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"Indecency" in the Arts and the Law

by Hadley Arkes
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Of course it went without saying that the managers of the Super Bowl last month would not be putting on Mozart quartets. These entertainments of late have not exactly been refined, and it may take a sensibility truly exquisite to know when a Madonna crosses a line into vulgarity. Even to notice the crossing of that line—and profess a mild shock—would reveal that we have already absorbed an acceptance of the vulgarity that forms the main body of the work. And yet in a culture reshaped in that way, there was a minor scandal several years ago when Janet Jackson, in a trick purportedly gone awry, had part of her dress ripped away, exposing her right breast. Complaints were raised to the Federal Communications Commission, feeding into a stream now growing of charges of "indecency" in the broadcast media. Yet also in the half-time at the Super Bowl, the British performer, M.I.A., "gave the finger" as she moved into a frenzy and proclaimed to the world, in words Cole Porter never dreamed of matching, that "I don't give a sh--!"

All of this was taking place at a time when the Supreme Court has before it a case testing sharply the issue of "indecency" in the broadcast media. The incident with M.I.A. may offer a useful reminder to the Justices as they mull over the issue with their clerks and colleagues. For the incident brings home to us the point that there will always be something "crossing the line," and that even if the lines were erased—even if all of the laws and restraints were removed—the passion to shock will seek out other lines to cross, for what is in play is a passion to produce an effect, to be noticed, and it will be as tasteless as it needs to be to draw attention. The question then before the Court is not whether the laws may purge us from all vice and turn us into angels. The question, as Thomas Aquinas taught, was whether the laws could simply compress the vices to tolerable limits and keep us from getting more brutish yet.

When the Court heard the argument at the beginning of January, it was, of all people, Justice Kennedy who gave voice to that soft, ancient concern past the din of clichés. Close to ninety per cent of the households in America have access to cable, and viewers may readily switch back and forth, out of the domain regulated by the FCC. The question was why it was worth preserving those modest standards of propriety in this one portion of the media, and Kennedy, hunting for the answer, wondered whether it was "just because it's an important symbol for our society that we aspire to a culture that's not vulgar—in a very small segment."

But this was a sentiment rare and faint, trying to break through among the lawyers on both sides as the Court heard the appeal in FCC v. Fox Television Stations. The case involved an accumulating series of incidents that had moved the FCC from a posture of presumptive tolerance to the need to do something, to make some telling response to instances telling enough that the viewers could hardly fail to notice. The triggering incident came in a program on NBC for the Golden Globe Awards. The singer Bono, receiving an award, shouted out that "this is really, really, f---ing brilliant." The outburst brought a rush of complaints, and the FCC delivered itself of the judgment, for the first time, that a single use of this expletive (a so-called "fleeting expletive") could be actionable as "indecent" under the FCC rules. In explaining the judgment the Commission noted, in a line that should stir no bewilderment, that "the F-Word is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language."

At the same time, the FCC took the action to a new plane of seriousness by enlarging the penalties beyond the level that would be pocket-change for a network. By adding a zero, the penalty for an offense was jacked up from $32,500 to $325,000. That was enough to get the attention of the networks, and so a few of them combined in bringing the suit. The package would then include three other incidents apart from the effusions of Bono:

— During the Billboard Music Awards in 2002, Cher accepted her award and said, "People have been telling me I'm on the way out every year, right? So f--k ‘em."

— During the same awards in 2003, Ms. Nicole Ritchie, in presenting an award, remarked, "Have you ever tried to get cow s---t out of a Prada purse? It's not so f---ing simple."

— In several episodes of NYPD Blue there were instances of using the word "bulls----."

