October 10, 2025 • 32 mins
In this episode, we explore the legendary controversy sparked by comedian George Carlin’s infamous “Seven Dirty Words” routine and how it forever changed the conversation around censorship and free speech in America. Discover how one stand-up act led to a Supreme Court ruling, redefined broadcasting standards, and continues to influence what we can (and can’t) say on TV and radio today. From the boundaries of humor to the power of language, this episode dives deep into the intersection of comedy, culture, and control.
Become a supporter of this podcast: https://www.spreaker.com/podcast/the-infographics-show-podcast--6317257/support.
Become a supporter of this podcast: https://www.spreaker.com/podcast/the-infographics-show-podcast--6317257/support.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Welcome back to the deep dive, the place where we
really do get beyond infographics. We aim to turn complex stuff,
you know, dense legal history, cultural moments, into knowledge you
can actually use.
Speaker 2 (00:12):
That's the goal.
Speaker 1 (00:13):
And today, oh boy, we're unpacking one of the well, frankly,
one of the funniest but most significant legal battles in
American media history. It's quite a story, it really is.
Speaker 2 (00:24):
We're diving into what seems like just a list of
words or seven specific profanities. But these words didn't just
you know, ruffle feathers. They triggered a huge Supreme Court.
Speaker 1 (00:33):
Case, fccv.
Speaker 2 (00:34):
Pacifica Foundation, exactly, and that decision basically drew the map
for free speech on public radio and TV in the US.
It's at the boundaries we still sort of live with today.
Speaker 1 (00:45):
And anyone who knows comedy or media law even just
a little bit, when you say seven dirty words, they
immediately think.
Speaker 2 (00:50):
Of one person, George Carlin.
Speaker 1 (00:52):
The legend is nineteen seventy two monologues seven words you
can never say on television. It was pure satire, right
pointing out how absurd our taboos about language are.
Speaker 2 (01:01):
Absolutely, but because he did it, because he threw down
that gauntlet. It basically forced the government's hand. They had
to decide where the legal line was for content on
the public airways.
Speaker 1 (01:13):
Now it's super important for listeners to get this up front.
Carlin's list wasn't like an official FCC list of banned words,
was that at all?
Speaker 2 (01:20):
He picked shit, piss, fuck, cunt, cocksucker, motherfucker, and tits
for comedic effect, for rhythm, for shock value within his routine.
Speaker 1 (01:30):
But the reaction to it, ah.
Speaker 2 (01:31):
Yes, the public reaction, the legal challenge is sparked. That
gave the FCC, the Federal Communications Commission, exactly what they needed.
It became the benchmark, the example they could point to
when defining what they considered indecent.
Speaker 1 (01:43):
So our mission here today is to give you that shortcut,
the key insights so you can really grasp this fundamental
clash the First Amendment, artistic freedom, government rules. It all
came together here, and.
Speaker 2 (01:54):
By the end of this you'll understand precisely why something
you watch on Netflix or HBO can be totally different
from what airs on say your local NBC or CBS station.
Why one gets a pass and the other could get
slapped with a massive fine.
Speaker 1 (02:09):
Right, different rules for different pipes. Essentially, we have sort
of a three part goal.
Speaker 2 (02:14):
First, understand how the courts legally split obscenity from indecency.
They're not the same thing.
Speaker 1 (02:21):
Legally speaking, crucial distinction.
Speaker 2 (02:22):
Second, what was the constitutional argument? Why did the government
claim it could treat broadcast TV and radio differently than say,
newspapers or websites? What were those justifications for pillars and
pillars exactly? And Third, and this is where it gets
really messy today, why that legal framework from nineteen seventy
eight is well kind of crumbling under the weight of
modern media, digital streaming, huge companies owning everything. It's a
(02:47):
whole new ballgame.
Speaker 1 (02:48):
Okay, this is going to be good. And hey, if
you like getting this kind of deep, clear analysis, if
you appreciate us making you instantly well informed on complex
stuff like this, do us a favor. Pause right now,
give us that five star. It really helps.
Speaker 2 (03:01):
It does let us know we're on the right track.
Speaker 1 (03:03):
All right, let's get into it. Where did this whole
firestorm actually start? The specific incident hashtag tag two, the
incident and the initial legal clash.
Speaker 2 (03:14):
Okay, so the piece that actually lit the fuse, It
wasn't the original nineteen seventy two stand up bit itself.
It was a slightly different version from Carlin's nineteen seventy
three album Occupation Fool. The track was called Filthy Words.
Speaker 1 (03:28):
Occupation Fool great album title, isn't it?
Speaker 2 (03:31):
And the monologue itself, it was Carlin doing what he
did best, dissecting language, poking fun at society's hang ups
about certain sounds, certain syllables that we invest with way
too much power.
Speaker 1 (03:41):
And this got played on the radio in the middle
of the day.
Speaker 2 (03:44):
Yes pacifica foundation station WBAI in New York City. They
were and still are a nonprofit known for pushing boundaries
for airing challenging stuff. October thirtieth, nineteen seventy three, Round two.
Speaker 1 (03:56):
PM two in the afternoon. Wow okay, Yeah, And they.
Speaker 2 (03:59):
Aired it as part of a program about language, about
society's attitudes towards words, how arbitrary those attitudes can be.
Speaker 1 (04:05):
Did they just like drop it in there or did
they warn people they.
Speaker 2 (04:09):
Knew it was provocative. They definitely put a warning up front,
something like, you know, this includes language that some might
find offensive. But was it enough? Probably not for what
happened next. Their decision to air it though that was
core to who they were as a station, free speech exploring.
Speaker 1 (04:27):
Ideas, and their defense wasn't just hey, free speech man.
They had a more sophisticated argument, right.
Speaker 2 (04:33):
Oh, absolutely, it was an intellectual defense. They framed Carlin
not just as a comedian, but as a significant social satirist.
They put him in the same league as Mark Twain
or earlier comedians like Lenny Bruce. Sorry mort Seal was
the name of these, another boundary.
Speaker 1 (04:49):
Pusher, so comparing him to literary figures social commentators.
Speaker 2 (04:53):
Exactly, They argued, he was basically doing linguistics on stage.
He was looking at everyday words, taboo words, and using
them to satirize, as Pacificuld put it, are attitudes towards
those words, to show how harmless and essentially silly those
attitudes are.
Speaker 1 (05:08):
The idea being if you say the scary word enough,
maybe it loses its scary power.
Speaker 2 (05:11):
That was the theory, strip the word of its undeserved
power by confronting it directly. It wasn't about promoting filth,
it was about examining hypocrisy, and interestingly, Pacifica later noted
in court filings they only received one formal complaint about
that broadcast.
Speaker 1 (05:27):
One complaint, and that single complaint basically changed everything for
broadcast media in the US. Who was this person?
Speaker 2 (05:34):
His name was John Douglas. He was a board member
of an organization called Morality in Media.
Speaker 1 (05:39):
Very active crew Morality in Media.
Speaker 2 (05:41):
Okay, and Douglas claimed he was driving in his car
listening to WBAI and his young son was with him.
Speaker 1 (05:47):
Ah, the kid angle.
Speaker 2 (05:48):
That's the crucial detail. His complaint wasn't just I heard
bad words. It was specifically about the timing two pm
on a Tuesday.
Speaker 1 (05:56):
Daytime hours when children could reasonably be expected to be listening.
Speaker 2 (06:00):
Precisely, he argued, this violated the FCC's sort of informal
understanding of the rule that stuff potentially harmful to minors
should be kept to late night hours. He was hitting
the FCC right where their stated interest was protecting children.
Speaker 1 (06:13):
Smart strategy. So how did the FCC respond to this
perfectly aimed complaint.
Speaker 2 (06:18):
Well, the FCC saw an opportunity, I think, to clarify
its own rules. In February nineteen seventy five, they issued
what's called a declaratory order. It wasn't a fine, not yet,
but it was their official ruling.
Speaker 1 (06:29):
And what did the order say.
Speaker 2 (06:30):
It said WBAI had violated FCC regulations on indecent broadcasting.
They called the Carlin routine patently offensive because of the
repeated deliberate use of those.
Speaker 1 (06:43):
Words catently offensive. That's the standard they use.
Speaker 2 (06:45):
Yes and critically. They emphasized it was deliberately broadcast at
a time when kids were likely in the audience based
on demographic data.
Speaker 1 (06:54):
But you said it wasn't a fine, So what was
the actual consequence for WBAI. This seems a bit weird.
Speaker 2 (07:00):
It was a bit of regulatory maneuvering. They didn't pull
the license, they didn't issue a penalty. What they did
was place a note essentially a record of this incident
into WBAI's official station file.
Speaker 1 (07:10):
Okay, so like a demerit point on your driver's license
kind of.
Speaker 2 (07:14):
They basically said, we could have sanctioned you, but we
won't this time. However, this incident clarifies the standards will
use going forward, especially when your license comes up for renewal.
