Legal Commentary

Comedian George Carlin died yesterday of heart failure at age 71. He dies just after being named recipient of (but before receiving) the Mark Twain Prize for American Humor.

Ironically for Carlin's status as a hero of the First Amendment, his death also comes less than two weeks before the 30th anniversary of the Supreme Court's decision in FCC v. Pacifica Foundation, a case that centered on Carlin's famous, indecent-but-not-obscene "Filthy Words" routine, where the Court held that a comedy routine discussing the seven basic dirty words in the English language is not fully protected on broadcast radio and television. He also dies the term before the Supreme Court hears arguments and decides FCC v. Fox Television, a case dealing with FCC regulation of "fleeting expletives," that might, depending on what course the Justices take, tell us something how much doctrinal vitality Pacifica still has.

Of course, Pacifica remains a doctrinal outlier, a case loathed by most highly speech-protective scholars, myself included. It rested on the specious rationale that broadcast radio and television is uniquely pervasive and intrusive into the home and may easily assault unwilling listeners in their home who flip a switch not realizing what awaits them (never mind that the complaint in the case was filed by someone who heard the routine while driving in his car). The Court has spent thirty years distinguishing the case as to every other medium--cable, telephone, and the internet--although it is not clear why those media are any less intrusive or any ore likely to catch an unwilling listener off-guard. Indeed, one of the funnier arguments against the Communications Decency Act of 1996 (the first, blanket ban on indecent speech on the internet) was that it rendered unlawful the internet posting of the Pacifica opinion itself, which included an appendix containing the full text of the routine.

Ronald K.L. Collins offers more thoughts, with which I agree, on Carlin's free-speech legacy. And Deven Desai offers a different, non-free-speech, piece of Carlin's comedic best.