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Commentary

The Strange Case of Sarah Jones

By Marjorie Heins

Of all the odd "indecency" rulings that the Federal Communications Commission has issued over the years, the ongoing case of Sarah Jones and her rap poem Your Revolution is the most deeply suggestive of how censorship operates in America.

As many commentators have remarked, Jones's poem is explicitly feminist, deeply political, and a powerful critique of misogynist messages in both hip-hop and rock music. For the FCC to brand this work as indecent and essentially ban it from the airwaves - as it did in May 2001 by imposing a $7,000 fine on the radio station that played it - betrays both the discriminatory nature of American censorship and the unwillingness of those in power to appreciate an artwork and a message that has particular relevance for young African American women.

The rap, admittedly, has racy language. 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 …
Your notorious revolution
Will never allow you to lace no lyrical douche in my bush
… Your revolution will not be you smacking it up, flipping it or rubbing it down
Nor will it take you downtown, or humping around … 1

But it's precisely the free (and imaginative) use of sexual language here that makes the rap empowering. As the DJ who played the poem at Portland, Oregon's public radio station KBOO, said: "Jones's song is inspirational. It says it's cool, you can be in the hip-hop game, but you don't have to be no 'ho."2

And where did an agency of the federal government get the power to censor racy language anyway? Expression that is nowhere near "obscene" within the legal meaning of the term, and therefore fully protected by the First Amendment?

The origin of the FCC's odd power to censor the airwaves goes back to the beginning of broadcasting, when it was necessary for some authority to assign different frequencies to different broadcasts so that their signals did not interfere with each other. Because of this initial need for licensing, and because the airwaves were thought to be a public trust, it was assumed that government had more power over broadcasting content than it would have over newspapers or books. When the FCC started to assert this power in the 1930s, its targets were such terms as "damned" and "by God," as used by a radio orator. By the 1960s, the commission was still so prudish that it found wordplay such as "Bloomersville" (for Bloomville) to be punishable, and refused to renew the license of the offending radio station.3

There were no standards by which to measure "indecency," however, and by 1970, the need for a definition had become urgent. The FCC was continually threatening countercultural radio stations such as the Pacifica chain with indecency sanctions. To define indecency, it chose a case involving a Philadelphia station that broadcast an interview with Grateful Dead guitarist Jerry Garcia, who had complained on-air, among other things, that "political change is too fucking slow." The FCC, in punishing the station, now announced that indecency was any language it considered "patently offensive by contemporary community standards and wholly without redeeming social value."4

Five years later, in the famous "seven dirty words" case, the agency revised its standard and dropped the requirement that indecency had to lack redeeming social value. Now, ruling on a complaint about George Carlin's famous Filthy Words monolog, which hilariously satirized taboos surrounding common four-letter words, the FCC said it would ban as indecent any language, no matter what its artistic value, that aired when a child might be listening, and that described sexual or excretory activities or organs in a manner that was "patently offensive as measured by contemporary community standards for the broadcast medium." The offending radio station this time was Pacifica's New York's affiliate, WBAI, which had broadcast the Carlin monolog as part of a program examining society's attitude toward language.

Pacifica sued, but in 1978, the Supreme Court upheld the FCC's power to censor broadcasting under the indecency standard. The primary justification, said Justice John Paul Stevens for the Court's narrow 5-4 majority, was to protect kids, who the justices simply assumed would be "adversely affected" by George Carlin's bawdy language. Moreover, said the Court, the government wasn't really banning vulgar speech; it was only requiring that it be aired late at night, when children supposedly aren't listening.5 Which is a bit like telling an artist to exhibit his work in a closet, or a writer that her book can only be sold after 10 pm.

Fast forward to 2001, and the FCC applied the broad, subjective indecency test to another nonprofit, public radio station, for playing Jones's Your Revolution. Language that's funny, inventive, and deeply resonant with inner-city girls and women was condemned as "patently offensive" and "designed to pander and shock." The FCC's cursory decision ignored the value of Jones's poem, and brushed aside KBOO's explanation of the political meaning and cultural context of the work.6

With the help of People For the American Way, Jones sued the FCC for banning her poem from the airwaves. But in September 2002, a federal judge in New York dismissed the suit for "lack of jurisdiction." The judge, Denise Cote, asserted that since the case was still before the FCC, it would be premature for a court to act. (The FCC is in the habit of issuing fines that can be appealed within the agency; then delaying any decision on the appeal indefinitely.) Moreover, Cote said, complaints against the FCC must go to federal appeals courts, not district courts, in most circumstances.

Jones has appealed the ruling. She relies on a case decided seven years ago, in which jurisdiction was found to review the FCC's censorship regime. On the merits, though, two judges in that case said the agency's practice of holding indecency findings over the heads of licensees for long periods of time was pretty bad, but not quite unconstitutional. One judge dissented, saying that the commission's "unbridled discretion" to police the airwaves, combined with its life-and-death power over broadcasters when it comes to renewing licenses, clearly violated the First Amendment.7

Jones should win on appeal, but the courts tend to be reluctant to rein in the FCC. This has much more to do with politics than law. Censoring language under the broad, vague indecency standard would immediately be recognized as unconstitutional if the medium in question weren't broadcasting. But "patent offensiveness," standards of civility, and supposed harm to minors from vulgar words are still hot-button political issues. Even in this era where hundreds of cable channels compete for our attention with millions of Web sites (none of them hampered by indecency restrictions), the notion persists that broadcasting is uniquely subject to censorship because it is pervasive, "invades" the home, and may be easily seen or heard by children.

Thirty-three years ago, when there were liberal FCC commissioners, two of them dissented in the Jerry Garcia case, observing that "what this commission condemns today is not words but a culture, a lifestyle it fears because it does not understand." Jerry Garcia was not trying to titillate the audience, they said; "apparently this is the way he talks, and I guess a lot of others in his generation do so too."8 Not much has changed, evidently, for their observations apply equally well to the strange case of Sarah Jones.9

January 24, 2003

UPDATE: On February 20, 2003, the FCC reversed itself - see News: FCC Declares Your Revolution not Indecent After All.

NOTES

1. The full text of Your Revolution can be found on the FCC's Web site, http://www.fcc.gov/eb/Orders/2001/da011212.doc

2. Deena Barnwell, quoted in Chisun Lee, "Counter Revolution," Village Voice, June 20-26, 2001.

3. See Marjorie Heins, Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth (Hill & Wang, 2001), 90-93.

4. In re WUHY-FM, Eastern Education Radio, 24 FCC 2d 408 (1970).

5. Federal Communications Commission v. Pacifica, 438 U.S. 726, 750 (1978).

6. In the Matter of the KBOO Foundation, File No. EB-00-IHD-0079 (May 14, 2001), http://www.fcc.gov/eb/Orders/2001/da011212.doc.

7. Action for Children's Television v. Federal Communications Commission, 59 F.3d 1249 (D.C. Cir. 1995).

8. In re WUHY-FM, Eastern Education Radio, 24 FCC 2d 408, 418-23 (1970) (Nicholas Johnson and Kenneth Cox, dissenting).

9. Sarah Jones's Web site is at http://www.sarahjonesonline.com.


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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