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Burlington Lawyer Fred Lane to U.S. Supreme Court: Let the Obscenities Fly! 

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In 1973, legendary comedian George Carlin waded nutsack-deep into legal hot water with the Federal Communications Commission (FCC) after a New York City public radio station, WBAI-FM, broadcast his now-infamous routine, "Seven Words You Can Never Say on Television," from his live stand-up comedy album, Occupation: Fool. For the young and/or uniformed, Carlin's seven dirty words are: shit, piss, fuck, cunt, cocksucker, motherfucker and tits.

Shortly thereafter, a man who claimed his young son heard Carlin's 12-minute pants-shittingly funny monologue while riding in a car filed a complaint with the FCC against WBAI and the Pacifica Foundation, which ran WBAI. (Click here for a complete transcript of Carlin's monologue, courtesy of the University of Missouri-Kansas City School of Law. And you thought constitutional law was a snooze...)

The FCC subsequently censured Pacifica and WBAI. But Pacifica, the oldest public radio network in the country, challenged the FCC action in federal court on First Amendment grounds. Over the next five years, the case wound its way through the courts until, on July 3, 1978, the U.S. Supreme Court ruled, in FCC v. Pacifica Foundationthat Carlin's "Seven Dirty Words" were "indecent but not obscene." Translation: You can't say those dirty words on broadcast radio or TV during hours when young and impressionable ears might be listening.

In the age of cable TV, YouTube, satellite radio and all other manner of sex, drugs and excretory references available at our smartphone-clutching fingertips, FCC v. Pacifica seems as quaint and outdated as an eight-track tape player. Nevertheless, the case is still considered the law of the land for much of "broadcast" TV, another increasingly antiquated and meaningless term.

But on Tuesday, Jan. 10, the Supremes are scheduled to hear oral arguments in two similar cases: FCC v. Fox Television Stations and FCC v. ABC. Together, these cases address the questions of whether the FCC's decency regulations — and its erratic application of those regulations — violate the First Amendment protection of free speech and the Fifth Amendment's guarantee of due process.

Frederick Lane, a Burlington attorney, public speaker and former Burlington school board chair, says it's time for the FCC and the Supreme Court to unwad their collective panties and let this decency dinosaur die.

"It is long past time for the Supreme Court to reverse its 1978 decision in FCC v. Pacifica Foundation and recognize the FCC regulations for what they are: An unconstitutional restriction on free speech and an unnecessarily paternalistic intrusion by government into the media choices of its citizens," said Lane, author of the 2006 book, The Decency Wars: The Campaign to Cleanse American Culture. Lane and his book were featured in this Aug. 30, 2006 Seven Days story, "Immodest Proposals: Exposing the naked truth behind America's wars on decency."  Lane was also a guest on the "Daily Show with Jon Stewart" where he discussed his book. 

As Lane explains, the networks' attorney will argue that regulations restricting what they can broadcast are unfair and unconstitutional in an era when there are virtually unlimited media choices, none of which are subject to the same limitations. The Supreme Court has long made it clear that the FCC has no regulatory authority over services which consumers purchase, such as cable television and the Internet. Increasingly, however, so-called "broadcast television" is also being received in American homes via cable and satellite, leaving network channels at a competitive and creative disadvantage.

"There is no rational basis for this type of government censorship in this day and age," Lane adds. "What it boils down to is an effort by organizations like the Parents Television Council to use the tools of government to impose their narrow view of cultural decency on the entire nation. The decision as to what content is appropriate should be made by parents and their children on a house-by-house basis, and not by five individuals sitting in Washington."

Seven Days file photo courtesy of George Carlin.

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About The Author

Ken Picard

Ken Picard

Ken Picard has been a Seven Days staff writer since 2002. He has won numerous awards for his work, including the Vermont Press Association's 2005 Mavis Doyle award, a general excellence prize for reporters.

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