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Seven words

| Tuesday, January 23, 2018

This year marks some notable anniversaries such as the 300th birthday of the city of San Antonio, the 50th year since the debut of the film classic “2001: A Space Odyssey” and 40 years since National Lampoon’s “Animal House” (which I always assumed was a documentary) gave us John Belushi at the height of his craft. This year will also mark 40 years since the U.S. Supreme Court handed down one of its most influential First Amendment holdings in The Federal Communications Commission (FCC) v. Pacifica Foundation, the infamous “seven forbidden words” case.

The facts that led to this case are fairly straightforward: comedian George Carlin had a routine called “Filthy Words” that contained certain expletives. A Pacifica Foundation radio station in New York City, WBAI, broadcast the routine during afternoon drive time. A father complained that his son heard it and that it contained inappropriate language. The FCC sent a letter of reprimand to Pacifica for violating its rules against broadcasting indecent content. Compared to the First Amendment protections afforded to political or written expression, the FCC has substantial powers regarding the control of broadcasting, because it is so pervasive.

As rumination on the use and impact of language, Carlin’s monologue was not in itself obscene, and the Court so held, but a majority still found the speech to be indecent, since it contained words deemed by the Court to be unsuitable for broadcast at that time of day. Accordingly, the Court said the FCC can regulate the hours when such content could be broadcast, limiting it to times when children were unlikely to be exposed. The FCC also was owed deference in defining indecency. Given the explosion of cable and online viewing options, the holding seems almost quaint today, and language that goes above and beyond that litigated in Pacifica can be found on premium cable channels and the internet on a full time basis.

What was in Carlin’s presentation that was so indecent? Fortunately, the Court included the entirety of the stand-up comedy routine in question in an appendix to the Opinion of the Court. This excerpt will give you a flavor of the monologue, which originated a few years prior to the Court’s decision (hence the oblique reference to the Vietnam War): “…And, uh, b—– you can say, and h— and d—, so I have to figure out which ones you couldn’t … and it came down to seven but the list is open to amendment, and in fact, has been changed, … a lot of people pointed things out to me, and I noticed some myself.

If you are not familiar with Carlin’s routine (which was virtually memorized by my cohort of college students in the 1970s), try and come up with a list of the seven forbidden words (hint: two of them are compounds) and see how many of them you can match. 

The Pacifica case came to mind recently as word came out of the Center for Disease Control (CDC) that CDC officials are being told not to use seven words or phrases in documents that are to be circulated within the federal government and Congress in preparation of the next presidential budget proposal.  The seven words and phrases — “diversity,” “entitlement,” “fetus,” “transgender,” “vulnerable,” “evidence-based” and “science-based” — reportedly were communicated in verbal directives, but there has been no official denial of this proscriptive list. This action from the nation’s top public health agency is especially troubling because it is a clear attempt to limit discourse on critical health topics. It also is a naked attempt to steer health policy away from fact-based empirical studies and into the murky realm of pseudo-science and religious beliefs.

This Orwellian nightmare of shaping policy by restricting the very language that can be used in discussing, funding and making policy is truly obscene and indecent. I caution you, as educated and informed readers, to avoid the sideshow of presidential sexual indiscretions and the bloviating about race and immigration and pay more attention to actions of officials at the agency level across the government. Attempts to limit honest, fact-based discourse cut at the sinews of our democracy and render freedom of speech yet another issue on which to take sides. To be for freedom of speech is to be for America’s constitutional democracy. There is no other side to take and still claim to be an American.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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About Raymond Ramirez

Ray Ramirez is an attorney practicing, yet never perfecting, law in Texas while waiting patiently for a MacArthur Genius Grant. You may contact him at [email protected]

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