Return of the ‘Seven Dirty Words’ Indecency Standard?


Nothing brings out the puritanical streak in Americanpoliticians more than the utterance of a few dirty words on TV orradio. And so, in the wake of two such utterances by celebrities during liveTV awards ceremonies this year, policymakers in Congress and at theFederal Communications Commission (FCC) are once again vowing to dosomething to "clean up the airwaves."

We've been down this path before, of course, with the FCCoccasionally tossing out fines to warn the broadcast community notto follow the poor example set mostly by a few foul-mouthed radioDJs. Consequently, a few lucky FCC regulators get to sit aroundeach day and listen to Howard Stern's radio show, or review tapesof other programs in an effort to unearth comedian George Carlin'sfamous "seven dirty words" that can't be said on theair. In 2001, the FCC also took the unusual step of issuing speechguidelines, known as the Indecency Guidelines PolicyStatement, for industry to follow. This titillating readprovides the industry a series of case studies on what FCCofficials will deem indecent. The FCC's Enforcement Bureau alsokeeps a running online record of all such fines on its "Obscene and Indecent Broadcasts" page. Untilrecently, most fines ranged from $6,000 to $8,000, but in 2002 and2003, the levies jumped to the $12,000-$55,000 range, and a record-high $357,500 fine was slapped on InfinityBroadcasting in October for a radio stunt involving couples havingsex in public places.

Ironically, in order to put the broadcasting world on noticeregarding those words that must never be uttered in public,policymakers ultimately must say a lot of filthy things in thebills and regulations they pen. So, if you're easily offended,don't read through those FCC Indecency Guidelines, andcertainly don't let your eyes fall on the words listed in a newbill just introduced by Rep. Doug Ose (R-CA) and Rep. Lamar Smith(R-TX). Their bill, H.R. 3687, would clarify FCC indecency regulations bynoting that "the term 'profane,' used with respect to language,includes the words 'shit', 'piss', 'fuck', 'cunt', 'asshole', andthe phrases 'cock sucker', 'mother fucker', and 'ass hole',compound use (including hyphenated compounds) of such words andphrases with each other or with other words or phrases, and othergrammatical forms of such words and phrases (including verb,adjective, gerund, participle, and infinitive forms)." Thanks forthe grammar lesson, Congress, but let's hope the youth of Americadon't stumble across this bill when conducting research for theircivics 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 GeoffreyHughes makes clear in his enlightening book, Swearing: A Social History of FoulLanguage, Oaths and Profanity in English. And plenty ofnasty words show up in newspapers and magazines, as well as on theInternet, cable, and satellite TV. But those media outlets areaccorded full First Amendment protection from government censorshipefforts. By contrast, because broadcast radio and televisionoperators need FCC licenses to operate, they have been relegated tosecond-class citizenship in terms of First Amendment rights.

Regrettably, the Supreme Court has endorsed this illogical legaldistinction in famous cases such as FCC vs. Pacifica Foundation (1978), which held thatbroadcasting could also be censored since it was more intrusive orpervasive in our lives. It's questionable whether that presumptionis still valid, or if it was ever valid for that matter, buttelevision and radio are only "intrusive" in our homes or cars tothe extent that we put them there in the first place. While almostall censorship proposals are made in the name of "protecting the children," if parentsvoluntarily purchase these devices, they should assumeresponsibility for guarding their children's eyes and ears frommaterial they might find potentially objectionable. We should notexpect Uncle Sam to play the role of surrogate parent.

Is Regulation Possible in the Post-BroadcastAge? But here's a far more practical consideration: Willall this huffing and puffing by policymakers about indecency reallyamount to much concrete regulatory activity in the future, giventhe declining role broadcast TV and radio play in our diversemodern media marketplace? For example, over 85 percent of Americanhouseholds currently subscribe to cable and satellite television,and regulators can't censor those media providers.

As more Americans opt for media alternatives that receivestringent First Amendment protection, it could mean the gradualwithering away of almost all federal censorship efforts.Alternatively, it could mean that policymakers will merely shifttheir attention to those other outlets and concoct new rationalesfor why "public interest" regulation must apply there too. But theywill be on very shaky legal footing in this pursuit, given theunlicensed status of these carriers and technologies, as well asthe precedents established in recent court decisions rejectingalmost all efforts to regulate indecency on the Internet.

Shame on You! And that's how it should be, ofcourse. There are far more mature and sensible ways of dealing withfilthy words than resorting to censorship. In some cases, choosingto ignore the troublemakers entirely might help. Many radio "shockjocks" made a name for themselves by pushing the regulatory limitsand thrived on the regulatory attention it generated. FCC finesbecame a veritable badge of honor among some in the industry, asmall price to pay for all the extra attention such "bad boy"behavior generated. It's tough to know how much further the shockjock crowd can really push the envelope anyway without losingeither advertiser or listener support. In other cases, socialpersuasion and disgust might play a role. What ever happened to thegood, old-fashioned grandmotherly approach of just saying "Shame onyou!" when confronted with potty-mouthed public speakers?

Still, there will always be those who believe that profanity hasno place on TV or radio, or anywhere children might be in theaudience. They argue that in our hectic age, it's difficult forparents to keep round-the-clock tabs on junior's viewing andlistening habits. As the parent of a young daughter, I cansympathize. I suppose I could just give up, join the censorshipcrusade, and say to hell with the First Amendment-oops, I mean toheck with it-but I'm reminded of what author and poet CharlesBukowski had to say on the matter: "Censorship is the tool of thosewho have the need to hide actualities from themselves and others.Their fear is only their inability to face what is real. Somewherein their upbringing they were shielded against the total facts ofour experience. They were only taught to look one way when manyways exist."

"The problem is the indecency standard is not a standard. It'sbasically a test for what people find distasteful and that isentirely 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 freesociety, different people will have different values and tolerancelevels when it comes to speech, and government should not imposethe will of some on all. And when it comes to minding the kids,I'll take responsibility for teaching mine about the realities ofthis 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.