BIG BROTHER CLAMPS DOWN ON FREEDOM OF EXPRESSION, ONE DIRTY WORD AT A TIME.

In 2002, during Fox’s live broadcast of the Billboard Music Awards, Cher answered critics who for years had been saying she was through. “So fuck ’em!” the singer/actress exclaimed triumphantly. The next year, on the same Fox program, honoree Nicole Richie asked rhetorically, “Have you ever tried to get cowshit out of a Prada purse? It’s not so fuckin’ simple.”

On March 17, 2008, the U.S. Supreme Court announced that it will rule in its next term whether or not the Federal Communications Commission has the authority to levy fines on Fox for violating the government’s indecency standards. For the first time since its historic act of censorship in the notorious “Seven Dirty Words” case in 1978, the High Court will decide what words we will be allowed to hear over the airwaves.

Thirty years ago, on the Pacifica Foundation radio network, George Carlin had listed—mocking the silliness of the FCC’s prudery—“the original seven words you couldn’t say on the public airwaves: shit, piss, fuck, cunt, cocksucker, motherfucker and tits.”

The verbatim transcript of Carlin’s hilarious (but also sharply serious) assault on the FCC’s contempt for free speech is an appendix, for all to read, to the Supreme Court’s decision in FCC v. Pacifica Foundation.

The Supreme Court plans a new probe into whether “fleeting” indecency is permitted (as with the spontaneous Cher and Nicole Richie comments). If the law is interpreted on the restrictive side, an offending station or network could be fined, by the current FCC gag rule rates, up to $350,000.

It is likely that the current Roberts-Alito-Scalia Supreme Court will agree with the FCC that the children of America must not be exposed to such shockingly coarse language on the public airwaves. Such a ruling—especially if the next President fills vacancies on the Court with other upholders of the 17th-century Puritan standards of the Massachusetts Bay Colony— means the FCC could go on to purify cable and satellite television and radio. And after that, why not the Internet?

The contagious nature of government censorship—particularly when “family values” are at stake—was evident to me when I did not see one mainstream newspaper or magazine or a publication devoted to the law itself (Legal Times in Washington being the sole exception) use the word fuck in reporting on the Supreme Court’s taking on FCC v. Fox Television Stations. But the print media are not licensed by the government. That’s why we have a First Amendment.

As Harvey Silvergate—a Constitutional lawyer, a veteran and a formidable defender of free speech in the courts and his writings— said in Boston’s Phoenix Weekly : “[A]ny newspaper that voluntarily keeps out vital information—something that the broadcast networks are fighting not to have to do— betrays our First Amendment right to free speech and free press. As Lenny Bruce might have observed, it’s a fucking outrage.”

And by contrast, that’s why I feel privileged to write for HUSTLER. Why shouldn’t the First Amendment also apply beyond the print media? Supreme Court Justice William O. Douglas, who wrote of the First Amendment the way Louis Armstrong played trumpet, answered that question in logical and Constitutional terms: “TV and radio stand in the same protected position under the First Amendment as newspapers and magazines. … The fear that Madison and Jefferson had of government intrusion…was founded not only on the specter of a lawless government but [on the specter] of government under the control of a faction that desired to foist its
views of the common good on the people. …The sturdy people who fashioned the First Amendment would be shocked at the intrusion of government into a field which in this Nation has been reserved for individuals.”

I quoted Douglas’s ringing of the Liberty Bell in my 1980 book The First Freedom: The Tumultuous History of Free Speech in America (Dell). Douglas was no longer here when cable, satellite radio and the Internet began to abound, but I have no doubt he would have included them. In its coverage of the Supreme Court’s ominous intention to rule on FCC v. Fox Television Stations, the New York Times did not dare tell its readers that Cher and Nicole Richie had committed the speech crime of saying “fuck.”

Dissenting in the 1978 “Seven Dirty Words” case, Justice William Brennan accused the majority of his brethren of a misguided intention “to impose its notions of propriety on the whole of the American people…[violating] the broadcaster’s right to send, and the right of those interested to receive, a message entitled to full First Amendment protection.”

However, writing for the Court in upholding the FCC and exiling George Carlin’s right to swear forbidden words on the public airwaves was Justice John Paul Stevens, for years since a leader of the so-called liberal wing of the Supreme Court. But as for those “dirty words,” Stevens in 1978 brushed off the First Amendment: “To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a Constitutional immunity or avoid a harm that has already taken place.”

The “harm” inflicted by the FCC is to the core of what differentiates us—if the Constitution is alive—from all other countries. John Paul Stevens still sits on the Supreme Court of the United States. Will he repent? And as you would expect, the Bush Administration is enthusiastically supporting the FCC.

Nat Hentoff Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice, the Washington Times, the United Media Newspaper Syndicate and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America ; Living the Bill of Rights ; Free Speech for Me But Not for Thee ; The War on the Bill of Rights—And the Gathering Resistance ; and the forthcoming Is This America?

Tags: FCC, Nat Hentoff, September 2008

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