CARDOZO LAW REVIEW
fuck profane on the strength of common knowledge that profanity
means “vulgar, irreverent, or coarse language”
and the Seventh
Circuit’s “most recent decision defining ‘profane,’” a 1972 pre-Pacifica
Luckily, the Commissioners threw in the last definition of
profane from Black’s Law Dictionary or one might have thought they
While there are many definitions for profane,
including the Commissioners’ choice, the decision to make a 180 degree
turn from the Commission’s own prior treatment of profanity as
blasphemy is unwarranted on such a slim collection of authority. From
now on, however, broadcasters are on notice that fuck is also
profanity—at least between 6:00A.M. and 10:00 P.M.
There you have it. Word taboo drives the FCC’s final conclusion
that Bono’s single use of the phrase “really fucking brilliant” is indecent
because any use of fuck is per se sexual and patently offensive; it is
patently offensive because it is per se vulgar and shocking. It is also
profane because it is vulgar and coarse. Luckily, the broadcasters,
while subject to an enforcement action, escaped a penalty because of a
lack of notice.
But there is nothing fortunate about what is really
going on here. To enforce their preference, the Commissioners engage
in bizarre word-play. “Indecent,” “patently offensive,” “vulgar,” and
“profane” are loosely defined in an interlocking fashion that blurs any
real distinction except the obvious one.
The Commissioners censor
stating that “today’s decision clearly departs from past precedent”); Statement of Commissioner
Kathleen Q. Abernathy, id. at 4989 (“Rather, ‘profane language’ has historically been interpreted
in a legal sense to be blasphemy.”). Because taboo has largely restricted scholarly treatment of
these issues, confusion around the sub-categories is bound to happen. See, e.g., Posting of
Eugene Volokh to The Volokh Conspiracy, Profanities on Bumper Stickers,
http://volokh.com/posts/1143534242.shtml (Mar. 28, 2006, 2:24) (placing shit in the profane as
opposed to lewd category of speech when commenting on Atlanta woman being ticketed for
“BUSHit” sticker on her car).
Id. at 4981, ¶ 13.
See Tallman v. United States, 465 F.2d 282, 286 (7th Cir. 1972) (“‘Profane’ is, of course,
capable of an overbroad interpretation encompassing protected speech, but it is also construable
as denoting certain of those personally reviling epithets naturally tending to provoke violent
resentment or denoting language which under contemporary community standards is so grossly
offensive to members of the public who actually hear it as to amount to a nuisance.”). That the
Commissioners were compelled to dig up this stale definition of profane based on nuisance and
offer it as authority is nothing short of amazing.
See Golden Globe II, supra note 224, at 4981 n.34, ¶ 13 (citing B
1210 (6th ed. 1990) definition of profane). Legitimate concerns about lack of fair
notice could make the FCC’s new profanity definition subject to void-for-vagueness challenges.
See Calvert, supra note 207, at 348.
Golden Globe II, supra note 224, at 4981, ¶ 14. Professor Levinson kindly refers to the
miscategorization of fuck as “profane” as a “mistake.” See Levinson, supra note 1, at 1389.
Professor Calvert finds it symptomatic of our broader culture wars and political opportunism. See
Calvert, supra note 222, at 75-85.
Golden Globe II, supra note 224, at 4981-82, ¶ 15.
See Michael Botein, FCC’s Crackdown on Broadcast Indecency, N.Y.L.J., Sept. 13, 2005,
at 4 (describing the FCC’s penchant for piling one inference upon another to imply indecency).
With profanity in particular, there is also the danger that the category will sweep more broadly
fuck because it’s a word that they don’t like to hear.
That is, unless
it’s in a good movie or on cable.
Compare Golden Globe II with the Commissioners’ recent
treatment of fuck in Saving Private Ryan
to see the arbitrariness in
their decision-making and the chilling effect it generates. On November
11, 2004, the ABC Television Network decided to air the award-
winning World War II film as a special Veterans Day presentation.
The movie’s realistic re-creation of a military mission to rescue a young
soldier included violent visuals and many taboo words such as fuck . In
the wake of the Commission’s reversal on fuck ’s treatment at the
Golden Globe Awards, sixty-six ABC affiliates refused to broadcast the
film because of the chilling effect of potential FCC penalties.
As expected, following the broadcast the American Family
Association and others filed complaints with the FCC about the
repeated use of fuck in the film.
