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


Yesterday I noted the 2nd Circuit's decision rejecting the FCC's ban on "broadcast indecency" as unconstitutionally vague. "By prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means," the appeals court concluded, "the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive." Our coverage of John Stagliano's obscenity trial shows that the law he is charged with violating raises the same problems. This is not a coincidence, because the definition of obscenity, a category of speech that the Supreme Court has deemed undeserving of First Amendment protection, was the model for the FCC's definition of broadcast indecency, which the Court has said can be restricted to certain hours without violating the First Amendment.

In the 1973 case Miller v. California, the Supreme Court set forth a three-part definition of obscenity:

1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.

2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable law.

3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Similarly, the FCC policy that the 2nd Circuit overturned yesterday, which was the agency's interpretation of a law prohibiting the utterance of "obscene, indecent or profane language by means of radio communication,"  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." This category is notably broader than obscenity: The material it includes need not appeal to "the prurient interest," and it may have "serious literary, artistic, political, or scientific value." Then again, the FCC's policy was not a complete ban, since material that was deemed indecent but not obscene could still be aired between 10 p.m. and 6 a.m., and violating it triggered fines, as opposed to the long prison sentence Stagliano could face if convicted (although a prison sentence of up to two years is authorized by the statute that prohibits broadcast indecency).

What both definitions have in common is an inescapable vagueness and subjectivity that make enforcement actions utterly unpredictable. Both require the application of "contemporary community standards," whatever those are, and a judgment about what is "patently offensive." In practice, this means broadcasters are at the mercy of bureaucrats' capricious tastes, while the freedom of a defendant in an obscenity case hinges on exactly how icky a bunch of randomly selected people think his films are. The results cannot possibly be anything but arbitrary. As anti-porn activist Patrick Trueman concedes in Reason.tv's video "Obscenity vs. Freedom of Speech," the films that triggered Stagliano's indictment are "in many respects typical of what's available today"—i.e., they are not different in kind from pornography that is widely available in the District of Columbia (where Stagliano is being tried) and throughout the country. Yet as Richard Abowitz reported the other day, the judge overseeing the trial has barred Stagliano from presenting testimony to that effect.

Abowitz notes that the "milk enemas" depicted in one of the targeted films can be seen in hundreds of other movies. Even if the sex acts depicted in the films that are cited in Stagliano's indictment were highly unusual, there is simply no principled basis for declaring that milk coming out of a woman's butt is obscene, while semen shooting from a man's penis (featured in nearly every mainstream porn film with male performers) is not. This is not justice; this is a joke.

Moral crusaders like Trueman want obscenity prosecutions to have a chilling effect on sexually explicit material, including material that is protected by the First Amendment under the Miller test. But aside from the clear threat to freedom of expression, the unavoidable arbitrariness of obscenity prosecutions means that porn producers, like broadcasters operating under the threat of multimillion-dollar indecency fines, can never be sure what material will be deemed illegal. They therefore cannot reasonably be expected to conform their behavior to the law, a basic requirement of due process. And unlike broadcasters who inadvertently air celebrities' expletives or bare boobs, they can go to prison for the rest of their lives if they guess wrong.