Speaker 1 (07:23):
Ah, the renewal hearing, that's the threat. So it's not
a punishment now, but it hangs over their head.
Speaker 2 (07:27):
Don't do this again or else exactly, a sort of
damocles as you put it earlier, and Pacifica understandably saw
this as a huge threat to their ability to broadcast
challenging material in the future, so they fought back.
Speaker 1 (07:40):
They appealed the order immediately.
Speaker 2 (07:43):
They went to court, arguing this declaratory order was censorship,
pure and simple and violated their First Amendment rights.
Speaker 1 (07:49):
And what happened at that first court level the appeals court.
Speaker 2 (07:52):
Initially Pacifica one. The DC Circuit Court of Appeals sided
with them in March nineteen seventy seven. They overturned the
FCC's order on what grounds two main points. First, they
agreed with Pacifica that the order was censorship, which is
explicitly forbidden by Section three twenty six of the Communications
Act of nineteen thirty four. That Act says the FCC
(08:12):
has no power of censorship.
Speaker 1 (08:13):
Okay, point one, it's censorship.
Speaker 2 (08:16):
Second, the court found the FCC's order too vague, too broad.
They said the FCC failed to clearly define the public
interest they were protecting beyond just this fuzzy idea of
shielding an unknown number of children. How do you regulate
based on that?
Speaker 1 (08:32):
So the appeals court basically told the FCC you can't
censor and your justification here isn't clear enough anyway.
Speaker 2 (08:38):
That's the gist which left this huge legal contradiction hanging
in the air. You've got one part of the law,
section fourteen sixty four, that prohibits broadcasting indecent material, but
another part, section three twenty six, says the FCC can't
censor anything. How do those two things coexist?
Speaker 1 (08:54):
They can't. Really, It's a direct conflict, right.
Speaker 2 (08:57):
And that conflict pretty much guaranteed this was heading to
the highest court in the land. The SCC appealed straight
to the Supreme Court. They needed the justices to sort
this out, to figure out how they could possibly regulate
indecency without being accused of a legal censorship.
Speaker 1 (09:11):
Man, the stakes were high. And just a reminder, if
you're finding this breakdown of how a comedy routine ended
up redefining free speech helpful, maybe pause and give us
at five star rating. It helps other folks find the show.
Speaker 2 (09:22):
Definitely appreciate it.
Speaker 1 (09:23):
Okay, Supreme Court time. This is where it all comes down.
Hashtag day three the Supreme Court's landmark rationale. All right,
let's get into the Supreme Court's thinking. The case lands there.
FCC v. Pacifica foundation, and the decision comes down in
nineteen seventy eight. It ends up upholding the FCC's order,
but just barely right.
Speaker 2 (09:43):
It was super close, extremely close, a five to four decision,
really narrow, and this ruling, honestly, it's the bedrock of
why American media is structured the way it is today
regarding content.
Speaker 1 (09:54):
Before we even get to Carlin's words again, the court
had to establish why broadcasts radio and TV could and
even be treated differently under the law. Why aren't they
protected the same way as say, a book or a newspaper.
Speaker 2 (10:06):
Right, you need a constitutional justification for treating one medium differently,
and the court leaned heavily on something called the scarcity doctrine.
Speaker 1 (10:13):
The scarcity doctrine, Okay, explain that.
Speaker 2 (10:16):
The idea is that the electromagnetic spectrum the airways that
carry traditional radio and TV signals is a limited public resource.
It's finite. There are only so many frequencies available before
signals start interfering with each other, like lanes on.
Speaker 1 (10:29):
A highway, only so many cars fit good analogy.
Speaker 2 (10:33):
Because it's a scarce public resource, the government argues it
has a right, even an obligation, to regulate who gets
to use those airwaves, and how to ensure they serve
the public interest, convenience and necessity. That's the phrase from
the Communications Act.
Speaker 1 (10:49):
So because the airwaves are limited, the government gets to
set rules for the companies using them, rules that might
not apply elsewhere.
Speaker 2 (10:56):
That's the core legal argument. Without regulation, the theory goes,
you'd have chaos, or maybe just a few powerful voices
dominating everything. So scarcity justifies government licensing and crucially for
this case, content regulation. That wouldn't fly for print media,
where paper and printing presses aren't considered scarce public resources.
Speaker 1 (11:15):
Okay, so scarcity opens the door for some kind of regulation. Now,
how did they tackle the content itself? The words Carlin used.
Speaker 2 (11:22):
This is where they made that absolutely critical distinction between
indecent material and obscene material.
Speaker 1 (11:27):
Indecent versus obscene. We hear those words thrown around, but
legally they're miles.
Speaker 2 (11:32):
Apart, world's apart, especially in terms of First Amendment protection.
Let's start with obscenity. That's the big one. Obscenity is
the stuff that gets basically no First Amendment protection. Right.
It can be banned outright, correct, If something is legally
declared obscene, it falls outside constitutional protection. The test for
obscenity comes from another case, Miller v. California in nineteen
(11:53):
seventy three. It's a three part test. Okay.
Speaker 1 (11:55):
What are the three parts?
Speaker 2 (11:56):
One, the average person applying contemporary community standards has to
find that the work taken as a whole, appeals to
the prurient interest. That means, basically a morbid, shameful, or
unhealthy interest in sex.
Speaker 1 (12:09):
Okay, appeals to purient interest? Got it? Number two? Two?
Speaker 2 (12:13):
The work has to depict or describe sexual conduct in
a patently offensive way, as defined by applicable.
Speaker 1 (12:18):
State law patently offensive sexual conduct. Okay.
Speaker 2 (12:21):
And the third part three, and this is often the kicker,
and the work taken as a whole must lack serious literary, artistic, political,
or scientific value. Lawyers often call this the slaps test.
Speaker 1 (12:33):
Lacking slaps value slaps test. Okay, So, applying that Miller test,
that slaps test to Carlin's Filthy Words monologue, Why Wasn't
It Obscene? It used offensive.
Speaker 2 (12:46):
Words because it clearly had slaps value. Even though the
words were offensive, The court recognized the monologue as social satire,
as commentary on language and society. It had artistic and
political value. It wasn't designed to get anyone's actually aroused.
It didn't appeal to the purian interest. Carlin was trying
to make people think, not you.
Speaker 1 (13:05):
Know right, He was criticizing hypocrisy, not trying to turn
anyone on. So it passed the slaps test.
Speaker 2 (13:10):
It did, which meant it couldn't be banned outright as obscenity,
and that forced the court into the next category down
in decency.
Speaker 1 (13:18):
So if it's not obscene, it might still be indecent,
and what does that mean? Legally?
Speaker 2 (13:22):
The Court essentially defined indecency in this context as language
or material that describes or depicts sexual or extratory organs
or activities in a way that's patently offensive. As measure
by contemporary community standards for the broadcast medium, this is
slightly lower bar than obscenity. Crucially, indecent material does have
some First Amendment.
Speaker 1 (13:40):
Protection, So you can't ban it entirely.
Speaker 2 (13:42):
Exactly, you can't ban it, but the court ruled you
can regulate it specifically, you can restrict when it's broadcast.
This difference restriction versus outright prohibition is the absolute heart
of the PACIFICA decision.
Speaker 1 (13:54):
Okay, so that deals with the content. But what about
the censorship issue? The Appeals Court said, the FCC or
order with censorship, which the law forbids. How did the
Supreme Court majority get around that? That seems like a
big hurdle.
Speaker 2 (14:06):
It was the hurdle, and they cleared it with some
very careful legal interpretation. The five to four majority basically
redefined what censorship means under section three twenty six of
the Communications Act. How So, they ruled that censorship under
that specific law only refers to prior restraint, meaning the
government can't step in before a broadcast and demand changes
(14:28):
like telling a station to cut a word from a
script before it airs.
Speaker 1 (14:30):
Okay, So editing before broadcast is forbidden censorship right.
Speaker 2 (14:35):
But and this is the huge loophole they created. Reviewing
something after has been broadcast and then imposing sanctions like
a fine or putting a note in the file that
is not considered prior restraint censorship under section three twenty six.
Speaker 1 (14:48):
Wow. So punishing after the fact is okay, but editing
beforehand isn't.
Speaker 2 (14:51):
That's the distinction they drew. It allows the FCC to
regulate content through fines and license renewals after it airs
without technically violating this state pagatory ban on censorship. It
was a major win for the SEC's regulatory power.
Speaker 1 (15:04):
Okay, that's quite the legal maneuver, but they still needed
solid constitutional reasons to justify treating broadcasts differently. Overall, they
use scarcity, they redefine censorship for the Act. What else.
Speaker 2 (15:16):
They needed specific justifications tied to the nature of broadcasting itself,
and they landed on two main pillars, which, as I said,
still form the basis of a law today. Tiller number one,
the unique pervasiveness of broadcast.
Speaker 1 (15:28):
Media pervasiveness meaning it's just everywhere.
