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The Seven Dirty Words You Can’t Say on TV · The Infographics Show Podcast

• 0:00
  Speaker 1: Welcome back to the deep dive, the place where we
• 0:02
  Speaker 1: really do get beyond infographics. We aim to turn complex stuff,
• 0:07
  Speaker 1: you know, dense legal history, cultural moments, into knowledge you
• 0:11
  Speaker 1: can actually use.
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  Speaker 2: That's the goal.
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  Speaker 1: And today, oh boy, we're unpacking one of the well, frankly,
• 0:17
  Speaker 1: one of the funniest but most significant legal battles in
• 0:21
  Speaker 1: American media history. It's quite a story, it really is.
• 0:24
  Speaker 2: We're diving into what seems like just a list of
• 0:27
  Speaker 2: words or seven specific profanities. But these words didn't just
• 0:30
  Speaker 2: you know, ruffle feathers. They triggered a huge Supreme Court.
• 0:33
  Speaker 1: Case, fccv.
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  Speaker 2: Pacifica Foundation, exactly, and that decision basically drew the map
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  Speaker 2: for free speech on public radio and TV in the US.
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  Speaker 2: It's at the boundaries we still sort of live with today.
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  Speaker 1: And anyone who knows comedy or media law even just
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  Speaker 1: a little bit, when you say seven dirty words, they
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  Speaker 1: immediately think.
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  Speaker 2: Of one person, George Carlin.
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  Speaker 1: The legend is nineteen seventy two monologues seven words you
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  Speaker 1: can never say on television. It was pure satire, right
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  Speaker 1: pointing out how absurd our taboos about language are.
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  Speaker 2: Absolutely, but because he did it, because he threw down
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  Speaker 2: that gauntlet. It basically forced the government's hand. They had
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  Speaker 2: to decide where the legal line was for content on
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  Speaker 2: the public airways.
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  Speaker 1: Now it's super important for listeners to get this up front.
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  Speaker 1: Carlin's list wasn't like an official FCC list of banned words,
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  Speaker 1: was that at all?
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  Speaker 2: He picked shit, piss, fuck, cunt, cocksucker, motherfucker, and tits
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  Speaker 2: for comedic effect, for rhythm, for shock value within his routine.
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  Speaker 1: But the reaction to it, ah.
• 1:31
  Speaker 2: Yes, the public reaction, the legal challenge is sparked. That
• 1:34
  Speaker 2: gave the FCC, the Federal Communications Commission, exactly what they needed.
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  Speaker 2: It became the benchmark, the example they could point to
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  Speaker 2: when defining what they considered indecent.
• 1:43
  Speaker 1: So our mission here today is to give you that shortcut,
• 1:46
  Speaker 1: the key insights so you can really grasp this fundamental
• 1:49
  Speaker 1: clash the First Amendment, artistic freedom, government rules. It all
• 1:53
  Speaker 1: came together here, and.
• 1:54
  Speaker 2: By the end of this you'll understand precisely why something
• 1:58
  Speaker 2: you watch on Netflix or HBO can be totally different
• 2:01
  Speaker 2: from what airs on say your local NBC or CBS station.
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  Speaker 2: Why one gets a pass and the other could get
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  Speaker 2: slapped with a massive fine.
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  Speaker 1: Right, different rules for different pipes. Essentially, we have sort
• 2:13
  Speaker 1: of a three part goal.
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  Speaker 2: First, understand how the courts legally split obscenity from indecency.
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  Speaker 2: They're not the same thing.
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  Speaker 1: Legally speaking, crucial distinction.
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  Speaker 2: Second, what was the constitutional argument? Why did the government
• 2:27
  Speaker 2: claim it could treat broadcast TV and radio differently than say,
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  Speaker 2: newspapers or websites? What were those justifications for pillars and
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  Speaker 2: pillars exactly? And Third, and this is where it gets
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  Speaker 2: really messy today, why that legal framework from nineteen seventy
• 2:40
  Speaker 2: eight is well kind of crumbling under the weight of
• 2:42
  Speaker 2: modern media, digital streaming, huge companies owning everything. It's a
• 2:47
  Speaker 2: whole new ballgame.
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  Speaker 1: Okay, this is going to be good. And hey, if
• 2:49
  Speaker 1: you like getting this kind of deep, clear analysis, if
• 2:52
  Speaker 1: you appreciate us making you instantly well informed on complex
• 2:56
  Speaker 1: stuff like this, do us a favor. Pause right now,
• 2:58
  Speaker 1: give us that five star. It really helps.
• 3:01
  Speaker 2: It does let us know we're on the right track.
• 3:03
  Speaker 1: All right, let's get into it. Where did this whole
• 3:06
  Speaker 1: firestorm actually start? The specific incident hashtag tag two, the
• 3:11
  Speaker 1: incident and the initial legal clash.
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  Speaker 2: Okay, so the piece that actually lit the fuse, It
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  Speaker 2: wasn't the original nineteen seventy two stand up bit itself.
• 3:20
  Speaker 2: It was a slightly different version from Carlin's nineteen seventy
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  Speaker 2: three album Occupation Fool. The track was called Filthy Words.
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  Speaker 1: Occupation Fool great album title, isn't it?
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  Speaker 2: And the monologue itself, it was Carlin doing what he
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  Speaker 2: did best, dissecting language, poking fun at society's hang ups
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  Speaker 2: about certain sounds, certain syllables that we invest with way
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  Speaker 2: too much power.
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  Speaker 1: And this got played on the radio in the middle
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  Speaker 1: of the day.
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  Speaker 2: Yes pacifica foundation station WBAI in New York City. They
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  Speaker 2: were and still are a nonprofit known for pushing boundaries
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  Speaker 2: for airing challenging stuff. October thirtieth, nineteen seventy three, Round two.
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  Speaker 1: PM two in the afternoon. Wow okay, Yeah, And they.
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  Speaker 2: Aired it as part of a program about language, about
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  Speaker 2: society's attitudes towards words, how arbitrary those attitudes can be.