This should have been a no-brainer
given the Commissioners’ treatment of Bono’s fucking slip less than a
year before. Applying Golden Globe II, the FCC found the complained-
of use of fuck in Saving Private Ryan to be per se sexual and therefore
within the scope of indecency regulation.
Fuck as used in the film
was also patently offensive because (1) it was per se explicit and
graphic (once again because the Commissioners say so) and (2) fuck
was used repeatedly.
However, the opinion “saves” Private Ryan
from censorship because its use of fuck did not pander, titillate, or
than indecency given its link to vague terms such as “vulgar” and “coarse.” See Calvert, supra
note 222, at 87.
As if this regulatory word play needs punctuation, consider this exclamation point. Buried
in footnote 22 of the Commissioners’ Opinion and Order is the statement: “we agree with the
Bureau’s conclusion that the language was not obscene since it did not meet the three-prong test
set forth in [Miller] . . . (holding that . . . the material must depict or describe, in a patently
offensive way, sexual conduct specifically defined by applicable law.” Golden Globe II, supra
note 224, at 4978 n.22, ¶ 8. Yet the Commissioners found fucking “does depict or describe sexual
activities” and was “patently offensive.” The internal inconsistency is amazing. Id. at 4978, ¶¶ 8-
(DreamWorks SKG, Paramount Pictures Corp., & Amblin
Entertainment, Inc. 1998).
Complaints Against Various Television Licensees Regarding Their Broad. on November
11, 2004, of the ABC Television Network’s Presentation of the Film “Saving Private Ryan,” 20
F.C.C.R. 4507, at 4507, ¶ 1 (Feb. 28, 2005) [hereinafter Saving Private Ryan].
See id. at 4508-09, ¶ 4; Botein, supra note 243 (noting confusion from FCC decisions as
the reason the sixty-six ABA affiliates decided not to show the movie); Calvert, supra note 207,
at 350 (noting fear of fines and puritanical media environment as reason for dropping the film).
Who could blame them? With the Commissioners’ conclusion in Golden Globe II that any use of
fuck was inherently descriptive of sexual activities and patently offensive as vulgar and shocking
language, airing the film with its repeated use of fuck and other taboo words would literally be
taunting the FCC to fine them.
Saving Private Ryan, supra note 246, at 4507, 4508-09, ¶¶ 1, 4.
Id. at 4510 & n.23, ¶ 8 & n.23.
Id. ¶13 (assuming arguendo that the first and second components of patently offensive test
CARDOZO LAW REVIEW
reflect shock value. Rather, the expletives uttered by these
actor/soldiers were in the context of realistic reflections of their
reactions to unspeakable conditions and peril—or so said the
Compelled to distinguish, the Commissioners wrote
that the context of Bono’s utterance of the word fucking during a live
awards show was shocking, while the same language—only more of
it—in Saving Private Ryan was not.
This position is indefensible. The “shock” factor of the patent
offensiveness inquiry is already the most subjective of the indecency
elements and bound to yield differences of opinion.
Each of us who
hears the word fuck come out of a television or radio is either shocked
or not shocked.
It shouldn’t matter whether fuck is said by an activist
or an actor, rock star or soldier, Grammy or Oscar winner, Bono or Tom
Hanks. And it shouldn’t matter whether it’s said on an awards show or
in a war movie—fuck should be treated the same. Otherwise, it’s the
five FCC Commissioners, imposing their personal tastes and
preferences, proclaiming when fuck has value and can be heard, and
when it doesn’t and is banned. This type of arbitrary process is subject
to abuse and should not be applied to protected speech.
If neither the type of speaker nor the type of programming justifies
the Commissioners’ distinction, are there other potentially viable
rationales for treating the same words differently? One possibility
might be the source of the words. Is the speaker using the word fuck
directly by personal choice or is it an indirect, quoting use of the word?
While that is a factual distinction between Bono’s direct use of fucking
and Tom Hanks’ indirect use of fuck read from a script, basing a
regulatory policy on this difference is unsound. In the context of the
FCC issuing fines against the broadcast of indecent language that must
be paid by the station, it is not rational to punish a station for Bono’s
outburst over which it had no control, yet not punish the station that has
total control over whether to broadcast Saving Private Ryan.
The FCC’s renewed interest in fuck illustrated by Golden Globe II
and Saving Private Ryan also illuminates the structural problems of
speech regulation. A single informal complaint—even one without
See id. at 4512-13, ¶¶ 13-14.
Id. at 4514, ¶ 18; see Botein, supra note 243 (describing FCC’s vague rationale).
