Seven Dirty Words: Did They Help Define Indecency?

By Demas, Jeff | Communications and the Law, September 1998 | Go to article overview

Seven Dirty Words: Did They Help Define Indecency?


Demas, Jeff, Communications and the Law


This article examines the historical perspective of the U.S. Supreme Court case involving the Federal Communications Commission and Pacifica radio station WBAI. Much of the history of this case has been written with respect to its impact on free speech and broadcast "indecency." Through interviews and examination of the Supreme Court opinion, and other writings of the time, this article attempts to answer the questions (1) did the test case help the FCC define indecency; and (2) why, given the trivial nature of this particular complaint, did the Supreme Court see fit to grant certiorari? The author concludes that Pacifica provided a very narrow definition of indecency, although some of its language still serves as precedent.

It took seven words, one complainant, seven commissioners, two litigants, three court of appeals judges, a host of amicus curiae participants, nine Supreme Court justices, four opinions, and nearly five years to determine the fate of a twelve-minute broadcast aired by a noncommercial radio station in 1973. The decision was rebuked by the electronic media as a severe blow to First Amendment protection for broadcasters, and heralded by Morality in Media and its advocates as the beginning of an end to indecent language on the airwaves.(1)

Yet FCC v. Pacifica Corp., which came to be known as the "seven dirty words" case, evolved from a single complaint filed to the FCC, after which no penalties were imposed and no fines levied. In fact, the FCC's response was tantamount to the proverbial principal telling the child upon his first offense that "this will go on your permanent: record."

The FCC declaratory order said that the complaint would be "associated with the station's license file, and in the event subsequent complaints are received, the commission will then decide whether it should utilize any of the available sanctions it has been granted by the Congress."(2)

It began on October 30, 1973, at 2 P.M., when station WBAI in New York City broadcast a recorded monologue given by comedian George Carlin entitled "Filthy Words." A man driving with his son in the car filed a complaint. Acting on the complaint, the FCC issued a declaratory order containing the words mentioned in the previous paragraph. The order was challenged by Pacifica Corporation (owners of WBAI) and was reversed by the D.C. Court of Appeals. In 1978, the U.S. Supreme Court reversed the court of appeals' ruling, letting the FCC order stand.(3)

These facts are well documented in many law and mass communications texts, and are probably the subject of discussion in most courses that examine the First Amendment. But there are lesser-known facts about this case that would lead one to wonder why this case made it to the Supreme Court. This article examines those facts and attempts to determine (1) why the Supreme Court granted certiorari to hear this case; and (2) whether this case helped define "indecency" as the FCC apparently had intended. An interview with the chief legal counsels of both parties is central in shedding new light on these questions.

I. HISTORY

To better understand why this case was important to all parties concerned despite the absence of any penalty, it is necessary to review several events that preceded the WBAI broadcast. In the early 1970s, a new genre of programs, known as "topless radio," began to appear on radio stations all over the country. These programs were so called because they dealt explicitly with topics such as sex and pornography. The first station to receive a fine for such a broadcast was Philadelphia's WUHY-FM in 1970. The station paid what it termed a "token forfeiture" of $100.(4) Although WUHY aired what the Commission considered indecent speech, no further action was taken in the case, and the Commission still was lacking a clear definition of indecency.

Three years later WGLD-FM of Oak Park, Illinois, was fined $2000 for airing a broadcast that the FCC termed "obscene or indecent. …

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