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  Speaker 1: Did they just like drop it in there or did
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  Speaker 1: they warn people they.
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  Speaker 2: Knew it was provocative. They definitely put a warning up front,
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  Speaker 2: something like, you know, this includes language that some might
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  Speaker 2: find offensive. But was it enough? Probably not for what
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  Speaker 2: happened next. Their decision to air it though that was
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  Speaker 2: core to who they were as a station, free speech exploring.
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  Speaker 1: Ideas, and their defense wasn't just hey, free speech man.
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  Speaker 1: They had a more sophisticated argument, right.
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  Speaker 2: Oh, absolutely, it was an intellectual defense. They framed Carlin
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  Speaker 2: not just as a comedian, but as a significant social satirist.
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  Speaker 2: They put him in the same league as Mark Twain
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  Speaker 2: or earlier comedians like Lenny Bruce. Sorry mort Seal was
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  Speaker 2: the name of these, another boundary.
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  Speaker 1: Pusher, so comparing him to literary figures social commentators.
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  Speaker 2: Exactly, They argued, he was basically doing linguistics on stage.
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  Speaker 2: He was looking at everyday words, taboo words, and using
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  Speaker 2: them to satirize, as Pacificuld put it, are attitudes towards
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  Speaker 2: those words, to show how harmless and essentially silly those
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  Speaker 2: attitudes are.
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  Speaker 1: The idea being if you say the scary word enough,
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  Speaker 1: maybe it loses its scary power.
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  Speaker 2: That was the theory, strip the word of its undeserved
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  Speaker 2: power by confronting it directly. It wasn't about promoting filth,
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  Speaker 2: it was about examining hypocrisy, and interestingly, Pacifica later noted
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  Speaker 2: in court filings they only received one formal complaint about
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  Speaker 2: that broadcast.
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  Speaker 1: One complaint, and that single complaint basically changed everything for
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  Speaker 1: broadcast media in the US. Who was this person?
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  Speaker 2: His name was John Douglas. He was a board member
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  Speaker 2: of an organization called Morality in Media.
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  Speaker 1: Very active crew Morality in Media.
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  Speaker 2: Okay, and Douglas claimed he was driving in his car
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  Speaker 2: listening to WBAI and his young son was with him.
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  Speaker 1: Ah, the kid angle.
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  Speaker 2: That's the crucial detail. His complaint wasn't just I heard
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  Speaker 2: bad words. It was specifically about the timing two pm
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  Speaker 2: on a Tuesday.
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  Speaker 1: Daytime hours when children could reasonably be expected to be listening.
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  Speaker 2: Precisely, he argued, this violated the FCC's sort of informal
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  Speaker 2: understanding of the rule that stuff potentially harmful to minors
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  Speaker 2: should be kept to late night hours. He was hitting
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  Speaker 2: the FCC right where their stated interest was protecting children.
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  Speaker 1: Smart strategy. So how did the FCC respond to this
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  Speaker 1: perfectly aimed complaint.
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  Speaker 2: Well, the FCC saw an opportunity, I think, to clarify
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  Speaker 2: its own rules. In February nineteen seventy five, they issued
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  Speaker 2: what's called a declaratory order. It wasn't a fine, not yet,
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  Speaker 2: but it was their official ruling.
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  Speaker 1: And what did the order say.
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  Speaker 2: It said WBAI had violated FCC regulations on indecent broadcasting.
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  Speaker 2: They called the Carlin routine patently offensive because of the
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  Speaker 2: repeated deliberate use of those.
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  Speaker 1: Words catently offensive. That's the standard they use.
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  Speaker 2: Yes and critically. They emphasized it was deliberately broadcast at
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  Speaker 2: a time when kids were likely in the audience based
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  Speaker 2: on demographic data.
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  Speaker 1: But you said it wasn't a fine, So what was
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  Speaker 1: the actual consequence for WBAI. This seems a bit weird.
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  Speaker 2: It was a bit of regulatory maneuvering. They didn't pull
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  Speaker 2: the license, they didn't issue a penalty. What they did
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  Speaker 2: was place a note essentially a record of this incident
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  Speaker 2: into WBAI's official station file.
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  Speaker 1: Okay, so like a demerit point on your driver's license
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  Speaker 1: kind of.
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  Speaker 2: They basically said, we could have sanctioned you, but we
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  Speaker 2: won't this time. However, this incident clarifies the standards will
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  Speaker 2: use going forward, especially when your license comes up for renewal.
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  Speaker 1: Ah, the renewal hearing, that's the threat. So it's not
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  Speaker 1: a punishment now, but it hangs over their head.
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  Speaker 2: Don't do this again or else exactly, a sort of
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  Speaker 2: damocles as you put it earlier, and Pacifica understandably saw
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  Speaker 2: this as a huge threat to their ability to broadcast
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  Speaker 2: challenging material in the future, so they fought back.
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  Speaker 1: They appealed the order immediately.
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  Speaker 2: They went to court, arguing this declaratory order was censorship,
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  Speaker 2: pure and simple and violated their First Amendment rights.
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  Speaker 1: And what happened at that first court level the appeals court.
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  Speaker 2: Initially Pacifica one. The DC Circuit Court of Appeals sided
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  Speaker 2: with them in March nineteen seventy seven. They overturned the
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  Speaker 2: FCC's order on what grounds two main points. First, they
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  Speaker 2: agreed with Pacifica that the order was censorship, which is
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  Speaker 2: explicitly forbidden by Section three twenty six of the Communications
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  Speaker 2: Act of nineteen thirty four. That Act says the FCC
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  Speaker 2: has no power of censorship.
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  Speaker 1: Okay, point one, it's censorship.
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  Speaker 2: Second, the court found the FCC's order too vague, too broad.
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  Speaker 2: They said the FCC failed to clearly define the public
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  Speaker 2: interest they were protecting beyond just this fuzzy idea of
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  Speaker 2: shielding an unknown number of children. How do you regulate
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  Speaker 2: based on that?