Speaker 2 (15:32):
Kind of The Court argued that broadcast radio and TV
are unique because they intrude directly into the privacy of
the home. Unlike say, buying a book or going to
a movie, broadcast signals just come into your house. You
might tune in unexpectedly.
Speaker 1 (15:47):
So that warning WBAI gave at the beginning wasn't enough
in the.
Speaker 2 (15:50):
Court's view, not entirely because people tune in and out.
They argued, warnings might be missed. The offensive content could
just suddenly appear in your living room uninvited.
Speaker 1 (16:00):
It's invasive, and justice Stevens had that famous analogy for this, Yes.
Speaker 2 (16:05):
The assault analogy. He wrote that telling someone offended by
radio content to simply turn it off is like saying
that the remedy for an assault is to run away
after the.
Speaker 1 (16:14):
First blow, meaning the harm the intrusion has already happened
the moment the indecent sound enters the home.
Speaker 2 (16:19):
Exactly that first blow has landed. Yeah, the privacy of
the home, a constitutionally protected space, has been invaded. That's
the pervasiveness argument.
Speaker 1 (16:28):
Okay, so pillar one, it's uniquely invasive in the home.
What's pillar two?
Speaker 2 (16:31):
Pillar two? Unique accessibility to children?
Speaker 1 (16:34):
Ah, back to the kids.
Speaker 2 (16:36):
Always back to the kids. This is arguably the government's
strongest card. The court said. Broadcast is uniquely accessible to children,
even very young ones who can't read. They just turn
on the TV or radio.
Speaker 1 (16:48):
Unlike magazines or websites where maybe there are barriers or
parents can more easily supervise.
Speaker 2 (16:54):
That's the idea. The court leaned on the government's recognized
interest in protecting the well being of its youth and
supporting parents' ability to decide what influences their children are
exposed to within their own home. Broadcasting makes that parental
control much harder, they argued.
Speaker 1 (17:10):
So you combine the scarcity of the airwaves, the pervasiveness
into the home, and the accessibility to kids, and that's
how the five to four majority justified upholding the FCC's
action against Pacifica.
Speaker 2 (17:21):
That's the constitutional framework they built. And because Carlin's routine
was deemed indecent not obscene, the only remedy available was
restricting the time of broadcast.
Speaker 1 (17:30):
Which leads directly to the rule we still have today,
the safe harbor rule.
Speaker 2 (17:35):
The Pacifica decision didn't set the specific hours, but it
mandated that indecent material had to be channeled into times
when children were less likely to be listening. The FCC
later formally established that safe harbor period as ten pm
to six am.
Speaker 1 (17:49):
So indecent stuff is okay, but only when the kids
are supposedly asleep.
Speaker 2 (17:53):
Basically yes. And the final piece tying this all together
was the court's emphasis on.
Speaker 1 (17:58):
Context contact is everything.
Speaker 2 (18:01):
Justice Stevens drove this home with another famous analogy, borrowing
from an earlier zoning case. He said, a nuisance may
be merely a right thing in the wrong place, like
a pig in the parlor. Instead of the barnyard.
Speaker 1 (18:13):
A pig in the parlor. I like that.
Speaker 2 (18:15):
It's memorable, isn't it the words themselves Carlin satire. The
pig might be fine in the right context, the barnyard
maybe a comedy club or a record album you choose
to buy, but broadcast during the day, intruding into the home,
the parlor where children might be present, that transforms it
into a regulatable nuisance.
Speaker 1 (18:33):
So the same words, different time, different medium, different legal outcome.
Speaker 2 (18:37):
Precisely that pig in the parlor logic is what allowed
the FCC to thread the needle and win that five
to four decision fundamentally reshaping broadcast law around the concept
of indecency and time shifting.
Speaker 1 (18:50):
So the legal framework gets set, but the cultural legacy
it's still all about Carlin, isn't it. He kind of
leaned into becoming the face of this whole thing.
Speaker 2 (18:59):
Oh ye, absolute did. He saw the ruling in a
way as proving his original point that society gives these
arbitrary sounds immense power through fear and now legal restriction.
His later work constantly revisited and expanded on the seven
words concept.
Speaker 1 (19:15):
He even admitted the original list wasn't quite right, didn't
he Yeah.
Speaker 2 (19:18):
He famously added other words he thought were equally taboo
but missed the first cut, like fart, turd, and twat.
He kept playing with the idea of this unofficial list
of forbidden.
Speaker 1 (19:27):
Language, and he got almost like linguistically analytical about it too,
breaking down the words themselves.
Speaker 2 (19:31):
It was brilliant, really. He'd point out the absurdity of
banning compound words like motherfucker or cocksucker. He'd say, you know,
sucker isn't really dirty, just suggestive, and motherfucker is just
adding mother to fuck, which was already on the list.
He approached it like a language.
Speaker 1 (19:47):
Puzzle, underscoring his point that the power isn't in the syllables,
it's in our reaction exactly.
Speaker 2 (19:52):
The social and legal fuss gave them the power. He
was satirizing.
Speaker 1 (19:57):
Now, after PACIFICA, the FCC had this clear power to
regulate indecency, did they immediately start cracking down hard?
Speaker 2 (20:06):
Interestingly, No. For the first decade or so, maybe even two,
they used this power relatively sparingly. Things stayed pretty stable.
It wasn't until the late nineties and especially the early
two thousands that things really heated up, which changed. There
was a definite shift. Political winds changed, cultural anxieties flared up,
and there was increasing pressure, often from conservative groups and politicians,
(20:27):
for the SEC to get tougher on broadcast content. Enforcement actions,
and especially the size of fines ramped up. Dramatic fines
got bigger, way bigger. We started seeing fines and the
hundreds of thousands of dollars, sometimes hitting that half million
dollar mark per violation.
Speaker 1 (20:42):
And this led to controversies about fairness, about whether they
were picking and choosing targets based on politics.
Speaker 2 (20:48):
Yes, accusations of selective enforcement became common, and the SEC's
approach got particularly controversial when they started going after not
just deliberate routines like Carlins, but also fleeting X splatives.
Speaker 1 (21:00):
Fleeting explatives meaning like a slip of the tongue, a
single curse word accidentally broadcast.
Speaker 2 (21:07):
Exactly, someone blurting out an F bomb live on air
during an award show, for instance, or a wardrobe malfunction.
The FCC, under pressure, shifted its policy to say even
these brief, sometimes unintentional instances could trigger massive indecency fines.
Speaker 1 (21:24):
And the most famous example of that has to be
the Super Bowl halftime show in two thousand and four.
Speaker 2 (21:28):
Oh yeah, the Janet Jackson wardrobe malfunction incident with Justin Timberlake.
That brief exposure, which wasn't scripted satire like Carlin, it
was an accident.
Speaker 1 (21:38):
Caused an absolute explosion.
Speaker 2 (21:39):
Massive public outcry, political pressure like crazy, and the FCC
responded by hitting CBS and Viacom with enormous finds, the
largest broadcast in decency find ever at the time related
to that show.
Speaker 1 (21:52):
So the focus shifted from intentional indecent programming to basically
any instance of profanity or nudity. However, brief or.
Speaker 2 (21:59):
Accident d that became the new, much stricter, much more
controversial standard, and it seemed to many like a huge overreach,
especially since the FCC had previously ignored similar fleeting moments.
Speaker 1 (22:11):
And this aggressive stance on fleeting words eventually got challenged
in court again, didn't it It did?
Speaker 2 (22:17):
Broadcasters pushed back, arguing the policy was arbitrary and unclear.
In twenty ten, the Second Circuit Court of Appeals agreed.
They ruled that the FCC's policy on fleeting expletives was
unconstitutionally vague, meaning.
Speaker 1 (22:29):
The FCC hadn't clearly explained the difference why one f
bomb was a huge fine, but maybe it wasn't before Exactly.
Speaker 2 (22:36):
The court basically said, look, if you're going to punish
broadcasters so severely for what might be a split second mistake,
you need a much clearer, more consistent rule about why
you can't just change the standard based on public outcry.
Speaker 1 (22:47):
So, even decades after Pacifica, the whole definition of indecency
and how the FCC can police it remains kind of wobbly, unstable,
subject to the political.
Speaker 2 (22:59):
Wins very much. So. It highlights the ongoing tension between
the desire to regulate broadcast content and the constitutional protections
for speech, even offensive speech.
Speaker 1 (23:10):
This is fascinating stuff. And hey, if you're finding this
legal roller coaster ride interesting and you appreciate us mapping
it out for you, how about that five star rating.
It really does help us keep doing these deep dives.
Speaker 2 (23:20):
We appreciate the support.
Speaker 1 (23:22):
Okay, now let's shift gears to maybe the biggest problem
with the Pacifica ruling today. The technology has just completely
overtaken the legal logic. The whole basis of the ruling
feels well obsolete.
Speaker 2 (23:33):
It's a huge challenge. Yeah, the core justification in PACIFICA
is that broadcast is uniquely pervasive and uses scarce public airwaves.
But does that really hold up anymore?
Speaker 1 (23:43):
Probably not. Let's start with what you called the subscription loophole.