See Jacob T. Rigney, Avoiding Slim Reasoning and Shady Results: A Proposal for
Indecency and Obscenity Regulation in Radio and Broadcast Television, 55 F
297, 324 (2003) (describing how the third offensiveness factor on pander, titillate, and shock is
the most subjective of all).
I think the answer here is “not.” As others have noted, “common discourse in our society,
for better or worse, has moved far beyond what the FCC indecency standard appears to require
for television and radio.” Garziglia & Caldwell, supra note 207.
The arbitrariness of Saving Private Ryan only serves to further chill speech by increasing
uncertainty as to when taboo language can be used. See id.
supporting documentation—triggers the process.
the complaint to the broadcaster for response, the FCC then decides the
indecency case without formal pleadings or hearings, based upon non-
Because there is no hearing requirement when the
FCC imposes a fine, it can simply issue a notice of apparent liability;
the broadcaster must either pay it or refuse to obey triggering the Justice
Department to file a civil suit to collect the fine.
Given the explosion
of complaints that have been lodged in recent years,
option is unattractive to both the FCC and broadcasters.
Increasingly, the FCC relies on consent decrees with broadcasters
after issuing a notice of apparent liability.
However, if the
Commissioners don’t like the results, as in Golden Globe I, they can
rehear the matter and reverse—along with long-standing procedural
precedents such as the fleeting utterance and live utterance doctrines,
and justified reliance on previous staff precedents.
expensive, and arbitrary process pressures broadcasters to settle rather
than defend speech.
When the only potential defenders of fuck and
free speech engage in self-censorship, the intended balancing of speech
This is magnified by the rise of special interest
groups with word fetish and web platforms to make instant filing of
documented complaints quick and easy, allowing a small minority to
impose their speech preferences on the rest of us.
There is also a glaring underinclusiveness with any attempt at
speech regulation by the FCC. Its indecency regulations only apply to
See Botein, supra note 243 (describing the simplicity of the process and the post-2004
elimination of documentation requirement).
See id. (“[I]n many situations [the FCC] simply relies upon the complaint—usually without
a tape or transcript—and finds the material indecent or not, and enters an order.”).
The FCC received only 111 total indecency complaints in 2000 and a slightly higher 346
complaints in 2001. Then there was a dramatic upsurge in 2002 (13,922), 2003 (202,032) and in
2004 an amazing 1,068,802 complaints. Calvert, supra note 207, at 329.
See Botein, supra note 243.
See id. (describing recent erosion of recognized defenses); Golden Globe II, supra note
224, at 4980, ¶ 12 (fleeting and live utterances), id. at 2981-82 & n.40, ¶ 15 & n.40 (profanity
Calvert, supra note 222, at 65 (“Broadcasters also may be more willing to rapidly settle
disputes with the FCC over alleged instances of indecent broadcasts rather than contest and fight
the charges in the name of the First Amendment’s protection of free speech.”); see Calvert, supra
note 207, at 352-53 (describing Viacom’s capitulation to a $3.5 million dollar consent decree
rather than fight the dispute for free speech); Botein, supra note 243 (noting settlement pressure).
See Julie Hilden, Four Major Television Networks Challenge the FCC’s Regulation of
Indecency: Why Modern Technology Has Made this Always-Dicey Area of Law Obsolete,
FindLaw’s Writ, Apr. 25, 2006, http://writ.news.findlaw.com/hilden/20060425.html (last visited
May 5, 2006) (describing FCC’s current fine policy as striking at the heart of free speech by
putting content at risk).
See Calvert, supra note 207, at 328-35 (discussing at length the power of a vocal minority
to flood the FCC with indecency complaints).
CARDOZO LAW REVIEW
free, broadcast media.
The rise of cable television and satellite radio
provide attractive alternatives to broadcast personalities like Howard
Stern who want to be free of FCC harassment.
Given the dramatic
number of new subscriptions to Sirius Satellite Radio
media host—the FCC’s preoccupation with fuck is out of step with the
perceptions of millions of Americans. In fact, commentary by the
Commissioners themselves identifying increased media tolerance of
taboo words as justification for increased FCC vigilance
demonstrates that the Commission is out of touch: most people are
simply not shocked by fuck anymore.
The Commissioners, however,
reject any allegation that they use contemporary community standards
that merely reflect their own subjective tastes. Rather, they rely on their
“collective experience and knowledge, developed through constant
interaction with lawmakers, courts, broadcasters, public interest groups,
and ordinary citizens.”
