Re-revisiting the seven words
The late comedian George Carlin has been in the news recently, thanks in large part to a lengthy HBO biography that covers both his life and the evolution of his comedy — from a conventional stand-up comedian to someone who proudly used colorful language that is only available in such places as on cable television (such as . . . HBO) — where it is permissible because the viewer has to pay for such services, so that it's assumed the viewer/listener consents to hearing it.
Ironically, consent was also the issue in 1978, when Carlin's now-legendary monologue, “The Seven Words You Can't Say on Television” (indirectly) became an issue for the Supreme Court. In 1973, a radio disc jockey had decided to play Carlin's monologue over the air, and a man and his 15 year-old son were driving and happened to be tuned to that station. The man was offended because the monologue was broadcast in the middle of the day, and they both listened to entire routine — even though, as Carlin himself endlessly loved to point out, the complainant “consented” because, even in 1973, a car radio had two knobs — one to turn it on or off, and one that allowed the station to be changed.
The question reached the Supreme Court the first time in 1978, when it was asked to decide whether the Federal Communications Commission (FCC) could fine the radio station that broadcast the monologue in the middle of the day, when children were likely to be in the audience. There was something a little awkward about a panel of nine aging judges, many of them in their sixties and seventies, deciding what language is appropriate for children to hear. Ultimately, though, Justice John Paul Stevens wrote the 1978 opinion upholding the FCC'S power to regulate the broadcast of Carlin's monologue. The court created a new standard, holding that the FCC could regulate “indecent” language on the public airwaves.
Stevens did leaven that opinion with a little humor. He quoted from a famous land use opinion that the government can forbid “a right thing in a wrong place — like a pig in a parlor instead of a barnyard.” The FCC'S authority to regulate a radio station, he concluded, “does not depend on proof that the pig is obscene.”
In 2009, the year after Carlin died, the court again got involved in that area of the law, when the Supreme Court was asked whether a lower court was wrong to prohibit the FCC from punishing Fox Television stations. Specifically, the 2009 case involved several instances of celebrities appearing on live broadcasts who fleetingly uttered words that would comfortably have fit in Mr. Carlin's famous monologue, including musician Bono during a broadcast of the Golden Globe Awards, and singer Cher during the 2003 Billboard Music Awards. As Justice Antonin Scalia explained in the main opinion, the FCC once again had threatened to fine broadcasters who allowed “nonliteral (expletive) use of the Fand S-words.” And once again, the 2009 court decision upheld the FCC'S authority.
Both of these decisions created several ironies. In the 2009 case, Justice Stevens dissented, despite having written the 1978 opinion. He tweaked the nose of both the FCC and Scalia's reference to “the F- and S-words,” observing that “It is ironic . . . 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.”
Another irony of the 2009 case was that the justices themselves were somewhat more coy than their predecessors in referring to the unmentionable words in their opinion. The 1978 decision actually included a verbatim transcript of Carlin's entire monologue — making it undoubtedly the only place in the annals of the Supreme Court where some of those words appear.
Still, perhaps the greatest irony came in the wake of the 1978 decision from Carlin himself. Despite his reputation as an iconoclast, a rebel, and a counterculture hero, even he was a bit awed about how far the “seven dirty words” monologue had come. After the decision enshrined his monologue in the dusty volumes of the U.S. Supreme Court, he was quoted as saying, “So my name is a footnote in American legal history, which I'm perversely kind of proud of.”
Even Carlin could be humbled in the right circumstances.
The question reached the Supreme Court the first time in 1978, when it was asked to decide whether the Federal Communications Commission (FCC) could fine the radio station that broadcast the monologue in the middle of the day, when children were likely to be in the audience. There was something a little awkward about a panel of nine aging judges, many of them in their sixties and seventies, deciding what language is appropriate for children to hear.