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  Speaker 1: So the appeals court basically told the FCC you can't
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  Speaker 1: censor and your justification here isn't clear enough anyway.
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  Speaker 2: That's the gist which left this huge legal contradiction hanging
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  Speaker 2: in the air. You've got one part of the law,
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  Speaker 2: section fourteen sixty four, that prohibits broadcasting indecent material, but
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  Speaker 2: another part, section three twenty six, says the FCC can't
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  Speaker 2: censor anything. How do those two things coexist?
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  Speaker 1: They can't. Really, It's a direct conflict, right.
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  Speaker 2: And that conflict pretty much guaranteed this was heading to
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  Speaker 2: the highest court in the land. The SCC appealed straight
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  Speaker 2: to the Supreme Court. They needed the justices to sort
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  Speaker 2: this out, to figure out how they could possibly regulate
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  Speaker 2: indecency without being accused of a legal censorship.
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  Speaker 1: Man, the stakes were high. And just a reminder, if
• 9:13
  Speaker 1: you're finding this breakdown of how a comedy routine ended
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  Speaker 1: up redefining free speech helpful, maybe pause and give us
• 9:19
  Speaker 1: at five star rating. It helps other folks find the show.
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  Speaker 2: Definitely appreciate it.
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  Speaker 1: Okay, Supreme Court time. This is where it all comes down.
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  Speaker 1: Hashtag day three the Supreme Court's landmark rationale. All right,
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  Speaker 1: let's get into the Supreme Court's thinking. The case lands there.
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  Speaker 1: FCC v. Pacifica foundation, and the decision comes down in
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  Speaker 1: nineteen seventy eight. It ends up upholding the FCC's order,
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  Speaker 1: but just barely right.
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  Speaker 2: It was super close, extremely close, a five to four decision,
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  Speaker 2: really narrow, and this ruling, honestly, it's the bedrock of
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  Speaker 2: why American media is structured the way it is today
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  Speaker 2: regarding content.
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  Speaker 1: Before we even get to Carlin's words again, the court
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  Speaker 1: had to establish why broadcasts radio and TV could and
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  Speaker 1: even be treated differently under the law. Why aren't they
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  Speaker 1: protected the same way as say, a book or a newspaper.
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  Speaker 2: Right, you need a constitutional justification for treating one medium differently,
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  Speaker 2: and the court leaned heavily on something called the scarcity doctrine.
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  Speaker 1: The scarcity doctrine, Okay, explain that.
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  Speaker 2: The idea is that the electromagnetic spectrum the airways that
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  Speaker 2: carry traditional radio and TV signals is a limited public resource.
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  Speaker 2: It's finite. There are only so many frequencies available before
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  Speaker 2: signals start interfering with each other, like lanes on.
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  Speaker 1: A highway, only so many cars fit good analogy.
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  Speaker 2: Because it's a scarce public resource, the government argues it
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  Speaker 2: has a right, even an obligation, to regulate who gets
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  Speaker 2: to use those airwaves, and how to ensure they serve
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  Speaker 2: the public interest, convenience and necessity. That's the phrase from
• 10:48
  Speaker 2: the Communications Act.
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  Speaker 1: So because the airwaves are limited, the government gets to
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  Speaker 1: set rules for the companies using them, rules that might
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  Speaker 1: not apply elsewhere.
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  Speaker 2: That's the core legal argument. Without regulation, the theory goes,
• 11:00
  Speaker 2: you'd have chaos, or maybe just a few powerful voices
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  Speaker 2: dominating everything. So scarcity justifies government licensing and crucially for
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  Speaker 2: this case, content regulation. That wouldn't fly for print media,
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  Speaker 2: where paper and printing presses aren't considered scarce public resources.
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  Speaker 1: Okay, so scarcity opens the door for some kind of regulation. Now,
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  Speaker 1: how did they tackle the content itself? The words Carlin used.
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  Speaker 2: This is where they made that absolutely critical distinction between
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  Speaker 2: indecent material and obscene material.
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  Speaker 1: Indecent versus obscene. We hear those words thrown around, but
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  Speaker 1: legally they're miles.
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  Speaker 2: Apart, world's apart, especially in terms of First Amendment protection.
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  Speaker 2: Let's start with obscenity. That's the big one. Obscenity is
• 11:38
  Speaker 2: the stuff that gets basically no First Amendment protection. Right.
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  Speaker 2: It can be banned outright, correct, If something is legally
• 11:44
  Speaker 2: declared obscene, it falls outside constitutional protection. The test for
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  Speaker 2: obscenity comes from another case, Miller v. California in nineteen
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  Speaker 2: seventy three. It's a three part test. Okay.
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  Speaker 1: What are the three parts?
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  Speaker 2: One, the average person applying contemporary community standards has to
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  Speaker 2: find that the work taken as a whole, appeals to
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  Speaker 2: the prurient interest. That means, basically a morbid, shameful, or
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  Speaker 2: unhealthy interest in sex.
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  Speaker 1: Okay, appeals to purient interest? Got it? Number two? Two?
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  Speaker 2: The work has to depict or describe sexual conduct in
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  Speaker 2: a patently offensive way, as defined by applicable.
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  Speaker 1: State law patently offensive sexual conduct. Okay.
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  Speaker 2: And the third part three, and this is often the kicker,
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  Speaker 2: and the work taken as a whole must lack serious literary, artistic, political,
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  Speaker 2: or scientific value. Lawyers often call this the slaps test.
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  Speaker 1: Lacking slaps value slaps test. Okay, So, applying that Miller test,
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  Speaker 1: that slaps test to Carlin's Filthy Words monologue, Why Wasn't
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  Speaker 1: It Obscene? It used offensive.
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  Speaker 2: Words because it clearly had slaps value. Even though the
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  Speaker 2: words were offensive, The court recognized the monologue as social satire,
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  Speaker 2: as commentary on language and society. It had artistic and
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  Speaker 2: political value. It wasn't designed to get anyone's actually aroused.
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  Speaker 2: It didn't appeal to the purian interest. Carlin was trying
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  Speaker 2: to make people think, not you.
