Seven Dirty Words (23 page)

When the Court of Appeals ruled on the FCC order in March 1977, Justice Edward Tamm determined that the commission was in essence censoring Carlin’s “Filthy Words.” It was “a classic case of burning the house to roast the pig,” he said, invoking an old line from Justice Felix Frankfurter. Chief Judge David Bazelon, who joined Tamm in the decision to reverse the FCC’s order, made his own case. The critical point, he felt, was that the commission itself had characterized Carlin’s words as “indecent” speech, which, unlike obscenity, is constitutionally protected. But the dissenting judge, Harold Leventhal, agreed with the FCC’s contention that it was merely “time-channeling” such language, not censoring. His opinion gave the FCC’s lawyers, led by Joseph A. Marino, a clear guideline for their Supreme Court challenge. (Leventhal, however, took it upon himself to comb through the complaint, questioning the indecency, for instance, of the word
tits
, “because it is neither a sexual nor excretory organ.”) With the FCC petitioning for a writ of certiorari, the Supreme Court agreed to hear the case in January 1978.

Filing amicus briefs on behalf of Pacifica were ABC, the Authors League of America, the Motion Picture Association of America, and the American Civil Liberties Union (ACLU). Representatives of Morality in Media and the United States Catholic Conference filed on behalf of the FCC. The biggest surprise came from the Solicitor General’s office, which had sided with the FCC at the Court of Appeals. At the Supreme Court, Solicitor General Wade McCree filed an amicus brief on behalf of Pacifica, and not simply because his office believed the appeals decision was not subject to review. “They took our view that it [the FCC order] had a broad chilling effect on First Amendment rights,” says Tillotson, who had only recently convinced the FCC to back down from an attempt to sanction stations playing songs with lyrics that could be construed as promoting illegal drug use. “I can remember meeting at the Justice Department to discuss strategy. They were one hundred percent with us.”

As both sides prepared their arguments, WBAI held a legal fund-raiser in New York, headlined by Carlin himself. The event was hosted by Josephson, who would later correspond with Carlin about Bob and Ray, the old radio comedians, whose work Josephson produced for years.

The station also prepared an hour-long, news magazine-style recap called
The Carlin Case
, which aired on March 30. Solemnly issuing a disclaimer at the top of the hour, the station led with a reading of Douglas’s letter of complaint, complete with its unexpurgated report of his hearing the words “
cocksucker
,
cunt
,
fuck
,
shit
, and a whole list of others.” To provide some context, the producers conducted interviews with the writers Allen Ginsberg, William Burroughs, and James T. Farrell about their own obscenity cases. Communications lawyer Jeff Cowan noted the absurdity that few Americans knew exactly why Earl Butz, the former secretary of agriculture, had been forced to resign for comments he had made during President Gerald Ford’s reelection campaign in 1976. Asked about the Republicans’ loss of black voters, the cabinet member, notorious within the Beltway for telling off-color jokes, had said, “The only thing the coloreds are looking for in life are tight pussy, loose shoes, and a warm place to shit.” Under the FCC’s Carlin ruling, Cowan said, a radio station “would risk fine or lose its license” if it simply reported the news.

Given the
Miller
test, Tillotson felt certain that the Court would have to agree with Pacifica—that Carlin’s routine, though potentially offensive, did not appeal to the prurient interest, and that it did possess serious literary, artistic, political, or scientific value. “I think our immediate feeling was that we had a clean First Amendment case,” he says.

The Court heard the case on April 18. Josephson, for one, was “deeply moved” by Plotkin’s argument. “The Supreme Court is a very magisterial, august, impressive institution, and it’s designed to be that way,” says the man who once joked that WBAI listeners were so loyal, the station could have scheduled several hours a week “of nothing but farting, [and] the program would soon have a large and dedicated following.” But Plotkin wasn’t as sharp as he had once been. During his oral argument, he was asked a hypothetical question. Suppose a radio station played an hour-long recording of someone simply repeating a four-letter word. “Under your definition,” asked one of the justices, “would the FCC be powerless because of the censorship statute to affect that?” Plotkin replied that yes, he thought the commission “would be powerless to tell them to stop doing it.” The attorney’s answer, writes free speech activist Marjorie Hein, was “constitutionally sound but not very politically prudent.”

