“I saw the best minds of my generation destroyed by madness” begins the epic poem Howl by Allen Ginsberg. Fifty years ago today, a San Francisco Municipal Court judge ruled that the Beat-era poem was not obscene. , in an ironic twist, a New York public broadcasting station (WBAI) has decided not to air the poem because of fears the Federal Communications Commission will find the poem indecent and cripple the station with fines. The chill against free speech is alive and well.
WBAI’s fear of crippling fines is not unfounded. Howl contains multiple profanities, and each profanity could earn a fine of $325,000. Multiply that by each Pacifica station that airs the poem and it could mean a fine of millions of dollars. With a budget of $18 million for its five stations, a multimillion dollar fine would be crippling.
Ironies abound in this case: (1) WBAI’s decision not to air the poem occurs on the anniversary of the court’s finding Howl not obscene; (2) WBAI, a listener-supported station, will include a reading of the poem on a special online-only program called "Howl Against Censorship." You can hear the reading at . So while you can't hear Howl on the radio, you can hear it on the Internet; and (3) WBAI is no stranger to the FCC. This is the same station that challenged the FCC more than 30 years ago over the right to air George Carlin's "seven dirty words" routine on the air. That case, , forms the basis for today's indecency regime.
The censorship of Howl is only the latest in a series of events demonstrating the absurdity of the FCC's indecency regime. Ken Burns' latest documentary "The War" was censored by various PBS stations over concerns about four profanities contained in the 14 hour movie. At last month's Emmy Awards broadcast, Fox censored three instances in which performers said words Fox feared would result in fines. Ray Romano was censored for using the word "screwed." Katherine Heigl mouthed, but did not say "shit." And Sally Field was censored for using the word "goddamn” to describe her opposition to the Iraq war.
Contrast the fear over “fleeting expletives” with "Saving Private Ryan" in which profanities abound. In 2004, some stations refused to air the movie. For those who did air it, a complaint was filed with the FCC. Could it be that because the FCC liked this movie, it found that the multiple expletives were not indecent? It's no wonder broadcast executives are running scared.
The FCC's policy on "fleeting expletives" is being challenged in the courts. The overturned the policy, and the administration is seeking review by the United States Supreme Court. Meanwhile, the Third Circuit Court of Appeals heard oral arguments in a similar case on September 11 of this year. A decision in that case is still pending.
Congress meanwhile is intent on keeping the FCC in the role of the nation's nanny. Two bills authorize the FCC to continue to fine fleeting expletives. easily passed the Senate Commerce Committee and is awaiting action on the Senate floor. A companion bill, has been filed in the house and is awaiting action in committee. Both bills would essentially overturn the Second Circuit decision, allowing the FCC to continue fining stations for fleeting expletives.
For too long, the has attempted to stifle free speech by forcing “decency” down the throats of the American people. While we’re not against decency, we ARE against having the government make the determination of what is decent. As the Supreme Court said in 1971, "[W]e cannot indulge in the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." It’s time that those who love free speech raise a Howl in its support.
If you want to “Howl for free speech,” here’s what you can do:
Learn more:
• ACLU Fleeting Expletives Page
• Listen to Howl at
• Contact your Senators and Congressmen. Let them know the government has no role in determining what is decent. Parents already have the tools to protect their children, and the decision as to what children see or hear should be made by the parents. For more talking points, go to www.aclu.org/bleep
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
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Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
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Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.