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  Speaker 1: Know right, He was criticizing hypocrisy, not trying to turn
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  Speaker 1: anyone on. So it passed the slaps test.
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  Speaker 2: It did, which meant it couldn't be banned outright as obscenity,
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  Speaker 2: and that forced the court into the next category down
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  Speaker 2: in decency.
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  Speaker 1: So if it's not obscene, it might still be indecent,
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  Speaker 1: and what does that mean? Legally?
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  Speaker 2: The Court essentially defined indecency in this context as language
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  Speaker 2: or material that describes or depicts sexual or extratory organs
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  Speaker 2: or activities in a way that's patently offensive. As measure
• 13:31
  Speaker 2: by contemporary community standards for the broadcast medium, this is
• 13:35
  Speaker 2: slightly lower bar than obscenity. Crucially, indecent material does have
• 13:39
  Speaker 2: some First Amendment.
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  Speaker 1: Protection, So you can't ban it entirely.
• 13:42
  Speaker 2: Exactly, you can't ban it, but the court ruled you
• 13:45
  Speaker 2: can regulate it specifically, you can restrict when it's broadcast.
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  Speaker 2: This difference restriction versus outright prohibition is the absolute heart
• 13:53
  Speaker 2: of the PACIFICA decision.
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  Speaker 1: Okay, so that deals with the content. But what about
• 13:56
  Speaker 1: the censorship issue? The Appeals Court said, the FCC or
• 14:00
  Speaker 1: order with censorship, which the law forbids. How did the
• 14:03
  Speaker 1: Supreme Court majority get around that? That seems like a
• 14:06
  Speaker 1: big hurdle.
• 14:06
  Speaker 2: It was the hurdle, and they cleared it with some
• 14:10
  Speaker 2: very careful legal interpretation. The five to four majority basically
• 14:14
  Speaker 2: redefined what censorship means under section three twenty six of
• 14:18
  Speaker 2: the Communications Act. How So, they ruled that censorship under
• 14:21
  Speaker 2: that specific law only refers to prior restraint, meaning the
• 14:24
  Speaker 2: government can't step in before a broadcast and demand changes
• 14:28
  Speaker 2: like telling a station to cut a word from a
• 14:29
  Speaker 2: script before it airs.
• 14:30
  Speaker 1: Okay, So editing before broadcast is forbidden censorship right.
• 14:35
  Speaker 2: But and this is the huge loophole they created. Reviewing
• 14:38
  Speaker 2: something after has been broadcast and then imposing sanctions like
• 14:42
  Speaker 2: a fine or putting a note in the file that
• 14:44
  Speaker 2: is not considered prior restraint censorship under section three twenty six.
• 14:48
  Speaker 1: Wow. So punishing after the fact is okay, but editing
• 14:50
  Speaker 1: beforehand isn't.
• 14:51
  Speaker 2: That's the distinction they drew. It allows the FCC to
• 14:54
  Speaker 2: regulate content through fines and license renewals after it airs
• 14:58
  Speaker 2: without technically violating this state pagatory ban on censorship. It
• 15:01
  Speaker 2: was a major win for the SEC's regulatory power.
• 15:04
  Speaker 1: Okay, that's quite the legal maneuver, but they still needed
• 15:07
  Speaker 1: solid constitutional reasons to justify treating broadcasts differently. Overall, they
• 15:12
  Speaker 1: use scarcity, they redefine censorship for the Act. What else.
• 15:16
  Speaker 2: They needed specific justifications tied to the nature of broadcasting itself,
• 15:20
  Speaker 2: and they landed on two main pillars, which, as I said,
• 15:23
  Speaker 2: still form the basis of a law today. Tiller number one,
• 15:26
  Speaker 2: the unique pervasiveness of broadcast.
• 15:28
  Speaker 1: Media pervasiveness meaning it's just everywhere.
• 15:32
  Speaker 2: Kind of The Court argued that broadcast radio and TV
• 15:35
  Speaker 2: are unique because they intrude directly into the privacy of
• 15:38
  Speaker 2: the home. Unlike say, buying a book or going to
• 15:41
  Speaker 2: a movie, broadcast signals just come into your house. You
• 15:45
  Speaker 2: might tune in unexpectedly.
• 15:47
  Speaker 1: So that warning WBAI gave at the beginning wasn't enough
• 15:50
  Speaker 1: in the.
• 15:50
  Speaker 2: Court's view, not entirely because people tune in and out.
• 15:54
  Speaker 2: They argued, warnings might be missed. The offensive content could
• 15:58
  Speaker 2: just suddenly appear in your living room uninvited.
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  Speaker 1: It's invasive, and justice Stevens had that famous analogy for this, Yes.
• 16:05
  Speaker 2: The assault analogy. He wrote that telling someone offended by
• 16:08
  Speaker 2: radio content to simply turn it off is like saying
• 16:11
  Speaker 2: that the remedy for an assault is to run away
• 16:13
  Speaker 2: after the.
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  Speaker 1: First blow, meaning the harm the intrusion has already happened
• 16:17
  Speaker 1: the moment the indecent sound enters the home.
• 16:19
  Speaker 2: Exactly that first blow has landed. Yeah, the privacy of
• 16:23
  Speaker 2: the home, a constitutionally protected space, has been invaded. That's
• 16:27
  Speaker 2: the pervasiveness argument.
• 16:28
  Speaker 1: Okay, so pillar one, it's uniquely invasive in the home.
• 16:31
  Speaker 1: What's pillar two?
• 16:31
  Speaker 2: Pillar two? Unique accessibility to children?
• 16:34
  Speaker 1: Ah, back to the kids.
• 16:36
  Speaker 2: Always back to the kids. This is arguably the government's
• 16:39
  Speaker 2: strongest card. The court said. Broadcast is uniquely accessible to children,
• 16:44
  Speaker 2: even very young ones who can't read. They just turn
• 16:47
  Speaker 2: on the TV or radio.
