Regulation of Indecent Speech

The Issue:  Does the First Amendment limit the government's ability to regulate four-letter words and other forms of indecent speech?


Introduction
Certain words, the most notorious of which contain four-letters, are offensive to many people.  Many other people, of course, are not offended by these same words and may in fact frequently use these words themselves.  These very different reactions to indecent words, as well as to other references to sexual or excretory functions, make for potential conflict and--why else would I be typing this?--First Amendment conflicts.  (Public attitudes to certain words and phrases even affects how this introductory note is written: merely by using a word such as "f- - -" in this note might cause certain Internet filtering software to render this educational page unavailable in certain homes, schools, and libraries.)

The Supreme Court first confronted the issue of indecent (as opposed to obscene speech, which appeals to prurient interests) in the 1971 case of Cohen v California.  Paul Cohen was convicted and sentenced to 30 days in jail for wearing in a courthouse corridor a jacket which, on its back, said "F - - - THE DRAFT"  The Court reversed Cohen's conviction, finding his speech protected by the First Amendment.  Writing for the Court, Justice Harlan noted that "one man's vulgarity is another man's lyric" and suggested that the First Amendment protects not just the intellectual content of speech, but the emotive content as well.

In FCC v. Pacifica Foundation, the Court considered whether the Federal Communications Commission could, consistent with the First Amendment, punish a broadcaster who chose to play over the air at 2 o'clock on a weekday afternoon a twelve-minute "Filthy Words" monologue by George Carlin.  In a narrow 5 to 4 decision, the Court upheld the FCC's authority to channel broadcasts containing indecent words to late-night broadcast hours when children are unlikely to comprise much of the audience.  The Court based its holding on the lower level of First Amendment protection extended to broadcasting, the ability of broadcasts to zap listeners without warning in the privacy of their own living rooms, and the need to protect children from harmful speech.  The dissenters, meanwhile, complained that the Court majority demonstrated "acute ethnocentric myopia."

In Bethel School District No. 403 v Fraser (1986), the Court upheld the right of a school district to punish a high school student for delivering a sexually suggestive nominating speech in a school assembly.  The Court noted that the speech might reasonably be seen as interfering with the school's attempt to teach civility, and that the speech might have been caused discomfort to many of the 14 and 15-year-old students who constituted a "captive audience."  The Bethel case might be contrasted with Papish v Board of Curators, in which the Supreme Court held that a university's decision to expel a student for distributing a paper on campus containing indecent language and offensive cartoons violated the First Amendment.


Bono, at the Golden Globes, dropped the "F-bomb."

In FCC v Fox Television (2009), the Court by a 5 to 4 vote upheld (as against an administrative law challenge) an FCC rule that fined broadcasters for even the fleeting, one-time use of the "F"-word and the "S"-word.  Justice Scalia wrote for the Court that "The commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children." Scalia noted, however, that the Court's decision was narrow and did not address the First Amendment question raised by the FCC's order, sending the case back to the court of appeals for further consideration of that issue. Justice Thomas, concurring, said he was "open" to a review of the court's precedents that allowed a "deep intrusion into the First Amendment rights of broadcaster." Justice Ginsburg, writing for the four dissenters, welcomed a constitutional challenge: "There is no way to hide the long shadow the First Amendment casts over what the commission has done. Today's decision does nothing to diminish that shadow."

Listen to the FCC's legal counsel discuss indecency on "This American Life" with Ira Glass (2004). 
From the website of WBEZ, Chicago Public Radio:
Propriety

6/11/04
Episode 267


Perhaps there was a time when the rules of polite society were clear. No longer. This week, we bring you stories of people forced trying to figure out how to maintain their dignity – and decency – in some very unsettling situations.
Prologue. It seems apples for the teacher is a bygone tradition. This American Life host Ira Glass talks to Mindy, a first-grade teacher, about the rather racy gifts her students give these days at Christmas. (6 minutes)
Act One. Government Says the Darnedest Things. The FCC says it just wants a little civility on the nation's airwaves. And by tightening the rules on what swear words are allowed, government officials say they're protecting kids. The only weakness in their argument is that the facts don't happen to back them up. Ira talks with Dr Timothy Jay, author of Cursing in America and Why We Curse, and John Cody, legal aide to FCC Chairman Michael Powell. Read the fascinating landmark FCC decision that's changing the rules, and the ACLU's Petition for Reconsideration. (29 minutes)
 



A Proposed Bill Regulating Bumper Stickers
FIRST REGULAR SESSION
HOUSE BILL NO. 297
85th GENERAL ASSEMBLY

INTRODUCED BY REPRESENTATIVE SKAGGS, JARMAN AND McNEILL
January 5, 1989
AN ACT
Prohibiting certain obscene bumper stickers on motor vehicles, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows: 
    Section 1. No person shall place any sticker, drawing, patch, decal, emblem or other device on any sign, motor vehicle as defined in section 301.010, RSMo, or article of clothing if such sticker, drawing, patch, decal, emblem or other device contains obscene words, descriptions, photographs or depictions which are greater than one-fourth of an inch in height or width.  For purposes of this section, the term "obscene" means references to human or animal bodily functions or to sexual activities or behavior. Any person who violates this section shall be guilty of an infraction.  Any person who is convicted of a second or subsequent offense of this section shall be guilty of a class C misdemeanor.

Questions:
1.  If enacted, would the bumper sticker bill be constitutional?
2.  What are the strongest arguments against the bill's constitutionality?


Cover of a George Carlin album.

