Irony Alert: Government Honors Recording Government Criminalizes

You may want to strap yourself in for this one - to avoid the intellectual whiplash that might otherwise result.

Every year, the National Recording Preservation Board - a federal organization comprised of esteemed composers, musicians, musicologists, librarians, archivists, and representatives of the recording industry - undertakes a duty assigned to it by our elected Congress (with the further endorsement of the Executive Branch). That duty: To recommend for inclusion in the National Recording Registry sound recordings that are "culturally, historically, or aesthetically significant". The recommendation is made to the Librarian of Congress, who then decides what's in and what's out.

Getting included in the Registry (which itself is a creation of Congress) is no small potatoes. So far fewer than 500 recordings have made it - and that's out of the approximately 50 squadrillion recordings that have ever been made. Recordings already in the Registry include: cylinders from the birth of recorded sound in the 19th Century; piano rolls featuring Scott Joplin playing rags; the first recording of "Rhapsody in Blue", with George G. himself tickling the ivories; Herbert Morrison's live coverage of the crash of the Hindenburg; Sister Rosetta Tharp singing "Down by the Riverside"; Flatt and Scruggs picking "Foggy Mountain Breakdown"; "Rumble" by Link Wray and His Raymen (a personal favorite - essentially, the birth of the power chord); "Who's on First" by Abbot and Costello; speeches by FDR, Woodrow Wilson, Booker T. Washington, Douglas MacArthur, Martin Luther King, Jr. (and a host of others). The hits, as they say, just keep on coming.

As dictated by Congress, the purpose of the Registry is to "maintain[ ] and preserv[e] sound recordings that are culturally, historically, or aesthetically significant."

Again, did we mention that the Registry was mandated by Congress?

This year, one of the 25 recordings selected for inclusion in the Registry has been hailed by the Board as "a discourse not only on [certain] words and their power to offend, but also on the varieties and vagaries of the English language itself." Heady stuff, no? Certainly something that's "culturally, historically, or aesthetically significant", maybe even all three.

That recording, of course, is George Carlin's Class Clown, and the particular words alluded to in the Board's description are the notorious "seven dirty words you can never say on television". The broadcast of that track - on Pacifica Foundation's Station WBAI(FM) in New York in 1973 - set in motion the FCC's enforcement action that resulted in the 1978 Supreme Court decision FCC v. Pacifica Foundation, in which the Court concluded that the FCC could penalize WBAI for having aired that "indecent" track.

To this day the Commission continues to wield the authority established in that decision (although the precise metes and bounds of what might constitute punishable "indecency" have never been quite clear, and are currently completely up in the air).

Ideally, you can see the problem here.

Congress, through Section 1464 of Title 18 of the U.S. Code (i.e., the criminal portion of the code) has made it a crime to broadcast "indecency", and Congress's enforcer in such matters - the FCC - has for nearly 40 years been using Carlin's monologue as the touchstone for defining "indecency". But now, doing what Congress told it to do, the Federal Recording Preservation Board has declared that very recording to be of such cultural, historic or aesthetic significance as to warrant inclusion (and preservation) in a rarefied universe of recordings deemed to "showcase[e] the range and diversity of American recorded sound heritage".

Criminal Indecency or National Treasure? The government has made the call, and as matters currently stand, that call is, um, "both". If that hurts your head, you're not alone.

Maybe the selection of Class Clown reflects both an awareness by the government of the validity of Carlin's observations about language and culture, and a greater tolerance for use of language that might be deemed "offensive" by some. Maybe the selection of Class Clown will cause Congress to re-think criminalizing the broadcast of particular language, and the FCC to re-think its policies on so-called "indecent" programming.

As if.

More likely, Congress and the FCC will ignore the disconnect inherent in the government's Hyde and Jekyll treatment of Carlin's work. Nothing in recent memory suggests that the government will get the message. More's the pity.

But regardless of what Congress and the FCC do or don't do, the inclusion of Carlin in the Registry deserves attention. Speaking as the most junior member of the team that represented Pacifica in the Supremes way back when, this blogger sees more than a little vindication in the Board's selection of Class Clown. The Board has officially recognized what we understood back in 1978: Carlin's monologue is a serious work that addresses important questions in a creative (and for many, highly entertaining) way. The broadcast of such thought-provoking commentary (whether or not it might "offend" some) should be encouraged. It's the First Amendment way of doing things. At a minimum, the broadcast of such commentary should not be penalized.

Criminal Indecency or National Treasure? I personally am with the Librarian of Congress on this one.