14

DIRTY WORDS

Profanity and the Patently Offensive

Chicago passed a municipal film ordinance in 1907; New York followed (1908) and then Portland (1915), Atlanta (1920), and Memphis (1921). Pennsylvania began regulating on the state level in 1911. Censorship boards sprang up in Ohio (1913), Kansas (1913), Maryland (1916), Missouri (1919), New York (1921), Virginia (1922), Florida (1922), and Massachusetts (1922). Three decades later, as these regulations were tested in court, the laws began to fail. Even statutory prohibitions that were not directly challenged became suspect. The Maryland court of appeals remarked that the state code’s “definition of ‘incite to crime’ is highly suspect, if not entirely invalid.”1

All eyes turned to the next subject of debate: obscenity. But what was obscenity? Justice Potter Stewart memorably commented “I know it when I see it” in his concurring opinion to Jacobellis v. Ohio.²

On film, obscenity could take two forms: dirty words and filthy pictures.

Dirty words were not new to the cinema. Victor McLaglen had raised the eyebrows of lip-readers with his salty talk in the silent film What Price Glory? (1926). It wasn’t difficult to see “goddamnits” on the lips of dogfighting pilots during aerial combat scenes in the Academy Award–winning Wings (1927). The Hays Commission responded by cracking down on profanity with the production code of 1930, which prohibited “obscenity in a word, gesture, reference, song, joke or by suggestion . . . even when likely to be understood only by part of the audience . . . [and] profanity (this includes the words God, Lord, Jesus Christ—unless used reverently—Hell, S.O.B., damn, Gawd), or every other profane or vulgar expression however used.”3 Even with these mechanisms in place, a swear word could be negotiated, as Clark Gable’s famous line in Gone with the Wind (1939), “Frankly, my dear, I don’t give a damn,” could attest. The MPPDA’s policy was to maintain plausible deniability, refusing to comment on the record and writing confidentially, “It is important that all Board members avoid any statements seeming to indicate that the Code has been amended for a particular purpose or in connection with any particular picture.”⁴

Two decades after Gone With the Wind’s noteworthy “damn,” Lenny Bruce became the prime mover in obscenity law. After a 1961 show at the Jazz Workshop in San Francisco, Bruce was charged with violating California’s obscenity law. The comedian was acquitted. The following year California brought suit after a show at the Troubadour in West Hollywood. In December 1962 Bruce was arrested again after a gig in Chicago. Charged with violating the Illinois obscenity statute, Bruce was convicted in absentia.⁵

As Bruce’s legal troubles accumulated, New York’s courts began contemplating dirty words in motion pictures. Shirley Clarke’s The Connection was the test case. Clarke (1919–1997) had begun her career as a dancer but met with greater success as a director of avant-garde short films. In the Greenwich Village scene of the late 1950s she mingled with trendsetters of the independent film movement, including Maya Deren and Jonas Mekas. In the shadow of Ben-Hur, Clarke’s documentary Skyscraper (1959) received an Academy Award nomination. Her next film, which was released in 1962, was The Connection, a gritty jazz-inflected docudrama.

The Connection (1961) was set in a dilapidated loft where junkies, musicians, and assorted hipsters anxiously awaited the arrival of their drug dealer—their connection. Clarke’s black-and-white DIY style drew from cinema verité and French New Wave techniques. Adding to the realism was the characters’ street slang. The jonesing characters “need some shit.” In the context of the film “shit” referred to heroin. Lacking requisite hipness, the New York board of regents balked at the excremental explicative. Clarke called on Ephraim London. London argued that the word was not used in an obscene manner but rather as argot intended to enhance verisimilitude. The defense prevailed, and the attorney added another win to his record. Judge Francis Bergan opined, “The sole ground for refusing a license to show the motion picture is premised on obscenity in the use of the word ‘shit.’ In most instances the word is not used in its usual connotation but as a definitive expression of the language of the narcotic. At most, the use of the word may be classified as vulgar but it is not obscene . . . and the determination of the Board of Regents is annulled.”6

In addition to defending the right to use indecent language in the film, London took aim at the statute, claiming that New York’s censorship law violated the First Amendment. The court dismissed this theory with a single sentence: “The presumption that the section is constitutional prevails.”⁷

London continued to protect and expand First Amendment rights. Lenny Bruce engaged London after another arrest following a performance at New York’s Café Au Go Go. But as the trial became protracted Bruce’s personal issues interfered. He dismissed London to represent himself pro se. The strategy did not work. Bruce was convicted. Appling Roth, the court found Bruce’s performances “were obscene, indecent, immoral, and impure. The monologues contained little or no literary or artistic merit. They were merely a device to enable Bruce to exploit the use of obscene language.”⁸

Despite Bruce’s conviction, dirty words were becoming a louder and more frequent occurrence in American culture. Elizabeth Taylor, the icon of Hollywood refinement, spewed coarse language on-screen in Who’s Afraid of Virginia Woolf? (1966). According to Life magazine, Virginia Woolf contained “eleven ‘goddamns,’ seven ‘bastards,’ five ‘sons of bitches,’” and “assorted graphic phrases such as ‘screw you,’ ‘up yours,’ and ‘hump the hostess.’”⁹ The film arrived at an auspicious time for First Amendment advocates; the MPAA was in flux.

