Inside the First Amendment

Gene Policinski
Published: July 5, 2008

By GENE POLICINSKI

First Amendment Center

George Carlin is gone, but the kinds of free-speech conflicts he skewered in his comedic routines live on. So does the national debate over where First Amendment protections end and government
regulation begins on broadcast speech and speech in public.

Not all such conflicts directly involve First Amendment consideration – some are more involved with the “spirit” of free speech than with statutory definitions. But all encompass a kind of national
question: “Can you say that?”

That question crops up daily. Within a few days of Carlin’s death on June 22, these speech issues arose on radio, online and on stage:

• Talk-show host Don Imus responded to an outcry about his remarks about multiple criminal charges brought against a Dallas Cowboys football player. Imus said he was trying to “make a sarcastic
point” about unfair treatment of blacks in the criminal-justice system. Imus, of course, was booted off the air by CBS Radio and MSNBC in 2007 after using a racial slur in referring to the Rutgers
University women’s basketball team.

• An online columnist for ESPN was suspended after referring to Adolf Hitler in an item about rooting for the NBA champion Boston Celtics or the Detroit Pistons.

• In Norfolk, Va., organizers of a festival have brought misdemeanor charges against a performer who used profanity — “embellishment of the F-word,” according to news reports — twice within two
minutes during band introductions June 14. The performer was escorted off the stage.

George Carlin’s career as a counterculture critic and satirical icon was rooted in his exposure to both the humor and the legal battles of fellow comic Lenny Bruce, who famously fought censorship and
criminal charges over his stand-up performances in the 1960s.

Carlin — whose “Seven Dirty Words You Can’t Say on Television” routine was involved in the landmark Supreme Court case FCC v. Pacifica after the monologue was broadcast by a radio station —
believed in challenging his audience. Like Bruce, if Carlin needed to evoke a gasp of shock along with a guffaw to make his point, he would do it.

In particular, Carlin delighted in using language to critique, expose, flay and parody things he found confusing, hypocritical or just twisted. Why, he wondered, do we “drive on a parkway and park on a
driveway?” He noted the oxymoronic oddity of seafood restaurants’ advertising “jumbo shrimp.”

In 2002, accepting an award at the U.S. Comedy Arts Festival, Carlin wondered aloud about an excess of political correctness. Although conceding good intentions, he went on to satirize what he saw as
awkward and incorrect euphemisms Americans use to refer to aspects of each other’s race, color and ethnicity.

Through the years, Carlin moved back and forth between friendly curmudgeon and testy critic of contemporary life. His humor and use of profanities did not suit everyone’s taste. But it’s indisputable that
his freedom of expression enlivened the ongoing debate in America over free speech — what’s desirable, what’s acceptable and what crosses the line (and when) into what’s not permitted.

The FCC’s power to fine broadcasters has been used in the past decade more than ever before, in situations ranging from so-called “fleeting expletives” on televised awards shows to scripted nudity in
mainstream network programs. Congress has empowered the agency’s fine-levying ability tenfold, raising from $32,500 to $325,000 the maximum penalty against a broadcaster for violating indecency
rules.

Mix in congressional discussion of giving the FCC power to regulate cable and satellite programming — and maybe even wireless media — and we may someday have a 24-hour version of an old TV
concept, the “family hour.” It’s clear that free speech — speech without government regulation — means different things to different people.

Thirty years after the Supreme Court’s ruling stemming from George Carlin’s “seven dirty words,” we’re still asking these four words: “Can you say that?”

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: http://www.firstamendmentcenter.org. E-mail:
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