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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.
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
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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)
Court of Appeals Says FCC Can't Sanction
the
Non-Sexual Use of the "F -word"
In June 2007, a panel of
the Second Circuit Court of Appeals overturned an FCC decision
sanctioning stations for airing the Golden Globes Awards, which
included Bono using the "F-word" (in a non-sexual way) in an acceptance
speech. "We find the FCC's new policy sanctioning 'fleeting
expletives' is
arbitrary and capricious under the Administrative Procedures Act for
failing to articulate a reasoned basis for its change in policy," the
Court said. Writing for a 2 to 1 majority, Judge Rosemary Pooler
added, "We are doubtful that by merely proffering a reasoned analysis
for its
new approach to indecency and profanity, the commission can adequately
respond to the constitutional and statutory challenges raised by the
networks." FCC Chairman Kevin Martin expressed
disappointment with the decision: "I find it hard to believe that
the New York court would tell American
families that 's--t' and 'f--k' are fine to say on broadcast television
during the hours when children are most likely to be in the audience,"
he said.
(Fox Television
Stations v FCC (2007)(2nd Cir.))
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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:
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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?
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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.
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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.
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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." Oral arguments in the Janet Jackson case were
heard on September 11, 2007.
Janet Jackson and
Justin Timberlake
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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?
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