Seven Dirty Words (20 page)

Keeping a few thoughts to himself, 1994.

© David Keeler/Getty Images

With Ned Beatty in the made-for-TV miniseries
Streets of Laredo
(1995). One of Carlin’s proudest moments as an actor.

© CBS/Landov

Cameo in
Jay and Silent Bob Strike Back
(2001). Less proud.

Miramax/View Askew Productions/ The Kobal Collection

Aspen, 2007.

© Associated Press

From its original incarnation as a neighborhood watchdog group in 1962, Morality in Media had grown to a position of national prominence. When pornographic material began circulating among sixth-grade boys in a parish elementary school, Father Morton A. Hill of St. Ignatius Loyola Roman Catholic Church on New York’s Upper East Side quickly responded to parents’ complaints. A Jesuit priest with snow-white hair, he spearheaded an effort to found a local antipornography campaign. Then known as Operation Yorkville, Hill’s group was created as an interfaith coalition, including a rabbi and a Lutheran minister. By 1967 the neighborhood group had grown into a national organization, renamed Morality in Media. The group’s profile was established when Hill, its president, was invited to debate the novelist Gore Vidal, author of the racy best seller
Myra Breckenridge
, on
The David Susskind Show
. When the U.S. Congress announced the formation of President Johnson’s Commission on Obscenity and Pornography, Hill was appointed one of the commission’s eighteen members.

Father Hill and his supporters believed that the president’s commission was weighted heavily in favor of First Amendment “absolutists,” and they felt their concern was validated when the commission’s report was published in 1970. The report recommended increased emphasis on sex education for children and the decriminalization of all pornography for adults. Members of Congress and the Nixon administration expressed their outrage, adamantly denouncing the commission’s suggestions, and the whole episode took on an element of farce when a publisher brought out a notorious illustrated edition of the report. In response, Father Hill and a fellow clergyman on the commission, Dr. Winfrey C. Link, collaborated on a dissenting opinion that came to be known as the
Hill-Link Minority Report
, which was read into the record of the U.S. Senate and the House of Representatives and would soon be cited in Supreme Court obscenity hearings.

When John Douglas filed his complaint about the “Filthy Words” broadcast, the FCC could simply have rejected it, because the petitioner couldn’t provide the required transcript or audio recording. Instead, the commission sent WBAI a request for comment and a copy of the broadcast. The FCC was looking for a “test case” that would weigh the First Amendment against the commission’s oversight of potentially offensive broadcasting, says Larry Josephson, a longtime WBAI manager and program host. “If we hadn’t taken the case, they would’ve found some other licensee to go after.”

Without an archived recording of the program, WBAI directed the FCC to the “Filthy Words” track on
Occupation: Foole
. The station argued that that the routine was protected under the landmark Supreme Court ruling—the “Miller test,” devised in the 1973 case
Miller v. California
, in which a distributor of pornographic material was charged for advertising by mass mailing. In
Miller
, the Burger court had decided upon three criteria to establish obscenity: that the work appealed to prurient interest, that it was patently offensive, and that it had no redeeming social value. WBAI emphasized the social value of the comedian’s work:

George Carlin is a significant social satirist of American manners and language in the tradition of Mark Twain and Mort Sahl. Like Twain, Carlin finds his material in our most ordinary habits and language—particularly those “secret” manners and words which, when held before us for the first time, show us new images of ourselves. . . . Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words. . . . As with other great satirists—from Jonathan Swift to Mort Sahl—George Carlin often grabs our attention by speaking the unspeakable, by shocking in order to illuminate. Because he is a true artist in his field, we are of the opinion that the inclusion of the material broadcast in a program devoted to an analysis of the use of language in contemporary society was natural and contributed to a further understanding of the subject.

To the FCC, however, playing the Carlin routine over the air seemed like a flagrant affront. Originally known as the Federal Radio Commission, the FCC was created under the Radio Act of 1927 and charged with defending the “public interest” regarding the new medium, without infringing upon broadcasters’ constitutional right to free speech. Legislators nevertheless saw fit to include a provision for punishing licensees who abused the privilege of the airwaves: “No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication.”

Until the 1960s the provision had little use. Most broadcasters, concerned primarily with attracting and keeping advertisers, voluntarily self-censored; for decades the FCC fielded only rare complaints. But the introduction of listener-supported radio removed the influence of advertisers from those stations. KPFA, WBAI, and their ilk could claim to be serving the cultural and educational needs of their audience alone—the hippies, the peace freaks, the rights activists, and other threats to the status quo.

