George Carlin was wrong. Turns out you can say piss
on the air, or, it would seem by extension, any other "dirty" word so long you're mad or just trying to insult someone.
What will get you in trouble with the feds is shocking or pandering sex or bathroom humor. Well, maybe not even that.
First Amendment advocates and conservative parents groups, generally antagonists in the debate over raunchy broadcasts, have long agreed that the FCC's efforts at policing indecency and profanity are inconsistent and confusing.
The FCC appears to have created more confusion in dismissing an indecency complaint filed against Entercom's WGR(AM) Buffalo, N.Y. At issue is a June 28 decision denying Michael Palko's appeal of a 2001 dismissal of his complaint against its morning show, hosted by Tom Bauerle.
A five-page decision signed by Enforcement Bureau Chief David Solomon explains that a long-running Bauerle gag, in which callers were asked to name National Hockey League players and officials they would like to "piss on," did not violate federal prohibitions on indecent broadcasts. That's because Bauerle's use of the phrase, the bureau said, was akin to the slang terms for anger, pissed at
and pissed off, not the kind of raunchy talk about sex organs and excretory activities the FCC restricts these days. But the gag arguably did refer to excretory activities, since it coincided with WGR's distribution of urinal splash guards with the letters NHL.
"Over the years, stations could get in trouble over double entendre that could be interpreted to have a sexual or excretory meaning," said Robert Corn-Revere, a First Amendment attorney with Washington firm Hogan & Hartson. "Here, they appear to be bending over backwards the other way," exonerating programming that at least on its face could refer to an excretory activity. Corn-Revere often complains that federal efforts to punish indecent programming violate free-speech rights.
On the other side, the FCC's conservative critics are fuming. "This is going to open floodgates to more vulgar language on radio and television," said Martha Kleder, policy analyst for the Culture and Family Institute. "I don't know what it means for the fall broadcast season, but it doesn't look good."
Tougher-enforcement backers say other reasoning in the decision adds insult to injury. Bauerle's use of the expression sawed-off little prick
was acceptable in the context, the FCC said, because the phrase merely referred to a "vulgar insult." Since 1993, the FCC has decreed that use of a specific word, in and of itself, does not necessarily warrant sanction, but until now insults were not among the specified acceptable uses.
An aide to FCC Commissioner Michael Copps said letting WGR off is akin to last week's decision absolving ABC affiliate WGNO(TV) New Orleans from a complaint filed for a Philly
in which a district attorney refuses to stand "with my dick in my hand" while a defendant is set free.
Copps derided the WGNO decision, also issued by the agency's Enforcement Bureau as a concession that almost any word is permissible as long as it is not used in a very specific context. "I disagree. Some terms are in themselves indecent. Not so many years ago, the commission thought so, too."
Corn-Revere conceded, "This does appear to be a shift,"
Punishing indecent broadcasts is part of the FCC's statutory mandate, but carrying out the obligation in a manner that gives leeway for ever-shifting community standards has left the agency open for attack from both free-speech and family-values purists. "Because the touchstone of indecency determinations—contemporary standards—is subjective, the distinctions that arise from that standard are arbitrary and seem more arbitrary the more they are explained," said John Crigler, a Washington attorney fighting a fine levied against a station that aired an anti-misogynist rap by poet Sarah Jones.
In 1978, the FCC ruled that piss
and six other words were indecent and forbidden when children are likely among a broadcast station's audience. The ruling prompted comic George Carlin's famous "Seven Dirty Words" routine. Subsequent FCC rulings have chipped away at the blanket prohibition on the basis of context.