Sheridan: Con-Law

PROFANITY OBSCENE?

The problem with banning naught words is what, exactly?

In the family context you wash your kid's mouth out with Lifebouy soap.  It tastes terrible.  The kid watches his mouth for awhile, until the soap wielder is out of earshot.  The kid grows up watching his mouth.  Hasn't forgotten the words, but is a bit more judicious when deploying the full repertoire of invective.

Maybe we should ask why we use expletives, ejaculations, invective, exclamations of anger, hurt, intensification, and the like.

And why we use the naughtiest words in the language to express ourselves for the edification of all within hearing range whether we know them or not.  Why don't we use nice words when we stub our toe?  Why always the worst?

I dunno.  Never thought much about it.  Just did it, I suppose.

Do you remember the comic, Andrew Dice Clay, from Brooklyn?  Every word out of his mouth was F-this and F-that.  Coming from Brooklyn, he'd insert the F-word in between syllables of the same word, just to intensify the effect, no-effing-kidding.

George Carlin did a monologue that was aired on the radio 30 years ago, according to the article below, in which he used, and the station was punished for airing, seven dirty words.  The most graphic, of course.

I don't know what it is about these and other dirty words.  By convention, they're deemed naughty in the English language speaking culture, such as it is.  We don't get  upset when people who speak Spanish say they're naught words. We don't understand a thing.  Or Italians.  I played golf with a native of Rome.  Dio cane! He'd say when he missed a makeable putt.  What'd he say, I'd ask my other Italian companion.  "God is a dog," he said.  I suppose it could've been worse, but it sounded pretty intense when the fellow who'd just missed par spat it out.

There are different reasons we don't like kids to hear certain words.  They're apt to use them, and this reflects badly on the parents.  "Damn!" I said at the table, and my son and his wife asked me not to say that.  Say what?  You know, that word.  Why not?  Because the baby is here.  The baby is two years old and learning to speak.  We don't want her to know "Damn!" I guess because how would it be like if a two-year-old asks for some damn milk, which she probably would, come to think of it, as she's a clever little devil.

The other day at dinner, her mother offered Liana a cup of milk. 

"Would you like some nye-nye?" Christina said. 

"Nye-nye" is milk in Cantonese.  This kid is being raised double-cultured, to reflect the parents' ancestries. 

"Yes," Liana said.

I said, "Nye-nye is milk." 

I said that to reinforce the learning of the word for me, as once in the car Liana asked for some nye-nye and I didn't know what she was asking for. 

"You want a cookie?" 

"No." 

"Some water?" 

"No." 

"Some milk?" 

"Yes." 

Bingo, I had a bottle of milk in the pack.  We'd been to the beach.

So after I say, "Nye-nye is milk," Liana, age two-and-three-quarters, looks at me and says, "Nye-nye means milk."

We all laughed at Liana teaching Fapa Bob a word in Chinese.  I didn't know that she knew the word "means."

So we can't use salty language in front of Liana because if we did, she might develop into a salty adult, like Fapa Bob.

Getting back to the big stuff, I suppose that we can't say "Fuck" because when said calmly, it evokes a graphic image of two people engaging in sexual intercourse.  It comes from early, early, English and before that, from the root to hit or bang.  David Letterman the evening on television, used the term "Banging whores," to describe Elliott Spitzer's conduct with a young woman who'll soon be very rich.

Why can you say "banging whores" on broadcast television but not "fucking whores?"
Does one evoke an image more graphically than the other?  I don't think so.  They're both the same in evocative power, as I see it.  The latter is more intense than the former because the latter is deemed to be more intense.  It's as though we all agreed on this verbal point.  Far be it for me to overturn thousands of years of convention.

But this is the problem the Supreme Court faces next term, as it has taken up the case of the FCC, which regulates and punishes verbal misconduct over the nation's broadcast airwaves, against various performers who let slip some "Damn" as I did at table only worse.

We have enough free speech to get by where I live, but when we're talking about a national standard, we want ascertainable standards, not ad hoc dog law.  This is where you kick the animal after he messes up, as you can't post a list of wrongs for him to avoid.  "That'll teach him," you think.  And he learns not to do that any more.  Maybe.

A friend asked whether constitutional law was the most difficult subject, as he'd heard.  Maybe, is the answer, but problems like where to draw the line between free expression and obscenity are one of the hardest problems, as there is not unanimity as to where the line should be drawn.  Some people like to use naughty words to make a connection with like-minded people. Freedom of expression and association means encouraging people to connect as best they can using the language of their choice, not government's choice, or the neighbors speaking through government.  So we have to be careful about what we restrict or we may restrict too much.