After Will Hays retired in 1945, Eric Johnson (1896–1963) filled his post at the newly renamed Motion Picture Association of America. Johnson’s administration saw a loosening of the production code. When Johnson died in 1963, the MPAA’s top post remained vacant for three years. In 1966 Jack Valenti (1921–2007) was selected to head the organization. Under Valenti the Hays Code was finally put to rest, but the new rating calibration would not be finalized until 1968. It was during this interim that Virginia Woolf slipped through the system with a mere “Suggested for Mature Audiences” proviso. Virginia Woolf was released at an opportune moment.

Whereas Lenny Bruce’s vulgar vocabulary was punished, Virginia Woolf opened the door for certain words and phrases that had been previously considered indecent. The next challenge would become a cultural touchstone. FCC v. Pacifica Foundation centered on a broadcast of comedian George Carlin’s satiric twelve-minute monologue entitled “Filthy Words.” This case would define indecency and determine when and where regulation of content would be permitted.

Carlin’s monologue was broadcast on a Pacifica-owned radio station in New York around 2:00 p.m. on October 30, 1973. Prior to the broadcast the station warned listeners that the monologue included “sensitive language which might be regarded as offensive to some.” The warning was accurate, if understated: Carlin riffed on and exuberantly repeated the words shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. A few weeks later the Federal Communications Commission (FCC) received a complaint. Although the commission had been authorized to regulate the airwaves since 1948, as had its predecessor, the Federal Radio Commission, since 1927, the agencies had not exercised their influence.10 Carlin’s “Filthy Words” woke the sleeping giant.

New York’s court upheld the FCC’s authority to regulate radio transmissions. The case was appealed and granted certiorari by the Supreme Court to determine whether the FCC’s regulation amounted to state-sponsored, content-based censorship that contravened the First Amendment. The Court was faced with defining indecency vis-à-vis obscenity. FCC v. Pacifica Foundation construed indecency as a mechanism to protect young audiences. Justice Stevens wrote, “The concept of indecent is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.”¹¹ Indecent language was not obscene but may be subject to certain regulations.

The Supreme Court construed the issue narrowly, determining only whether the First Amendment prevented a state actor (the FCC) from restricting the public broadcast of indecent language. The Pacifica decision catalogued several types of speech that fell outside constitutional protections, such as communications calculated to provoke a fight, see Chaplinsky v. New Hampshire (1942), or incitement to imminent lawless action, see Brandenburg v. Ohio (1969). These could readily be regulated by state actors. The Court recognized limitations on commercial speech as well as defamation, libel, and blackmail. Obscenity was also in the unprotected category. But Carlin’s cursing fell into none of these classes.

At first the Pacifica decision seemed to favor Carlin’s freedom to spew indecent speech. The Court recognized that “the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.”12 Then the prevailing winds changed direction: “In this case it is undisputed that the content of Pacifica’s broadcast was vulgar, offensive, and shocking. . . . [W]e must consider its context in order to determine whether the Commission’s action was constitutionally permissible.”¹³ From here it was downhill for Carlin. Due to the pervasiveness of broadcast media, its accessibility to children, and the logistical impossibility of completely shielding listeners with prior warnings, the FCC’s regulations—construed as time, place, and manner restrictions, not as government censorship of content—were permissible. Although Carlin’s monologue was protected speech—both parties agreed that it was not obscene—it was nevertheless subject to certain regulation.

Regulations on the time, place, and manner of speech receive intermediate scrutiny. Intermediate scrutiny is a lesser level of review than that imposed upon regulations geared to the content of speech. Under intermediate scrutiny the state may impose reasonable restrictions on otherwise protected speech, provided that the restrictions (a) are content neutral, (b) are narrowly tailored to serve a significant government interest, and (c) leave open alternative channels for communication.¹⁴ Pacifica came down to 5–4 vote. The narrow holding considered relevant factors such as the audience, medium, time of day, and method of transmission as well as the availability of limited sanctions that could be constitutionally invoked against a broadcast of offensive words.

Nearly simultaneous with Pacifica, the MPAA was revamping its rating structure. By 1972 the MPAA abandoned the production code in favor of a tiered rating system that categorized motion pictures based on age-appropriate content.¹⁵ This was not a new idea. In the early 1960s New York assemblyman Luigi Marano (R-Brooklyn) introduced a bill to recalibrate the rating system.¹⁶ Marano was not alone. In 1963 the city’s chief censor, Dr. Hugh Flick, also proposed reclassifying movies based on age.¹⁷ Both plans were tabled a full decade before the MPAA ultimately adopted similar measures.

