It seems weirdly coincidental that George Carlin died almost 30 years to the day that the Supreme Court issued its landmark decision on broadcast indecency involving his "Filthy Words" routine. (Click here to read that 1978 decision for yourself -- it's a good read, if you dig wonky First Amendment stuff.) It's also interesting that the Supremes have agreed to take up their first broadcast indecency case during the 2008-09 session since they weighed in on Carlin's risque radio riffage back in the Carter era.
In fact, the Pacifica case that has determined so much of broadcast indecency policy -- at least until the indecency crusaders Michael Powell and Kevin Martin got a hold of the Federal Communications Commission -- got its start in Nixon-era America. It was Oct. 30, 1973, about 2 p.m. in the afternoon. A New York man was driving with his young son in the car and over public radio station WBAI-FM came Carlin's "Filthy Words" rap (it's called "Filthy Words" in the Supreme Court decision but history seems to have dubbed it the "Seven Words" routine), about words so deemed so naughty they could not be uttered on the public airwaves. The bit set the man's hair on fire, leading him to lodge complaints with the station and eventually, the FCC.
By February 1975, the commish decided that Carlin's routine (excerpts posted after the jump) was "patently offensive." The FCC didn't try to levy a fine, but sought to but an official "order" in the station's file that would be considered if the station racked up additional complaints. Pacifica wasn't having any of that and a three-year court battle ensued. Certainly, Carlin was well on his way to comedy superstardom before his name became forever intertwined with heavy-duty legal precedent, but his association with the landmark case also gave him a level of stature and importance, in pop culture and among his comedian peers, that he might otherwise have achieved.
In the end, the Supreme Court decided that Carlin's routine was "patently offensive" and profane by any definition of the phrase, even if it wasn't specifically wallowing in the "sexually or excretory organs or activities" muck that had been (and continues to be) a litmus test for broadcast indecency cases. The biggest strike against Pacifica was the fact that it aired in the afternoon. As a lower court noted in one of its rulings, and as any parent would agree, "the broadcast media have established a uniquely pervasive presence in the lives of all Americans."
Here's an excerpt from Justice John Paul Stevens' majority opinion:
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution. The Commission's decision rested entirely on a nuisance rationale under which context is all-important. The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience, 29 and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. As Mr. Justice Sutherland wrote, a "nuisance may be merely a right thing in the wrong place, - like a pig in the parlor instead of the barnyard." Euclid v. Ambler Realty Co., 272 U.S. 365, 388 . We simply hold that when the Commission finds that a pig has entered the parlor, the exercise [438 U.S. 726, 751] of its regulatory power does not depend on proof that the pig is obscene.
And here's a bit of Justice William Brennan's dissenting opinion:
I find the Court's misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety on the whole of the American people so misguided, that I am unable to remain silent...
These two asserted justifications are further plagued by a common failing: the lack of principled limits on their use as a basis for FCC censorship. No such limits come readily to mind, and neither of the opinions constituting the Court serve to clarify the extent to which the FCC may assert the privacy and children-in-the-audience rationales as justification for expunging from the airways protected communications the Commission finds offensive. Taken to their logical extreme, these rationales would support the cleansing of public [438 U.S. 726, 771] radio of any "four-letter words" whatsoever, regardless of their context. The rationales could justify the banning from radio of a myriad of literary works, novels, poems, and plays by the likes of Shakespeare, Joyce, Hemingway, Ben Johnson, Henry Fielding, Robert Burns, and Chaucer; they could support the suppression of a good deal of political speech, such as the Nixon tapes; and they could even provide the basis for imposing sanctions for the broadcast of certain portions of the Bible.
Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words and the swear words, the cuss words and the words that you can't say, that you're not supposed to say all the time, [']cause words or people into words want to hear your words. Some guys like to record your words and sell them back to you if they can, (laughter) listen in on the telephone, write down what words you say. A guy who used to be in Washington knew that his phone was tapped, used to answer, Fuck Hoover, yes, go ahead. (laughter) Okay, I was thinking one night about the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever, [']cause I heard a lady say bitch one night on television, and it was cool like she was talking about, you know, ah, well, the bitch is the first one to notice that in the litter Johnie right (murmur) Right. And, uh, bastard you can say, and hell and damn so I have to figure out which ones you couldn't and ever and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were, shit, piss, fuck, cunt, cocksucker, mother-fucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon.
(Pictured: George Carlin with his longtime comedy partner Jack Burns)