We want people in America to to refer to their effing politicians or that effin' Bush without fear of being thrown in jail or broken by fines if caught by a TV camera and broadcast. Suppose you're at a demonstration against the war in Iraq and you're unhappy about being led into a bankrupting war that is killing American boys and girls by the thousands and you let out with an "[expletive] Bush" (or Powell).  Should you go to jail for your political expression because you chose the wrong words?  No.  I don't think so.  The case is Cohen v. California, which you can look up on this site or on Findlaw.  A kid in L.A. wore a jacket into court with a logo stating "Fuck the Draft."  An offended sheriff's deputy arrested him even though the judge said to let it go.  The Supreme Court upheld the jacket-wearer's right to proclaim his belief in graphic, profane language.

The republic yet stands, I'm pleased to report.

This obscene market crash and profane war are far bigger problems, I'm afraid.  There's not much that the Supreme Court, for all its vaunted wisdom, can do about these.

The Washington Post article reporting on the Court's acceptance of an FCC profanity case is below.

OBSCENITY

All obscenity is pornography, but not all porn is obscene.

To be truly obscene, the depiction or account must meet (or fail) the Miller test.  Miller v. California (1973).

The Miller test is quoted below, from Supreme Court headnote:

Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U.S. 413, 418 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held:

 

1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476 , reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 23-24.

 

2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 24-25.

 

3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 24-25.

 

4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a "national standard." Pp. 30-34.

 

Vacated and remanded. [413 U.S. 15, 16]

Extreme Associates is a company that sells the right to view porn movies over the Internet and also by sending movies through the mail to those who show, by using a credit card, that they are over eighteen, such as postal inspectors, who all seem to be over eighteen but like to look at porn, apparently.

We have laws against distributing obscene films, etc., through the U.S. Mails.  Felony laws.  The question is whether they are any good or not, in the constitutional sense, after Lawrence v. Texas (2003).  Apparently they aren't.  They've been held unconstitutional by a lower federal court, now, in the interesting case below:

Extreme Associates found itself indicted for mailing porn movies to the postal inspectors.  Distributing, in the word of the statute.

Did Extreme Associates claim that their product was not obscene?

Why would they do that?

They're in the business of selling Obscenity.

Why claim that what you're doing is not what you're doing just to beat a federal indictment that could land you in the federal penitentiary?

Besides, that would be bad for business.

Customers want real obscene porn, not some watered down version pretending to be porn.

So the lawyers for Extreme Associates admitted, for the sake of the argument, that their client was distributing real porn and that it was most certainly as obscene as it can be.

Not only that, but that the Constitution allowed them to do it, as a matter of their customers' constitutional right to privacy, i.e. to read porn in the privacy of their homes, per Stanley v. Georgia, (1969) below, contrary to the Congressional statute, which must therefore be unconstitutional.

Of course the Constitution does not contain the words "pornography," or "obscenity."

In Con-Law you have to look for your rights in wrapped boxes, such as freedom of speech, or privacy.

But Miller clearly holds that obscenity is not a protected form of expression, any more than "fighting words," are said to be.  "Said to be" because the Court hasn't decided a "fighting words" case against the person uttering them since 1944.

Counsel had to look elsewhere and they came up with a dilly that worked in the U.S. District Court for the Western District of Pennsylvania, which dismissed the indictment for distributing, holding the federal obscenity statute unconstitutional as applied, not on its face.

In Stanley v. Georgia (1969), the Court held it to be none of the government's business what a person looked at in private, out of titillation or whatever.  If you want to look at something you find exciting, you are free to do so in private. The neighbors, acting through government, have no right to tell you that you may not.  It's none of their business. 

In Lawrence v. Texas (2003), the Texas anti-gay sodomy statute was held unconstitutional as a matter of privacy, established in a line that includes Griswold v. Connecticut (1965) and Roe v. Wade (1973).

Do you see the word privacy in the Constitution?

No.  You won't find that one either.

But that doesn't mean it isn't there.

It's hidden, wrapped in a package called "Liberty."

We do find that word in both the 5th and 14th Amendments, the former applicable against the federal government and the latter against the states.

In both amendments, a person may not be deprived of liberty without due process of law.

We know what due process means historically under Common Law.  It means the right to proper notice of a fair hearing before a neutral tribunal.

