If Indecency Is Unconstitutionally Vague, Why Isn't Obscenity?

By Jacob Sullum (Archive) · Wednesday, July 21, 2010

Last week, an appeals court in New York overturned the federal ban on broadcast indecency, and a judge in Washington, D.C., dismissed obscenity charges against porn impresario John "Buttman" Stagliano. The two cases show that prohibiting vaguely defined categories of speech undermines the rule of law as well as freedom of expression.

The policy rejected by the U.S. Court of Appeals for the 2nd Circuit defined broadcast indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." Broadcasters who aired such material between 6 a.m. and 10 p.m. were subject to multimillion-dollar fines.

But as the appeals court noted, the guidelines for avoiding those fines were hopelessly muddled. The Federal Communications Commission has declared, for example, that unscripted, fleeting expletives uttered by celebrities during live award shows are indecent, while constant cursing by fictional soldiers in a war movie, if "artistically necessary," is not. The FCC said occasional expletives in a documentary about blues musicians did not deserve the same artistic license because the interview subjects could have expressed themselves differently.

The FCC said "bullsh--ter" was "shocking and gratuitous" because it was uttered "during a morning television interview," then changed its mind because the context was "a bona fide news interview."

At the same time, it warned "there is no outright news exemption from our indecency rules." The commission said "bulls--t" was unacceptable on a police drama because it was "vulgar, graphic and explicit," but "dickhead" was OK because it was "not sufficiently vulgar, explicit or graphic" to be indecent.

The 2nd Circuit cited evidence that the FCC's arbitrary application of its vague, subjective standards has deterred broadcasters from airing constitutionally protected material, including political debates, live news feeds, novel readings and award-winning shows dealing with sexual topics. "By prohibiting all 'patently offensive' references to sex, sexual organs and excretion without giving adequate guidance as to what 'patently offensive' means," the court concluded, "the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive."

Similar problems are raised by the prosecution of obscenity, defined as "patently offensive" sexual material that "appeals to the prurient interest" (as judged by "the average person, applying contemporary community standards") and lacks "serious literary, artistic, political or scientific value." Because each element of this definition is inescapably subjective, in practice it is indistinguishable from Justice Potter Stewart's famous standard: "I know it when I see it."

John Stagliano, founder of Evil Angel Video, faced federal obscenity charges that could have sent him to prison for 32 years. But as anti-porn activist Patrick Trueman conceded, the films cited in Stagliano's indictment, "Milk Nymphos" and "Storm Squirters 2," are "in many respects typical of what's available today."

Even if the sex acts depicted in the targeted films were highly unusual, there would be no principled basis for declaring, say, that fluid emerging from women's bodies is obscene while fluid emerging from men's bodies is not. This is not justice, this is a joke.

U.S. District Judge Richard Leon stopped the trial after the prosecutors rested their case, ruling that they had failed to present enough evidence tying Stagliano to the films. But if the prosecutors hadn't been so sloppy, Stagliano's freedom would have hinged on exactly how icky 12 randomly selected strangers thought the movies were. As Stagliano put it in an interview with Reason.tv, "The case law says you just play the movie and see if people are disgusted by it."

Even Americans who don't object to the idea of imprisoning people for movies made by and for consenting adults should worry about the unavoidable arbitrariness of obscenity prosecutions. Like broadcasters operating under the threat of indecency fines, porn producers can never be sure what material will be deemed illegal. That kind of uncertainty should be unacceptable in a society that upholds the rule of law.

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