Indecency

The Mythical Right to Decency

The Supreme Court passes up a chance to overturn the FCC's unconstitutional speech restrictions.

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Pity the poor speech regulators at the Federal Communications Commission, who are charged with sifting through complaints about TV and radio programs in a farcical attempt to determine which references to "sexual or excretory organs or activities" are "patently offensive as measured by contemporary community standards for the broadcast medium." Last week the Supreme Court declined to rule on the constitutionality of this charade, thereby forcing the FCC's butt coverers and word bleepers to contemplate a backlog of 1.5 million or so complaints.

"The FCC must now enforce our right to decency on the public airwaves," declared Morality in Media President Patrick Trueman. Unpacking that statement reveals the intellectual and constitutional bankruptcy of this whole censorious enterprise.

Trueman's "right to decency" is, in essence, a right not to be offended, which sits rather uneasily with the right to freedom of speech. The First Amendment would not amount to much if it extended only to inoffensive utterances.

And what about the right to indecency? Profit-driven broadcasters do not air things that offend Patrick Trueman out of a perverse desire to upset him; they do so because they are trying to attract viewers, who evidently have different tastes. Why should Trueman's idea of good television trump theirs?

Here is where the concept of "the public airwaves" comes in: The government graciously allows broadcasters to use a precious public resource and therefore has a right to impose conditions on them. That was the Obama administration's position in the case decided last week, where the Supreme Court overturned three FCC indecency actions on narrow due process grounds but dodged the broader First Amendment issue.

Notably, this view of the airwaves as a public resource was not the basis for the 1978 ruling in which the Court first upheld the federal government's authority to regulate TV and radio content. That decision hinged instead on the premise that broadcasting was "uniquely pervasive" and "uniquely accessible to children"—neither of which is true now that programming is widely and readily available via cable, satellite, Internet, DVD, and DVR.

Unlike broadcasting, none of those media is monitored by the government for naughty words and images, and the Court has made it clear that any attempt to do so would violate the First Amendment. Yet there is no constitutional basis for this distinction, no matter how many times professional puritans like Trueman call the airwaves "public."

After all, satellite TV, cellphones, and the Internet also use "the public airwaves," but that fact does not subject them to content regulation. I used the public airwaves, through a WiFi connection, to transmit this column, but that does not mean I have to worry about being fined if I happen to offend the FCC.

Extending the concept only slightly, coaxial and fiber-optic cables follow public rights of way, periodicals are delivered via public roads, and every speaker's voice is both powered and transmitted by the public air. Does Patrick Trueman have a right to decency in these media as well?

It's true that the government treats broadcasting as a privilege with strings attached, as opposed to a transferable property right, but that decision does not justify itself. If the government has the authority to regulate broadcast content because it controls the airwaves and licenses TV stations, why can't it regulate newspaper content by nationalizing printing presses and licensing journalists?

In addition to violating the First Amendment, the ban on broadcast indecency undermines the rule of law because it is so hard to predict what will offend the FCC. A glimpse of bare buttocks (which are not, technically speaking, "sexual or excretory organs") may be deemed indecent in a cop show but not in a war movie. Four-letter words that can trigger multimillion-dollar fines may be tolerated if the FCC deems them artistically or journalistically justified. Such embarrassingly subjective, unjustly arbitrary, and unconstitutionally speech-chilling judgments are unavoidable as long as the government insists on protecting the mythical right to decency.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. Follow him on Twitter.

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  1. “The FCC must now enforce our right to decency on the public airwaves,” declared Morality in Media President Patrick Trueman. Unpacking that statement reveals the intellectual and constitutional bankruptcy of this whole censorious enterprise.

    And unpacking it further reveals the intellectual bankruptcy of all similar positive rights.

  2. After all, satellite TV, cellphones, and the Internet also use “the public airwaves,” but that fact does not subject them to content regulation.

    Let’s not give them any ideas.

    1. If it isn’t the RW prigs wanting to control broadcasting decency, it’s the left-wing schmucks wanting to control the political content of broadcasting.

      And both use the bullshit term “public airwaves”. By design.

    2. I was thinking the same thing

  3. I just realized that skin is an exretory organ. If you will excuse me, I have a lot of complaints to submit to the FCC.