The package revealed, as any package would, judgments made in different contexts, with vulgarities more or less pronounced, more or less lingering in their impression, more or less offensive in their setting. The "contextual" nature of the judgments has been cited in an effort to claim that the standards are shifting. But moral judgments are always made in cases and contexts—"assaults" can take place on the street or in private settings, with varying degrees of shock or subtlety. The question is whether it is possible to recognize, in any instance, an unprovoked, unjustified setting upon another. Anyone with experience in the world would know that we are bound to guess wrong at times. But we do not take that fact of life to imply that there is something inscrutable about the notion of an "assault" or something fatally impossible about the task of judging.

It is notable that the FCC had not been stirred to action until 1975, when it first exercised its authority to make judgments marking the outer boundary of "indecency" in the broadcast media. The FCC was moved to offer more precise guidelines on indecency in 2001 after a couple of signal cases. Whether the broadcasters found them agreeable or not, one could hardly gainsay that they were at least precise and comprehensible. In a world rightly ordered, these rules would be vetted and passed by Congress. But in the meantime the rightful place of the law in exercising restraint had to be tested by the measures brought forth by the FCC. In the rules crafted by the FCC, the test of indecency involved two main determinations: whether the material "describe[s] or depict[s] sexual or excretory organs or activities" and whether the broadcast is "patently offensive as measured by contemporary community standards"—which may be simply another way of saying: "patently offensive" as measured by what people understand, in their ordinary language or usage, as terms used to assault or offend.

But this sense of the matter, running back to an older understanding, was largely missing from the oral argument at the Court. And it was apparently missing as well from the furnishings of mind of the lawyers who were drawn to the Court that day to take in the argument. I was waiting that morning with a former student of mine who had argued some of these cases, and we were soon joined by others who were veterans of the bar on the First Amendment. The lawyers were products of pricey schools in the East, but the clichés that furnished their thought on this matter would have been found as well among youngsters in, say, the eighth grade: "Who is to say what is ‘indecent?' The standards of judgment are hopelessly subjective." And, then, this added turn: "When did the government get the authority to shape our minds, about the things right or wrong to believe?"

John Marshall famously said that anyone who publishes a libel in this country may be "sued or indicted." He understood that harms could be inflicted through the wrongful uses of speech—in publishing calumnies, destroying reputations, inciting mobs, terrorizing victims with threats. Why is it that lawyers in our own generation are suddenly detached from any sober judgment—why do they start sounding like teenagers—as soon as they face the question of judging the rightful and wrongful uses of speech? And yet, as the argument proceeded in the Court that day, it was worse than that: The lawyers seemed blissfully unaware that they were contradicting, at every turn, the conventional wisdom that kept issuing from their lips. The heart of the argument before the Court was whether there was any clarity in those standards for judging the words and gestures that the FCC would filter as patently unsuitable for material diffused to a broad public. The case against this kind of screening was offered by those evidently accomplished lawyers, Carter Phillips, joined by Seth Waxman, a former Solicitor General. And yet, that vexing F-word was never sounded in the arguments they put before the Justices, woven as they were with analytic prose. But we had been told so often in the briefs, and in the opinions in the lower courts, that our public speech would be radically diminished—that it would be torn from the truth of life as lived—if it could not incorporate this kind of language in interviews and documentaries, no less than movies. And yet, why do we have the sense that if it were the N-word at issue, we would not be hearing how much our dramas and interviews were diminished when cops and truck drivers were not heard to be spitting out their contempt for "niggers?" Messrs. Phillips and Waxman are seasoned lawyers. They would not have ill-served their clients by holding back any useful tools in their arsenal. Evidently they did not think their arguments were impaired in any way because they did not invoke the F- or S-words.

But that is to say, they were backing precisely into the argument made by Justice Murphy in the classic Chaplinsky case in 1942, when Murphy marked off, as a class of speech, "the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Murphy explained in the same breath that

such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

A Mr. Rosenfeld, speaking years later at a PTA meeting in New Jersey, would have one adjective—motherf---ng. Rosenfeld would not have been barred from making the most penetrating critique of the school board if he had merely restrained himself from the constant sounding of that word, which had the sole effect of degrading the climate of discussion. In the same way now, the lawyers for the networks did not think that they would be hampered in making the most powerful case for their client if they avoided the very language that they were seeking now to elevate as somehow necessary to public broadcasting.