• 16:48
  Speaker 1: Unlike magazines or websites where maybe there are barriers or
• 16:51
  Speaker 1: parents can more easily supervise.
• 16:54
  Speaker 2: That's the idea. The court leaned on the government's recognized
• 16:57
  Speaker 2: interest in protecting the well being of its youth and
• 17:01
  Speaker 2: supporting parents' ability to decide what influences their children are
• 17:04
  Speaker 2: exposed to within their own home. Broadcasting makes that parental
• 17:08
  Speaker 2: control much harder, they argued.
• 17:10
  Speaker 1: So you combine the scarcity of the airwaves, the pervasiveness
• 17:13
  Speaker 1: into the home, and the accessibility to kids, and that's
• 17:16
  Speaker 1: how the five to four majority justified upholding the FCC's
• 17:20
  Speaker 1: action against Pacifica.
• 17:21
  Speaker 2: That's the constitutional framework they built. And because Carlin's routine
• 17:25
  Speaker 2: was deemed indecent not obscene, the only remedy available was
• 17:29
  Speaker 2: restricting the time of broadcast.
• 17:30
  Speaker 1: Which leads directly to the rule we still have today,
• 17:33
  Speaker 1: the safe harbor rule.
• 17:35
  Speaker 2: The Pacifica decision didn't set the specific hours, but it
• 17:38
  Speaker 2: mandated that indecent material had to be channeled into times
• 17:41
  Speaker 2: when children were less likely to be listening. The FCC
• 17:44
  Speaker 2: later formally established that safe harbor period as ten pm
• 17:48
  Speaker 2: to six am.
• 17:49
  Speaker 1: So indecent stuff is okay, but only when the kids
• 17:52
  Speaker 1: are supposedly asleep.
• 17:53
  Speaker 2: Basically yes. And the final piece tying this all together
• 17:57
  Speaker 2: was the court's emphasis on.
• 17:58
  Speaker 1: Context contact is everything.
• 18:01
  Speaker 2: Justice Stevens drove this home with another famous analogy, borrowing
• 18:05
  Speaker 2: from an earlier zoning case. He said, a nuisance may
• 18:08
  Speaker 2: be merely a right thing in the wrong place, like
• 18:11
  Speaker 2: a pig in the parlor. Instead of the barnyard.
• 18:13
  Speaker 1: A pig in the parlor. I like that.
• 18:15
  Speaker 2: It's memorable, isn't it the words themselves Carlin satire. The
• 18:18
  Speaker 2: pig might be fine in the right context, the barnyard
• 18:22
  Speaker 2: maybe a comedy club or a record album you choose
• 18:24
  Speaker 2: to buy, but broadcast during the day, intruding into the home,
• 18:28
  Speaker 2: the parlor where children might be present, that transforms it
• 18:31
  Speaker 2: into a regulatable nuisance.
• 18:33
  Speaker 1: So the same words, different time, different medium, different legal outcome.
• 18:37
  Speaker 2: Precisely that pig in the parlor logic is what allowed
• 18:41
  Speaker 2: the FCC to thread the needle and win that five
• 18:43
  Speaker 2: to four decision fundamentally reshaping broadcast law around the concept
• 18:48
  Speaker 2: of indecency and time shifting.
• 18:50
  Speaker 1: So the legal framework gets set, but the cultural legacy
• 18:54
  Speaker 1: it's still all about Carlin, isn't it. He kind of
• 18:57
  Speaker 1: leaned into becoming the face of this whole thing.
• 18:59
  Speaker 2: Oh ye, absolute did. He saw the ruling in a
• 19:02
  Speaker 2: way as proving his original point that society gives these
• 19:06
  Speaker 2: arbitrary sounds immense power through fear and now legal restriction.
• 19:11
  Speaker 2: His later work constantly revisited and expanded on the seven
• 19:14
  Speaker 2: words concept.
• 19:15
  Speaker 1: He even admitted the original list wasn't quite right, didn't
• 19:17
  Speaker 1: he Yeah.
• 19:18
  Speaker 2: He famously added other words he thought were equally taboo
• 19:20
  Speaker 2: but missed the first cut, like fart, turd, and twat.
• 19:24
  Speaker 2: He kept playing with the idea of this unofficial list
• 19:26
  Speaker 2: of forbidden.
• 19:27
  Speaker 1: Language, and he got almost like linguistically analytical about it too,
• 19:30
  Speaker 1: breaking down the words themselves.
• 19:31
  Speaker 2: It was brilliant, really. He'd point out the absurdity of
• 19:34
  Speaker 2: banning compound words like motherfucker or cocksucker. He'd say, you know,
• 19:39
  Speaker 2: sucker isn't really dirty, just suggestive, and motherfucker is just
• 19:43
  Speaker 2: adding mother to fuck, which was already on the list.
• 19:46
  Speaker 2: He approached it like a language.
• 19:47
  Speaker 1: Puzzle, underscoring his point that the power isn't in the syllables,
• 19:50
  Speaker 1: it's in our reaction exactly.
• 19:52
  Speaker 2: The social and legal fuss gave them the power. He
• 19:55
  Speaker 2: was satirizing.
• 19:57
  Speaker 1: Now, after PACIFICA, the FCC had this clear power to
• 20:01
  Speaker 1: regulate indecency, did they immediately start cracking down hard?
• 20:06
  Speaker 2: Interestingly, No. For the first decade or so, maybe even two,
• 20:10
  Speaker 2: they used this power relatively sparingly. Things stayed pretty stable.
• 20:14
  Speaker 2: It wasn't until the late nineties and especially the early
• 20:16
  Speaker 2: two thousands that things really heated up, which changed. There
• 20:19
  Speaker 2: was a definite shift. Political winds changed, cultural anxieties flared up,
• 20:23
  Speaker 2: and there was increasing pressure, often from conservative groups and politicians,
• 20:27
  Speaker 2: for the SEC to get tougher on broadcast content. Enforcement actions,
• 20:32
  Speaker 2: and especially the size of fines ramped up. Dramatic fines
• 20:35
  Speaker 2: got bigger, way bigger. We started seeing fines and the
• 20:38
  Speaker 2: hundreds of thousands of dollars, sometimes hitting that half million
• 20:41
  Speaker 2: dollar mark per violation.
