Under Color of Law:
Obscenity vs. The First Amendment

By William A. Huston | Sept 2004
Submitted to the Nexus Journal of the Chapman Law School

(Nexus Journal version is here: http://www.nexusjournal.org/2005obscenity/75-82.pdf )

Introduction:

Ostensibly, the purpose of obscenity law is to help parents shield their children from objectionable images, words, and ideas. However, obscenity law creates a censorship mechanism. This in itself is prone to criticsm: Who gets to decide what is permissable? A government censor? A corporate director? The clergy? A citizens' review board? Should a minority, or even a majority, be able to decide what kinds of information, words, and images that everyone should have access to?

But upon closer examination, an even greater problem can be discovered:

America is a democracy, where the people hold the sovereign power. Such an arrangement requires the free flow of information so that the citizenry can be informed voters and consumers, and make intelligent decisions on matters which affect our own lives and the lives of our families and neighbors. Thus, the suggestion of any censorship mechanism should be worrisome to all, and the motives of persons advocating such carefully scrutinized.

Noam Chomsky and Edward Herman have argued 1 that in democratic states, propaganda serves the same function as brute force in totalitarian states. Propaganda and censorship are two sides of the same coin. Censorship is the restriction of certain words, images, or ideas, and propaganda is the promotion of certain words, images or ideas at the expense of others. The effect of both is the identical: control of the idea-space. This can be a tool of ruling elites to control the public mind via the "manufacture of consent". (To a large degree, this is the function of advertising, and the Public Relations industry. 2) Obscenity laws thus can be seen as a one possible mechanism imposed by ruling elites to control the public mind.

Fortunately, there are logical flaws which facially affect all obscenity law; it is prayer of the author that the analysis herein may led to the thwarting of undue application of such laws. The primary thesis of ths essay is summarized by the following points:
  • obscenity can never be legally defined 3
  • obscenity laws define "victimless crimes", and are based on preferences and not rights
  • the application of obscenity laws are arbitrary and discriminitory
In support, I will present four defects inherent in all obscenity law. The first and second problems deal with a failure to meet the minimum requirements for a cause of action sufficient for judicial review. The third (and most serious) is the paradox of statutory definiton. And finally, we discuss the problem of legal standing in the context of the widely variable standards which exist within any community.

Disclaimer:

The author is a free speech advocate, but secondarily to being an advocate of non-violence. It is clear that certain speech can cause injury:
  • psychologial warfare/torture (evil parent who yells at child, military psy-ops techniques)
  • libel, slander, false testimony
  • incitement to commit violence  (hiring someone to commit murder)
  • incitement to riot (shouting "fire" in a crowded theater, etc.)
  • hate speech ("all X should die"), which often predates actual violence
And a variation: images which depict prior violence:
  • "Snuff porn" depicting actual rape, murder, bondage, or other atrocities, child pornography, etc., a market for which is especially despicable, as a profit motive could arguably encourage this violence.
I would hope the arguments herein are not used to further the producton of such things 4. But I do not believe the First Amendment provides the proper forum for indicting the larger problem of violence in society. This is the realm of philosophy, theology, and the criminal courts. 5 There are already laws against murder; it seems unnecessary, perhaps even Orwellian, to criminalize "the speech which lead to the murder", especially if such speech is punishable to the same degree as the act, whether or not the act actually occured.

Based on my study of the historical context, my assumption is that the purpose of the First Amendment is to prevent despotic entities from coercing the actions of speakers and writers (information producers), and to ensure that sovereign citizens (listeners and readers, information consumers) have access to "diverse and antagonistic" 6 information sources sufficient and necessary to make informed decisions. While I do recognize the right of parents to restrict little Johnny's access to pictures of Janet Jackson's breast and naughty words, I assert the potential injury of exposure to such is far less than the danger of censorship, which once in place, can be used for to restrict access to political ideas.

I: The problem of cause part one: the right not to be offended

Before one can take another to court, one must have a valid claim, i.e., a cause of action. The two components which need to be shown are a right and an injury.  We must ask ourselves, is there a right not to be exposed to offensive material?

