Digitus Impudicus: The Middle Finger and the Law - Wired

1440 University of California, Davis [Vol. 41:1403
stated that the middle finger gesture is indecent or profane, its
guidance regarding the f-word suggests that it would punish a
broadcaster for displaying the middle finger gesture on television
during times that indecency is prohibited. As a result, most
broadcasters err on the side of caution and voluntarily blur it out. 277
In FCC v. Pacifica Foundation, 278 the Supreme Court affirmed the
Commission’s ability to regulate speech that is indecent, but not
necessarily obscene, by distinguishing broadcast speech from other
forms of communication. 279 In sanctioning a radio station for airing,
during the afternoon, comedian George Carlin’s monologue on the
seven “Filthy Words” one cannot say in public, the Commission
offered four justifications for its power to regulate indecent material:
(1) children have access to broadcast material, often without parental
supervision; (2) broadcast material often is consumed in the home, a
place in which the individual’s privacy interests are entitled to special
protection; (3) “unconsenting adults may tune in a station without
any warning that offensive language is being or will be broadcast”; and
(4) the government has a responsibility to license scarce spectrum
space “in the public interest.” 280
Pursuant to these concerns, the Commission established guidelines
for determining whether speech is indecent. Although the
Commission has consistently applied a two-pronged test to determine
whether speech is indecent — determining (1) whether the speech
depicts or describes “sexual or excretory activities or organs” and (2)
whether the speech is “patently offensive as measured by
contemporary community standards for the broadcast medium” — the
Commission’s interpretation of each prong has vacillated. 281 These
277 Cf. Mooninites Shut Down Boston, FOXNEWS.COM, Feb. 2, 2007,
http://www.foxnews.com/story/0,2933,249378,00.html (reporting on guerilla
marketing campaign that went awry and created bomb scare in Boston, Fox News
blurred image of cartoon’s middle finger on its website). The device was a pixilated
image of a Mooninite, an alien character from Cartoon Network’s Aqua Teen Hunger
Force. Katie Zezima, Prosecutors Drop All Charges in Boston Terrorism Scare, N.Y.
TIMES, May 12, 2007, at A11. The devices, which resembled large Lite-Brite toys, were
mistaken for bombs when discovered, leading police to close roads, bridges, and part
of the Charles River for hours in response. Id. Prosecutors eventually dropped the
charges for planting a hoax device, a felony, and disorderly conduct, a misdemeanor,
against the two men who placed the devices. Id. The men were not charged for the
depiction of the middle finger. Id.
278 438 U.S. 726 (1978).
279 Id. at 731, 737-38.
280 Id. at 731 n.2.
281 In re Citizen’s Complaint Against Pacifica Found. Station WBAI(FM), N.Y.,
N.Y., 56 F.C.C.2d 94, 94 (1975).