Seven Dirty Words_ The Life and Crimes of George Carlin - James Sullivan [91]
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