Speaker 2 (23:46):
Right cable TV, satellite radio like SiriusXM, streaming services like Netflix, Hulu, Hbomax.
None of them are subject to the FCC's broadcast and
decency rules.
Speaker 1 (23:55):
Why not they come into my home just like broadcast
TV because.
Speaker 2 (23:59):
The legal theory is different. They use private means of
transmission coaxial cables, fiber optic line, satellite signals, the Internet,
not the public airwaves. And crucially, you pay for them.
It's a subscription, so.
Speaker 1 (24:12):
The act of subscribing a scene as consent, like you
invited that content into your home. So the pig in
the parlor argument doesn't apply.
Speaker 2 (24:19):
It's the legal rationale. Because it's a private transaction and
uses private infrastructure, the government's PACIFICA justification for regulating indecency
doesn't stick. They get much broader First Amendment protection, similar
to books or movies.
Speaker 1 (24:33):
But wait, the other part of the PACIFICA ruling was
unique pervasiveness is broadcast TV really more pervasive than cable
or streaming. Today, that feels wrong.
Speaker 2 (24:42):
It feels completely wrong because it is wrong factually. Yeah,
in nineteen seventy eight, sure broadcast dominated three networks, maybe
a local PPS station, Cable was niche. Today cable and
satellite penetration is massive.
Speaker 1 (24:54):
Oh look what are the numbers.
Speaker 2 (24:55):
Well, one stat that always stands out is that even
among households below the poverty line, something like sixty two
percent have cable or satellite TV. It's everywhere to argue
that free over the year broadcast is somehow more pervasive
than paid cable or ubiquitous streaming. It just doesn't refle
in reality anymore.
Speaker 1 (25:13):
So the factual basis for that part of the ruling
has basically evaporated.
Speaker 2 (25:16):
It really has. And then you layer on the conglomerate factor.
Speaker 1 (25:19):
Meaning the same giant companies own both the regulated broadcast
stations and the unregulated cable channels.
Speaker 2 (25:25):
Precisely, think about Disney owning ABC regulated broadcast and FX
in free form unregulated cable, or NBC Universal owning NBC
regulated in USA, c FI, Bravo unregulated, ViacomCBS owning CBS regulator,
and MTV comedy central showtime unregulated.
Speaker 1 (25:42):
So if they have a show that's maybe two Edgy
two in decent for their broadcast network under sec rules,
they just.
Speaker 2 (25:48):
Move it over their cable channel. Simple as that. They
shift the indecent content to the platform where the Pacifical
rules don't apply. Problem solved from their corporate perspective, so.
Speaker 1 (25:56):
They can still profit from the content, still promote across
their platforms, maybe even advertise the Edgy cable show during
Family Hour on their broadcast network.
Speaker 2 (26:07):
Exactly, they totally undermine the purpose of the regulation. The
idea was to shield the public, especially kids, from indecency
on the pervasive broadcast medium. But if the same company
just redirects that content to another channel they own, which
is also incredibly pervasive, what are the rules actually achieved.
Speaker 1 (26:26):
It makes the Pacific a distinction seem almost meaningless in
practice for these big players, they just arbitrage the regulation.
Speaker 2 (26:33):
It's a classic example of how market consolidation and technological
change can render regulations ineffective or at least easily circumvented,
which leads to the frustration around the Elacarte debate.
Speaker 1 (26:45):
Right. The subscription loophole assumes we choose the content by subscribing,
But we usually can't buy cable channels one by one.
Can we?
Speaker 2 (26:51):
Almost never? You're forced to buy these big bundles, basic tiers,
expanded tiers, and those bundles inevitably include channels known for
content that would definitely be considered indecent under PACIFICA rules,
right alongside the Disney Channel or Discovery.
Speaker 1 (27:06):
So to get the kid's channel I want, I have
to accept the channel airing potentially offensive stuff into my
home too. I don't really have a choice.
Speaker 2 (27:13):
Exactly, which blows a hole in the subscriber consent argument
underpinning the subscription loophole. If you're forced to let the
pig into the parlor just to get the channel you
actually want, how much meaningful control or consent do you
really have?
Speaker 1 (27:27):
It feels like a contradiction. The government restricts broadcast to
protect kids, but ignores that the same content flows freely
through bundled cable packages that parents often have to buy.
Speaker 2 (27:37):
It's a major point of inconsistency and frustration for many people,
and this ongoing tension is feeling that the rules aren't
working or aren't fair. It even led to specific legislative
efforts to sort of reimpose control.
Speaker 1 (27:50):
You mentioned the Clean Airwaves Act from two thousand and three.
Speaker 2 (27:53):
Yes, HR three six eighty seven, introduced by Representative dugos.
This was a direct response to the perceived increase in
broadcast indecency happening around the time of the Janet Jackson incident,
and it generally heightened sense of moral scrutiny Post nine
to eleven.
Speaker 1 (28:10):
And what did that proposed act try to do?
Speaker 2 (28:13):
It actually tried to take Carlin's list or a version
of it and write it into federal law. It proposed
designating words like shit, piss, fuck, cunt, asshole, and the
phrases cocksucker, motherfucker, and asshole as legally profane under the
UN Code.
Speaker 1 (28:30):
So trying to codify the dirty words and attach specific
likely harsher penalties.
Speaker 2 (28:35):
Essentially, Yes, it showed a real legislative desire to clamp down,
to bypass the nuances of the FCC's in decency standard
and just declear certain words off limits, at least for broadcast.
The BUILL didn't pass, but it clearly demonstrated that the
frustration with the PACIFICA Framework in its loopholes was and
probably still is very real in political circles. It shows
this debate is far from over. Wow.
Speaker 1 (28:55):
Okay, so we've traced this whole thing from yeah, George
Carlin routine that was meant to be satire and it's
a comedy all the way through FCC orders court battles,
a nail biting five to four Supreme Court decision, and
now into the messy reality of twenty first century media
where the original logic seems to be falling apart, and
it all came down to context. Isn't it like the
(29:16):
court said, the pig in the parlor.
Speaker 2 (29:17):
Exactly, time of day, method of delivery, perceived audience, those
contextual factors became everything legally speaking.
Speaker 1 (29:27):
So the big takeaway for you listening the core insight
here is really quite striking when you think about it.
Speaker 2 (29:33):
It is in the US the legal line between speech
that's fully protected and speech that can be restricted, at
least in electronic media, often has less to do with
the actual content. Remember Carlin's routine was deemed art, not obscenity,
and much much more to do with how it gets
to you. The delivery system.
Speaker 1 (29:50):
Is it using those scarce public airwaves? Does it just
show up uninvited in the home that's what triggers the
potential for government restriction under PACIFICA.
Speaker 2 (29:57):
It's the infrastructure, the pipes, not necessarily the message. It
that determines the level of First Amendment protection in this
specific area, which you know is kind of weird.
Speaker 1 (30:05):
It is weird, and it leads us right to that
provocative final thought.
Speaker 2 (30:09):
We wanted to leave you with, right, So think about this.
We have these giant media companies now that easily sidestep
the PACIFICA rules by owning both broadcast and cable streaming.
They just move the indecent stuff next.
Speaker 1 (30:22):
Door, and we have streaming and cable which are arguably
more pervasive now than broadcast ever was back in seventy eight.
They're everywhere, at almost every home.
Speaker 2 (30:30):
So given all that, does it make any sense anymore
to keep treating traditional broadcast radio and TV as this
special category that needs unique indecency restrictions? Hasn't Technology in
the market just made that distinction obsolete.
Speaker 1 (30:44):
Which forces the big question, what's the solution. Do we
lean into Carlin's original point that the fear gives the
words power and say, okay, let's get rid of the
PACIFICA distinction. Do you regularly broadcast indecency entirely. Treat all
electronic media the same under the First Amendment like print.
Speaker 2 (31:00):
That's one path more speech less restriction, or do you
go the other way? Do you say no? The problem
is the inconsistency. Maybe we should try to extend indecency
style regulations to cable and streaming. Try to regulate all
pervasive electronic media in a similar way to protect kids
or upholled community standards. However difficult, that might be legally impractically.
Speaker 1 (31:21):
Eliminate the distinction by regulating more, not less.
Speaker 2 (31:24):
Exactly, deregulate broadcast or regulate everything else. That's the fundamental
choice at the heart of the debate about the future
of content regulation in the digital age. Where we draw the.
Speaker 1 (31:35):
Line now something to definitely chew on.
Speaker 2 (31:37):
Absolutely well, thanks for joining us on this pretty wild
ride through seven dirty words and the law they inspired.
We really hope this deep dive left you feeling yeah, instantly,
well informed, maybe even a little entertained by the absurdity
of it all sometimes and if.
Speaker 1 (31:51):
It did, you know what to do. Show us some
love with that five star rating wherever you get your podcasts.
It helps us keep digging deep for you. Until next
time on the deep Dive beyond infographics,
Welcome back to the deep dive, the place where we
really do get beyond infographics. We aim to turn complex stuff,
you know, dense legal history, cultural moments, into knowledge you
can actually use.