Before we can discuss rights, we need a simple model to use as a reference. This model is certainly debatable, and the definition of rights and injuries are somewhat intertangled. 
  • Natural Rights: "Life, Liberty, and the pursuit of happiness". Violations clearly produce victims with injury (murder, kidnapping); the jurisdiction of criminal courts. 
  • Statutory Rights/Civil Rights:  Conferred by substantive law. Jurisdiction in civil courts. Some violations of Civil Rights are defined as criminal, but probably derive from natural rights, or are classified such in error (e.g., all felony "victimless crimes").  7
  • Contractual Rights: These might better be called "expectations of performance" than rights; violations are jurisdiction of civil courts.
The key questions to identify these are
  • Is there a victim with injury?
  • Is there a contract present between parties?
Note well that there is a difference between a right and a mere preference. For example, I prefer to stay warm in the winter, to have a job that I enjoy, a loving spouse, and a full belly. I think few would call these rights.  

Now, let's say I do not wish to be exposed to material which I find objectionable. Is this a natural right, a contractual right, or a mere preference? Unless one can show that a contract exists between the exposer and the offended, or demonstrate that a real injury is caused by the exposure, than this is most likely a preference and not a right.  

While "the right to have one's preferences" could be conferred by substantive (rights creating) law, violations would not always produce a real victim with injury. And any law criminalizing the violation of a mere preference is likely to violate the rights of those convicted, and would probably ultimately be found unconstitutional.  However, the definition of such a law has a serious problem of paradox, which we will discuss later.

II: The problem of cause part two: the injury of exposure to obscene material

As a child we all learned that "Sticks and stones can break my bones, but names can never hurt me." Yet curiously, as adults we pass laws and generally recognize the tort of "exposure to obscenity".  But can you imagine someone running down the street yelling, "I was injured by words! I was harmed by images!" It sounds absurd framed in this way. But if such an injury can be said to exist (perhaps psychological), how could it be shown?

First, we could find an example of someone who has been injured by exposure to naughty words, or images of naked people. But this would be still difficult to prove. Physical scarring is clear to see, but psychological injury is more difficult.

Let's look at "post traumatic stress disorder". The way this was discovered was by looking at a large population of people who have been exposed to some thing, and another without exposure, and measure differences. Does one class have difficulty sleeping, or depression, or thoughts of suicide while the other does not?

Now let's suggest that someone suffers hypothetical injury when exposed to the word "fuck". To a non-English speaker, this word is just a sound without semantic meaning. It certainly could produce no more injury then the sound of the word "apple".

Now saying the obscene word to an English speaker is even more interesting. If the person has never heard the word before, then she's in the same class as the non-English speaker. That is to say, in order for any word to have meaning, it must have an a priori meaning agreed upon by both parties! The person on the receiving end has already heard the word before, and knows the meaning. Hearing it again simply invokes this prior knowledge, the memory of the meaning, a thought. So if this is all so, and the utterance causes injury, how can we determine which utterance caused the injury? And since this hypothetical injury derives from the stimulation of a memory, is obscenity in fact an Orwellian thought crime?

A different argument can be found for being exposed to pictures of naked people: We are born naked; we die naked. It seems unreasonable that exposure to images of people in a natural state could not be injurous. Also, the desire to be naked or clothed, and reactions to images of such are clearly variable by culture. If exposure to such images were injurous, one would imagine that prohibition would be culturally universal, which it is not.

III. The problem of statutory definition

For any law to be enforceable, it must be defined, in very clear and specific terms. This is so an objective standard exist upon which to decide infractions.

However, w/r/t obscenity law, this leads to paradox. For example, if lawmakers want to make a law against writing the obscene word "fuck" in a book, they would have to write this in a book, becoming obscene in the process! All obscenity law will suffer from this paradox.

A similar paradox was realized in the Congressional Record in 1984, when Congress held hearings on behalf of the Parents Music Resource Center on pornographic lyrics in popular music. Congressmen and witnesses read samples of these lyrics into the record, thus making the Congressional Record pornographic! 8

The paradox of definition can be covered up (but never solved) by invoking either a) class or b) community standards, or c) hypothetical "reasonable persons". All are flawed, and will be examined in order.

Class as flawed solution to the paradox of definition:

The United States is a republic, a representitive democracy where our founding documents state that all persons are created equal.  The egalitarian principle embodied in these words is in opposition to class heirarches. But we could imagine a King that declares that he can utter the obscene word with such royalty and grace as to not be sinful, or that being endowed by God such powers to carry out executive enforcement, he is therefore immune to all infractions. The important characteristic of such solutions are that they are axiomatic, outside public scrutiny or the system of law. They rely on making the sovereign lawmaker by definition of a different class than the governed. This is not a democratic principle.

