Bono and Buttman

If indecency is unconstitutionally vague, why isn’t obscenity?

In July 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 the guidelines for avoiding those fines were hopelessly muddled. The Federal Communications Commission has declared, for example, that unscripted, fleeting expletives uttered by celebrities such as Bono during live award shows are indecent, while constant cursing by fictional soldiers in a war movie, if “artistically necessary,” is not. Occasional expletives in a documentary about blues musicians did not qualify for this artistic license because the interviewees could have expressed themselves differently.

The FCC said bullshitter was “shocking and gratuitous” when 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.” Bullshit 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.”

The 2nd Circuit cited evidence that the FCC’s vague standards had 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.” Since 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.”

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 Evil Angel films cited in the 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 movies 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 not presented enough evidence tying Stagliano to the films. But if the prosecutors hadn’t been so sloppy, Stag-liano’s freedom would have hinged on exactly how icky 12 randomly selected strangers thought the movies were.

Even Americans who don’t object to 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. 

Senior Editor Jacob Sullum (jsullum@reason.com) is a nationally syndicated columnist.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Delicate Sensibilities||

    Pornography, Indecency, Obscenity.

    Jacob, the words alone are highly offensive.

  • Old Mexican||

    But as anti-porn activist Patrick Trueman conceded, the Evil Angel films cited in the indictment, Milk Nymphos and Storm Squirters 2, are “in many respects typical of what’s available today.”

    "... so I was told, of course! *Cough*"

  • prolefeed||

    I wouldn't describe them "typical". Most porn is pretty bland stuff. "Not completely off the charts relative to other niche porn" might capture the edginess of these films.

  • ||

    They went after the shock jocks and pornographers but we didn't protest because we may not like form of entertainment....When thet're done with the Howard Sterns and Larry Flynts, who do think the Nanny State will be coming for next?

  • Rudan||

    They'll probably attack a pop singer appearing on a kids show and having fun because her relatively normal dress would warp kids minds and make them vulnerable to paedophiles. I'm just kidding, people aren't that stupid.

  • Stretchy||

    New bumper sticker: "I watch porn and I VOTE!"

  • The Gobbler||

    +9

  • prolefeed||

    +69

  • prolefeed||

    I like the way you think, Predicator, and would like to subscribe to your newsletter.

  • Don't ask, don't tell||

    We're not going to ask what you do in the voting booth.

  • John Holmes||

    That's obvious.

  • ||

    +69

  • Colonel_Angus||

    “By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means,”

    Typical indecisive ruling. They provided an opportunity for continued abuse, the regulators will just change their policy a little bit and the fines and prosecution will continue.

  • ||

    Lucky now that the democrats are in charge we have a much better civil liberties environment and don't have to worry about porn prosecutions.

    Wait, What??!!

  • ||

    It was a lot worse under Bush, believe me.

  • ||

    Fcuking Liar!

  • Cyto||

    If indecency is unconstitutionally vague, why isn’t obscenity?

    Because... uhm, I know it when I see it!

  • Doctor K||

    And here I thought this thread was going to be about Bono being a buttman because of his ONE charity...

    "ONE gives only a pittance in direct charitable support to its causes -- something Borochoff said the average donor might not realize.
    The Bono nonprofit took in $14,993,873 in public donations in 2008, the latest year for which tax records are available.
    Of that, $184,732 was distributed to three charities, according to the IRS filing.
    Meanwhile, more than $8 million was spent on executive and employee salaries."

    Read more: http://www.nypost.com/p/news/n.....z10T7JiRwT

  • ||

    "Even Americans who don’t object to imprisoning people for movies made by and for consenting adults should worry about the unavoidable arbitrariness of obscenity prosecutions"

    O puleeeze! These are the last people alive who worry about the capriciousness of the state. They never ever worry about the state going after them - their view is that if te state is prosecuting you than you must be guilty. As long as the gubermint doesn't touch (and by 'doesn't touch' I mean a 3-5% increase every year) their social security they are fine with anything the gubermint does.

  • 35N4P2BYY||

    I seems to me that the networks, particularlly the three letter broadcast networks have a vested interest in ensuring they are not offending their viewers, external to any government regulation/intervention.

  • ||

    The problem is, these aren't so much winning based on the protections of the 1st Amendment as they are on the vagueness of the laws. If the laws were more clear, they could trample our 1st Amendment rights just fine.

  • ||

    or ... if the laws were more clear, they might not pass constitutional muster.

  • MCM||

    Follow up with a link to 'Passive' from Perfect Circle's Emotive.

  • ||

    I was a fluffer for 8 years. I know most of the guys in porn.

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  • رش مبيدات||

    Well said. Tucker is despicable, Crossfire became despicable (despite the presence of supposed "heavyweights" like Novack and Carville), and Jon Stewart is a comedian who has never proclaimed himself to be anything else. Just because certain people here don't understand how satire works doesn't change that fact. The fact that The Daily Show has gained some cultural traction doesn't change that. شركة تنظيف خزانات بالرياض

  • رش مبيدات||

    O puleeeze! These are the last people alive who worry about the capriciousness of the state. They never ever worry about the state going after them - their view is that if te state is prosecuting you than you must be guilty. As long as the gubermint doesn't touch (and by 'doesn't touch' I mean a 3-5% increase every year) their social security they are fine with anything the gubermint does. شركة تنظيف منازل بالرياض

  • رش مبيدات||

    Seriously though, Al you are right. It is bad enough how much people rely on imagery to get their information, instead of doing a bit of reading and factfinding on their own.
    Additionally, when you read the news it is usually simple to spot the phony or unbelieveable parts of the story. If people start relying on animated stories to get their information, my God how easily could they be manipulated by propaganda from "unbiased" newsreporters trying to promote an agenda (just think of the images they could conjer up on global warming alone). شركة تنظيف منازل بالرياض

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