The Enlightenment sages who wrote the First Amendment into the US Constitution in 1791 created the most secure legal foundation for a real democracy in history thus far. By refusing to grant government the power to shut anyone up, no matter how obnoxious, the authors of the Bill of Rights ensured that even if the worst, most corrupt idiots managed to grab power they wouldn’t be able to silence their political enemies (in stark contrast to “the divine right” of kings, who dealt with the opposition by throwing it into a dungeon.) It’s just 45 words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
What the First Amendment really grants is the power of society to maintain its own standards over those of government. Over centuries, sometimes despite the most furious opposition, individuals have increased their participation and added the force of their lives, their words, and their ideas to the culture. And so the principle of free speech is growing, slowly and unsteadily, into the truth of its logic: each person, each member of the press, each citizen can believe, think, and speak independently and without fear of oppression. The same is true of Amendments Two through Ten: the Bill of Rights is a political structure built to safeguard a democratic state, but its implications in the personal lives of that state’s citizens are immediate and profound.
Because of the ironclad protection of the First Amendment, it has proved very difficult for government to control what we can read, listen to or see. A few curbs have been put up, though, notably by the Federal Communications Commission (FCC), the regulations of which largely determine what kind of material is bleeped out of radio and television broadcasts.
There’s a temptation to believe that even so mild a form of censorship as broadcast bleeping is a curtailment of that freedom, but the truth is more complicated. Bleeping can also be understood as a vivid illustration of the First Amendment in action.
The bleep of censorship invariably draws attention to the material it was intended to conceal; circles it, if you like, by loudly omitting it. Bleeping also serves as proof that there is a watcher: someone looking out for us in advance. In the bleep lies the evidence that you are being “protected” — but by whom? Why? And from what?
In A Tower in Babel, media historian Erik Barnouw describes the invention of bleeping at the dawn of the radio age. Or proto-bleeping, I should say, since the earliest system didn’t produce a censorship sound, but rather provided the engineer with a switch to a nearby phonograph that could be flipped to play music in case any troublesome content should appear over the live microphone.
This innovation seems to have been prompted by the 1921 appearance on Newark’s WJZ of one Olga Petrova (born Muriel Harding in 1884), a famous vaudeville actress and singer known (and feared) for her strong views. Petrova was “a fanatic on birth control and always making speeches about it,” according to Barnouw. She was friends with Margaret Sanger, who founded the American Birth Control League, the organization that would later become Planned Parenthood.
One night in 1921, Petrova, then engaged at a Newark theater, went to the local radio station WJZ to perform. The Great War had just ended, during the course of which the government had forbidden the use of private radio equipment. After the armistice the Navy tried to retain monopoly control of radio, but Congress put a stop to their power grab. Wartime restrictions were lifted, but the pioneers of broadcasting such as those at WJZ were mindful of potential government interference, and Petrova had a reputation as a firebrand. She disarmed her hosts by announcing that she would be performing her own versions of Mother Goose rhymes, and then proceeded to read the following:
There was an old woman who lived in a shoe, She had so many children because she didn’t know what to do.
The 1873 Comstock laws, which banned the distribution of “obscene” materials, including information about contraception, were still in force; Petrova had, arguably, kind of broken the law.
The means for censoring broadcast content came years before the emergence of the first national broadcast network
“The staff was terrified,” Barnouw relates. “They were certain there would be trouble from Washington. Westinghouse [then owner of WJZ] executives were already nervous about possibilities of this sort, and had wondered what to do if a 'red' got on the air. An emergency switch was provided for the engineer in the shack.” Thus, he could switch to that “phonograph beside him — on his own judgment or on a signal from the studio.”
Thus it was that the means for censoring broadcast content came years before the emergence of the first national broadcast network, NBC, in 1926, and the Federal Radio Commission in 1927. By then, the technique was well established. Petrova recounts an episode that took place in 1924: she’d been reading a scene from her play, Hurricane, on radio station WOR when the red on-air light suddenly went out. Afterward, she learned she’d been cut off; the engineer told her that “radio audiences were very mixed … it wouldn’t do to offend any of their listeners.”