The critical turn away from Justice Murphy in the Chaplinsky case came in Cohen v. California (1971) when Justice Harlan turned the law of speech in the direction of relativism: "One man's vulgarity," he wrote, "is another's lyric." Harlan "discovered" the logical positivism that was all the rage in his college years, without being aware that it had long been discarded in the schools of philosophy. In the courthouse in Los Angeles, Paul Robert Cohen had worn a jacket with the inscription "F--- the Draft." The people around him needed no dictionary, but Justice Harlan, fortified with an elite education, could ask, "How is one to distinguish this from any other offensive word?" The meaning of moral words was essentially emotive and subjective; they were not words with a cognitive meaning, not the stuff of reliable judgments. Harlan was willing to protect Cohen's jacket as a species of political speech. But how did he know that Cohen had engaged in political speech? If the meaning of words was subjective, perhaps by "F--- the Draft," Cohen had meant to say, "Make love to the wind." What Harlan understood, though, was that Cohen was condemning the draft. The functions of commending and condemning, of blaming and praising, were moral functions. We are, as we are constituted, moral creatures, given to praising and blaming, and we will bring forth the language that carries these functions. The words may alter from time to time, but if language is to function, ordinary people need to understand the words or gestures that are established at any time as terms of condemnation or commendation. We know the difference between a burning cross and a burning shoe box. Ordinary people on a jury have no trouble in picking from this list the terms established as terms of denigration and assault, as opposed to terms bordering on neutrality or praise: Kike bastard, nigger, meter maid, urologist, saint. Bono, at the Golden Globe Awards, did not choose his words randomly. He was not as likely to say, "This is really sublimely brilliant," or "unequivocally brilliant"—even though those words would have produced even more of a surprise. But he knew precisely the word he wanted, the word that would make his point emphatically, in a way that ran beyond the conventions of propriety. And if "f---ing brilliant" becomes, in turn, acceptable and conventional, he would have to seek out words even more beyond the bounds, words that can be sure to cause offense. No, Messrs. Phillips and Waxman, there is nothing the least uncertain, subjective, or arbitrary in the standards used by the FCC or the laws in gauging words unacceptable for decent discourse. Bono and Cher were as clear on them as any person awake in this culture could ever be.

But didn't these cases give us an array of words spoken in different contexts? Yes, but as Justice Murphy explained long ago, drawing on what the linguists ever tell us, context is always a part of meaning. It is context that makes the difference between a band of Nazis, with arm bands and banners, marching through Skokie, Illinois, a community containing survivors of the Holocaust, and a band of Nazis cavorting on stage in Mel Brooks's "Springtime for Hitler." The difference is not lost on people of ordinary wit.

In contrast, it has taken judges and lawyers the forty years since Cohen v. California to talk themselves out of the recognition that they do in fact have access to rational standards for judging the content of speech acts. What has been forgotten also is the understanding that the community may indeed have the most legitimate interest in the sensibilities that are cultivated among our own people. That sense of things has been so long woven into our laws and conventions that we may no longer even notice. And so, even when we have accepted capital punishment, we have recoiled from the performance of executions as a spectator sport. We don't think it is especially good for some of our people to cultivate a certain pleasure in the killing even of killers. For much the same reason the law has barred cock-fighting and certain blood sports. Not long ago a reporter for the New York Times recalled seeing a movie in which a woman was being dismembered by a man with a chain saw. Behind him in the audience he heard a man moaning, "yeahhhh," with evident pleasure. The reporter thought: would I want to meet this man on the street? And just think: he may be a fellow voter, a man with whom I share the power to make laws governing my life. Professor Walter Berns caught the enduring sense of this matter long ago when he observed:

We turn to the arts—to literature, films, and the theatre, as well as to the graphic arts ...—for the pleasure to be derived from them, and pleasure has the capacity to form our tastes and thereby to affect our lives. It helps determine the kind of men we become, and helps shape the lives of those with whom and among whom we live.