What we didn't know was the precise meaning of Liberty.  Did the Constitution protect your right to do anything you wanted so long as it didn't harm the neighbors? 

Since the people claiming their liberties were often disfavored folks such as white males who weren't rich enough to qualify to vote, or women, or slaves, or anarchists, gays, and pornographers, you can see that there was not a wild rush to give these people all sorts of rights that other people (the neighbors) didn't think they deserved, considering who they were, of course.

So the judiciary must step into the breach when Congress and the Executive are politically handcuffed.  That, at least, is how the Warren Court put a very slow end to public school segregation.

Lawrence, to continue, has a number of aspects.  One is that your choice of what you do in the privacy of your own bedroom, sexually, with another consenting adult, is no concern of either the neighbors or the federal government acting out of concern for what they might want you not to do, or find immoral or fattening.  It's no one's business but your own and your partner.

As I put it to a student one evening, who was finding this hard to accept, assuming consenting adults,

"Apart from close family members, do you really care who sleeps with whom?" 

"No," he said.

He really didn't care. 

But there are those who do, and it's as to those that we have to look to the Constitution for protection.

It may seem paradoxical that the liberties we enjoy are so frequently nailed down for us by some of the most despised people in the land.  Yet, who else is going to need to insist that there is such a liberty as that claimed, but a person prosecuted for a despised activity, such as criticizing elected leaders, etc.  In large measure, we owe the breadth of our freedom of expression to pornographers.

For a very interesting discussion of the history of obscenity law and the rise of the porn industry in America, see "An Empire of the Obscene," in Eric Schlosser's  Reefer Madness  (Houghton Mifflin, 2003).

If you put together Stanley (the right to view obscenity) and Lawrence (sexual privacy), you wind up not only with the right to view obscene matter in private for your own purposes, but the right to distribute it.

Where does the right to distribute it come from?

Remember the case we studied on standing at the beginning of the semester, where the "barmaid" was allowed to assert the rights of her younger male customers to buy beer on an equal age basis with her female customers?  Third party standing?  Jus tertii? 

The case is Craig v. Boren.

If barmaids are allowed to ride to the rescue of their teenage male customers (who hadn't joined the lawsuit), then why shouldn't Extreme Associates ("EA"), the porn movie distributor, be allowed to assert its customers' right to view its product?  And how are these customers supposed to view this material?

By having it distributed to them.  Via the Internet (a channel of interstate commerce, which Congress has the power to regulate interstate and foreign commerce under its Commerce Power, Art. I. Sec. 8, Cl. 3).

If its customers have a right to view the stuff, EA should have the right to distribute it.  But the federal obscenity statute prohibited distribution, making it a crime.

So, EA went to bat for its customers and itself and hit a bases-loaded home run, as follows:

1. The indictment gets dismissed;
2. Its customers get satisfaction, figuratively speaking of course;
3. The statute is declared unconstitutional; and,
4. You and I are more secure in our own civil rights, even the ones we may not choose to exercise at the moment.   We retain them in reserve.

Grand slam!

Score:  Pornographers 4, Government 0, bottom of the Seventh, two innings to go:  Court of Appeals and Supreme Court.

All based on cases we've already studied. 

You could've figured out that this statute was unconstitutional, right?  On an exam, perhaps?

Concede the obscenity and go for the fences with LIberty?

You would've done that, right?

Sure you would.

To read U.S. District Judge Gary L. Lancaster's  opinion (in PDF format, 48 pp., but well worth the review), click here.

Next question:  Janet Jackson's lovely bared breast, at half-time, SuperBowl 2004 ("wardrobe malfunction"), for only a fleeting second, cost the network half-a-million dollars in fines imposed by the FCC.

Obscene under the Miller test?

Unconstitutional as applied under the Extreme Associates opinion, supra, assuming it is upheld?

Let's see:  we've got the viewers enjoying the show in the privacy of their homes, let us say, or the local pub; but we've got the distribution occurring over the national airwaves...

...I can see an exam question forming in my mind as we speak.

And speaking of Janet Jackson's breast, this just in:  Michael Powell, son of Colin Powell, who just resigned as Secretary of State, has also resigned his post as head of the Federal Communication's Commission, the dreaded FCC, our official nanny, who prohibits the display of the dreaded female breast. On TV.  A polarizing figure, he's being called.

Well, why not?

If you believe the pundits, the whole country is divided between the Red and Blue electrodes. 

Shocking!