TechKnowledge No. 68

Return of the ‘Seven Dirty Words’ Indecency Standard?

By Adam D. Thierer
December 18, 2003

Nothing brings out the puritanical streak in American politicians more than the utterance of a few dirty words on TV or radio. And so, in the wake of two such utterances by celebrities during live TV awards ceremonies this year, policymakers in Congress and at the Federal Communications Commission (FCC) are once again vowing to do something to “clean up the airwaves.”

We’ve been down this path before, of course, with the FCC occasionally tossing out fines to warn the broadcast community not to follow the poor example set mostly by a few foul-mouthed radio DJs. Consequently, a few lucky FCC regulators get to sit around each day and listen to Howard Stern’s radio show, or review tapes of other programs in an effort to unearth comedian George Carlin’s famous “seven dirty words” that can’t be said on the air. In 2001, the FCC also took the unusual step of issuing speech guidelines, known as the Indecency Guidelines Policy Statement, for industry to follow. This titillating read provides the industry a series of case studies on what FCC officials will deem indecent. The FCC’s Enforcement Bureau also keeps a running online record of all such fines on its “Obscene and Indecent Broadcasts” page. Until recently, most fines ranged from $6,000 to $8,000, but in 2002 and 2003, the levies jumped to the $12,000-$55,000 range, and a record-high $357,500 fine was slapped on Infinity Broadcasting in October for a radio stunt involving couples having sex in public places.

Ironically, in order to put the broadcasting world on notice regarding those words that must never be uttered in public, policymakers ultimately must say a lot of filthy things in the bills and regulations they pen. So, if you’re easily offended, don’t read through those FCC Indecency Guidelines, and certainly don’t let your eyes fall on the words listed in a new bill just introduced by Rep. Doug Ose (R-CA) and Rep. Lamar Smith (R-TX). Their bill, H.R. 3687, would clarify FCC indecency regulations by noting that “the term ‘profane,’ used with respect to language, includes the words ‘shit’, ‘piss’, ‘fuck’, ‘cunt’, ‘asshole’, and the phrases ‘cock sucker’, ‘mother fucker’, and ‘ass hole’, compound use (including hyphenated compounds) of such words and phrases with each other or with other words or phrases, and other grammatical forms of such words and phrases (including verb, adjective, gerund, participle, and infinitive forms).” Thanks for the grammar lesson, Congress, but let’s hope the youth of America don’t stumble across this bill when conducting research for their civics classes!

Coming to Grips with Curse Words. Seriously, though, isn’t it about time policymakers came to grips with “dirty” words? After all, they’ve been around a long time, as Geoffrey Hughes makes clear in his enlightening book, Swearing: A Social History of Foul Language, Oaths and Profanity in English. And plenty of nasty words show up in newspapers and magazines, as well as on the Internet, cable, and satellite TV. But those media outlets are accorded full First Amendment protection from government censorship efforts. By contrast, because broadcast radio and television operators need FCC licenses to operate, they have been relegated to second-class citizenship in terms of First Amendment rights.

Regrettably, the Supreme Court has endorsed this illogical legal distinction in famous cases such as FCC vs. Pacifica Foundation (1978), which held that broadcasting could also be censored since it was more intrusive or pervasive in our lives. It’s questionable whether that presumption is still valid, or if it was ever valid for that matter, but television and radio are only “intrusive” in our homes or cars to the extent that we put them there in the first place. While almost all censorship proposals are made in the name of “protecting the children,” if parents voluntarily purchase these devices, they should assume responsibility for guarding their children’s eyes and ears from material they might find potentially objectionable. We should not expect Uncle Sam to play the role of surrogate parent.

Is Regulation Possible in the Post-Broadcast Age? But here’s a far more practical consideration: Will all this huffing and puffing by policymakers about indecency really amount to much concrete regulatory activity in the future, given the declining role broadcast TV and radio play in our diverse modern media marketplace? For example, over 85 percent of American households currently subscribe to cable and satellite television, and regulators can’t censor those media providers.

As more Americans opt for media alternatives that receive stringent First Amendment protection, it could mean the gradual withering away of almost all federal censorship efforts. Alternatively, it could mean that policymakers will merely shift their attention to those other outlets and concoct new rationales for why “public interest” regulation must apply there too. But they will be on very shaky legal footing in this pursuit, given the unlicensed status of these carriers and technologies, as well as the precedents established in recent court decisions rejecting almost all efforts to regulate indecency on the Internet.

Shame on You! And that’s how it should be, of course. There are far more mature and sensible ways of dealing with filthy words than resorting to censorship. In some cases, choosing to ignore the troublemakers entirely might help. Many radio “shock jocks” made a name for themselves by pushing the regulatory limits and thrived on the regulatory attention it generated. FCC fines became a veritable badge of honor among some in the industry, a small price to pay for all the extra attention such “bad boy” behavior generated. It’s tough to know how much further the shock jock crowd can really push the envelope anyway without losing either advertiser or listener support. In other cases, social persuasion and disgust might play a role. What ever happened to the good, old-fashioned grandmotherly approach of just saying “Shame on you!” when confronted with potty-mouthed public speakers?

Still, there will always be those who believe that profanity has no place on TV or radio, or anywhere children might be in the audience. They argue that in our hectic age, it’s difficult for parents to keep round-the-clock tabs on junior’s viewing and listening habits. As the parent of a young daughter, I can sympathize. I suppose I could just give up, join the censorship crusade, and say to hell with the First Amendment-oops, I mean to heck with it-but I’m reminded of what author and poet Charles Bukowski had to say on the matter: “Censorship is the tool of those who have the need to hide actualities from themselves and others. Their fear is only their inability to face what is real. Somewhere in their upbringing they were shielded against the total facts of our experience. They were only taught to look one way when many ways exist.”

“The problem is the indecency standard is not a standard. It’s basically a test for what people find distasteful and that is entirely in the eyes and ears of the beholder,” argues Cato adjunct scholar Robert Corn-Revere, a partner with the law firm Davis Wright Tremaine. In a free society, different people will have different values and tolerance levels when it comes to speech, and government should not impose the will of some on all. And when it comes to minding the kids, I’ll take responsibility for teaching mine about the realities of this world, including the unsavory bits. You worry about your own. Let’s not call in the government to do this job for all of us.

Adam Thierer (athierer [at] cato [dot] org) is the director of telecommunications studies at the Cato Institute in Washington, D.C. To subscribe, or see a list of all previous TechKnowledge articles, visit www.cato.org/tech/tk-index.html.