“One would suppose that radio audiences must be completely paralyzed,” Petrova observed dryly, “and therefore unable to turn off the switches of their own sets the instant their ears were shocked … by what they heard.”
The tug-of-war in the courts, in Congress and in the media over restrictions on free speech in broadcasting has altered very little since then. Justice William Brennan was still making Petrova’s argument in his dissent in FCC v. Pacifica Foundation (1978), the Supreme Court case involving George Carlin’s “Filthy Words” routine: “Whatever the minimal discomfort suffered by a listener who inadvertently tunes into a program he finds offensive during the brief interval before he can simply extend his arm and switch stations or flick the ‘off’ button, it is surely worth the candle to preserve the broadcaster’s right to send, and the right of those interested to receive, a message entitled to full First Amendment protection.”
Decades later, Stephen King repeated the sentiment in a 2002 interview: “If [Howard Stern] is saying stuff that you don’t like, if it offends you, you got a hand, you reach out, take hold of the knob, turn it off. He’s gone, goodbye … You don’t need a politician in your living room to say you’ve got to put a Band-Aid over that guy’s mouth.”
Society is often compared to a single organism, “the body politic” or “the hive.” The increasing interconnectedness of people, of groups and nations, makes this analogy seem truer and more obvious all the time.
If the hive has a mind, it has also an id: the primitive, unconscious, instinctive part of our collective nature. It is also as uncontrollable and strange as the id of an individual person, that dark wild substrate of the psyche Freud called “a cauldron full of seething excitations … filled with energy reaching it from the instincts.”
“I could kill you” is the standard illustration of the id in a single mind: the fleeting, instinctive impulse that the superego effortlessly represses. The collective id is limitlessly more complicated; it contains all our boundless shades of darkness and all our craziest, most selfish impulses. It is the total of all we are ashamed or alarmed or unhappy to feel, and everything we would prefer to keep behind the curtain. The collective id is what is bleeped or censored out of our media, which is really just another way of saying our shared consciousness.
Society’s relationship with the dark side of its own nature is complex and contentious; it’s a struggle that is always clearly visible in our comedy. Stand-up comedy in particular is intimately concerned with “crossing the line” in order to confront us with the truth about ourselves. Lenny Bruce might be the best practitioner of this kind of stand-up; he was like a firehose for the collective id, like the role played today by Kanye West, Lewis Black, or Lady Gaga. Bruce’s personal life was very troubled, but it was also his consummate skill in shocking the establishment that led him to be repeatedly harassed, arrested, and jailed.
By the way, are there any niggers here tonight?
[in a whisper] “What did he say” “Are there any niggers here tonight?” “Jesus Christ, is that cruel. Does he have to get that low for laughs?…”
Are there any niggers here tonight? I know that one nigger who works here, I see him back there. Oh, there’s two niggers, customers, and ah, aha! Between those two niggers sits a kike — man, thank God for the kike!… The point? That the word’s suppression gives it the power, the violence, the viciousness.
Dig. If President Kennedy got on television and said, “Tonight I’d like to introduce the niggers in my cabinet,” and he yelled “nigger nigger nigger nigger nigger nigger” at every nigger he saw, “boogey boogey boogey boogey boogey, nigger nigger nigger…” ‘till nigger didn’t mean anything anymore, till nigger lost its meaning — you’d never make any four-year-old nigger cry because somebody called him a nigger in school.
This routine is 50 years old, but it still is very moving, still has the power to create discomfort, even anxiety. It’s hard to say how much grief Lenny Bruce would have been given for writing and performing it today — one imagines he would have faced a lot of criticism from both extremes of the political spectrum — but it would be possible to watch on cable now, and on the internet, at least for the moment. Still, this performance couldn’t appear on ordinary television, at least not without so many bleeps as to render it entirely incomprehensible.
