/ 07.14.2010 12:00AM
Indecency Decision Seen as Rejecting Pacifica
WASHINGTON: A federal court’s dismissal of the FCC’s
broadcast indecency rules reaches beyond the incidents in question, free speech
advocates say.
“What’s ultimately most important about this decision is not what the
court did, but what it said: The Constitutional framework that
has allowed broadcast censorship has been rendered obsolete by the rise of
the Internet and parental empowerment tools for new and old media,” wrote Berin
Szoka, a senior fellow and director of the Center for Internet Freedom at The
Progress & Freedom Foundation.
The U.S Court of Appeals for the Second Circuit in Manhattan yesterday ruled
the FCC’s application of indecency standards to fleeting expletives
unconstitutional. The case arose from FCC censures levied against broadcasters
over celebrities cursing in live broadcasts, while the same language was
allowed in the film, “Saving Private Ryan.”
Szoka said the decision rejects the U.S. Supreme Court’s 1978
Pacifica decision upon which the
determination of broadcast indecency rests. Pacifica involved one of the so-named network’s radio stations that
carried George Carlin’s monologue, “Filthy Words” on Oct. 30, 1973. The
12-minute routine listed seven words that couldn’t be said on the public
airwaves.
“Those are the ones that will curve your spine, grow hair on your hands and
maybe, even bring us, God help us, peace without honor um, and a bourbon,” the
late comedian cracked.
The bit was recorded live in a California club and later aired on the station. A man driving with his young son heard the broadcast and filed a complaint with the FCC.
Pacifica responded that Carlin was a “a significant social satirist [who] like
Twain and Sahl before him, examines the language of ordinary people. . . .
Carlin is not mouthing obscenities, he is merely using words to satirize as
harmless and essentially silly our attitudes towards those words.”
The FCC nonetheless found the broadcast indecent with the high court’s backing
on the grounds that broadcasting was a “uniquely pervasive presence.”
Szoka said the rationale no longer holds true, and that the Second Circuit opinion
reflects that.
“We face a media landscape that would have been almost unrecognizable in 1978,”
Judge Rosemary Pooler wrote in the Second Circuit decision. “Cable television was still in its infancy. The
Internet was a project run out of the Department of Defense with several
hundred users. Not only did Youtube, Facebook,and Twitter not exist, but their
founders were either still in diapers or not yet conceived. In this
environment, broadcast television undoubtedly possessed a ‘uniquely pervasive
presence in the lives of all Americans.’
The same cannot be said today.”
Szoka said it was “remarkable” for the lower court to challenge
Pacifica when it could have resolved the
case without doing so.
“The fact that the Second Circuit felt it necessary to spend nearly three pages
debunking Pacifica is the
clearest statement yet that it’s time for us to apply the First Amendment
consistently across all media,” Szoka writes. “I only hope the FCC is brash
enough to appeal--knowing it might well lose the farm, so to speak--and that
the Supreme Court is brave and principled enough to say what the Second Circuit
has said so beautifully: There’s no justification for treating
broadcasters as second class speakers. The First Amendment should apply equally
across media!”
-- Deborah D. McAdams
See...
- Szoka’s full assessment, “
Pacifica is Outdated”
- The University of Missouri-Kansas City has a verbatim transcript of Carlin’s
monolog, “Filthy
Words.”