As Berns observed, a community cannot be indifferent to the ways in which its people find their pleasure. But it may be precisely because the matter has been so embedded in our lives that lawyers no longer recall the reasons we had these laws. And might that explain why even seasoned lawyers could still ask, "What right does the government have to tell us what is decent or indecent in our entertainments?" One of the most revealing things, then, in the oral argument before the Court was the point never expressed: None of the lawyers was moved to say that of course a democratic regime has the most legitimate concern for the moral sensibilities of its people, for it draws its rulers from those same people. Are the people around us to be relativists in their normal lives and then become moralists of a high degree they are suddenly lifted to high office?

It was telling, in this respect, that the Solicitor General, Donald Verrilli, arguing for the government, could not form the words to describe that older, moral concern of the community, the concern that formed the ground of the laws. His argument was cast entirely in terms of the positive law, the law as it stood on the books. He carefully avoided any words that might hint at a moral justification for those laws. The corporations holding licenses to broadcast have been given a lucrative franchise, and in turn they should accept certain rules. Justice Kagan quickly noticed the absence of any moral rationale: The Solicitor General was suggesting an implicit "contract," but why, she asked, is "this condition [or rule] appropriate when many other conditions would not be?" Mr. Verrilli would permit himself only this response:

This condition is appropriate, Justice Kagan, because it has been a defining feature of the broadcast medium from its inception in the 1920s in the Radio Act and has continued to be a defining feature of this medium throughout its history.

This was the voice of legal positivism unalloyed: the law was justified because it was there—it was enacted and enforced by the people who had the power to make laws. In other words, power is the source of its own justification. And yet, the law had been a long time in the making. Mr. Phillips noted in opening his argument that there had been "no effort whatsoever to enforce the standard of indecency between 1927 and 1975"—an opening that produced a countering shot out of the box from the Chief Justice:

CHIEF JUSTICE ROBERTS: Well, that's because broadcasts didn't commonly have this sort of, these sorts of words or these sorts of images.

Roberts acted as the Muse of History, reminding Mr. Phillips, in case he had not noticed, that the popular arts had descended several dramatic levels in vulgarity in the living memory even of people born in the 1950's. It was hard to miss that sense of things with Justice Scalia, as he made a rare move to back up Justice Kennedy.

JUSTICE SCALIA: Sign me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts. It's a symbolic matter.

But in a concession even more telling, Scalia went on to say that

these are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth.

Just this last term, Justice Scalia had written for the Court in striking down, with a certain gusto, a law in California that sought to bar the access of children to video games of remarkable violence and vividness. As Justice Alito had pointed out, the players were invited in some of these games to reenact the shootings at Columbine and Virginia Tech, to rape Native American women, or to shoot President Kennedy in an open car in Dallas. Scalia complained that Alito was recounting, "these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression." After all, children were resilient: "Grimm's fairy tales," he said, "are grim indeed." The Court could not let restrictions on speech be smuggled into the law under the banner of protecting children. But it went now without saying: The law was cast in terms of children because the Court had gradually pared back, over the years, any ground of judging and restricting the entertainment offered for adults. And yet that reporter, hearing a man savoring the dismembering of a woman on the screen, thought that something vicious was producing its effect on an adult. It was not less objectionable, not less debasing in its tendencies, not less harmful in the sensibility it shaped, than the same "entertainment" offered to a child. What Scalia glimpsed, in this rare moment, was a truth he had known long ago before it had become obscured in layers of theories built up in the law by his colleagues past and present. That small glimpse could be the epiphany come in time. It could be the opening that leads Scalia and his colleagues back to the grounds of judgment that the judges used to know, along with all of those ordinary folk around them.

Hadley Arkes is the Senior Fellow of the Claremont Institute's Center for Constitutional Jurisprudence