As the Supreme Court’s second decision in three years in FCC v. Fox Television Stations, Inc. nears, a brief history of indecency regulation may be of interest and begins with a tie to music.
In 1970, the FCC levied its first indecency fine. The FCC fined a Philadelphia non-profit educational radio station, WUHY-FM, $ 100 for broadcasting a pre-recorded interview with Jerry Garcia. Garcia interspersed his musings on a vareity of topics with indecent language, such as "political change is so fucking slow." No one complained about the broadcast. The FCC was monitoring the radio station. In dissent, Commissioner Nicholas Johnson conveyed bewilderment and disdain about the FCC’s decision to fine this particular station:
[W]hen we do go after broadcasters, I find it pathetic that we always seem to pick upon the small, community service stations . . . It is ironic to me that of the public complaints about broadcasters' ‘taste’ received in my office, there are probably a hundred or more about network television for every one about stations of this kind. Surely if anyone were genuinely concerned about the impact of broadcasting upon the moral values of this nation — and that impact has been considerable — he ought to consider the ABC, CBS and NBC television networks before picking on little educational FM radio stations that can scarcely afford the postage to answer our letters, let alone hire lawyers. We have plenty of complaints around this Commission involving the networks. Why are they being ignored? I shan't engage in speculation. Download In Re WUHY FCC 1970
In 1975, the FCC received one complaint because a New York radio station broadcasted George Carlin’s Filthy Words monologue in the afternoon. In 1978, the Court held in FCC v. Pacifica Foundation that regulating indecent speech on broadcast radio and television did not per se violate the First Amendment. The Court based its decision on the dual rationales that broadcast radio and television are uniquely pervasive in society and that they are uniquely accessible to children. Justice Powell’s concurrence made clear that the Court did not decide whether the isolated use of a potentially offensive word could be regulated and that the holding was limited to the specific context of Carlin’s “verbal shock treatment.”
For a quarter-century, the FCC maintained that fleeting expletives did not rise to the level of indecent speech. But, after Bono used a fleeting expletive when receiving a Golden Globe award, and Cher and Nicole Richie made similar transgressions on the Billboard Music Awards, the FCC reversed course and issued its 2004 Golden Globe Order finding that any use of the words fuck or shit is inherently indecent, except for a couple of exceptions.
In 2009, the Court held 5-4 that the FCC rule change did not violate the Administrative Procedure Act’s arbitrary and capricious standard. Justice Stevens, who wrote the majority opinion in Pacifica, dissented in Fox I. Now, the Court considers whether the FCC’s indecency regulation violates the First or Fifth Amendments.
One would be hard pressed to argue that broadcast radio and television are still uniquely pervasive in society and uniquely accessible to children in light of the numerous media technologies that exist, especially considering the ubiquity of mobile devices with internet access. Not only do the rationales of Pacifica fail to reflect the realities of 2012, advertisements like the Go Daddy commercials that air during the Super Bowl and for products like KY Intense, an “arousal gel” make futzing around with fleeting expletives a rather futile exercise. Justice Stevens made a similar point in a footnote to his Fox I dissent: "It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom."
Here’s Frank Zappa performing, I’m the Slime on Saturday Night Live in 1976, complete with guest vocals by Don Pardo. Zappa’s take on the slime oozing out of the tv set is more aligned with Commissioner Johnson’s WUHY-FM dissent, than a concern about “bad words.”