But let's allow such a class distinction and attempt to build a master list of all naughty words to codify as obscene. Let's also ignore the paradox of the law becoming obscene in the process. Can such a list ever be complete? Language is in a constant state of flux, with some words becoming obsolete, as new words -- and new usages of old words -- are introduced. And are there no uses of such words that are ever acceptable, even in medical or academic contexts?
 
Community Standards -- another flawed solution:

Most obscenity suits involve graphic depections of nakedness, sexual activity, excretory functions, or offensive language. But not everyone is offended by these things.  For example, a nudist would probably feel no shame over seeing nakedness, and a vulgar man obviously has no objections to the language he himself uses. Even within a particular community, everyone possesses different standards.

It seems quite misguided then for obscenity law or the courts to appeal to such standards. In reality, "community standards" do not appeal to the standards of the entire (heterogenius) community (because no such standards exist), but to the standard of the most prudish indivudual which can be found. This hardly seems fair.

Hypothetical Reasonable Persons -- the final error:

As we have stated previously, for a law to be enforceable, it must be defined.  Federal obscenity law is codified at 18 U.S.C. §§ 1460-1470, but you won't find a definition there of what is obscene. For that, we have to examine Miller v. California  413 US 15 (1973), where the Supreme Court came up with the following test:

"Obscenity" is that subset of pornography--sexually explicit speech--which is,
  • prurient  (Inordinately interested in matters of sex)
  • patently offensive (whatever that means); and
  • lacking in significant scientific, literary, artistic or political ("SLAP") value.
This could apply to almost any prime-time television comedy in America these days!

The first two prongs of the test--prurience and patent offensiveness-- are determined with reference to contemporary community standards (there it is again) for the geographical area where the charges have been brought. The third prong, SLAP value, is determined according to a hypothetical "reasonable person" test. (I'm not making this up. The doubtful reader is encouraged to look up Miller and see this for yourself.)

Such bogus and arbitrary tests indicate that this law is not in fact defined!  Federal obscenity law (and the test for violations) defers definition of what is obscene to someone else! Therefore, this "law" is under color of law only, and cannot have the force of law.

IV: The problem of legal standing

If there exists a right to live free of offensive words or images, then shouldn't all such violations should be actionable? In practice, however, these actions are quite arbitrary and discriminitory. For example, it is likely that a vegetarian feels that McDonald's advertisements depicting slaughtered cow flesh to be obscene, and advertisements targeted especially towards children as indecent. Similarly, a pacifist might find CNN and the other news networks cheerleading the latest United States campaign of bombing civilian populations to be obscene. However, these people (usually labeled "fringe whackos" by the media) are not generally recognized to have standing.

If we allow that a father can bring a complaint because his child was allegedly injured from hearing a word on the radio (as in FCC v. PACIFICA FOUNDATION, 438 US 726 (1978)), then we must allow the vegetarian and the pacifist standing as well. For it is the same principle in both cases, although the vegetarian and the pacifist may be offended by different things than others in their community.

But if this were to happen, we would in fact open the door to an endless number of these "I was injured by words!" lawsuits because, and this is the key point to understand, we all have different standards.  For any given image or utterance, surely someone can be found who takes objection to it, and others who do not. It is therefore not possible to appeal to "community standards" without either finding everyone guilty of offending someone, or unfairly and arbitrarily granting standing to some and denying to others.

Conclusion:

The premise throughout has been the potential for censorship -- inevitably created by any obscenity laws -- leading to the suppression of political dissent, symtomatic of oppresive rule and a breakdown of democracy.  Hopefully the arguments herein are persuasive. In closing, we will look at the words of an artist who frequently found himself accused of violations if these laws:

"And the myth of obscenity is a myth that is perpetuated in order to keep a censorship mechanism in place, because as long as there can be censorship, for one thing or another, as long as they can convince somebody that you need to have a watchdog to keep the dirty words off the air, then that same watchdog agency will be able to keep political ideas that are undesireable, or any other kind of social ideas that are undesireable off the airwaves, and that is the real basis for perpuating myths of obscenity and all that kind of stuff. And I try to attack it as often as I can."     -- Frank Zappa, circa. 1985


