Will It Soon Be Legal to Say Curse Words on Broadcast Television?

Protesters gather on the steps of the U.S. Supreme Court - October 06, 2018 -  Getty-H 2018
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In an alternative world where the Supreme Court didn't view the telecast of oral arguments as dirtying up judicial proceedings, and such telecasts commanded Judge Judy ratings, broadcasters would have quite a decision on their hands as to whether or not to carry live Iancu v. Brunetti, which concerns the prohibition on scandalous and immoral trademarks. Specifically, the nine justices on Monday are considering whether refusal by the U.S. Patent & Trademark Office to register "FUCT" — the brand name of a clothing line — amounted to a violation of the First Amendment as viewpoint discrimination. Although the attorneys and justices are expected to mind their language during arguments, there's nevertheless potential for "shit, piss, fuck, c—, cocksucker, motherfucker and tits."

Of course, those are the infamous seven words that comedian George Carlin once listed as things you couldn't ever say on television. In 1978, in FCC v. Pacifica Foundation, the Supreme Court upheld the constitutionality of the FCC's declaratory order determining that an afternoon radio broadcast of Carlin's monologue would be indecent and potentially sanctionable. 

But will such a bar on curse words survive the Supreme Court's latest scrutiny of scandalous trademark registrations?

In determining that the USPTO's prohibition on scandalous and immoral trademarks was unconstitutional, the Federal Circuit danced around Pacifica. In its 1978 opinion, the Supreme Court justified the FCC's approach on broadcast indecency because radio at the time had "a uniquely pervasive presence in the lives of all Americans” and was “uniquely accessible to children, even those too young to read,” confronting Americans “in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.”

By contrast, trademark law is a mechanism whereby producers guard against confusion and deception in the marketplace. Attempting to explain why Pacifica didn't apply in the present controversy, the Federal Circuit wrote, "A trademark is not foisted upon listeners by virtue of its being registered. Nor does registration make a scandalous mark more accessible to children. Absent any concerns that trademark registration invades a substantial privacy interest in an intolerable manner, the government’s interest amounts to protecting everyone, including adults, from scandalous content."

Ultimately, in an opinion now being reviewed by the high court, the Federal Circuit held the USPTO had "offered no substantial government interest for policing offensive speech in the context of a registration program."

But before moving on from the potential for the legalization of indecency on broadcast television, consider how times have changed. Back in the 1970s, broadcast TV and radio were the overwhelmingly dominant form of entertainment and media. These days, there's cable television, subscription video-on-demand and, of course, the internet. Since Pacifica, the Supreme Court has refused to extend the indecency bar beyond "a situation in which a listener does not want the received message,” and with a proliferation of options to access media, one might wonder if Pacifica is somewhat outdated. Does the government still have a compelling interest in stopping a broadcaster from saying, "shit, piss, fuck, c—, cocksucker, motherfucker and tits"?

The latest case on scandalous trademarks comes less than two years after the Supreme Court struck down the registration ban on disparaging trademarks. One case begets another, and given that the Supreme Court unanimously ruled in Matal v. Tam, the odds are strongly in favor of justices deeming "FUCT" to be a registrable mark. The big question may not be the outcome but rather the scope of the forthcoming opinion in Iancu v. Brunetti.

The Trump Administration is concerned.

In a reply brief, the solicitor general wrote that the Supreme Court has never regarded laws targeting vulgarity as discriminating based on viewpoint because vulgarity has long been understood to be “offensive irrespective of any message.”

"If it were otherwise, governments could not prevent advertisers from placing sexually explicit images or profanity on city buses and billboards," continued the government brief. "Nor could they exclude such vulgar material from other limited public forums. Respondent contends that the Court’s decision here 'will not affect the jurisprudence about forums.' But even within a limited public forum, ‘viewpoint discrimination’ is forbidden. Respondent does not explain how the federal government, States, or localities could continue to keep such forums free of sexually explicit and other vulgar material, if such efforts were deemed viewpoint-discriminatory." 

If the legalization of naughty words on broadcast television and radio hasn't yet been made official, that may only be because in recent years, the FCC has been less prudish than the USPTO. In 2012, the Supreme Court ruled that the agency's indecency policies were vague and thus violated broadcasters' due process rights, but held back on addressing the First Amendment question and re-examining Pacifica. The FCC was given an opportunity to come up with new rules, and Ajit Pai at the time expressed a desire for the FCC to make its policy clear and expeditiously process a huge backlog in indecency complaints. Some broadcasters have invited the FCC to explain what's actionable, but even upon complaints like the time Stephen Colbert remarked how the only thing President Donald Trump's mouth is good for "is being Vladimir Putin's cock holster" (the comment was bleeped), the FCC hasn't really done much besides make some cursory reviews.

Without strong regulatory action on the indecency front, broadcasters may not have injury to pursue a lawsuit. Nevertheless, the coming decision in Iancu v. Brunetti will surely be reviewed thoroughly and could provide armor against any future challenge to dirty words on television.