• 20:42
  Speaker 1: And this led to controversies about fairness, about whether they
• 20:46
  Speaker 1: were picking and choosing targets based on politics.
• 20:48
  Speaker 2: Yes, accusations of selective enforcement became common, and the SEC's
• 20:52
  Speaker 2: approach got particularly controversial when they started going after not
• 20:57
  Speaker 2: just deliberate routines like Carlins, but also fleeting X splatives.
• 21:00
  Speaker 1: Fleeting explatives meaning like a slip of the tongue, a
• 21:04
  Speaker 1: single curse word accidentally broadcast.
• 21:07
  Speaker 2: Exactly, someone blurting out an F bomb live on air
• 21:11
  Speaker 2: during an award show, for instance, or a wardrobe malfunction.
• 21:15
  Speaker 2: The FCC, under pressure, shifted its policy to say even
• 21:19
  Speaker 2: these brief, sometimes unintentional instances could trigger massive indecency fines.
• 21:24
  Speaker 1: And the most famous example of that has to be
• 21:26
  Speaker 1: the Super Bowl halftime show in two thousand and four.
• 21:28
  Speaker 2: Oh yeah, the Janet Jackson wardrobe malfunction incident with Justin Timberlake.
• 21:33
  Speaker 2: That brief exposure, which wasn't scripted satire like Carlin, it
• 21:37
  Speaker 2: was an accident.
• 21:38
  Speaker 1: Caused an absolute explosion.
• 21:39
  Speaker 2: Massive public outcry, political pressure like crazy, and the FCC
• 21:44
  Speaker 2: responded by hitting CBS and Viacom with enormous finds, the
• 21:48
  Speaker 2: largest broadcast in decency find ever at the time related
• 21:52
  Speaker 2: to that show.
• 21:52
  Speaker 1: So the focus shifted from intentional indecent programming to basically
• 21:56
  Speaker 1: any instance of profanity or nudity. However, brief or.
• 21:59
  Speaker 2: Accident d that became the new, much stricter, much more
• 22:03
  Speaker 2: controversial standard, and it seemed to many like a huge overreach,
• 22:07
  Speaker 2: especially since the FCC had previously ignored similar fleeting moments.
• 22:11
  Speaker 1: And this aggressive stance on fleeting words eventually got challenged
• 22:15
  Speaker 1: in court again, didn't it It did?
• 22:17
  Speaker 2: Broadcasters pushed back, arguing the policy was arbitrary and unclear.
• 22:21
  Speaker 2: In twenty ten, the Second Circuit Court of Appeals agreed.
• 22:24
  Speaker 2: They ruled that the FCC's policy on fleeting expletives was
• 22:28
  Speaker 2: unconstitutionally vague, meaning.
• 22:29
  Speaker 1: The FCC hadn't clearly explained the difference why one f
• 22:33
  Speaker 1: bomb was a huge fine, but maybe it wasn't before Exactly.
• 22:36
  Speaker 2: The court basically said, look, if you're going to punish
• 22:38
  Speaker 2: broadcasters so severely for what might be a split second mistake,
• 22:42
  Speaker 2: you need a much clearer, more consistent rule about why
• 22:45
  Speaker 2: you can't just change the standard based on public outcry.
• 22:47
  Speaker 1: So, even decades after Pacifica, the whole definition of indecency
• 22:52
  Speaker 1: and how the FCC can police it remains kind of wobbly, unstable,
• 22:58
  Speaker 1: subject to the political.
• 22:59
  Speaker 2: Wins very much. So. It highlights the ongoing tension between
• 23:03
  Speaker 2: the desire to regulate broadcast content and the constitutional protections
• 23:07
  Speaker 2: for speech, even offensive speech.
• 23:10
  Speaker 1: This is fascinating stuff. And hey, if you're finding this
• 23:13
  Speaker 1: legal roller coaster ride interesting and you appreciate us mapping
• 23:16
  Speaker 1: it out for you, how about that five star rating.
• 23:18
  Speaker 1: It really does help us keep doing these deep dives.
• 23:20
  Speaker 2: We appreciate the support.
• 23:22
  Speaker 1: Okay, now let's shift gears to maybe the biggest problem
• 23:24
  Speaker 1: with the Pacifica ruling today. The technology has just completely
• 23:28
  Speaker 1: overtaken the legal logic. The whole basis of the ruling
• 23:31
  Speaker 1: feels well obsolete.
• 23:33
  Speaker 2: It's a huge challenge. Yeah, the core justification in PACIFICA
• 23:36
  Speaker 2: is that broadcast is uniquely pervasive and uses scarce public airwaves.
• 23:41
  Speaker 2: But does that really hold up anymore?
• 23:43
  Speaker 1: Probably not. Let's start with what you called the subscription loophole.
• 23:46
  Speaker 2: Right cable TV, satellite radio like SiriusXM, streaming services like Netflix, Hulu, Hbomax.
• 23:52
  Speaker 2: None of them are subject to the FCC's broadcast and
• 23:54
  Speaker 2: decency rules.
• 23:55
  Speaker 1: Why not they come into my home just like broadcast
• 23:58
  Speaker 1: TV because.
• 23:59
  Speaker 2: The legal theory is different. They use private means of
• 24:02
  Speaker 2: transmission coaxial cables, fiber optic line, satellite signals, the Internet,
• 24:07
  Speaker 2: not the public airwaves. And crucially, you pay for them.
• 24:11
  Speaker 2: It's a subscription, so.
• 24:12
  Speaker 1: The act of subscribing a scene as consent, like you
• 24:15
  Speaker 1: invited that content into your home. So the pig in
• 24:18
  Speaker 1: the parlor argument doesn't apply.