The Cases
Cohen v. California (1971)
FCC v. Pacifica Foundation (1978)
Bethel Sch'l District v. Fraser (1986)

Carlin Monologue at Issue in Pacifica
"Seven Dirty Words"

Student Speech at Issue in Bethel
"Vote for Jeff"

Questions

1. Could Paul Cohen have made his opposition to the draft as clear without using "the F word"?  Would the message "I hate the draft" carry the same power and reach the same audience?
2.  What result if Cohen had been arrested for shouting these three words in the courthouse corridor?  What result if he had been arrested for repeating these three words over and over on a street corner?
3.  If you were arguing Cohen's case before the Supreme Court would you use "the F word" during your oral argument?  Why or why not?
4.  Does the Bethel case suggest that a student might be disciplined for wearing a jacket or a T-shirt emblazoned with the three words at issue in Cohen?  What is the Court's rationale for allowing more regulation of speech within the context of a public school?
5.  If Matthew Fraser had given his sexually suggestive nominating speech on a college campus, would he have been protected from discipline by the First Amendment? 
6.  The Supreme Court subsequently interpreted its decision in Pacifica as being about time channeling, suggesting that the First Amendment might have been violated had the FCC not allowed the Carlin monologue to be played at, say, 2am rather that at 2pm as it was.  Is this the only plausible interpretation?
7.  Given the Court's treatment of the privacy/sensibilities concern in Cohen and Pacifica, is there the suggestion that aural communications can be more offensive than visual?
8.  Was it the words themselves, or the words in context, that was the key to the Court's conclusion in Pacifica that the Carlin broadcast could be the basis for FCC administrative punishment?  What result if a broadcast station airs an interview in which the President uses a four-letter word?
9.  Do you agree with the Pacifica plurality that Carlin's monologue lies at the "periphery" of First Amendment protection?
10. Analyze the constitutionality of the proposed Missouri ban (House Bill 297, in box to left) on certain forms of indecent speech.   
Account of Announcement of Cohen Decision in The Brethren
"[Chief Justice] Burger was still angry [about the Court's decision in Cohen v. California] on June 7 when the case was set for announcement.  In the light-oak-paneled robing room, a messenger--selected for the task because he was taller than any of the Justices--was helping Harlan [author of the Cohen opinion] into his robe.
"John, you're not going to use 'that word' in delivering the opinion are you?" Burger asked.
Harlan had been deeply amused at Burger's concern.  He had no intention of uttering the word aloud in open court, but he sidestepped the question.  He enjoyed 'twitting' the Chief, as he called it.
"It would be the end of the Court if you use it, John," the Chief asserted.
Harlan chuckled.  It was time for Court.  They paraded out the door after the Chief in order of seniority-- Black, Douglas, and then Harlan--along a red carpet placed in the hall between the robing room and the courtroom.  As the case was announced, Harlan bent over in his chair to review his notes, his forehead almost touching the bench as his eyes strained to read.  He straightened up and repeated most from memory.  His occasional sideways glances to see if the Chief was still paying attention were almost imperceptible.  The Chief sat in rigid and pained stoicism, waiting for the offending word.  Harlan paused, glanced again at the Chief, and proceeded, still without uttering the word.  Finally, he finished without ever using it."
--Woodward & Armstrong, The Brethren (1979), p. 133.

Lenny Bruce
Lenny Bruce combined liberal social commentary, four-letter-words, and explicit sexual references in his nightclub comedy sketches.  In the early 1960s, authorities in San Francisco, Chicago, Los Angeles, and New York (where he was finally convicted) charged Bruce with obscenity violations. 
Learn more about these cases that shaped the law and paved the way for a new, edgier comedic style:  The Lenny Bruce Trials.

For information about another fascinating free speech trial from 1957, go to my site on  The Confidential Magazine Trial.

Visual Indecency, The FCC, and the First Amendment
The FCC Decision in the Janet Jackson Case

CBS sued the FCC in the Third Circuit Court of Appeals.  CBS asked the court to overturn fines imposed after Janet Jackson's breast appeared during the Superbowl.  The network argued the fine should be dismissed because the broadcast itself was "neither explicit nor graphic." CBS also argued that the FCC's "zero tolerance approach to indecency enforcement" eliminated the "breathing space to which CBS and all broadcasters are entitled to exercise their First Amendment rights." 

In July 2008, the Third Circuit overturned the FCC's action. Judge Scirica said the Federal Communications Commission had "arbitrarily and capriciously departed from its prior policy" that exempted fleeting broadcast material from actionable indecency violations. "Moreover, the FCC cannot impose liability on CBS for the acts of Janet Jackson and Justin Timberlake, independent contractors hired for the limited purposes of the Halftime Show ...."

In May 2009, the Supreme Court reversed the decision and sent the case back to the Third Circuit for consideration in light of Fox v FCC.  In October 2009, the FCC asked the Third Circuit to let it review the question of whether CBS acted "recklessly" in not using a tape delay during the halftime performance.



Janet Jackson and
Justin Timberlake

In a halftime performance produced by MTV during the 2004 Superbowl, a notorious "wardrobe malfunction" occurred, exposing the right breast of pop star Janet Jackson.  The incident was witnessed live by millions on CBS, the network broadcasting the football game.  Following a public outcry, the FCC imposed a $27,500 fine (the maximum allowed) on each of the 20 television stations owned by CBS that broadcast the Superbowl--even though the breast exposure was brief (19/32 of a second) and unanticipated by CBS and the network quickly apologized to viewers.  
Do you think the First Amendment permits the government to impose fines for the breast exposure under the circumstances of the halftime show?  Does the First Amendment allow the government to effectively require tape delays for all live sporting events?  All live broadcasts, period?


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