The FCC’s power to censor broadcast radio and television received the Supreme Court’s imprimatur back in 1978, when the Pacifica Foundation, operator of the nonprofit Pacifica Radio network, challenged the FCC’s penalty for its broadcast of the famous George Carlin “Filthy Words” satirical monologue. The Carlin routine deftly used seven “dirty words” in an effort, as the Supreme Court understood, “to satirize as harmless and essentially silly our attitudes toward those words.” Yet even in issuing its infamously censorious ruling, the high court attached Carlin’s entire routine, verbatim, as an appendix to its published opinion. In the same court opinion that banned supposedly offensive speech from the airwaves, one can read Carlin’s observations about some fellow in Washington who knew that his phone was tapped and would utter “Fuck Hoover” into the telephone receiver, or Carlin’s theory that “motherfucker” and “cocksucker” are compound words, each one perhaps only “50 percent dirty.”
Likewise, when the modern reincarnation of the broadcast-indecency dispute arose over the “fleeting expletives” uttered by Bono and by Cher, the Court of Appeals that objected to the FCC’s censorious ways made a point to quote the loudmouth entertainers. We can be assured that, if the Supreme Court reviews the case, it, too, will state the precise language involved, because to do less is to leave readers of its opinions guessing as to the heart, and the details, of the government’s censorship practices and policies, and of the extent of the judiciary’s tolerance of those policies. Even if newspapers don’t always recognize it, most courts understand that free citizens are entitled to true, accurate, and meaningful information about the state of their liberties.
It wasn’t always this way. Back when I was a young lawyer trying my first obscenity case, I defended a local “alternative newspaper,” the Avatar, published by a nonconformist communal group living in Roxbury. Police rounded up more than 80 street vendors and charged them with selling “obscene” materials to both adults and children. Five cases — those involving sales to minors (as it turns out, the children of police officers sent in order to entrap the vendors) — made it to the Supreme Judicial Court of Massachusetts, our highest state tribunal. In 1970, the SJC overturned the convictions, but gingerly described the language published in the paper as “the rediscovery of certain four-letter words old in Chaucer’s day and widely but covertly employed until recently.” It ruled that the publication did not reach the legal definition of obscenity, even for minors, but the public was left without guidance as to precisely what words were at issue. (For the record, and for the guidance of newspaper editors throughout Massachusetts, I will disclose here that the Avatar editors had devoted an entire centerfold to publishing four words in large type: FUCK, SHIT, CUNT, and PISS. These words do not constitute obscenity for minors in Massachusetts, even though readers of the SJC’s opinion would never know it.)