    1. Now I understand the whole burka thing.

      1. I thought the burkha was also to prevent the evil waves emanating from the women’s lusterous hair.

        1. And from their eyes…which incidentally also excrete.

      2. Not that you care, but a burka, chador, or other hijab are most excellent protection from the sun. In many Islamic countries, the sun is a bitch. Body parts commonly hidden from view acquire sexualized connotations within a culture. Hence what once was a practical response to sun exposure become a religious edict.

    2. That’s not a bad idea. Bog them down with complaints.

  4. I have always maintained that censors are the vilest of creatures. Right to decency? Morality in Media? How fucking creepy can you get Patrick?

    Patrick Trueman pulled the right to decency right out of his ass in public. Isnt that an indecent act? Can I submit a complaint for that?

  5. Such embarrassingly subjective, unjustly arbitrary, and unconstitutionally speech-chilling judgments are unavoidable as long as the government insists on protecting the mythical right to decency a feature, not a bug, that keeps the peasants in constant fear of what the tyrant might do next.

  6. right to indecency

    Nice band name.

    1. Don’t you remember the pro-wrestling troika called ‘Right to Censor’?

      They wore office shirts and ties.

      I’m not joking either…

      1. That was a fantastic professional wrestling angle born out of a parody of censors during wrestling’s raunchy product at the time.

        The interesting thing was that they were scripted as “heels” which meant the crowd was booing the characters that wanted to make the show moral. If only we could manipulate all of America to boo these yahoos.

  7. Grandpa Al Lewis had it right. “FUCK the FCC! Fuck ’em! Fuck ’em!”

  8. Anyone here know why showing buttocks in a war movie is acceptable, but not in a cop show ?

    1. Because in a war movie the buttocks are separated from the rest of the torso?

    2. There are no censors in foxholes.

      1. A good one.

    3. The end of Don’t Ask, Don’t Tell probably means the end of buttocks in war movies.

    4. I think it’s because war is supposed to be a downer, while cops y robbers is supposed to be fun. If you’re showing people stuff that’s supposed to depress them, then you’re allowed to curse y show nudity.

  9. I am always thankful for that great freedom fighter Larry Flynt although he fought these assholes on published private material.

    (the last time I brought Flynt up “John” went apoplectic)

    1. Doesn’t take much.

    2. On the balance Flynt has been on the anti-liberty, pro-government side more often than not.

      The famous ‘fight’ that he won had nothing to do with government, either, it was a civil suit.

  10. Ain’t no scold like a moral scold.

  11. The government seizes control over property, then dictates how it can be used.

    Land of the free, indeed.

    1. Hey, it’s for your own good. If they didn’t then you’d just end up seeing something that caused long term mental damage. And who would you blame? That’s right, the government for not blocking out those disturbing images which will haunt you for the rest of your life.

      1. Too late in Mr Free’s case

        1. Yeah, I thought of that after I clicked submit. I suppose he has a case at least.

  12. Who is that in the picture by the way?

    It looks like a still from a movie I never saw.

      1. http://www.mrskin.com/gail-ogrady-b752.html

        Mr, Skin has no similar pictures. She is awesome though. I never heard of her before.

      2. The alt-text indicates it is Charlotte Ross, who was also on NYPD Blue.

          1. Who would have guessed shrike has Mr. Skin bookmarked?

        1. Ah, the picture is blocked for me so I got no alt-text.

  13. Quasi-OT: Speaking of sanctimonious moral censors…

    Mohamed Morsi: [in the 1920’s, the Egyptians] said: “The constitution is our Koran.” They wanted to show that the constitution is a great thing. But Imam [Hassan] Al-Banna, Allah’s mercy upon him, said to them: “No, the Koran is our constitution.”

    The Koran was and will continue to be our constitution.

    The Koran will continue to be our constitution.

    Mohamed Morsi: The Koran is our constitution.

    Crowds: The Koran is our constitution.

    Mohamed Morsi: The Prophet Muhammad is our leader.

    Crowds: The Prophet Muhammad is our leader.

    Mohamed Morsi: Jihad is our path.

    Crowds: Jihad is our path.

    Mohamed Morsi: And death for the sake of Allah is our most lofty aspiration.