Luckier performers have made a success out of flouting conventional morality. In a notorious appearance on Late Night with David Letterman 1994, Madonna (whom Letterman introduced by dryly observing that she had “slept with some of the biggest names in the entertainment industry”) smoked a cigar and said “fuck” 13 times. Letterman faux-innocently asked, “You realize this is being broadcast, don’t you?”
You might say that our relations with the cultural id provide a simple, accurate litmus test for what, in the end, separates the liberal from the conservative in matters of social policy, and determines his real attitude toward speech rights. Social liberals are in a state of détente, or perhaps even on speaking terms, with the beast within, while social conservatives still seek to shame, repress, and somehow eradicate it.
That’s part of the reason why bleeping itself is inherently so funny. The bleep is the shock of a hidden truth revealed: an explicit illustration of the superego’s casual strangling of an unwanted, unworthy impulse; the knowledge that this struggle is always going on beneath the relatively untroubled surface of daily life. First it was unconscious, and now it’s not.
Shortly after it became a familiar convention, the bleep became the subject of comedy in its own right. This kind of humor has a long pedigree. There’s “Elderly Man River,” a lovely bit from Stan Freberg’s 1957 radio show in which a persnickety censor, Mr. Tweedly of the Citizens Radio Committee, noisily and self-righteously bowdlerized a performance of the song “Old Man River.”
The writers of Arrested Development are masters of this comic technique, repeatedly pushing the envelope. They snuck the word “fucking” past prime time television censors by putting half the word at the beginning of the show, and half at the end.
It’s in the nature of certain artists to bend societal restraints to their own ends
But it was with the aid of censor bleeping that Arrested Development reached the summit of its satiric genius. The show’s creator, Mitch Hurwitz, told Neda Ulaby of NPR, “We realized, you know, it’s more fun to not know exactly what it is that we’re saying … It becomes kind of a puzzle for people. And I think it’s about, you know, letting your imagination do the work.”
It’s in the nature of certain artists to bend societal restraints to their own ends. In 1999’s “My Name Is” Eminem needlessly substituted the phrase “Hi kids, do you like Primus” for the original, “Hi kids, do you like violence” in the “clean” radio-friendly version of the song. This produced a new, veiled joke. Primus, who composed and performed the South Park theme song, is well-known for a certain penchant for all things frowned on by the FCC. If Eminem wasn’t to be permitted to tease the youngs for their attraction to violence, then he would surreptitiously tease them for liking “Wynona’s Big Brown Beaver.”
A more recondite instance of the comedic meta-bleep came in the inaugural episode of that deceptively moronic Comedy Central sitcom, Workaholics. It’s a layered, nuanced comment on the different kinds of mediation and restraints between performer and audience: technical, editorial, societal, legal. In one scene, our slacker heroes discuss the dubbed profanities in a cable broadcast of Die Hard.
Adam: Yo, Kyle, what’s up?
Kyle: It’s almost the ending, bro. It’s Die Hard.
Adam: Did they just say, “clucking”?
Blake: Yeah it must be on cable, so they switch the swear words out?
Adam: Oh Carl Winslow, I’d forgot about him!
Anders: Did you know Reginald VelJohnson wasn’t actually originally cast—
Karl: Shut the cluck up.
[Anders snatches Kyle’s snacks away, Kyle says “fuck” — and it is bleeped out.]
The fantastic confusion produced by South Park’s depictions of Mohammed resulted in the collision of the meta-bleep with the real thing in “Episode 201.” In this episode, the people of South Park have to trade Mohammed to Tom Cruise and his gang of angry celebrities in exchange for their dropping a class action suit, but nobody has reckoned with the Ginger Separatist Movement, and it just gets crazier from there.