Speaker 2 (00:12):
That's the goal.
Speaker 1 (00:13):
And today, oh boy, we're unpacking one of the well, frankly,
one of the funniest but most significant legal battles in
American media history. It's quite a story, it really is.
Speaker 2 (00:24):
We're diving into what seems like just a list of
words or seven specific profanities. But these words didn't just
you know, ruffle feathers. They triggered a huge Supreme Court.
Speaker 1 (00:33):
Case, fccv.
Speaker 2 (00:34):
Pacifica Foundation, exactly, and that decision basically drew the map
for free speech on public radio and TV in the US.
It's at the boundaries we still sort of live with today.
Speaker 1 (00:45):
And anyone who knows comedy or media law even just
a little bit, when you say seven dirty words, they
immediately think.
Speaker 2 (00:50):
Of one person, George Carlin.
Speaker 1 (00:52):
The legend is nineteen seventy two monologues seven words you
can never say on television. It was pure satire, right
pointing out how absurd our taboos about language are.
Speaker 2 (01:01):
Absolutely, but because he did it, because he threw down
that gauntlet. It basically forced the government's hand. They had
to decide where the legal line was for content on
the public airways.
Speaker 1 (01:13):
Now it's super important for listeners to get this up front.
Carlin's list wasn't like an official FCC list of banned words,
was that at all?
Speaker 2 (01:20):
He picked shit, piss, fuck, cunt, cocksucker, motherfucker, and tits
for comedic effect, for rhythm, for shock value within his routine.
Speaker 1 (01:30):
But the reaction to it, ah.
Speaker 2 (01:31):
Yes, the public reaction, the legal challenge is sparked. That
gave the FCC, the Federal Communications Commission, exactly what they needed.
It became the benchmark, the example they could point to
when defining what they considered indecent.
Speaker 1 (01:43):
So our mission here today is to give you that shortcut,
the key insights so you can really grasp this fundamental
clash the First Amendment, artistic freedom, government rules. It all
came together here, and.
Speaker 2 (01:54):
By the end of this you'll understand precisely why something
you watch on Netflix or HBO can be totally different
from what airs on say your local NBC or CBS station.
Why one gets a pass and the other could get
slapped with a massive fine.
Speaker 1 (02:09):
Right, different rules for different pipes. Essentially, we have sort
of a three part goal.
Speaker 2 (02:14):
First, understand how the courts legally split obscenity from indecency.
They're not the same thing.
Speaker 1 (02:21):
Legally speaking, crucial distinction.
Speaker 2 (02:22):
Second, what was the constitutional argument? Why did the government
claim it could treat broadcast TV and radio differently than say,
newspapers or websites? What were those justifications for pillars and
pillars exactly? And Third, and this is where it gets
really messy today, why that legal framework from nineteen seventy
eight is well kind of crumbling under the weight of
modern media, digital streaming, huge companies owning everything. It's a
(02:47):
whole new ballgame.
Speaker 1 (02:48):
Okay, this is going to be good. And hey, if
you like getting this kind of deep, clear analysis, if
you appreciate us making you instantly well informed on complex
stuff like this, do us a favor. Pause right now,
give us that five star. It really helps.
Speaker 2 (03:01):
It does let us know we're on the right track.
Speaker 1 (03:03):
All right, let's get into it. Where did this whole
firestorm actually start? The specific incident hashtag tag two, the
incident and the initial legal clash.
Speaker 2 (03:14):
Okay, so the piece that actually lit the fuse, It
wasn't the original nineteen seventy two stand up bit itself.
It was a slightly different version from Carlin's nineteen seventy
three album Occupation Fool. The track was called Filthy Words.
Speaker 1 (03:28):
Occupation Fool great album title, isn't it?
Speaker 2 (03:31):
And the monologue itself, it was Carlin doing what he
did best, dissecting language, poking fun at society's hang ups
about certain sounds, certain syllables that we invest with way
too much power.
Speaker 1 (03:41):
And this got played on the radio in the middle
of the day.
Speaker 2 (03:44):
Yes pacifica foundation station WBAI in New York City. They
were and still are a nonprofit known for pushing boundaries
for airing challenging stuff. October thirtieth, nineteen seventy three, Round two.
Speaker 1 (03:56):
PM two in the afternoon. Wow okay, Yeah, And they.
Speaker 2 (03:59):
Aired it as part of a program about language, about
society's attitudes towards words, how arbitrary those attitudes can be.
Speaker 1 (04:05):
Did they just like drop it in there or did
they warn people they.
Speaker 2 (04:09):
Knew it was provocative. They definitely put a warning up front,
something like, you know, this includes language that some might
find offensive. But was it enough? Probably not for what
happened next. Their decision to air it though that was
core to who they were as a station, free speech exploring.
Speaker 1 (04:27):
Ideas, and their defense wasn't just hey, free speech man.
They had a more sophisticated argument, right.
Speaker 2 (04:33):
Oh, absolutely, it was an intellectual defense. They framed Carlin
not just as a comedian, but as a significant social satirist.
They put him in the same league as Mark Twain
or earlier comedians like Lenny Bruce. Sorry mort Seal was
the name of these, another boundary.
Speaker 1 (04:49):
Pusher, so comparing him to literary figures social commentators.
Speaker 2 (04:53):
Exactly, They argued, he was basically doing linguistics on stage.
He was looking at everyday words, taboo words, and using
them to satirize, as Pacificuld put it, are attitudes towards
those words, to show how harmless and essentially silly those
attitudes are.
Speaker 1 (05:08):
The idea being if you say the scary word enough,
maybe it loses its scary power.
Speaker 2 (05:11):
That was the theory, strip the word of its undeserved
power by confronting it directly. It wasn't about promoting filth,
it was about examining hypocrisy, and interestingly, Pacifica later noted
in court filings they only received one formal complaint about
that broadcast.
Speaker 1 (05:27):
One complaint, and that single complaint basically changed everything for
broadcast media in the US. Who was this person?
Speaker 2 (05:34):
His name was John Douglas. He was a board member
of an organization called Morality in Media.
Speaker 1 (05:39):
Very active crew Morality in Media.
Speaker 2 (05:41):
Okay, and Douglas claimed he was driving in his car
listening to WBAI and his young son was with him.
Speaker 1 (05:47):
Ah, the kid angle.
Speaker 2 (05:48):
That's the crucial detail. His complaint wasn't just I heard
bad words. It was specifically about the timing two pm
on a Tuesday.
Speaker 1 (05:56):
Daytime hours when children could reasonably be expected to be listening.
Speaker 2 (06:00):
Precisely, he argued, this violated the FCC's sort of informal
understanding of the rule that stuff potentially harmful to minors
should be kept to late night hours. He was hitting
the FCC right where their stated interest was protecting children.
Speaker 1 (06:13):
Smart strategy. So how did the FCC respond to this
perfectly aimed complaint.
Speaker 2 (06:18):
Well, the FCC saw an opportunity, I think, to clarify
its own rules. In February nineteen seventy five, they issued
what's called a declaratory order. It wasn't a fine, not yet,
but it was their official ruling.
Speaker 1 (06:29):
And what did the order say.
Speaker 2 (06:30):
It said WBAI had violated FCC regulations on indecent broadcasting.
They called the Carlin routine patently offensive because of the
repeated deliberate use of those.
Speaker 1 (06:43):
Words catently offensive. That's the standard they use.
Speaker 2 (06:45):
Yes and critically. They emphasized it was deliberately broadcast at
a time when kids were likely in the audience based
on demographic data.
Speaker 1 (06:54):
But you said it wasn't a fine, So what was
the actual consequence for WBAI. This seems a bit weird.
Speaker 2 (07:00):
It was a bit of regulatory maneuvering. They didn't pull
the license, they didn't issue a penalty. What they did
was place a note essentially a record of this incident
into WBAI's official station file.
Speaker 1 (07:10):
Okay, so like a demerit point on your driver's license
kind of.
Speaker 2 (07:14):
They basically said, we could have sanctioned you, but we
won't this time. However, this incident clarifies the standards will
use going forward, especially when your license comes up for renewal.
Speaker 1 (07:23):
Ah, the renewal hearing, that's the threat. So it's not
a punishment now, but it hangs over their head.
Speaker 2 (07:27):
Don't do this again or else exactly, a sort of
damocles as you put it earlier, and Pacifica understandably saw
this as a huge threat to their ability to broadcast
challenging material in the future, so they fought back.
Speaker 1 (07:40):
They appealed the order immediately.
Speaker 2 (07:43):
They went to court, arguing this declaratory order was censorship,
pure and simple and violated their First Amendment rights.
Speaker 1 (07:49):
And what happened at that first court level the appeals court.
