. Fox apologized, and has promised that it is "working to ensure it does not happen again."

Nevertheless, the Bono and Richie incidents -- and, especially, the FCC ruling that followed the Bono remark -- have created and fueled a furor among Congress and concerned parents. As a result, the FCC has indicated it may revisit its own ruling in the Bono case; and Congress has indicated that it may overturn the FCC's Bono ruling via legislation if the FCC does not do so itself.

Toward this end, a new bill introduced in Congress lists eight words and phrases that, if ever spoken on television -- whether during live events or already-recorded shows -- would always be punished. Context and meaning would be no defense: The words would be sanctioned in every grammatical form including -- the bill stipulates -- "hyphenated compounds," as well as "verb, adjective, gerund, participle, and infinitive forms."

All of these events will inspire de ja vu in those who follow the indecency/obscenity law -- for both the facts, and the backlash, are eerily similar to those in FCC v. Pacifica, a landmark Supreme Court case decided twenty-five years ago.

That case, in combination with the more recent controversy, shows why it's time to get rid of broadcast indecency law forever. This area of law has always been a standing First Amendment violation, and its absurdity has only become more and more clear.

The Parallels with the Court's Landmark Indecency Precedent

The 1978 Supreme Court decision FCC v. Pacifica arose from a twelve-minute monologue by stoner comedian George Carlin that was broadcast over the radio. (For interested readers, the Court helpfully offered a verbatim, uncensored transcript of the monologue as an Appendix to its decision.)

In his monologue, entitled "Filthy Words," Carlin discusses seven "words you couldn't say on the public airwaves -- the ones you definitely wouldn't say, ever." Then he proceeds to say them all, repeatedly.

Notably, the humor is not so different from Hilton's and Richie's when Hilton warns Richie not to swear on television, and, lo and behold, she did. In both cases, a taboo is raised in a tongue-in-cheek way, then immediately, and satirically violated. (As I explained in a prior column, satire enjoys strong First Amendment protection.)

Carlin's monologue also offers other parallels with recent events. The furor in 2003 over the use of the F-word easily reflects Carlin's own observations 25 years ago that, "The big one, the word fuck, that's the one that hangs them up the most."

Consider, also, Carlin's comment, in his monologue, "It leads a double life, the word fuck" -- as a synonym for making love and is "a word that we really use to hurt each other with, man." Since then, "fuck" has, of course, taken on other meanings far afield from its original, sexual one. Increasingly, it's led at least a triple life: Now, it's a superlative, too, as Bono's remark illustrates.

Listeners who heard Carlin's monologue then, were just as upset as those who heard Bono and Richie's monologues this year. Indeed, the Pacifica case began when a father, who was listening to the broadcast with his young son, heard the monologue and complained to the FCC.

In response to the complaint, the FCC subsequently sanctioned the station, holding that it had violated a federal statute prohibiting the use of "any obscene, indecent, or profane language by means of radio communications".

The Issue Presented: Censoring Speech That Is "Indecent" But Not Obscene

The Supreme Court ultimately took the Pacifica case because it presented a novel legal question. It had long been the case that obscenity can be constitutionally prohibited. But it was clear to the Court that Carlin's monologue was not obscene -- at most, it was "indecent" and "profane."

The Court's obscenity test, set out in Miller v. California -- which was decided five years before Pacifica -- requires that three questions be answered "Yes" for a work to be deemed obscene. In Carlin's case, the answer to all three would be no. First, a work must appeal to the "prurient interest"; the monologue does not. Second, a work must offensively describe sexual conduct; the monologue does not, except in the trivial sense that it does use the word "fuck," which sometimes has a sexual meaning. Third, the work must lack serious artistic or political value. Plainly, Carlin's satire of censorship is not utterly valueless.

Because Carlin's monologue was non-obscene, the Court thus had to decide if "indecent" speech could be censored. The Justices filed a patchwork of different opinions and dissents. But the bottom line was this: The FCC did not violate the First Amendment when it sanctioned the station.

The Court majority was concerned by the risk that the monologue could be heard by unwilling listeners -- including children. They also worried that that radio and television -- unlike, say, books or magazines -- intrude directly into the listener's (or viewer's) home, exposing listeners and viewers to material they may not have specifically selected.

In dissent, Justice William Brennan (joined by Justice Thurgood Marshall) adeptly countered both points. He noted that "the radio can be turned off," addressing the problems of unwilling listeners and intrusion into the home. And he pointed out that

while exposure to genuinely sexual material could harm children, Carlin's monologue wasn't that kind of material.

Brennan faulted the majority for its "fragile sensibilities," and urged (quoting one of the historic great Supreme Court Justices, Oliver Wendell Holmes) that context and meaning matter for "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used."

How the Case For Indecency Prohibitions Has Weakened Over Time

Unfortunately for television viewers, twenty-five years later these "fragile sensibilities" seem to still be in charge, and Congress seems far from seeing a word as the "skin of a living thought."

Even the "dirty" words are the same: There is close overlap between the seven words whose censorship Carlin mocked in "Filthy Words," and the eight words the bill pending in Congress is now attempting to sanction regardless of their grammatical form.

It's tragic that in twenty-five years, no progress has been made in getting rid of a legal doctrine that -- as Justice Brennan pointed out -- made little sense in the first place. And the tragedy is compounded by the fact that the case for indecency prohibitions on television has only grown weaker in the twenty-five years since Pacifica was decided.

First, the idea that children can possibly be protected from this handful of "dirty words" if they are censored from the broadcast media is laughable. These words permeate popular music and movies, as well as the Internet. And, of course, the music and movies being honored at awards ceremonies are far more influential than the repartee on the award show itself. Thus, in the end, even squeaky-clean airwaves will provide little protection for children. Accomplishing that would require wholesale censorship of music, movies, and a whole swathe of popular culture -- and that would mean junking the First Amendment entirely.

Second, with a much larger choice of channels, there is now a much smaller risk that viewers will inadvertently be exposed to unanticipated "dirty words" than ever before. Those who seek sanitized programming, can simply watch PAX; those who watch HBO know full well what they are getting.

Third, with the advent of Pay Per View and TIVO, an increasing number of viewers actually do select specific shows to watch just as they would a book or movie. That fact undermines the Pacifica majority's claim that it's okay to censor the broadcast media because indecent speech shouldn't be allowed to intrude into one's home uninvited.

In light of all these cultural and technological changes, it is high time for the current Supreme Court to reconsider Pacifica. And if it did, it is very possible it might come out the other way. The truth is, remarks like Bono's and Richie's do little, if any harm -- especially in today's culture, where "fragile sensibilities" cannot survive for long, in any event.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. Kirkus Reviews wrote about 3, "When tragedy intervenes, it's no surprise but shocking nonetheless -- testament to Hilden's rather uncanny abilities." Hilden maintains a website at www.juliehilden.com that includes MP3 and text downloads of the novel's first chapter

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