By the time of the Nixon administration, in an increasingly permissible society the FCC began to see its job as police work. One college radio station was fined a token $100 for broadcasting a 1970 interview with Grateful Dead guitarist Jerry Garcia in which he repeatedly used the words
shit
and
fuck
. Two years later a station in Oak Park, Illinois, was fined $2,000 for the frank sexual nature of the discussion on its call-in “topless radio” show. In the early 1970s attorney David Tillotson, who would work for years on behalf of Pacifica, advised the owners of a Mesa, Arizona, rock station who were being threatened with nonrenewal of their license as a result of their repeated broadcast of Frank Zappa’s sexual-escapade song “Dynamo Hum.”

Politically the FCC was being pressured to clamp down. A federal study of television violence, cosponsored by the Surgeon General’s office and the National Institute of Mental Health, was released in 1972. Its appearance set off a wave of indignant appeals by lawmakers, who demanded the FCC redouble its efforts to expel sex, violence, and crass language from the mass media. Congress’s threats led directly to the establishment of television’s “family viewing hour,” which drew a hasty lawsuit from the Writers, Directors, and Screen Actors guilds.

In the case of Carlin’s “Filthy Words” and WBAI, the FCC commissioners maintained that they were most concerned with the timing of the broadcast, in the middle of the day, when minors might conceivably have been listening. Loath to be accused of the dreaded
C
word—censorship—the agency delicately characterized its action as “channeling behavior, rather than actually prohibiting it.” In lieu of a fine, the commission added its report to the station’s license file, which amounted to fair warning. WBAI “could have been the subject of administrative sanctions,” the commissioners noted in their declaratory ruling of February 21, 1975. Whether or not Carlin’s work was intentionally “prurient” or could be shown to have redeeming social value was immaterial, the agency claimed: “Obnoxious, gutter language . . . has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions, and we believe that such words are indecent within the meaning of the statute and have no place on radio when children are in the audience.”

Commissioner Glen Robinson acknowledged that he probably would have concluded differently had the monologue been broadcast at night. Despite the soft-pedaling, he could not resist making a withering value judgment: Pacifica’s comparison of Carlin with Twain “strikes me personally as being a bit jejune,” he wrote. “But no one should suppose that an author must be a giant of letters in order to receive protection for works which have ‘serious literary or artistic . . . value.’ The Constitution protects lesser literary lights as well as those with the artistic candlepower of Mark Twain.”

The FCC’s rebuke of WBAI in the Carlin case was hardly an isolated incident. The commission had been eyeing Pacifica for years, going back to the 1950s and KPFA’s broadcast of a panel discussion about the
Howl
obscenity case and its impending trial. In March 1957, San Francisco police had arrested bookseller and poet Lawrence Ferlinghetti for selling Allen Ginsberg’s allegedly obscene poem at City Lights bookstore in North Beach. For that program, moderated by Pacifica founder Lewis Hill, the station ran a voluntarily expurgated version of Ginsberg’s epic poem “simply as a matter of taste,” given the early timing of the broadcast. It got the FCC’s attention nevertheless.

Well into the 1960s, the commission heard routine complaints about KPFA and its sister stations for controversial or inflammatory content—for a presentation of Edward Albee’s
The Zoo Story
, for instance. The scrutiny increased as the stations stepped up their critical coverage of the Vietnam War. War protest being an unequivocal example of protected speech, the FCC acted instead on complaints of “indecency.”

In defense, the network became a pro bono client of the Washington, D.C., law firm Arent Fox Kintner Plotkin & Kahn. Arent Fox, originally a tax-law office, had expanded to include several diversified practices, entering the field of communications law with the addition of attorney Harry M. Plotkin, who had previously been assistant general counsel to the FCC. Plotkin, a seasoned trial lawyer who would argue several cases with First Amendment implications before the Supreme Court, headed a team that had been representing Pacifica’s stations for years by the time of the “Filthy Words” broadcast.

Thomas Schattenfield, a member of the communications practice who took the lead on Pacifica, says he always felt there were professional moralists keeping tabs on Pacifica’s stations. The radical radio group welcomed the challenges, he says: “They were a bunch of bright young people trying to prove themselves to the world.” Representing Pacifica in a hearing for new licenses for stations in Houston and Washington, D.C., Schattenfield had a terrible time with the judge. “I was looked upon as a Communist, evil guy—Satan in a suit,” recalls the garrulous lawyer, now retired. “I was beat up, just beat up in that trial.”

Schattenfield and his colleagues took to calling the predictable letters of outrage about WBAI’s conduct “the ‘
Fuck
Complaint of the Week.’” “A guy would say he’d been listening to the station for three hours and heard the word seventeen times,” he says. “Well, why didn’t he turn the goddamn thing off?” In fact, the attorney had an unaffiliated client, a station operator in Iowa, who told him he too had played Carlin’s “Filthy Words” over the air, without receiving complaints.