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Federal 'Comstockery' Commission

George Carlin died in June, a few days after the announcement that he had been awarded the Mark Twain Prize for American Humor. The prize was richly deserved; Carlin's acerbic wit and irreverent observations on human nature made him an American original.

One of his most famous monologues was a riff on “filthy words,” or as he explained, “the words you couldn't say on the public, ah, airwaves.” When a New York radio station put that proposition to the test by broadcasting a recording of the monologue, the FCC held that Carlin was right—at least in part. In 1975, in the Pacifica Foundation case, the FCC ruled that the words were “indecent”—in violation of a federal criminal statute that forbids the broadcast of “obscene, indecent or profane” language.

The FCC did not ban the use of the words altogether; it forbade them from being broadcast during a period when children were likely to hear them, later determined to be between the hours of 6 a.m. and 10 p.m. In 1978, the Supreme Court affirmed that a limited “time zoning” for offensive language did not offend the First Amendment.

For more than a score of years following Pacifica, the commission's enforcement was restrained, in deference to the threat to First Amendment values that would be entailed by a vigorous attempt to scrub all “offensive” language (or images) from radio and television.

In pursuit of a policy of protecting children, in 2004 the FCC embarked on an enforcement program that has all the earmarks of a Victorian crusade. To effectuate its new clean-up-the-airwaves policy, the FCC expanded radically the definition of indecency; magnified (with Congress's help) the penalty for even minor images or objectionable language; and targeted respected TV programs, movies and even non-commercial documentaries.

The commission's aggressive new campaign prompted challenges from the broadcasters, most notably the networks. In 2006, they filed appeals from a series of rulings by the FCC—collectively decided in a so-called “Omnibus Order.” In 2007, the Second Circuit Court of Appeals reversed the FCC's order on the grounds that the agency had violated standards of rational decision-making in failing to justify its departure from its prior enforcement policy in regard to so-called “fleeting expletives.” The court also said it doubted the FCC could justify its new policy consistent with the First Amendment. The Supreme Court granted certiorari in March of this year.

As an FCC Commissioner at the time of the Pacifica case, I concurred in the FCC's original Pacifica decision. Despite uneasiness about the potential threat to free speech, I believed that the scope of the commission's new indecency zoning controls would be constrained by prudent common sense. I was wrong. I had not, it seems, taken account of the fragility of common sense when confronted by moralistic fervor and political agitation.

In 2006, I was the principal author of two amicus briefs in appeals from FCC indecency actions. One involved the Janet Jackson “costume reveal” episode during the Super Bowl. The other was a brief in the Second Circuit in the Fox case now before the Supreme Court. Former FCC General Counsel Henry Geller joined me in both. When the Supreme Court granted certiorari in the Fox case, we filed an amicus brief urging it to affirm the Second Circuit decision. This time, Geller and I were joined by former FCC chairmen Mark Fowler, Newton Minow and James Quello, along with former FCC advisers Jerald Fritz and Kenneth Robinson.

Our brief urges the court to recognize that the fleeting-expletive policy is beyond the pale of the special and limited indecency doctrine at issue in Pacifica. But it urges the court to reconsider Pacifica itself, arguing three grounds:

First, even apart from the fleeting-expletive policy, the commission's new indecency jurisprudence has been shown to be vague, subjective and arbitrary to the point of incoherence.

Second, there is no credible basis for continuing to single out terrestrial broadcasters for indecency controls. The same words or images that the FCC deems offensive on broadcast TV can be heard or seen on cable, satellite and the Internet at all times of the day. (Indeed, those who missed Bono's spontaneous exclamation, “Fucking brilliant,” upon receiving a Golden Globe Award can find it available on YouTube.) The FCC has declined to apply indecency regulations to subscription media such as cable or satellite broadcasting, and the Supreme Court has held that indecency-type regulations cannot be applied to telephone, cable or Internet media. These exemptions make a mockery of the entire indecency regime.

Third, the indecency controls that began as a limited tool for reining in a small number of provocative broadcast personalities and irresponsible licensees have become a rallying cry for a revival of 19th century Comstockery. As long as these controls are tolerated, they will encourage new political pressures for increased content regulation.