    Crowds: And death for the sake of Allah is our most lofty aspiration.

    Mohamed Morsi: Above all ? Allah is our goal.

    But nope, a newly belligerant Egypt is not going to exacerbate tensions in the Sinai and Gaza. Nope, because an English-speaking Ikhwan spokesperson said Morsi would “respect” the Israeli-Egyptian peace treaty. Yep.

    1. Yeats? What do you have to say about all this?

      Turning and turning in the widening gyre
      The falcon cannot hear the falconer;
      Things fall apart; the centre cannot hold;
      Mere anarchy is loosed upon the world,
      The blood-dimmed tide is loosed, and everywhere
      The ceremony of innocence is drowned;
      The best lack all conviction, while the worst
      Are full of passionate intensity.

      Surely some revelation is at hand;
      Surely the Second Coming is at hand.
      The Second Coming! Hardly are those words out
      When a vast image out of Spiritus Mundi
      Troubles my sight: somewhere in sands of the desert
      A shape with lion body and the head of a man,
      A gaze blank and pitiless as the sun,
      Is moving its slow thighs, while all about it
      Reel shadows of the indignant desert birds.
      The darkness drops again; but now I know
      That twenty centuries of stony sleep
      Were vexed to nightmare by a rocking cradle,
      And what rough beast, its hour come round at last,
      Slouches towards Bethlehem to be born?

      1. One of the greatest collections of words of all time.

        1. Second only to The Waste Land in my opinion.

          1. Shrike’s favorite poem excoriates the middle class — who’da thunk it?

    2. Mohamed Morsi: The Koran is our constitution.

      Crowds: The Koran is our constitution.

      Mohamed Morsi: The Prophet Muhammad is our leader.

      Crowds: The Prophet Muhammad is our leader.

      Mohamed Morsi: Jihad is our path.

      Crowds: Jihad is our path.

      Mohamed Morsi: And death for the sake of Allah is our most lofty aspiration.

      Crowds: Oh, look at the time, we got to go home and watch the soccer match.

    3. Great. Now the Egyptians are doing that call-and-response thing that the Occupados (remember them?) used to do.

      Now I’m certain this won’t end well. If they start the twinkly fingers thing, I vote we nuke ’em from orbit.

      1. Mohamed Morsi: You’re all individuals!

        Crowds: Yes, we’re all individuals!

        1. Mohamed Morsi: Jihad is our path.

          Crowds: Jihad is our path.

          Mohamed Morsi: I will let Mohamed Morsi bone my teenage daughter.

          Crowds: I will let…hey!

  14. OK wow, that makes a lot of s ene dude. Wow.

    http://www.Anony-dot.tk

  15. I’ve never verified if Sullum is an absolutist on this. So does this extend to replacing Jeopardy with Anal Jeopardy in the 7 PM time slot?

    1. Does the show take place in a gay bath house?

    2. And now for Anal Jeopardy with your host Jerry Sandusky.

      1. Greg Kihn will make a comeback –

        Our butts in jeopardy, baby.

        Oooohhh,ooo-ooo-oooooo

    3. Depends on if you have the option of not watching it and not allowing your kids to watch it, etc.

  16. The FCC: Insulting my intelligence since I was 10 years old.

  17. The author just wants to see boobies on TV and I thoroughly agree. Also I want cops and Wall Street traders to be able to say “fuck” …. Verisimilitude bitches!

    1. The issue of indecency on TV is rendered moot by, you know, the flerking Internet.

  18. Extending the concept only slightly, coaxial and fiber-optic cables follow public rights of way, periodicals are delivered via public roads, and every speaker’s voice is both powered and transmitted by the public air. Does Patrick Trueman have a right to decency in these media as well?

    If the government has the authority to regulate broadcast content because it controls the airwaves and licenses TV stations, why can’t it regulate newspaper content by nationalizing printing presses and licensing journalists?

    Stop giving them ideas.

  19. There is power in limits and chaos in unbridled freedom.

    The laws that give the FCC control over what is deemed profane might be antiquated but there is no reason to throw out the old man with the bath water.

    Take away all restraints on all media and there is no way for the majority of people who do not want to watch men with overly large scrotums having anal intercourse with hyenas, while beating a little white bunny to death with a spike-covered dildo. Are you appalled at the image? This is what freedom looks like, my dears.

