I wonder if comedian George Carlin knew in 1975 what he was doing.

Over 35 years after his routine “Seven Dirty Words” aired on a radio broadcast, the country is still debating decency laws drafted in direct response to complaints about his 12-minute string of expletives.

Whether the king of dark humor knew at the time how historic his foul-mouthed monologue would be in the public discourse on freedom of speech, he no doubt has been the lightning rod in a string of Federal Communications Commission lawsuits over the decades.

The most recent ruling, handed down by the 2^nd U.S. Circuit Court of Appeals in Manhattan on July 13, threw out the FCC’s policy of fining broadcasters for allowing a curse word — which they deem “patently offensive” and therefore indecent — to air on live television. The court said the policy was unconstitutionally vague and has chilled free speech.

"By prohibiting all `patently offensive' references to sex, sexual organs and excretion without giving adequate guidance as to what `patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive," the court wrote.

The FCC’s definition of indecent is: material which contains sexual or excretory material that does not rise to the level of obscenity. According to the U.S. Supreme Court, to be obscene, material must meet a three-prong test: (1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest (i.e., material having a tendency to excite lustful thoughts); (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value.

I don’t know about you, but to me it looks as if the majority of popular reality TV shows would not pass the three-prong test.

Because the three-prong test can only be done after something has aired, broadcasters are basically rolling the dice on any live broadcasts. A choice between airing a volatile political debate and the chance of incurring career-ending fines is no choice at all.

I applaud the federal court for realizing that freedom of speech is not pretty. It does not fit neatly into any definition.  In order to maintain a truly free society, the ugly as well as the bright and beautiful must be allowed.

I believe that the free market will naturally weed out truly offensive programming and those broadcasters who continue to air it. The average American’s most lethal weapon against obscenity is the power of the pocketbook. If consumers tune out and turn off, broadcasters will get the point.