Speaker 2 (07:52):
Initially Pacifica one. The DC Circuit Court of Appeals sided
with them in March nineteen seventy seven. They overturned the
FCC's order on what grounds two main points. First, they
agreed with Pacifica that the order was censorship, which is
explicitly forbidden by Section three twenty six of the Communications
Act of nineteen thirty four. That Act says the FCC
(08:12):
has no power of censorship.
Speaker 1 (08:13):
Okay, point one, it's censorship.
Speaker 2 (08:16):
Second, the court found the FCC's order too vague, too broad.
They said the FCC failed to clearly define the public
interest they were protecting beyond just this fuzzy idea of
shielding an unknown number of children. How do you regulate
based on that?
Speaker 1 (08:32):
So the appeals court basically told the FCC you can't
censor and your justification here isn't clear enough anyway.
Speaker 2 (08:38):
That's the gist which left this huge legal contradiction hanging
in the air. You've got one part of the law,
section fourteen sixty four, that prohibits broadcasting indecent material, but
another part, section three twenty six, says the FCC can't
censor anything. How do those two things coexist?
Speaker 1 (08:54):
They can't. Really, It's a direct conflict, right.
Speaker 2 (08:57):
And that conflict pretty much guaranteed this was heading to
the highest court in the land. The SCC appealed straight
to the Supreme Court. They needed the justices to sort
this out, to figure out how they could possibly regulate
indecency without being accused of a legal censorship.
Speaker 1 (09:11):
Man, the stakes were high. And just a reminder, if
you're finding this breakdown of how a comedy routine ended
up redefining free speech helpful, maybe pause and give us
at five star rating. It helps other folks find the show.
Speaker 2 (09:22):
Definitely appreciate it.
Speaker 1 (09:23):
Okay, Supreme Court time. This is where it all comes down.
Hashtag day three the Supreme Court's landmark rationale. All right,
let's get into the Supreme Court's thinking. The case lands there.
FCC v. Pacifica foundation, and the decision comes down in
nineteen seventy eight. It ends up upholding the FCC's order,
but just barely right.
Speaker 2 (09:43):
It was super close, extremely close, a five to four decision,
really narrow, and this ruling, honestly, it's the bedrock of
why American media is structured the way it is today
regarding content.
Speaker 1 (09:54):
Before we even get to Carlin's words again, the court
had to establish why broadcasts radio and TV could and
even be treated differently under the law. Why aren't they
protected the same way as say, a book or a newspaper.
Speaker 2 (10:06):
Right, you need a constitutional justification for treating one medium differently,
and the court leaned heavily on something called the scarcity doctrine.
Speaker 1 (10:13):
The scarcity doctrine, Okay, explain that.
Speaker 2 (10:16):
The idea is that the electromagnetic spectrum the airways that
carry traditional radio and TV signals is a limited public resource.
It's finite. There are only so many frequencies available before
signals start interfering with each other, like lanes on.
Speaker 1 (10:29):
A highway, only so many cars fit good analogy.
Speaker 2 (10:33):
Because it's a scarce public resource, the government argues it
has a right, even an obligation, to regulate who gets
to use those airwaves, and how to ensure they serve
the public interest, convenience and necessity. That's the phrase from
the Communications Act.
Speaker 1 (10:49):
So because the airwaves are limited, the government gets to
set rules for the companies using them, rules that might
not apply elsewhere.
Speaker 2 (10:56):
That's the core legal argument. Without regulation, the theory goes,
you'd have chaos, or maybe just a few powerful voices
dominating everything. So scarcity justifies government licensing and crucially for
this case, content regulation. That wouldn't fly for print media,
where paper and printing presses aren't considered scarce public resources.
Speaker 1 (11:15):
Okay, so scarcity opens the door for some kind of regulation. Now,
how did they tackle the content itself? The words Carlin used.
Speaker 2 (11:22):
This is where they made that absolutely critical distinction between
indecent material and obscene material.
Speaker 1 (11:27):
Indecent versus obscene. We hear those words thrown around, but
legally they're miles.
Speaker 2 (11:32):
Apart, world's apart, especially in terms of First Amendment protection.
Let's start with obscenity. That's the big one. Obscenity is
the stuff that gets basically no First Amendment protection. Right.
It can be banned outright, correct, If something is legally
declared obscene, it falls outside constitutional protection. The test for
obscenity comes from another case, Miller v. California in nineteen
(11:53):
seventy three. It's a three part test. Okay.
Speaker 1 (11:55):
What are the three parts?
Speaker 2 (11:56):
One, the average person applying contemporary community standards has to
find that the work taken as a whole, appeals to
the prurient interest. That means, basically a morbid, shameful, or
unhealthy interest in sex.
Speaker 1 (12:09):
Okay, appeals to purient interest? Got it? Number two? Two?
Speaker 2 (12:13):
The work has to depict or describe sexual conduct in
a patently offensive way, as defined by applicable.
Speaker 1 (12:18):
State law patently offensive sexual conduct. Okay.
Speaker 2 (12:21):
And the third part three, and this is often the kicker,
and the work taken as a whole must lack serious literary, artistic, political,
or scientific value. Lawyers often call this the slaps test.
Speaker 1 (12:33):
Lacking slaps value slaps test. Okay, So, applying that Miller test,
that slaps test to Carlin's Filthy Words monologue, Why Wasn't
It Obscene? It used offensive.
Speaker 2 (12:46):
Words because it clearly had slaps value. Even though the
words were offensive, The court recognized the monologue as social satire,
as commentary on language and society. It had artistic and
political value. It wasn't designed to get anyone's actually aroused.
It didn't appeal to the purian interest. Carlin was trying
to make people think, not you.
Speaker 1 (13:05):
Know right, He was criticizing hypocrisy, not trying to turn
anyone on. So it passed the slaps test.
Speaker 2 (13:10):
It did, which meant it couldn't be banned outright as obscenity,
and that forced the court into the next category down
in decency.
Speaker 1 (13:18):
So if it's not obscene, it might still be indecent,
and what does that mean? Legally?
Speaker 2 (13:22):
The Court essentially defined indecency in this context as language
or material that describes or depicts sexual or extratory organs
or activities in a way that's patently offensive. As measure
by contemporary community standards for the broadcast medium, this is
slightly lower bar than obscenity. Crucially, indecent material does have
some First Amendment.
Speaker 1 (13:40):
Protection, So you can't ban it entirely.
Speaker 2 (13:42):
Exactly, you can't ban it, but the court ruled you
can regulate it specifically, you can restrict when it's broadcast.
This difference restriction versus outright prohibition is the absolute heart
of the PACIFICA decision.
Speaker 1 (13:54):
Okay, so that deals with the content. But what about
the censorship issue? The Appeals Court said, the FCC or
order with censorship, which the law forbids. How did the
Supreme Court majority get around that? That seems like a
big hurdle.
Speaker 2 (14:06):
It was the hurdle, and they cleared it with some
very careful legal interpretation. The five to four majority basically
redefined what censorship means under section three twenty six of
the Communications Act. How So, they ruled that censorship under
that specific law only refers to prior restraint, meaning the
government can't step in before a broadcast and demand changes
(14:28):
like telling a station to cut a word from a
script before it airs.
Speaker 1 (14:30):
Okay, So editing before broadcast is forbidden censorship right.
Speaker 2 (14:35):
But and this is the huge loophole they created. Reviewing
something after has been broadcast and then imposing sanctions like
a fine or putting a note in the file that
is not considered prior restraint censorship under section three twenty six.
Speaker 1 (14:48):
Wow. So punishing after the fact is okay, but editing
beforehand isn't.
Speaker 2 (14:51):
That's the distinction they drew. It allows the FCC to
regulate content through fines and license renewals after it airs
without technically violating this state pagatory ban on censorship. It
was a major win for the SEC's regulatory power.
Speaker 1 (15:04):
Okay, that's quite the legal maneuver, but they still needed
solid constitutional reasons to justify treating broadcasts differently. Overall, they
use scarcity, they redefine censorship for the Act. What else.
Speaker 2 (15:16):
They needed specific justifications tied to the nature of broadcasting itself,
and they landed on two main pillars, which, as I said,
still form the basis of a law today. Tiller number one,
the unique pervasiveness of broadcast.
Speaker 1 (15:28):
Media pervasiveness meaning it's just everywhere.
Speaker 2 (15:32):
Kind of The Court argued that broadcast radio and TV
are unique because they intrude directly into the privacy of
the home. Unlike say, buying a book or going to
a movie, broadcast signals just come into your house. You
might tune in unexpectedly.
Speaker 1 (15:47):
So that warning WBAI gave at the beginning wasn't enough
in the.
Speaker 2 (15:50):
Court's view, not entirely because people tune in and out.
They argued, warnings might be missed. The offensive content could
just suddenly appear in your living room uninvited.
Speaker 1 (16:00):
It's invasive, and justice Stevens had that famous analogy for this, Yes.
Speaker 2 (16:05):
The assault analogy. He wrote that telling someone offended by
radio content to simply turn it off is like saying
that the remedy for an assault is to run away
after the.
Speaker 1 (16:14):
First blow, meaning the harm the intrusion has already happened
the moment the indecent sound enters the home.
