The Carlin-Ellison Case

The recent death of George Carlin has sparked a lot of nostalgia for many folk; much of which involves First Amendment issues -- a fight which seems to have fallen by the wayside at alternative institutions while we have bigger (read more political) fish to fry. The NY Times wrote an excellent article on the Carlin Decision as viewed by my colleagues today.

Working at WBAI during the entire Carlin debacle gave me a strange perspective on the case. On the one hand, we lost, and the F-CC turned their Sauron-like eye from "obscenity" to "indecency." On the other hand the watershed time of 10 PM to 6 AM, or safe harbor, was created in which non-gratuitous profanity is defensible.

At any rate, this had a very direct effect upon me and Hour of the Wolf, in which one of my broadcasts became what I believe to be the very first test of the Carlin Decision and Safe Harbor.

I had recorded a writer, Harlan Ellison, at the School of Visual Arts. (He is the subject of the recent documentary, Dreams with Sharp Teeth, which recently finished a run at the Film Forum here in NY.) Two teachers there, Leo and Diane Dillon, presented Ellison with a painting that he was supposed to turn into a short story and read it to their class. He spent some time in a hotel and then proceeded (with the great showmanship which is his trademark) to read it in from of the class with a bunch of celebrities in attendance. (The story was "Shatterday," later the title story of an award-winning collection, and was dramatized in 1983 for "The New Twilight Zone" starring Bruce Willis.)

I brought the tape back to WBAI and found the Station Manager, Larry Josephson, in the "Broom Closet", which was the manager's office at the Church on 62nd Street. I told him about the tape and asked for permission to broadcast it before 6 AM with a disclaimer. He asked what was in it, and I said all sorts of things -- fuck, shit, etc. He gave me the OK.

The FCC complaint arrived within a week. Josephson was furious at me. "You didn't tell me the broadcast had "motherfucker" in it!" "I told you it had 'fuck' -- what's the difference?" "Have you never heard of the Incest Taboo?!?" I thought this was some legal term or law, like the Carlin Decision, and so told him no. He bellowed, "You don't know that it's worse to fuck your mother than it is to fuck your girlfriend???" I don't recall the immediate aftermath. I think we needed a mop for me in the Broom Closet. Larry the J could be... imposing.

I had very little to do with the defense. I was not suspended, as I'd broken no rules and had gotten clearance. Our lawyers were still working for us, as this was only a few months after the Carlin Decision, and we were paying them dribbling amounts of money. I was deposed by them, and they were absolutely delighted with the facts. Ellison was well-known, highly decorated with awards, had just finished a stint as the West Coast Director of The Writers' Guild of America,, and had three columns dedicated to him in Who's Who in America. They felt this was the best possible scenario for a test case they could have. Josephson was only somewhat placated, since while the odds were on our side, it still cost money. (At least we were further billed -- I doubt we were ever able to pay after the hit from the Supreme Court case.)

Ellison was ecstatic. "Man, I'm gonna get in front of those Robes and tell Burger that this is still our fucking country! We can get Vonnegut and everyone else to testify and win and tell those motherfuckers to stuff their law books where the sun don't shine."

A couple of months later I was told the Justice Department had opted not to prosecute. The briefs were well-written, a couple of newspapers were editorializing that we were being singled out and persecuted by the FCC, and so forth. I'm sure there were nuances and such I never understood. All I know is the Pacifica lawyers did a great job.

Ellison was crushed that he wouldn't have his day in court and occasionally reminds me of it -- with sharp teeth.