Plotkin’s misstep didn’t help, but it wasn’t the deciding factor. Rumor had it that Chief Justice Warren Burger, having lunch on the day before the ruling was announced with Frank Mankiewicz, then the president of National Public Radio, vowed that his court would never allow such language on the airwaves. Schattenfield had been right: Getting nine old men to agree to “pass the fucking salt” was a losing proposition.

By a 5-4 vote handed down on July 3, 1978, the justices reversed the Circuit Court’s finding and sided with the FCC. The Court’s newest member at the time, Justice John Paul Stevens, who had been appointed by Gerald Ford and unanimously confirmed by the Senate in late 1975, wrote the majority opinion. He emphasized the uniquely pervasive nature of broadcasting and the Court’s belief that children were due full government protection from “indecent” speech delivered over the airwaves. By hewing closely to the facts of the case and acknowledging that the FCC was reserving the formation of broader guidelines in such matters for the unspecified future, the Court passed on an opportunity to clarify which speech, if any, would be subjected to FCC reprimand moving forward, says Tillotson: “They ducked.”

The veteran liberal Justice William J. Brennan wrote a sharply worded dissenting opinion, joined by Justice Thurgood Marshall. “Surprising as it may seem to some individual Members of this Court,” Brennan wrote, “some parents may actually find Mr. Carlin’s unabashed attitude toward the seven ‘dirty words’ healthy, and deem it desirable to expose their children to the manner in which Mr. Carlin defuses the taboo surrounding the words.” That there might not be huge numbers of such parents “does not alter that right’s nature or its existence,” he wrote. “Only the Court’s regrettable decision does that.” The adult individual’s right to receive information, Brennan submitted, far outweighed the “minimal discomfort” of an offended listener “during the brief interval before he can simply extend his arm and switch stations or flick the ‘off’ button.” Aiming the judicial equivalent of more than a few epithets at his fellow jurors, he lamented their “depressing inability” to appreciate viewpoints outside their own, calling it “an acute ethnocentric myopia that enables the Court to approve the censorship of communications solely because of the words they contain.”

The decision was big news in Hollywood. “Court Bans ‘7 Dirty Words,’” ran a banner headline across page 1 of the
Los Angeles Times
’s final edition that day. A few months later, Norman Lear invited Carlin to join the ACLU’s Southern California affiliate at a dinner called “The Politics of Humor.” Fellow honorees included Lily Tomlin,
Doonesbury
creator Garry Trudeau, and Lear’s onetime partner Bud Yorkin, with whom he’d produced
All in the Family
and
Sanford and Son
. Though Carlin did wear a dark suit—“that’s as far as I go, even for the First Amendment,” he joked—he couldn’t take the event seriously, making faces across the table at his friend Tomlin all night long. “What the hell have two comics and a cartoonist really contributed to the cause of freedom in America?” he wondered.

Legal scholars were keenly interested, too. Commentator George Will applauded the Court’s action in an opinion piece published in the
Washington Post
(“Is There a ‘Periphery’ on the First Amendment?”). In response, Nicholas von Hoffman, the
Post
columnist and onetime
60 Minutes
contributor, wrote a mocking piece headlined “Seven Dirty Words: A Cute Form of Censorship.” Von Hoffman, who had been dumped from his television gig by
60 Minutes
producer Don Hewitt for calling Richard Nixon “a dead mouse on the country’s kitchen floor,” wondered why the Pacifica ruling hinged on the possible presence of children in the WBAI audience at two o’clock on a weekday afternoon. Surely, he reasoned, kids at that hour were “locked up in school taking sex education courses, where presumably Carlin’s Anglo-Saxon terminology is replaced with Latin cognates on whose acceptability for broadcasting neither the commission nor our nine most exalted jurisprudes have yet to rule.”

Just after Independence Day, the
New York Times
ran its own analysis of the case. The writer led by noting ABC’s recent broadcast of a news special called
Youth Terror: The View from Behind the Gun
, which had featured “a good deal of street talk, including words never before spoken on national television.” The fact that twenty-one network affiliates had declined to run the program, which the parent company refused to sanitize, was seen in the broadcasting industry as proof that the airwaves were not in imminent danger of being overrun by foul language, no matter how the Supreme Court decided. “Our network operates by its own set of standards that aren’t affected by the decision,” said the president of ABC-TV. Philosophically, however, the court’s ruling set a bad precedent, he said, “with long-range implications on our freedom of expression.”

