A recent episode of FX’s acclaimed miniseries The People v. O.J. Simpson: American Crime Story, which dramatizes O.J. Simpson’s infamous mid-’90s murder trial, has something of a twist ending. Prosecutor Marcia Clark, played with wry tenacity by Sarah Paulson, has just read in the newspaper that Simpson has hired Johnnie Cochran for his defense team. Clark processes the information with a look of quiet fury. “Cochran,” she says aloud, taking a puff of her cigarette then stubbing it out as the camera pulls away. “Motherfucker.”
This moment isn’t surprising plot-wise—everybody knows Simpson hired Cochran—but content-wise, it was a stunner. As many entertainment websites quickly noted, FX is a basic cable network, meaning it relies partly on sponsors for revenue, and almost anyone with a cable TV subscription can access it. As such, the network imposes self-censorship on its shows, typically keeping language at a PG-13 level so as to not spook sponsors or rankle parents. But in The People v. O.J. Simpson, FX allowed a decidedly R-rated word past the censor and into homes across America.
Slate asked FX president John Landgraf about the unexpected use of the expletive. He noted that the network had already allowed the word “fuck” on at least one occasion—tucked into Sarah Baker’s incredible one-take monologue on Louie’s “So Did the Fat Lady.”
On Louie and O.J. Simpson, Landgraf said, “We thought it was important and artistically relevant.” “I don’t think we’re going to use ‘fuck’ or ‘motherfucker’ as a noun, adjective, verb, and everything in between. But when it’s important, it’s important. In this particular instance, it was kind of the valedictory line of Sarah Paulson playing Marcia Clark at the end of the episode. We thought the episode would have been weakened for bleeping or cutting it.”
“We got no negative feedback,” Landgraf told Slate. “We air these shows at 10 p.m. Everybody knows what they are, that they’re adult shows.”
Landgraf doesn’t plan to let FX’s shows start freely deploying HBO-level language. “We’re not looking to open the floodgates,” he explained. “Our point-of-view is that everything we do is about supporting artistic integrity. In this case, letting the word fly was the way to do that.”
Initially, some viewers questioned whether FX was legally permitted to deploy vulgar language like “motherfucker,” at least without risking a fine from the Federal Communications Commission. The answer is: absolutely. Actually, the FCC’s authority to censor broadcast channels like NBC, ABC, and CBS is something of a First Amendment aberration. Typically, the government has no power to censor profane expression so long as it is not legally obscene. (And the standard for obscenity is extremely high; nothing you’ll ever see on TV is obscene under First Amendment law.) In a 5-4 ruling, the Supreme Court held in 1978 that the FCC could punish vulgar speech if it was transmitted over a publicly owned spectrum. As Justice Antonin Scalia put it more recently, “if these are public airwaves, the government is entitled to insist upon a certain modicum of decency.”
Cable companies like FX transmit their programs through privately owned and operated equipment, not the spectrum. That means the First Amendment prevents the government from censoring their shows. FX, in other words, can let The People v. O.J. Simpson toss out as many expletives as it wants. The sponsors might bolt, but the government can’t do a thing.
*Correction, March 2, 2016: Due to an editing error, this post originally misidentified The People v. O.J. Simpson as a network show. It’s a basic cable show.