Given contemporary usage and acceptance of
fuck, one wonders to whom the Commissioners are talking.
Even as the FCC continues to defend its censorship based on
Pacifica’s twin rationales—the special importance of broadcast media
(especially television) and child protection—a more realistic picture of
the broadcast landscape undermines this rationalization. In 2003,
98.2% of households had at least one television.
A commanding 86%
of households with a television subscribed to cable or satellite
See Garziglia & Caldwell, supra note 207, at 54 (noting that competing media like cable,
satellite, and Internet are not subject to indecency regulation); see also Denver Area Educ.
Telecomm. Consortium Inc. v. FCC, 518 U.S. 727 (1996).
Stern reportedly left broadcasting subject to regulation for the new satellite radio domain to
escape the FCC. See Calvert, supra note 207, at 357. The existence of these media alternatives
may also contribute to the rise in fuck use. University of Colorado Professor Lynn Schofield
Clark argues that “in an era when many Americans receive all TV programming via cable, the
wider latitude enjoyed by cable TV channels has ‘put pressure’ on broadcast channels,
contributing to the word’s spread.” Don Aucoin, Curses! ‘The Big One’ Once Taboo, The
Ultimate Swear is Everywhere, and Losing its Power to Shock, B
, Feb. 12, 2004, at
B13. Media flight, however, is the ultimate self-censorship.
As of December 31, 2005, Sirius reported it had exceeded its target subscriptions with 3.3
million, up from 1.1 million at the end of 2004. Sirius Cash: Lots of Stock for Shock Jock,
, Jan. 5, 2006, at A13.
See, e.g., See Broadcast Decency Enforcement Act of 2004: Hearing on H.R. 3717 Before
the Senate Comm. on Commerce, Sci., and Transp., 108th Cong. (2004) (statement of Michael K.
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243802A2.pdf.(citing the coarseness of
TV and radio creating public outrage thereby justifying “punishing those who peddle indecent
Professor Lynn Schofield Clark contends, “It is becoming more common in everyday
conversation.” Aucoin, supra note 266. Other commentators on American culture agree. Lance
Morrow contends that it is possible for fuck to become permissible. The article quotes Morrow as
saying, “I think that might happen . . . . Somehow the whole sociology of [fuck] has changed.”
Infinity Radio License, Inc., 19 F.C.C.R. 5022, at 5026, ¶ 12 (2004).
BSTRACT OF THE
(2006), available at http://www.census.gov/compendia/statab.
That leaves only 14% of households relying on broadcast
This data certainly suggests the dwindling importance
of broadcast-only format to the media milieu.
A similar trend erodes the notion that all parents want is a little
help from the government in protecting their kids. The V-chip
innovation and television rating system, while far from perfect, offer
tools for parents to use if they have concern over exposure to harsh
I suspect the number of parents truly belaboring this issue
is rather small given that 68% of children aged eight to eighteen have a
television in their own bedroom.
Surely a parent overly concerned
about taboo language would educate themselves about the current
technological tools available before putting a television in Junior’s
room—the most difficult place to monitor and control.
have another self-help remedy—simply remove the set.
The new speech vigilantism reflected in the FCC’s recent treatment
of fuck also finds friends in Congress. After the Bono fuck incident and
initial Bureau opinion, Congressmen Doug Ose
(R-Cal.) and Lamar
Smith (R-Tex.) introduced a bill that would define as profane, and give
authority to the FCC to punish, any use of the words shit, piss, fuck ,
cunt, and asshole, and “phrases” cock sucker, mother fucker, and ass
While this bill never emerged from committee, the FCC
apparently decided to seize this power anyway—at least over fuck and
Annual Assessment of the Status of Competition in the Market for the Delivery of Video
Programming, Twelfth Annual Report, 21 F.C.C.R. 2503, ¶ 8 (2006).
Id. at 2505, ¶ 12.
See Robert Corn-Revere, Can Broadcast Indecency Regulations Be Extended to Cable
Television and Satellite Radio?, 30 S.
. U. L.J. 243, 262-63 (2006) (discussing the role of the
V-chip and ratings system in undermining the FCC indecency regime).
EDIA IN THE
77, app. 1 (2005), available at http://www.kff.org/entmedia/7251.cfm.
I also don’t place much weight on the FCC’s position that regulation is justified because
parents either don’t use the V-chip technology they have or know that they even have it. The
FCC should not jump in to protect children from language their own parents don’t find significant
enough to use pre-existing measures to reduce.