There could be no doubting the real danger in making critical portraits of Islam after Dutch director Theo Van Gogh was gunned down by a radical Islamist in Amsterdam in 2004 for having made a documentary film censuring the treatment of Islamic women. So, shortly after the airing of South Park ”Episode 200,” when a group called Revolution Muslim threatened violence against the show's creators, Matt Stone and Trey Parker, in a blog post claiming that the two would “probably end up like Theo Van Gogh” for their comic portrayal of Mohammed, Comedy Central wasn’t prepared to take any chances. The studio added its own real censor bleeps to the comic ones written in by Parker, and additionally bleeped out three long speeches in their entirety. To this day the uncensored version of “Episode 201” is not available to stream or buy.
The Supreme Court has revisited FCC restrictions governing radio and broadcast television a number of times (federal laws don’t govern cable television, which is regulated locally). The federal laws guide “Obscenity, Indecency, and Profanity” (the FCC provides a handy fact sheet outlining the differences).
In order to be considered obscenity, the material in question must pass a three-pronged test: first, it has to “appeal to the prurient interest,” or be be liable to turn the average person on sexually; secondly, it must describe sexual conduct “in a patently offensive way;” and finally, “the material taken as a whole, must lack serious literary, artistic, political or scientific value.” The last is how both Ulysses and Lolita slide out of being considered “obscene.”
"So, fuck 'em. I still have a job, and they don't."
Indecency, as defined by the FCC, is a much broader category, and can be anything that offensively describes “sexual or excretory organs or activities.” So, pooping, farting, mentioning of the peen. And profanity is just “offensive language,” expletives and the like.
But because the community’s word is the real law, the FCC can’t decide on its own what is offensive and what isn’t; not because they are sensible or thoughtful or even have half a brain, but because freedom of speech is the law. Hence the FCC must rely on actual complaints received from members of the public in order to take action or levy fines against anybody. Otherwise they would likely be sued, and they would lose. Though cable networks aren’t directly affected by FCC indecency regulations, they still must answer to audiences and advertisers. This is how the First Amendment is supposed to work: strategies for arriving at a consensus must be developed by the community itself. Hence the modern censors of the cable era: the Standards & Practices departments at each cable network. These departments comb through every second of material broadcast, and try to make sure that the work is suitable for their wide audiences. This work requires a lot of sensitivity: it’s a balance, and is about making material available to interested audiences, as well as forbidding that which is likely to offend. (Robert Pondillo’s 2010 book, America’s First Network TV Censor: The Work of NBC’s Stockton Helffrich, documents early network censorship).
When Cher received a Lifetime Achievement Award at the Billboard Music Awards in 2002, Aerosmith’s Steven Tyler introduced her, shouting gleefully, “She’s got 19 patents on her ass!” And when she took the stage, she said:
I’ve worked really hard, I’ve had great people to work with… and… oh, you know what? I’ve also had critics for the last 40 years saying I was on my way out every year, alright? So, fuck ‘em. I still have a job, and they don’t.
This moment, among other similar ones, was described in the Supreme Court filings in FCC v. Fox Television Stations, Inc. (2012). They weren’t worried about Steven Tyler’s “assless pants” comment, only about the single word, “fuck,” that Cher had nonchalantly dropped.
In the years of Bush II, Congress and the FCC broadly expanded their indecency policies, eventually deciding that networks could be fined up to $325,000 for “fleeting” indecencies such as the inadvertent flash of a boob, or a casual expletive like Cher’s. But the court held that the FCC couldn’t reasonably fine broadcasters for “fleeting expletives” and “momentary nudity” after the fact, because their regulations were “unconstitutionally vague,” so that broadcasters could not be sure of exactly what to avoid in advance. The judges stopped short of saying that the FCC’s indecency regulations violate the First Amendment: they just said, y’all need to figure this out.
If the Supreme Court ever decides that the FCC has no right to enforce indecency regulations, there will never be another bleep.