Speaker 2 (16:19):
Exactly that first blow has landed. Yeah, the privacy of
the home, a constitutionally protected space, has been invaded. That's
the pervasiveness argument.
Speaker 1 (16:28):
Okay, so pillar one, it's uniquely invasive in the home.
What's pillar two?
Speaker 2 (16:31):
Pillar two? Unique accessibility to children?
Speaker 1 (16:34):
Ah, back to the kids.
Speaker 2 (16:36):
Always back to the kids. This is arguably the government's
strongest card. The court said. Broadcast is uniquely accessible to children,
even very young ones who can't read. They just turn
on the TV or radio.
Speaker 1 (16:48):
Unlike magazines or websites where maybe there are barriers or
parents can more easily supervise.
Speaker 2 (16:54):
That's the idea. The court leaned on the government's recognized
interest in protecting the well being of its youth and
supporting parents' ability to decide what influences their children are
exposed to within their own home. Broadcasting makes that parental
control much harder, they argued.
Speaker 1 (17:10):
So you combine the scarcity of the airwaves, the pervasiveness
into the home, and the accessibility to kids, and that's
how the five to four majority justified upholding the FCC's
action against Pacifica.
Speaker 2 (17:21):
That's the constitutional framework they built. And because Carlin's routine
was deemed indecent not obscene, the only remedy available was
restricting the time of broadcast.
Speaker 1 (17:30):
Which leads directly to the rule we still have today,
the safe harbor rule.
Speaker 2 (17:35):
The Pacifica decision didn't set the specific hours, but it
mandated that indecent material had to be channeled into times
when children were less likely to be listening. The FCC
later formally established that safe harbor period as ten pm
to six am.
Speaker 1 (17:49):
So indecent stuff is okay, but only when the kids
are supposedly asleep.
Speaker 2 (17:53):
Basically yes. And the final piece tying this all together
was the court's emphasis on.
Speaker 1 (17:58):
Context contact is everything.
Speaker 2 (18:01):
Justice Stevens drove this home with another famous analogy, borrowing
from an earlier zoning case. He said, a nuisance may
be merely a right thing in the wrong place, like
a pig in the parlor. Instead of the barnyard.
Speaker 1 (18:13):
A pig in the parlor. I like that.
Speaker 2 (18:15):
It's memorable, isn't it the words themselves Carlin satire. The
pig might be fine in the right context, the barnyard
maybe a comedy club or a record album you choose
to buy, but broadcast during the day, intruding into the home,
the parlor where children might be present, that transforms it
into a regulatable nuisance.
Speaker 1 (18:33):
So the same words, different time, different medium, different legal outcome.
Speaker 2 (18:37):
Precisely that pig in the parlor logic is what allowed
the FCC to thread the needle and win that five
to four decision fundamentally reshaping broadcast law around the concept
of indecency and time shifting.
Speaker 1 (18:50):
So the legal framework gets set, but the cultural legacy
it's still all about Carlin, isn't it. He kind of
leaned into becoming the face of this whole thing.
Speaker 2 (18:59):
Oh ye, absolute did. He saw the ruling in a
way as proving his original point that society gives these
arbitrary sounds immense power through fear and now legal restriction.
His later work constantly revisited and expanded on the seven
words concept.
Speaker 1 (19:15):
He even admitted the original list wasn't quite right, didn't
he Yeah.
Speaker 2 (19:18):
He famously added other words he thought were equally taboo
but missed the first cut, like fart, turd, and twat.
He kept playing with the idea of this unofficial list
of forbidden.
Speaker 1 (19:27):
Language, and he got almost like linguistically analytical about it too,
breaking down the words themselves.
Speaker 2 (19:31):
It was brilliant, really. He'd point out the absurdity of
banning compound words like motherfucker or cocksucker. He'd say, you know,
sucker isn't really dirty, just suggestive, and motherfucker is just
adding mother to fuck, which was already on the list.
He approached it like a language.
Speaker 1 (19:47):
Puzzle, underscoring his point that the power isn't in the syllables,
it's in our reaction exactly.
Speaker 2 (19:52):
The social and legal fuss gave them the power. He
was satirizing.
Speaker 1 (19:57):
Now, after PACIFICA, the FCC had this clear power to
regulate indecency, did they immediately start cracking down hard?
Speaker 2 (20:06):
Interestingly, No. For the first decade or so, maybe even two,
they used this power relatively sparingly. Things stayed pretty stable.
It wasn't until the late nineties and especially the early
two thousands that things really heated up, which changed. There
was a definite shift. Political winds changed, cultural anxieties flared up,
and there was increasing pressure, often from conservative groups and politicians,
(20:27):
for the SEC to get tougher on broadcast content. Enforcement actions,
and especially the size of fines ramped up. Dramatic fines
got bigger, way bigger. We started seeing fines and the
hundreds of thousands of dollars, sometimes hitting that half million
dollar mark per violation.
Speaker 1 (20:42):
And this led to controversies about fairness, about whether they
were picking and choosing targets based on politics.
Speaker 2 (20:48):
Yes, accusations of selective enforcement became common, and the SEC's
approach got particularly controversial when they started going after not
just deliberate routines like Carlins, but also fleeting X splatives.
Speaker 1 (21:00):
Fleeting explatives meaning like a slip of the tongue, a
single curse word accidentally broadcast.
Speaker 2 (21:07):
Exactly, someone blurting out an F bomb live on air
during an award show, for instance, or a wardrobe malfunction.
The FCC, under pressure, shifted its policy to say even
these brief, sometimes unintentional instances could trigger massive indecency fines.
Speaker 1 (21:24):
And the most famous example of that has to be
the Super Bowl halftime show in two thousand and four.
Speaker 2 (21:28):
Oh yeah, the Janet Jackson wardrobe malfunction incident with Justin Timberlake.
That brief exposure, which wasn't scripted satire like Carlin, it
was an accident.
Speaker 1 (21:38):
Caused an absolute explosion.
Speaker 2 (21:39):
Massive public outcry, political pressure like crazy, and the FCC
responded by hitting CBS and Viacom with enormous finds, the
largest broadcast in decency find ever at the time related
to that show.
Speaker 1 (21:52):
So the focus shifted from intentional indecent programming to basically
any instance of profanity or nudity. However, brief or.
Speaker 2 (21:59):
Accident d that became the new, much stricter, much more
controversial standard, and it seemed to many like a huge overreach,
especially since the FCC had previously ignored similar fleeting moments.
Speaker 1 (22:11):
And this aggressive stance on fleeting words eventually got challenged
in court again, didn't it It did?
Speaker 2 (22:17):
Broadcasters pushed back, arguing the policy was arbitrary and unclear.
In twenty ten, the Second Circuit Court of Appeals agreed.
They ruled that the FCC's policy on fleeting expletives was
unconstitutionally vague, meaning.
Speaker 1 (22:29):
The FCC hadn't clearly explained the difference why one f
bomb was a huge fine, but maybe it wasn't before Exactly.
Speaker 2 (22:36):
The court basically said, look, if you're going to punish
broadcasters so severely for what might be a split second mistake,
you need a much clearer, more consistent rule about why
you can't just change the standard based on public outcry.
Speaker 1 (22:47):
So, even decades after Pacifica, the whole definition of indecency
and how the FCC can police it remains kind of wobbly, unstable,
subject to the political.
Speaker 2 (22:59):
Wins very much. So. It highlights the ongoing tension between
the desire to regulate broadcast content and the constitutional protections
for speech, even offensive speech.
Speaker 1 (23:10):
This is fascinating stuff. And hey, if you're finding this
legal roller coaster ride interesting and you appreciate us mapping
it out for you, how about that five star rating.
It really does help us keep doing these deep dives.
Speaker 2 (23:20):
We appreciate the support.
Speaker 1 (23:22):
Okay, now let's shift gears to maybe the biggest problem
with the Pacifica ruling today. The technology has just completely
overtaken the legal logic. The whole basis of the ruling
feels well obsolete.
Speaker 2 (23:33):
It's a huge challenge. Yeah, the core justification in PACIFICA
is that broadcast is uniquely pervasive and uses scarce public airwaves.
But does that really hold up anymore?
Speaker 1 (23:43):
Probably not. Let's start with what you called the subscription loophole.
Speaker 2 (23:46):
Right cable TV, satellite radio like SiriusXM, streaming services like Netflix, Hulu, Hbomax.
None of them are subject to the FCC's broadcast and
decency rules.
Speaker 1 (23:55):
Why not they come into my home just like broadcast
TV because.
Speaker 2 (23:59):
The legal theory is different. They use private means of
transmission coaxial cables, fiber optic line, satellite signals, the Internet,
not the public airwaves. And crucially, you pay for them.
It's a subscription, so.
Speaker 1 (24:12):
The act of subscribing a scene as consent, like you
invited that content into your home. So the pig in
the parlor argument doesn't apply.