• 24:19
  Speaker 2: It's the legal rationale. Because it's a private transaction and
• 24:23
  Speaker 2: uses private infrastructure, the government's PACIFICA justification for regulating indecency
• 24:28
  Speaker 2: doesn't stick. They get much broader First Amendment protection, similar
• 24:32
  Speaker 2: to books or movies.
• 24:33
  Speaker 1: But wait, the other part of the PACIFICA ruling was
• 24:36
  Speaker 1: unique pervasiveness is broadcast TV really more pervasive than cable
• 24:41
  Speaker 1: or streaming. Today, that feels wrong.
• 24:42
  Speaker 2: It feels completely wrong because it is wrong factually. Yeah,
• 24:45
  Speaker 2: in nineteen seventy eight, sure broadcast dominated three networks, maybe
• 24:49
  Speaker 2: a local PPS station, Cable was niche. Today cable and
• 24:53
  Speaker 2: satellite penetration is massive.
• 24:54
  Speaker 1: Oh look what are the numbers.
• 24:55
  Speaker 2: Well, one stat that always stands out is that even
• 24:58
  Speaker 2: among households below the poverty line, something like sixty two
• 25:01
  Speaker 2: percent have cable or satellite TV. It's everywhere to argue
• 25:05
  Speaker 2: that free over the year broadcast is somehow more pervasive
• 25:09
  Speaker 2: than paid cable or ubiquitous streaming. It just doesn't refle
• 25:12
  Speaker 2: in reality anymore.
• 25:13
  Speaker 1: So the factual basis for that part of the ruling
• 25:15
  Speaker 1: has basically evaporated.
• 25:16
  Speaker 2: It really has. And then you layer on the conglomerate factor.
• 25:19
  Speaker 1: Meaning the same giant companies own both the regulated broadcast
• 25:23
  Speaker 1: stations and the unregulated cable channels.
• 25:25
  Speaker 2: Precisely, think about Disney owning ABC regulated broadcast and FX
• 25:29
  Speaker 2: in free form unregulated cable, or NBC Universal owning NBC
• 25:33
  Speaker 2: regulated in USA, c FI, Bravo unregulated, ViacomCBS owning CBS regulator,
• 25:39
  Speaker 2: and MTV comedy central showtime unregulated.
• 25:42
  Speaker 1: So if they have a show that's maybe two Edgy
• 25:44
  Speaker 1: two in decent for their broadcast network under sec rules,
• 25:47
  Speaker 1: they just.
• 25:48
  Speaker 2: Move it over their cable channel. Simple as that. They
• 25:50
  Speaker 2: shift the indecent content to the platform where the Pacifical
• 25:53
  Speaker 2: rules don't apply. Problem solved from their corporate perspective, so.
• 25:56
  Speaker 1: They can still profit from the content, still promote across
• 26:00
  Speaker 1: their platforms, maybe even advertise the Edgy cable show during
• 26:04
  Speaker 1: Family Hour on their broadcast network.
• 26:07
  Speaker 2: Exactly, they totally undermine the purpose of the regulation. The
• 26:11
  Speaker 2: idea was to shield the public, especially kids, from indecency
• 26:16
  Speaker 2: on the pervasive broadcast medium. But if the same company
• 26:20
  Speaker 2: just redirects that content to another channel they own, which
• 26:23
  Speaker 2: is also incredibly pervasive, what are the rules actually achieved.
• 26:26
  Speaker 1: It makes the Pacific a distinction seem almost meaningless in
• 26:30
  Speaker 1: practice for these big players, they just arbitrage the regulation.
• 26:33
  Speaker 2: It's a classic example of how market consolidation and technological
• 26:37
  Speaker 2: change can render regulations ineffective or at least easily circumvented,
• 26:42
  Speaker 2: which leads to the frustration around the Elacarte debate.
• 26:45
  Speaker 1: Right. The subscription loophole assumes we choose the content by subscribing,
• 26:48
  Speaker 1: But we usually can't buy cable channels one by one.
• 26:50
  Speaker 1: Can we?
• 26:51
  Speaker 2: Almost never? You're forced to buy these big bundles, basic tiers,
• 26:55
  Speaker 2: expanded tiers, and those bundles inevitably include channels known for
• 26:59
  Speaker 2: content that would definitely be considered indecent under PACIFICA rules,
• 27:04
  Speaker 2: right alongside the Disney Channel or Discovery.
• 27:06
  Speaker 1: So to get the kid's channel I want, I have
• 27:08
  Speaker 1: to accept the channel airing potentially offensive stuff into my
• 27:12
  Speaker 1: home too. I don't really have a choice.
• 27:13
  Speaker 2: Exactly, which blows a hole in the subscriber consent argument
• 27:17
  Speaker 2: underpinning the subscription loophole. If you're forced to let the
• 27:20
  Speaker 2: pig into the parlor just to get the channel you
• 27:23
  Speaker 2: actually want, how much meaningful control or consent do you
• 27:26
  Speaker 2: really have?
• 27:27
  Speaker 1: It feels like a contradiction. The government restricts broadcast to
• 27:30
  Speaker 1: protect kids, but ignores that the same content flows freely
• 27:34
  Speaker 1: through bundled cable packages that parents often have to buy.
• 27:37
  Speaker 2: It's a major point of inconsistency and frustration for many people,
• 27:42
  Speaker 2: and this ongoing tension is feeling that the rules aren't
• 27:44
  Speaker 2: working or aren't fair. It even led to specific legislative
• 27:48
  Speaker 2: efforts to sort of reimpose control.
• 27:50
  Speaker 1: You mentioned the Clean Airwaves Act from two thousand and three.
• 27:53
  Speaker 2: Yes, HR three six eighty seven, introduced by Representative dugos.
• 27:58
  Speaker 2: This was a direct response to the perceived increase in
• 28:01
  Speaker 2: broadcast indecency happening around the time of the Janet Jackson incident,
• 28:06
  Speaker 2: and it generally heightened sense of moral scrutiny Post nine
• 28:10
  Speaker 2: to eleven.
• 28:10
  Speaker 1: And what did that proposed act try to do?
