Issue 89, Spring 2003

by Marjorie Heins

Of all the odd “indecency” rulings that the Federal Communications Commission has issued over the years, the silencing of Sarah Jones’s rap poem Your Revolution is the most deeply suggestive of the discriminatory nature of American censorship. Your Revolution was essentially banned from the airwaves for nearly two years before the FCC, in February 2003, reversed itself under pressure from a lawsuit by Jones.

Your Revolution is an explicitly feminist critique of misogyny in popular music. It starts: “Your revolution will not happen between these thighs,” and continues: “The real revolution ain’t about booty size/The Versaces you buys/Or the Lexus you drives “— Admittedly, the rap has sexual content, but it’s precisely Jones’s imaginative use of racy language that makes Your Revolution relevant, particularly for young African American women.

In May 2001, however, the FCC condemned Your Revolution as “indecent.” Jones sued, but a judge dismissed the case for “lack of jurisdiction.” It was while Jones’s appeal was pending that the FCC reversed the indecency finding. Its new decision found that “on balance and in context,” the sexual language in Your Revolution is “not sufficiently graphic to warrant sanction.” The decision noted that “Ms. Jones has been asked to perform the song at high school assemblies.”

The FCC turnaround is certainly a First Amendment victory, but where did an agency of government get the power to censor racy language in the first place?

The origins of this power go back to the beginning of radio. The necessity for some authority to assign different frequencies to broadcasts, combined with the view that the airwaves are a public trust, allowed government far more power over radio content than it would have over newspapers or books. When the FCC began to assert this power in the 1930s, its targets were such terms as “damned” and “by God,” used by a radio orator.

There was no definition of indecency, though, and by 1970, the need for one had become urgent. The FCC chose a radio interview with Grateful Dead guitarist Jerry Garcia for its first attempt at a definition. Garcia had complained, among other things, that “political change is too fucking slow.” In punishing the station, the FCC announced that indecency is language that is “patently offensive by contemporary community standards and wholly without redeeming social value.”

Five years later, the agency revised this standard and dropped the “redeeming social value” requirement. Ruling on George Carlin’s famous monologue satirizing taboos surrounding the “seven dirty words,” as aired on Pacifica radio, the FCC said artistic value doesn’t matter—any language that describes sex or excretion in a manner that is “patently offensive as measured by contemporary community standards for the broadcast industry” is indecent, if aired when children might be listening.

Pacifica sued, but in 1978, the Supreme Court upheld this indecency standard. The primary justification was to protect kids, who the Court majority simply assumed would be “adversely affected” by Carlin’s bawdy language. In the years since Pacifica, the FCC commissioners have used their free-floating indecency standard to censor counter-cultural ideas, sexual discussions, and language that reflects a sensibility different from their own. Yet the FCC’s censorship power would immediately be recognized as unconstitutional if the medium weren’t broadcasting.

Even in this era of unbuttoned discourse, “patent offensiveness” and supposed harm to minors from vulgar words are still such hot-button issues that it is difficult to challenge the FCC’s censorship system. But its rationale is increasingly feeble, and as the Sarah Jones case illustrates, it discriminates against art that the indecency czars simply do not comprehend. Whether by judicial fiat or political decrepitude, the indecency regime must come to an end.