(An article with a similar position is here: http://www.spectacle.org/296/obscene.html)

ADDED 13 July 2010:
“Our experience since Roth requires us not only to abandon the effort to pick out obscene materials on a case-by-case basis, but also to reconsider a fundamental postulate of Roth: that there exists a definable class of sexually oriented expression that may be suppressed by the Federal and State Governments. Assuming that such a class of expression does in fact exist, I am forced to conclude that the concept of ‘obscenity’ cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms.”  -- Justice Brennen, 1973, dissent, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 1973

See also the decision in Fox Television, et.al. v. FCC, 2nd Circuit, July 13 2010.
http://www.ca2.uscourts.gov/decisions/isysquery/c32e750a-a305-41e4-8961-ff11c9b4dea2/1/doc/06-1760-ag_opn2.pdf

Footnotes:

1See,Manufacturing Consent, by Noam Chomsky and Edward Hermann. This topic is also covered in Chomsky's Necessary Illusions, and Propaganda and the Public Mind, (with David Barsamian),  and to a certain degree in Media Monopoly by Ben Bagdikian, and in the major works by Robert McChesney (Rich Media, Poor Democracy, The Problem of the Media, et. al.). Bagdikian and McChesney deal primarily with the structural means of control by the media, such as consolidation of ownership, lack of quality non-commercial public service broadcasting in America, and the problems inherent with "professional journalism".

2 See Alex Carey's Taking the Risk Out of Democracy,  Toxic Sludge is Good For You! by Sheldon Rampton and John Stauber, and No Logo, by Naomi Klein.

3 This observation was independantly made by Jonathan Wallace of The Ethical Spectacle. He also points out a that obscenity laws are not defined by what obscenity is, but instead how people feel about it. See:  http://www.spectacle.org/296/obscene.html

4 In fact, there is one example where the disemination of images of prior violence may serve a positive function. As noted by progressive journalist Amy Goodman in the film "Independent Media in a Time of War" (Hudson/Mohawk Indymedia Center), the corporate media nearly alwasy sanitize the images of war, because their function is to protect the interests of those people and cprporations profiting from such. So, instead of filling the newspapers with photos of bloody children missing limbs -- which are inevitably those who are the victims, we instead see patriotic images of soldiers at sunset, flags waving overhead, etc. The assumption is that if the public learned of the true horrors of war, they would rise up and demand that war be forever stopped. When asked about this, Aaron Brown of CNN said his network refused to air such because they are "tasteless" and "pornographic". See Democracy Now!, 04/16/2003.

5  Religion (notably Jain, Hindu, Buddhism, Quaker, Wicca) and philosphical works (such as Richard Dawkins The Selfish Gene, Douglas Hofstadter's Metamagical Themas, both of which detail Robert Axelrod's work on "The Prisoner's Dilemma", a mathematical model for how cooporation might have developed in an ocean of individuals competeing for common resources) can provide the philosophical reasons for non-violence.

6 This language derives from Associated Press v. United States, 326 US 1, 20 (1945), but Red Lion Broadcasting Co. v. FCC, 395 US 367 (1969) clearly extends the reasoning that the First Amendment is not just a right of speakers and writers, but also of readers and listeners.

7  See,Ain't Nobody's Business if I Do, by Peter McWilliams, a book about the legal problem of "victimless crimes".

8  Frank Zappa mocks the irony of the PMRC hearings in his song "Porn Wars" from Frank Zappa Meets the Mothers of Prevention. Also see "High Priest of Harmful Matter" by Jello Biafra, and "Final Report of the Attorney General's Commission on Pronography" (Rutledge Hill Press, 1986). The scene in the film Monty Python and the Holy Grail about the Knights who say "Ni!" also plays on this paradox.
Bill Huston


Bill Huston is a professional computer programmer and systems administrator, but has discovered a passion for community media, and media literacy education. He is a researcher, journalist, public access televison and community radio producer and advocate. He has been involved in various media reform campaigns and independent media projects. His bio is here: http://home.stny.rr.com/bhuston, and he can be reached at bhuston@stny.rr.com, or 607-724-1755 (10am to 10pm Eastern Time only please)