It’s quite possible that the day will arrive, if the outcome of Hustler Magazine v. Falwell (1988) is any indication. Here, the Supreme Court considered the matter of a satirical ad in Hustler, claiming that Moral Majority leader Reverend Jerry Falwell had lost his virginity to his mother in an outhouse while the two of them were “drunk off our God-fearing asses on Campari.” Hustler’s publisher, Larry Flynt, spoke about the case in an interview with Ken Paulson of the First Amendment Center.
Paulson: Falwell sued you, and at the lower court, he actually won in a very strange way. Not for libel, because no one could believe that there was any truth to it, but because you were, in effect, mean to him; intentional infliction of emotional distress.
Flynt: They wanted me to pay Reverend Falwell $200,000 because I hurt his feelings. My attorney says “Pay it,” because he was suing me for $50 million. He said it will cost you $2 million to take it to the Supreme Court. I said, “Well, that’s where we’re going,” and we lost in the Fourth Circuit. It wasn’t looking very good then, and no one thought that the Supreme Court would ever grant cert, and they did. And their decision was unanimous. I remember Justice Rehnquist’s words even so clearly today. He said, “Simply because the government finds speech offensive does not give them the right to repress it… And I don’t think it was the Supreme Court siding with me over Reverend Falwell. I think that they were looking at the practical implications of the decision if they would have ruled the other way.”
ADVENTURE TIME AT SAN DIEGO COMIC-CON
Maria Bustillos: The FCC indecency regulations, as I understand them, are to do with sexual activity and excretory functions: bodily functions, basically. How much do you have to think about these regulations as you go about your work?
Adam Muto (Supervising Producer, Adventure Time): A lot of it’s done internally, actually. We have our own S&P [Standards & Practices] department [at Cartoon Network]. So it never has come to the FCC ruling against us. The tone of the material is really dark, but that’s not the hard stuff to get through. The hard stuff to get through is the more obvious, like, scatological targets.
Kent Osborne (Head of Story, Adventure Time): The poop is always internal.
[eyebrows raised around the table]
MB: Well, hmm, eventually, though—
KO: It becomes external.
MB: These regulations are very much about what children should or should not be exposed to; to protect their innocence, you might say. Your stuff is pitched at children: what do you think about exposing them to nihilism, the end of the world, the apocalyptic themes you guys go in for? It’s serious business.
AM: Yeah it’s serious, but I don’t think it’s beyond the pale, or that it’s something that they’re not seeing anywhere else. Childhood’s sort of… I mean, I was a really depressed kid, at times. Wouldn’t you want to see that reflected in what you’re watching?
The Petrovas of today, should they come on the radio and make reckless remarks, might be dealt with by means of an Eventide BD960 Broadcast Obscenity Delay, also known as the “dump button.” The dump button delay system is different from bleeping in that the edit is concealed completely from the audience. Before the invention of the dump button, this kind of hidden cutting was often done with tape delays. As sound engineering consultant Gary McAuliffe explained at Part15, a low-power radio broadcasting forum:
Take two identical recorders, place side by side 10’ apart (assuming 15 ips tape speed.) Record on one machine, but run the tape to the take up reel on the second deck, which plays the tape. This gives you about 7 seconds to catch the S word. We used to do this all the time on any call in show back in the ’70s. You need closely matched machines, otherwise, you wind up with either tape on the floor or broken tape… Back then the FCC was really strict, so we took no chances……
The dump button provides a relatively insidious, more censorship-like form of editing, because its alteration of the original broadcast has been actively concealed. If we are to have disagreements about what constitutes acceptable media for a civilized general audience — and we should — they should be aired in every possible way. Through a very loud bleep, for example. And through litigation, and yes, complaints to the FCC. Through arguments at dinner tables and letters to the editor. A bleep is honest, immediate, noisy. It’s the cultural superego in motion, calling attention to a difference of opinion regarding the offensiveness of the bleeped material. Here is this questionable thing; think about it for yourself, investigate if you like. In this way, the bleep is a literal demonstration of First Amendment principles: the 1KHz-sound of a community actively engaged in the process of establishing standards, and struggling to understand itself.
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