It is interesting that Ose only objects to the language when used in free broadcast media.
“When I’m subscribing to cable, I get it, OK. But when I watch free broadcast TV, me and my
kids should not have to hear it.” Crabtree, supra note 215 (quoting Ose).
See H.R. 3687, 108th Cong. (2003) (defining profane to include: “‘shit’, ‘piss’, ‘fuck’,
‘cunt’, ‘asshole’, ‘cock sucker’, ‘mother fucker’, and ‘ass hole’, compound use (including
hyphenated compounds) of such words and phrases with each other or with other words or
phrases, and other grammatical forms of such words and phrases (including verb, adjective,
gerund, participle, and infinitive forms”). Interestingly, George Carlin’s list of filthy words at
issue in Pacifica differs only in the inclusion of “tits.” The so-called Clean Airwaves Act appears
to have died in Congress—a fitting end to censorship—though not all would agree with me.
Compare Stephanie L. Reinhart, Note, The Dirty Words You Cannot Say on Television: Does the
First Amendment Prohibit Congress from Banning All Use of Certain Words?, 2005 U.
. 989 (2005) (concluding Clean Airwaves Act is unconstitutional), with Jennifer L. Marino,
Comment, More ‘Filthy Words’ But No ‘Free Passes’ for the ‘Cost of Doing Business’: New
Legislation is the Best Regulation for Broadcast Indecency, 15 S
135 (2005) (taking the opposite position).
CARDOZO LAW REVIEW
While the role of censor may not be palatable for
Congress, there was broad support for last year’s legislation that
bumped up FCC indecency fine capacity.
The power to impose
increasingly crippling fines on broadcasters for even inadvertent use of
fuck is yet another FCC tool to extort self-censorship.
What then does the law permit? Fuck the Draft.
Fuck the ump.
Fuck the FCC.
The easier question is what should it
protect—all of them. However, the powerful effect of word taboo is at
work. While there is no perfect way to gauge where the public is on the
scale of indecent language, the finding by the Associated Press that
almost two-thirds of those surveyed use the word fuck illustrates broad
Nonetheless, five unelected FCC
Commissioners—each individually affected by word taboo—police our
radios and televisions supposedly in our interests. They are empowered
by a procedural system that exaggerates a handful of complaints into a
frenzied mandate. The FCC then institutionalizes the taboo through an
arbitrary process that either censors fuck outright or chills broadcasters
What the regulators don’t appreciate is that fuck ,
as taboo, is only strengthened by their actions.
Finally, the television networks have decided to fight back. In
March 2006, under the new leadership of Chairman Kevin J. Martin, the
FCC announced a $3.6 million fine against 111 television stations that
See supra notes 235-241 and accompanying text (discussing FCC extension of profanity
definition to fuck).
See Garziglia & Caldwell, supra note 207 (noting congressional support raising FCC fine
to $500,000 per violation).
See Calvert, supra note 207, at 351-52 (listing self-censorship examples induced by fear of
Yes, says the Supreme Court in Cohen v. California, 403 U.S. 15 (1971).
Yes, says the FCC in Saving Private Ryan, supra note 246. Steamboat Willie has the line
in the movie. Internet Movie Database (IMDb), Memorable Quotes from Saving Private Ryan
(1998), http://www.imdb.com/title/tt0120815/quotes (last visited Jan. 25, 2007).
No, says the Supreme Court in Pacifica. 438 U.S. 726 (1978).
Yes, says the FCC in Saving Private Ryan, supra note 246. Tom Hanks, a.k.a. Captain
Miller, says: “We’re not here to do the decent thing, we’re here to follow fucking orders!”
Memorable Quotes, supra note 283.
No, says the FCC in Golden Globe II, supra note 224.
Yes, says the FCC in Saving Private Ryan, supra note 246. Memorable Quotes, supra note
283 (“Lt. Dewindt: Yeah, Brigadier General Amend, deputy commander, 101st. Some fucking
genius had the great idea of welding a couple of steel plates onto our deck to keep the general safe
from ground fire.”).
I certainly hope so.
Noveck, supra note 65.
Commentators who conclude that restrictions on the use of fuck do not amount to chill
because “these words and phrases can be substituted with less offensive ones that still convey the
intended message” or that “their use will not be ‘chilled’ because they are not used” commonly
now on television, fundamentally misunderstand what chill is (and probably have a future on the
FCC). Marino, supra note 278, at 170-71.
Documents you may be interested
Documents you may be interested