Age-based ratings replaced the outdated production code in 1972, but the new system proved to be a slippery endeavor. Within six years the system was overhauled. Six years after that, in 1984, the system was again fine-tuned and a new rating introduced, PG-13, for increased levels of violence and coarser language that did not reach the R-rating threshold. By 1990 NC-17 was introduced and the single “X” was phased out.

The rating system slid toward more permissive regulations. Just three years after PG-13 was established, harder profanity was permitted; Adventures in Babysitting (1987) dropped the F-bomb two times. By 1988 sporadic F-words slipped into several PG-rated films, such as Big (1988) and Beetlejuice (1988), despite the availability of the PG-13 rating. By 2002 PG-13 movies were permitted the use of one nonsexual “fuck.” But even this rule was flexible. The Hip Hop Project (2006), a documentary on mentoring troubled teens, used the F-word seventeen times. Gunner Palace (2004), a documentary on soldiers in the Gulf War, dropped the F-bomb forty-two times. The MPAA assigned PG-13 ratings to both films but maintained that these were exceptions to the rule regarding profanity in PG-13 motion pictures: “The official edict from the MPAA’s Classification and Ratings Administration’s guidelines lays out that, [a] motion picture’s single use of one of the harsher sexually-derived words, though only as an expletive, initially requires at least a PG-13 rating. More than one such expletive requires an R rating, as must even one of those words used in a sexual context.” The agency went on to qualify this rule: “The guidelines also add that if two-thirds of the ratings board members hold the view that multiple F-words are being used in a legitimate context or manner or are inconspicuous, the film is still eligible for its PG-13 rating.”18

As curse words were slipping into PG-rated films, cable channels gleefully released torrents of profanity on the small screen. While broadcast networks were subject to the FCC, cable TV was beyond the agency’s reach. Trey Parker and Matt Stone taunted the commission in a South Park episode airing on Comedy Central. “It Hits the Fan,” (2001) used the word “shit” and derivatives such as “shitty,” uncensored, 162 times—or an average of once every eight seconds for the duration of the twenty-two-minute program. Additionally, the word was seen written another thirty-eight times, bringing the total to two hundred shits. On HBO an episode of The Wire entitled “Old Cases” (2002) used the word “fuck” thirty-eight times in a period of three minutes and forty-five seconds. As cable and satellite channels grew more popular, the FCC was powerless to enforce regulations against them.

The commission’s oversight was restricted to broadcast television, where an equilibrium was maintained. From 1978–1987 no indecency actions were filed;¹⁹ but moving into the new millennium, the FCC renewed its mission, targeting the broadcast of fleeting expletives. At the 2002 Billboard Music Awards, Cher commented in an acceptance speech, “I’ve also had my critics for the last forty years saying that I was on my way out every year. Right. So fuck ’em.” The remark was broadcast on Fox unedited. At the 2003 Billboard Music Awards Nicole Richie, promoting her reality show The Simple Life, joked, “Why do they even call it The Simple Life? Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.” Again the comment was broadcast on Fox before it could be bleeped. At the 2003 Golden Globe Awards, broadcast on ABC, U2 won best original song, and singer Bono accepted the award, saying, “This is really, really, fucking brilliant.”20

The FCC initially denied complaints from the Parents Television Council (PTC) that the statements were indecent or obscene. The remarks were deemed not actionable because they “did not describe, in context, sexual or excretory organs or activities and . . . the utterance was fleeting and isolated.”²¹ Abiding by the Connection rule, the commission deemed the majority of the celebrity curses expressive, not descriptive. Furthermore, they were live, improvised, and not repeated. The PTC did not relent. Bowing under pressure, the commission revised its stance in March 2004: “Given the core meaning of the F-Word, any use of [the] word or a variation, in any context, inherently has a sexual connotation.”²² The FCC filed claims against the networks.²³

Prior to the FCC’s revised 2004 policy, fleeting, unrepeated profanities were overlooked. As early as 1978 the FCC held that the single use of an expletive in a program that aired at 5:30 p.m. would not trigger an action under the holding of Pacifica.²⁴ The commission reaffirmed the policy in 2001, holding that material was not indecent if an utterance is a mistake or isolated: when a newscaster mistakenly said, “Oops, fucked that one up,” the FCC held that there was no indecency because of the accidental nature of the broadcast.²⁵ With the 2004 policy change, the commission would ban even a single, fleeting, accidental use of such a word.

