Seven Dirty Words_ The Life and Crimes of George Carlin - James Sullivan [90]
Now motherfucker and the rest of the Milwaukee Seven were about to have their day in the highest court in the land. The prospect of that kind of language rattling off the Spanish marble friezes high above the justices’ heads was thrilling for some, and a looming nightmare for others. “As we used to say,” says Thomas Schattenfield, “you don’t want to get up in front of nine old men and say, ‘Please pass the fucking salt.’”
Though Schattenfield had been the Arent Fox attorney working most closely with Pacifica, he had argued against appealing the FCC’s declaratory order. The FCC’s action on the “Filthy Words” complaint—putting a notice in WBAI’s license-renewal file—had been, he felt, a “fairly decent” outcome. The Court of Appeals’s decision in favor of Pacifica made the FCC’s petition for certiorari to the Supreme Court inevitable. “My feeling was that by going to the Supreme Court, it would be nothing but disaster,” says Schattenfield.
With Schattenfield absenting himself, that left the young Tillotson preparing the brief with a colleague, Harry F. Cole. The aging Plotkin, whose lengthy lapse during his argument at appeal had been a source of concern around the office, would argue the case. Tillotson was disappointed. “It was the one opportunity in my lifetime to argue a case before the Supreme Court,” he says, “and I think I would’ve done a better job.” Plotkin was known to be tough on the hard-charging junior partner: “He wasn’t good at giving Tillotson a chance,” says Schattenfield. Still, when the senior partner read the brief, he was impressed. “He told me, ‘David, this thing sings,’” recalls Tillotson.
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