Comedian Carlin was part of First Amendment history

University Park, Pa. — Comedian George Carlin, who died Sunday at 71, was best known for his creative and often profane monologues. But as Robert Richards, distinguished professor of journalism and law and founding co-director of the Pennsylvania Center for the First Amendment at Penn State, notes, Carlin's legacy is also informed by a famous bit that was at the center of a Supreme Court case which defined the Federal Communications Commission's role in regulating broadcast content.

"I think he'll always be considered a groundbreaking comedian. He had a very clever act that was very well organized and pushed the envelope in various directions," Richards said. "But clearly part of his legacy will be the case that went forward to the Supreme Court. There's no way around that."

Carlin's famed "Seven Words You Can Never Say on Television," which bluntly listed the profanities deemed unacceptable for utterance over the airwaves, was, ironically, played uncensored on a Pacifica-owned radio station in New York City. A man listening to the radio with his son filed a complaint with the FCC. The ensuing battle between the station and the FCC landed Carlin's "seven dirty words" in the U.S. Supreme Court in 1978.

The Supreme Court found that the FCC held the right to regulate profanity and obscenity on broadcast radio and television.

"The issue at the time was if the FCC could under its purview regulate broadcasting to that extent, because it's content regulation," said Richards, author of several books, including "Freedom's Voice: The Perilous Present and Uncertain Future of the First Amendment." "Anytime you have a content regulation you are running up against the First Amendment. The Supreme Court said the FCC did have the right to regulate in this area."

Coincidentally, this fall the Supreme Court will hear its first case involving broadcast obscenity and profanity since the Carlin case. This time, the court will decide if the FCC has a right to fine a broadcaster for "fleeting expletives."

"That's when a performer at an awards show or someone at a sporting event or an on-air personality releases some type of expletive over the airwaves," Richards said. "The court may decide if the FCC can punish the broadcaster in such instances."

Richards added that fleeting expletives had not been enforced in the past, but in recent years, the FCC ruled that rock musician Bono's use of profanity during an NBC awards show in 2003, along with several other incidents involving several celebrities on a Fox awards show, constituted indecency.

"What the Second Circuit Court of Appeals did was kick it back to the FCC saying in order to change the regulatory policy, you have to have some basis for doing so. They said you can't just one day start enforcing this. You have to have a rationale behind it," Richards explained. "So they sent it back to the FCC and said give us your rationale and we'll decide if it's sound. Instead of doing that the FCC decided to appeal the case to the Supreme Court, and it's going to come up this fall. It's really the first time since the Carlin decision that the Supreme Court is mulling around again in the area of broadcast content regulation regarding indecency over the public airwaves."

The 1978 case also resulted in the creation of a "safe harbor" period which allows broadcasters to air indecent programming between 10 p.m. and 6 a.m. Still, while programming is often racier during these hours, broadcasters do not often include many of Carlin's words in their programming. Even basic cable, which is not regulated by the FCC for profanity, shies away from profanities.

"I think you can hear certain words, but on broadcast television you aren't going to hear the real egregious profanity. It just doesn't sell," Richards added. "You will hear some stronger language over that time period. Typically, most people don't want to turn on the television and hear a string of expletives. The marketplace does take care of itself in a lot of ways. You don't hear a lot of that on broadcast television because people probably wouldn't want to sit and listen to it."

Carlin himself was actually arrested for performing the "Seven Words" routine in Wisconsin in 1972. At the time, it was not unusual, though today individuals are rarely prosecuted for violating obscenity laws simply based on words.

"Carlin was sort of a protege of (comedian) Lenny Bruce, and Lenny Bruce was also arrested," Richards said. "He was charged and convicted for violating New York obscenity laws. Several years after his death he was posthumously pardoned. Carlin grew out of this time period when there were arrests made for people who were saying those types of words in public. As time has gone on we don't really see those types of arrests anymore."

But, Richards said, there is the rare case. Recently a 56-year old, Pittsburgh-area grandmother pled guilty after federal prosecutors charged her with distributing obscenity for sexually explicit and graphic stories — with no images or movies — she had posted on a password-protected Web site with fewer than three dozen subscribers.

"It kind of surprised everyone in the First Amendment arena because it marked the first time really since the time of Lenny Bruce and Carlin and those cases way back then that someone was actually prosecuted just for words alone," Richards said. "Every once in a while we may see an oddball prosecution like this one, which was kind of scary because you don't usually consider an obscenity prosecution on words alone anymore."

Like other high-profile individuals and groups who have been involved in First Amendment battles, Carlin, though revered by fans, may not have been clean-cut and wholesome. But then again, Richards explains, the First Amendment was created for those with unpopular viewpoints.

"When you're defending the First Amendment you're often defending folks that the majority of the public would rather not see defended — nude dancers, flag burners, foul-mouthed comedians, pornographers and so forth," Richards said. "The majority will might be that these folks shouldn't be defended. But it goes back to the very core of what the First Amendment is designed to do. It's designed to protect minority viewpoints. You don't need a Constitution to protect the majority will. The majority takes care of itself. You need a Constitution, the Bill of Rights and the First Amendment specifically, to protect the rights of individuals that might not find favor with the majority. That's why it is there and that's its most important job."

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Last Updated March 19, 2009