Fox challenged the commission’s revised policy but was rejected by the Supreme Court. In FCC v. Fox Television Stations, Inc. (“Fox I”), Justice Antonin Scalia spoke for the 5–4 majority: “The Commission’s change in policy and its order finding the broadcasts actionably indecent were neither arbitrary nor capricious. . . . The agency’s reasons for expanding the scope of its enforcement activity were entirely rational . . . the [F-]word’s power to insult and offend derives from its sexual meaning. And the Commission’s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits the context-based approach we sanctioned in Pacifica. Even isolated utterances can be made in pandering, vulgar and shocking manners.”²⁶ While Scalia’s opinion was consistent with the time, place, and manner restrictions enunciated in Pacifica, Fox I overrode the guiding rationale that had been effective since the Connection case. Previously, when an indecent word or profanity was used in a nonliteral sense (e.g., “fucking brilliant,” “I need some shit”), the fleeting, nonrepetitive utterance was not considered actionable indecency. Scalia changed this presumption. He wrote it was “certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words.”27 The case was remanded to consider constitutional issues surrounding the fleeting and nonrepetitive expletive rule.

The second round (“Fox II”) returned to the Supreme Court in 2012. This time the Court parsed the regulation with three issues in mind: first, whether it was sufficiently clear to put broadcasters on notice; second, whether the regulation complied with due process under the Fifth Amendment; third, whether the FCC’s de facto censorship complied with the First Amendment. The majority found that Fox did not have sufficient notice of proscribed language despite the commission’s contention that the network should have known Cher’s and Nicole Richie’s comments were actionably indecent even before the 2004 code revision. Without sufficient notice, the FCC’s actions violated due process under the Fifth Amendment. On the issue of free speech, the Supreme Court punted: “Because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy.”²⁸

As dirty words were filtered out of broadcast media, motion pictures moved in the opposite direction. Trending over four decades, profanity intensified in the cinema. In Brian De Palma’s Scarface (1983), the word “fuck” was uttered 207 times during the film’s 170-minute duration, for an average of a curse every forty-nine seconds. Scarface was one of the final films to be marked with the prohibitive X rating,²⁹ but this was negotiated down to an R rating and thus began a slippery slope. Less than a decade later Goodfellas (1990), with a running time of 146 minutes, threw down three hundred “fucks”—averaging a curse every twenty-nine seconds. Scorsese bested himself with The Wolf of Wall Street (2013), which contained a record 506 “fucks” during its 180-minutes running time—or a fuck every twenty-one seconds.³⁰

An interesting example of calibrating the intensity of various vulgar words was seen in The King’s Speech (2010). The MPAA assigned an R rating to the film based on its frequent use of profanity. In the picture, an unconventional therapist (Geoffrey Rush) guides King George VI (Colin Firth) to overcome his stammer by repeating curse words. The streams of profanity are relevant, possibly fact-based, and arguably essential to the plot and character development. After winning four Academy Awards for the film, the Weinstein Company prepared a PG-13 version to make the film accessible to a wider audience. Negotiating with the MPAA, changes were made to the pivotal scenes of profuse profanity. Weinstein replaced the rapid-fire F-bombs with forty-two “shits.” Working out a metric to calibrate curse words, Weinstein was able to achieve the desired PG-13 rating based on shit’s lesser vulgarity value. The question of whether this was a meaningful determination remains debatable.

According to Weinstein, the rationale for this alteration was to reach out to families and children. According to their press release, “The release of The King’s Speech PG-13 offers families nationwide access to a positive story about stuttering and overcoming obstacles and social stigmas.”31 Six months later Weinstein was less willing to negotiate with the MPAA over excluding profanity in the documentary Bully (2011).

Bully focused on the lives and deaths of two children, ages eleven and seventeen years old. Both committed suicide as a result of bullying. Directed by Lee Hirsch, the film unflinchingly documented the vulnerable students and their families. Bully drew strong reaction for scenes that vividly captured verbal and physical abuse. The film’s target audience was school-age children; however, due to the amount of profanity the MPAA assigned the picture an R rating. Standing their ground, filmmaker and distributor appealed the MPPA’s decision, petitioning for a PG-13 rating. Weinstein prevailed, claiming the victory made the film easier for younger audiences to see.³²

Curse words and profanity can be categorized as indecent expression, which was initially viewed as a subset of obscenity. While expletives were uttered in motion pictures even before the talkies, the issue came to the forefront in the 1960s. The Connection made nonliteral use of the expletive “shit” to describe drugs; such evocative use would be permitted. This was an arbitrary legal construction to be sure. Lenny Bruce began pushing the limits of free speech, but it was George Carlin’s “Filthy Words” that generated the landmark Pacifica decision that outlined time, place, and manner restrictions on speech in broadcast media. Whereas indecent language in broadcast media was contained by the FCC, self-regulation was ineffective against the rising tide of curse words in film. As the debate over indecent language continued, obscenity developed its own methodology of calibration.