• 28:13
  Speaker 2: It actually tried to take Carlin's list or a version
• 28:15
  Speaker 2: of it and write it into federal law. It proposed
• 28:18
  Speaker 2: designating words like shit, piss, fuck, cunt, asshole, and the
• 28:24
  Speaker 2: phrases cocksucker, motherfucker, and asshole as legally profane under the
• 28:29
  Speaker 2: UN Code.
• 28:30
  Speaker 1: So trying to codify the dirty words and attach specific
• 28:34
  Speaker 1: likely harsher penalties.
• 28:35
  Speaker 2: Essentially, Yes, it showed a real legislative desire to clamp down,
• 28:39
  Speaker 2: to bypass the nuances of the FCC's in decency standard
• 28:42
  Speaker 2: and just declear certain words off limits, at least for broadcast.
• 28:45
  Speaker 2: The BUILL didn't pass, but it clearly demonstrated that the
• 28:48
  Speaker 2: frustration with the PACIFICA Framework in its loopholes was and
• 28:50
  Speaker 2: probably still is very real in political circles. It shows
• 28:53
  Speaker 2: this debate is far from over. Wow.
• 28:55
  Speaker 1: Okay, so we've traced this whole thing from yeah, George
• 28:57
  Speaker 1: Carlin routine that was meant to be satire and it's
• 29:00
  Speaker 1: a comedy all the way through FCC orders court battles,
• 29:04
  Speaker 1: a nail biting five to four Supreme Court decision, and
• 29:07
  Speaker 1: now into the messy reality of twenty first century media
• 29:11
  Speaker 1: where the original logic seems to be falling apart, and
• 29:14
  Speaker 1: it all came down to context. Isn't it like the
• 29:16
  Speaker 1: court said, the pig in the parlor.
• 29:17
  Speaker 2: Exactly, time of day, method of delivery, perceived audience, those
• 29:24
  Speaker 2: contextual factors became everything legally speaking.
• 29:27
  Speaker 1: So the big takeaway for you listening the core insight
• 29:30
  Speaker 1: here is really quite striking when you think about it.
• 29:33
  Speaker 2: It is in the US the legal line between speech
• 29:36
  Speaker 2: that's fully protected and speech that can be restricted, at
• 29:39
  Speaker 2: least in electronic media, often has less to do with
• 29:42
  Speaker 2: the actual content. Remember Carlin's routine was deemed art, not obscenity,
• 29:46
  Speaker 2: and much much more to do with how it gets
• 29:48
  Speaker 2: to you. The delivery system.
• 29:50
  Speaker 1: Is it using those scarce public airwaves? Does it just
• 29:52
  Speaker 1: show up uninvited in the home that's what triggers the
• 29:55
  Speaker 1: potential for government restriction under PACIFICA.
• 29:57
  Speaker 2: It's the infrastructure, the pipes, not necessarily the message. It
• 30:00
  Speaker 2: that determines the level of First Amendment protection in this
• 30:03
  Speaker 2: specific area, which you know is kind of weird.
• 30:05
  Speaker 1: It is weird, and it leads us right to that
• 30:08
  Speaker 1: provocative final thought.
• 30:09
  Speaker 2: We wanted to leave you with, right, So think about this.
• 30:12
  Speaker 2: We have these giant media companies now that easily sidestep
• 30:16
  Speaker 2: the PACIFICA rules by owning both broadcast and cable streaming.
• 30:20
  Speaker 2: They just move the indecent stuff next.
• 30:22
  Speaker 1: Door, and we have streaming and cable which are arguably
• 30:25
  Speaker 1: more pervasive now than broadcast ever was back in seventy eight.
• 30:28
  Speaker 1: They're everywhere, at almost every home.
• 30:30
  Speaker 2: So given all that, does it make any sense anymore
• 30:34
  Speaker 2: to keep treating traditional broadcast radio and TV as this
• 30:37
  Speaker 2: special category that needs unique indecency restrictions? Hasn't Technology in
• 30:42
  Speaker 2: the market just made that distinction obsolete.
• 30:44
  Speaker 1: Which forces the big question, what's the solution. Do we
• 30:47
  Speaker 1: lean into Carlin's original point that the fear gives the
• 30:50
  Speaker 1: words power and say, okay, let's get rid of the
• 30:52
  Speaker 1: PACIFICA distinction. Do you regularly broadcast indecency entirely. Treat all
• 30:57
  Speaker 1: electronic media the same under the First Amendment like print.
• 31:00
  Speaker 2: That's one path more speech less restriction, or do you
• 31:04
  Speaker 2: go the other way? Do you say no? The problem
• 31:06
  Speaker 2: is the inconsistency. Maybe we should try to extend indecency
• 31:10
  Speaker 2: style regulations to cable and streaming. Try to regulate all
• 31:13
  Speaker 2: pervasive electronic media in a similar way to protect kids
• 31:17
  Speaker 2: or upholled community standards. However difficult, that might be legally impractically.
• 31:21
  Speaker 1: Eliminate the distinction by regulating more, not less.
• 31:24
  Speaker 2: Exactly, deregulate broadcast or regulate everything else. That's the fundamental
• 31:29
  Speaker 2: choice at the heart of the debate about the future
• 31:31
  Speaker 2: of content regulation in the digital age. Where we draw the.
• 31:35
  Speaker 1: Line now something to definitely chew on.
• 31:37
  Speaker 2: Absolutely well, thanks for joining us on this pretty wild
• 31:41
  Speaker 2: ride through seven dirty words and the law they inspired.
• 31:44
  Speaker 2: We really hope this deep dive left you feeling yeah, instantly,
• 31:47
  Speaker 2: well informed, maybe even a little entertained by the absurdity
• 31:50
  Speaker 2: of it all sometimes and if.
• 31:51
  Speaker 1: It did, you know what to do. Show us some
• 31:53
  Speaker 1: love with that five star rating wherever you get your podcasts.
• 31:56
  Speaker 1: It helps us keep digging deep for you. Until next
• 31:59
  Speaker 1: time on the deep Dive beyond infographics,