    You reply, ‘This is disqusting, which is legal, but there are actions described that are purely illegal.’ Well, how DARE the govenment outlaw these actions! They are infringing on our liberty! Shouldn’t anything and everything be legal as long as it can be reasoned?

    The hyenas might enjoy the encounter, and heck, most of us are meat-eaters anyway, so…..

    Now you might understand :

    There is power in limits and chaos in unbridled freedom.

    1. And the market for that kind of thing is how big, exactly? Anyone trying to cater to Hyena bestiality inter-species erotica enthusiasts will most likely find themselves out of business from lack of advertising revenue in fairly short order.

      And as always, if you don’t want to see shit like that (I know I don’t) you don’t have to watch. As for precious little snowflake children, there’s this thing called the “V-chip”. Also most internet security SW suites these days come with built in parental controls that will allow you to block websites. Learn how to use the tools that are at your disposal. I know, that would take work, and “work is hard, can’t the government do my job as a responsible parent for me? It’s too HAARRRRRD”

    2. There is power in limits

      Certainly, if you are setting and enforcing the limits.

      For everyone else, though? Not so much.

    3. This is what freedom looks like, my dears.

      And this is what your precious limits look like:

      http://fcit.usf.edu/holocaust/gallery/01622.HTM

    4. This is what freedom looks like, my dears.

      Nobody wants to see your porn stash.

      Seriously, stop projecting your own inability to control yourself on everyone else. We can manage just fine without you.

      1. “joy darby” is either a leftist, or a so-con. Sometimes, it’s hard to tell.

        1. The line about “overly large scrotums” sent my parody detector wand up to 110%.

          1. Maybe she has a scrotometer?

          2. Is that what you’re calling it these days?

    5. Are you appalled at the image? This is what freedom looks like, my dears.

      A vulva sitting on a human face…forever.

    6. When can we get a pilot shot on this hyena thing?

    7. You are one sick motherfucker. Die in a fire you fucking statist slaver.

    8. Take away all restraints on all media and there is no way for the majority of people who do not want to watch men with overly large scrotums having anal intercourse with hyenas, while beating a little white bunny to death with a spike-covered dildo.

      Your sentence lacks a verb. There’s no way for the majority of people… to what?

      If the majority of the people want to watch something else, they will. And the free market will provide it.

  20. I often open reason at work while thinking about what to do for the day. Check out what was posted since I last checked yesterday, etc.

    Imagine my surprise to see a naked girl on the front page of reason.com this morning.

    Fortunately I have my desk so that nobody can see my monitors. 🙂

  21. The “right to decency” is about two entries away from “the right to healthcare” in The Invisible Book of Entitlements.

  22. If the government has the authority to regulate broadcast content because it controls the airwaves and licenses TV stations, why can’t it regulate newspaper content by nationalizing printing presses and licensing journalists?

    To be fair, there is a difference between broadcast spectrum and newspaper, in that there is a limited amount of the former. Now, I certainly think you can argue against the connection between government’s allocation of the broadcast spectrum and government’s regulation of what is done with that spectrum, but the connection is closer than in a printing press, where there is no limit to available printing.

    1. Neither should be regulated, though, in terms of content.

    2. To be fair, there is a difference between broadcast spectrum and newspaper, in that there is a limited amount of the former.

      There’s not exactly a rush to get radio/TV spectrum these days. 75% of the audience is consuming via cable.

      There’s a limited amount of billboard space too, that doesn’t mean the govt can regulate what you can post there.

    3. “Congress shall make no law…”

      1. Nice thought, T., but as the good and wise Ezra Klein pointed out, the Constitution is, like, a hundred years old and stuff.

        1. Even scarier, Justice Ginsburg agrees with Klein.

          1. Ginsburg has more of a hate-boner for the Constitution than Juice Box Hero Klein does.

  23. FCC deems them artistically or journalistically justified. Such embarrassingly subjective, unjustly http://www.ceinturesfr.com/cei…..-c-11.html arbitrary, and unconstitutionally speech-chilling judgments are unavoidable as long as the government insists on protecting the mythical right to decency.

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