In fact, the FCC stumped everyone by dropping the matter entirely. Incoming chairman Charles D. Ferris, who had succeeded Richard E. Wiley in October 1977, told the
Times
that he didn’t consider the Supreme Court ruling a mandate to go after broadcasters. When the commission received complaints about
Monty Python’s Flying Circus
from viewers of WGBH, Boston’s public television station, who were offended by the show’s “scatology, immodesty, vulgarity, nudity, profanity, and sacrilege,” the FCC dismissed them. Incredibly, from the Supreme Court’s “dirty words” decision until well into the Reagan administration, the FCC did not pursue any complaints at all about broadcast indecency. Mark Fowler, the chairman who took over following Ferris’s departure in 1981, even seemed to agree with Justice Brennan’s advice about the merits of using the “off” button: “If you don’t like it,” he said, “just don’t let your kids watch it.” Controversy over the FCC’s jurisdiction in the wake of
FCC v. Pacifica
did not come to a head until many years after the decision.

For Carlin, although the outcome was disappointing, his indirect involvement in a landmark case of American jurisprudence felt like a validation. After all those years of being called in front of the principal, the priest, the barracks sergeant, and the boss, “those transgressions suddenly seemed like small potatoes.” “That these nine men had summoned me into their presence to question my conduct absolutely thrilled the perverse and rebellious side of my nature,” he said. “I thought, Even if I just become a little footnote in the law books, I’ll be a happy footnote forever.”

True to form, while the lawyers and commissioners were busy parsing the differences between obscenity and indecency and debating the true intentions of the Radio Act of 1927, Carlin cut to the heart of the matter. “All I want is a list,” he said. “When I was a kid, nobody would tell me which words not to say. I had to go home and say them and get hit. As a result of the WBAI case, the Supreme Court has put the FCC in the same position as the parent. It can punish you after the fact, but it can’t tell you beforehand exactly what the restricted areas are.”

So he took it upon himself to collect them all, like a kid filling a binder of buffalo nickels. By the time his HBO special
Carlin on Campus
aired in 1984, the comic featured in his act “An Incomplete List of Impolite Words” that numbered 350. Two decades later, he was selling posters and T-shirts at his concert appearances featuring small-print lists of “2,443 Dirty Words.” By then, he said, he was just the repository for this extended exercise in creative language. The credit was due to the hundreds of fans who’d sent him their suggestions, and to the anonymous coiners of words and phrases, from “butterbags” to “buzzing the Brillo”—“folk poets, all.”

Timothy Jay, a professor in the psychology department at the Massachusetts College of Liberal Arts, has the unusual distinction of being a scholar of swearing. He befriended Carlin several years after
FCC v. Pacifica
, often providing the comic with his own lengthy lists of debatable words and their offensiveness ratings. The author of
Cursing in America
, Jay saw how Carlin grew quite serious about his role as the custodian of potty talk.

In Jay’s opinion, the Supreme Court decision was simply “bad law.” “One of the real weaknesses is that the government offers no evidence that there’s anything harmful about this speech,” he says. “We presume harm to children, when in fact they know all this shit before they get into school. It’s not realistic. Anybody with a good sense of parenting knows that kids know all this stuff.”

Shortly before the Supreme Court heard the Pacifica case, Carlin made a sly reference to the juvenile nature of his comic mind. Making a brief appearance on a celebrity-stocked salute to “Mr. Television,” Milton Berle, he brought out his prized copy of Berle’s joke book,
Out of My Trunk
, which an uncle had given him when he was a boy. Carlin had been a fan, he said, since the origins of
Texaco Star Theater
, when he was ten. “Thanks to your influence, there are still people who think of me as ten years old,” he joked.

The attention given the case didn’t quite carry over into his career.
On the Road
, Carlin’s seventh album—the sixth in five years—had come out in 1977. It was the second in a row that didn’t go gold. The album came with an eight-page insert, a “Libretto,” which combined transcriptions of the album’s routines with cartoon illustrations. The cover was stamped with an R rating—“Recommended for Adult Listening.” There were some pedestrian bits on dogs and supermarkets, but Carlin was strangely preoccupied with death, from the cover image—the comic caught in the act of drawing a smiley face on a chalk outline at an accident scene—to a prolonged bit on “Death and Dying.”