Speaker 2 (24:19):
It's the legal rationale. Because it's a private transaction and
uses private infrastructure, the government's PACIFICA justification for regulating indecency
doesn't stick. They get much broader First Amendment protection, similar
to books or movies.
Speaker 1 (24:33):
But wait, the other part of the PACIFICA ruling was
unique pervasiveness is broadcast TV really more pervasive than cable
or streaming. Today, that feels wrong.
Speaker 2 (24:42):
It feels completely wrong because it is wrong factually. Yeah,
in nineteen seventy eight, sure broadcast dominated three networks, maybe
a local PPS station, Cable was niche. Today cable and
satellite penetration is massive.
Speaker 1 (24:54):
Oh look what are the numbers.
Speaker 2 (24:55):
Well, one stat that always stands out is that even
among households below the poverty line, something like sixty two
percent have cable or satellite TV. It's everywhere to argue
that free over the year broadcast is somehow more pervasive
than paid cable or ubiquitous streaming. It just doesn't refle
in reality anymore.
Speaker 1 (25:13):
So the factual basis for that part of the ruling
has basically evaporated.
Speaker 2 (25:16):
It really has. And then you layer on the conglomerate factor.
Speaker 1 (25:19):
Meaning the same giant companies own both the regulated broadcast
stations and the unregulated cable channels.
Speaker 2 (25:25):
Precisely, think about Disney owning ABC regulated broadcast and FX
in free form unregulated cable, or NBC Universal owning NBC
regulated in USA, c FI, Bravo unregulated, ViacomCBS owning CBS regulator,
and MTV comedy central showtime unregulated.
Speaker 1 (25:42):
So if they have a show that's maybe two Edgy
two in decent for their broadcast network under sec rules,
they just.
Speaker 2 (25:48):
Move it over their cable channel. Simple as that. They
shift the indecent content to the platform where the Pacifical
rules don't apply. Problem solved from their corporate perspective, so.
Speaker 1 (25:56):
They can still profit from the content, still promote across
their platforms, maybe even advertise the Edgy cable show during
Family Hour on their broadcast network.
Speaker 2 (26:07):
Exactly, they totally undermine the purpose of the regulation. The
idea was to shield the public, especially kids, from indecency
on the pervasive broadcast medium. But if the same company
just redirects that content to another channel they own, which
is also incredibly pervasive, what are the rules actually achieved.
Speaker 1 (26:26):
It makes the Pacific a distinction seem almost meaningless in
practice for these big players, they just arbitrage the regulation.
Speaker 2 (26:33):
It's a classic example of how market consolidation and technological
change can render regulations ineffective or at least easily circumvented,
which leads to the frustration around the Elacarte debate.
Speaker 1 (26:45):
Right. The subscription loophole assumes we choose the content by subscribing,
But we usually can't buy cable channels one by one.
Can we?
Speaker 2 (26:51):
Almost never? You're forced to buy these big bundles, basic tiers,
expanded tiers, and those bundles inevitably include channels known for
content that would definitely be considered indecent under PACIFICA rules,
right alongside the Disney Channel or Discovery.
Speaker 1 (27:06):
So to get the kid's channel I want, I have
to accept the channel airing potentially offensive stuff into my
home too. I don't really have a choice.
Speaker 2 (27:13):
Exactly, which blows a hole in the subscriber consent argument
underpinning the subscription loophole. If you're forced to let the
pig into the parlor just to get the channel you
actually want, how much meaningful control or consent do you
really have?
Speaker 1 (27:27):
It feels like a contradiction. The government restricts broadcast to
protect kids, but ignores that the same content flows freely
through bundled cable packages that parents often have to buy.
Speaker 2 (27:37):
It's a major point of inconsistency and frustration for many people,
and this ongoing tension is feeling that the rules aren't
working or aren't fair. It even led to specific legislative
efforts to sort of reimpose control.
Speaker 1 (27:50):
You mentioned the Clean Airwaves Act from two thousand and three.
Speaker 2 (27:53):
Yes, HR three six eighty seven, introduced by Representative dugos.
This was a direct response to the perceived increase in
broadcast indecency happening around the time of the Janet Jackson incident,
and it generally heightened sense of moral scrutiny Post nine
to eleven.
Speaker 1 (28:10):
And what did that proposed act try to do?
Speaker 2 (28:13):
It actually tried to take Carlin's list or a version
of it and write it into federal law. It proposed
designating words like shit, piss, fuck, cunt, asshole, and the
phrases cocksucker, motherfucker, and asshole as legally profane under the
UN Code.
Speaker 1 (28:30):
So trying to codify the dirty words and attach specific
likely harsher penalties.
Speaker 2 (28:35):
Essentially, Yes, it showed a real legislative desire to clamp down,
to bypass the nuances of the FCC's in decency standard
and just declear certain words off limits, at least for broadcast.
The BUILL didn't pass, but it clearly demonstrated that the
frustration with the PACIFICA Framework in its loopholes was and
probably still is very real in political circles. It shows
this debate is far from over. Wow.
Speaker 1 (28:55):
Okay, so we've traced this whole thing from yeah, George
Carlin routine that was meant to be satire and it's
a comedy all the way through FCC orders court battles,
a nail biting five to four Supreme Court decision, and
now into the messy reality of twenty first century media
where the original logic seems to be falling apart, and
it all came down to context. Isn't it like the
(29:16):
court said, the pig in the parlor.
Speaker 2 (29:17):
Exactly, time of day, method of delivery, perceived audience, those
contextual factors became everything legally speaking.
Speaker 1 (29:27):
So the big takeaway for you listening the core insight
here is really quite striking when you think about it.
Speaker 2 (29:33):
It is in the US the legal line between speech
that's fully protected and speech that can be restricted, at
least in electronic media, often has less to do with
the actual content. Remember Carlin's routine was deemed art, not obscenity,
and much much more to do with how it gets
to you. The delivery system.
Speaker 1 (29:50):
Is it using those scarce public airwaves? Does it just
show up uninvited in the home that's what triggers the
potential for government restriction under PACIFICA.
Speaker 2 (29:57):
It's the infrastructure, the pipes, not necessarily the message. It
that determines the level of First Amendment protection in this
specific area, which you know is kind of weird.
Speaker 1 (30:05):
It is weird, and it leads us right to that
provocative final thought.
Speaker 2 (30:09):
We wanted to leave you with, right, So think about this.
We have these giant media companies now that easily sidestep
the PACIFICA rules by owning both broadcast and cable streaming.
They just move the indecent stuff next.
Speaker 1 (30:22):
Door, and we have streaming and cable which are arguably
more pervasive now than broadcast ever was back in seventy eight.
They're everywhere, at almost every home.
Speaker 2 (30:30):
So given all that, does it make any sense anymore
to keep treating traditional broadcast radio and TV as this
special category that needs unique indecency restrictions? Hasn't Technology in
the market just made that distinction obsolete.
Speaker 1 (30:44):
Which forces the big question, what's the solution. Do we
lean into Carlin's original point that the fear gives the
words power and say, okay, let's get rid of the
PACIFICA distinction. Do you regularly broadcast indecency entirely. Treat all
electronic media the same under the First Amendment like print.
Speaker 2 (31:00):
That's one path more speech less restriction, or do you
go the other way? Do you say no? The problem
is the inconsistency. Maybe we should try to extend indecency
style regulations to cable and streaming. Try to regulate all
pervasive electronic media in a similar way to protect kids
or upholled community standards. However difficult, that might be legally impractically.
Speaker 1 (31:21):
Eliminate the distinction by regulating more, not less.
Speaker 2 (31:24):
Exactly, deregulate broadcast or regulate everything else. That's the fundamental
choice at the heart of the debate about the future
of content regulation in the digital age. Where we draw the.
Speaker 1 (31:35):
Line now something to definitely chew on.
Speaker 2 (31:37):
Absolutely well, thanks for joining us on this pretty wild
ride through seven dirty words and the law they inspired.
We really hope this deep dive left you feeling yeah, instantly,
well informed, maybe even a little entertained by the absurdity
of it all sometimes and if.
Speaker 1 (31:51):
It did, you know what to do. Show us some
love with that five star rating wherever you get your podcasts.
It helps us keep digging deep for you. Until next
time on the deep Dive beyond infographics,
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Crime Junkie
Does hearing about a true crime case always leave you scouring the internet for the truth behind the story? Dive into your next mystery with Crime Junkie. Every Monday, join your host Ashley Flowers as she unravels all the details of infamous and underreported true crime cases with her best friend Brit Prawat. From cold cases to missing persons and heroes in our community who seek justice, Crime Junkie is your destination for theories and stories you won’t hear anywhere else. Whether you're a seasoned true crime enthusiast or new to the genre, you'll find yourself on the edge of your seat awaiting a new episode every Monday. If you can never get enough true crime... Congratulations, you’ve found your people. Follow to join a community of Crime Junkies!
The Breakfast Club
The World's Most Dangerous Morning Show, The Breakfast Club, With DJ Envy, Jess Hilarious, And Charlamagne Tha God!