Fuck's only what you do. animals fuck. But cunt's a lot more .... Baby,” with Brooke
Shields debuvng at age 12 in the role of a child prosvtute. He made a total of ...
* III. Obscenity and censorship
Obscenity is unprotected speech. The thread that follows through all Supreme Court decisions is that obscenity is not speech protected by the First Amendment. Unfortunately, the Courts have been ruling books and other materials obscene or not obscene without ever coming up with a verifiable definiBon of what obscenity is. Nor has the Court ever clearly explained why obscenity is unprotected speech, though in Roth it noted that when the First Amendment was passed, most states had laws against libel, profanity, and obscenity, so it would be safe to assume that such speech is not protected by the Bill of Rights. The Court has oGen commented that obscenity violates social norms and children need to be protected from it. How, then, is a publisher or film maker to know in advance whether a text is obscene or not obscene? Does that uncertainty consBtute a form of prior restraint?
Looking back at a MassachuseMs Appeals Court ruling that William Burroughs’ novel Naked Lunch is not obscene, the novelist Norman Mailer, who had served as an expert witness for the defense, later wrote: Every gain of freedom carries its price. There’s a wonderful moment when you go from oppression to freedom, there in the middle, when one’s sBll oppressed but one’s achieved the first freedoms. There’s an extraordinary period that goes from there unBl the freedoms begin to outweigh the oppression. By the Bme you get over to complete freedom you begin to look back almost nostalgically on the days of oppression, because in those days you were ready to become a martyr, you had a sense of importance, you could take yourself seriously, and you were fighBng the good fight. Now, you get to the point where people don’t even know what these freedoms are worth, are using them and abusing them. You’ve goMen older. You’ve goMen more conservaBve. You’re not using your freedoms. And there’s a comedy in it, in the long swing of the pendulum. Does the history of easing prior restraint in literary obscenity over the course of the twenBeth century free the arBst or make literary expression more difficult?
A classic case of censorship: Lady Cha8erley’s Lover, a novel by D. H. Lawrence, was first published in 1928 in Florence, Italy; it could not be published openly in the United Kingdom unBl 1960. Bootleg ediBons were available in the US, and a private ediBon was published by Mandrake Press in the UK in1929. The book soon became notorious for its story of the physical relaBonship between a working-‐class man and an aristocraBc woman, its explicit descripBons of sex, and its use of (at the Bme) unprintable words. The next slide has an excerpt from Lady Cha8erley’s Lover. Please skip it if you don’t want to see the unprintable c-‐ and f-‐words.
Lady Cha8erley’s Lover, from ch. 12 "Mun I?" she said. "Maun Ah!" he corrected. "Why should I say maun when you said mun?" she protested. "You're not playing fair." "Aren Ah!" he said, leaning forward and soGly stroking her face. "Th'art good cunt, though, aren't ter? Best bit o' cunt leG on earth. When ter likes! When tha'rt willin'!" "What is cunt?" she said. "An' doesn't ter know? Cunt! It's thee down theer; an' what I get when I'm i'side thee, and what tha gets when I'm i'side thee; it's a` as it is, all on't." "All on't,'"she teased. "Cunt! It's like fuck then." "Nay nay! Fuck's only what you do. Animals fuck. But cunt's a lot more than that. It's thee, dost see: an' tha'rt a lot besides an animal, aren't ter? -‐-‐-‐ even ter fuck? Cunt! Eh, that's the beauty o' thee, lass!"
Obscenity and literary censorship: In 1930, the U. S. Senate held a floor debate to decide whether customs agents could search the luggage of arriving steamship passengers and confiscate any dirty books they found. The quesBons at issue: Are customs agents, employees of the Treasury Department, competent to declare a book obscene? Should the federal government leave censorship to the states? Should federal courts become the censors? The Senate decided to let customs agents seize suspicious books like Lady Cha8erley’s Lover, but only a judge could declare the books obscene.
At the Bme, Treasury agents on steamship docks could seize and destroy imported books which they judge obscene or immoral. Sen. Bronson Cuing, a graduate of Harvard, thought this was inappropriate, but Sen. Smoot feared the country would be inundated with obscene literature. They debated the issued on the Senate floor The Senate considered three plans: 1) Censorship of foreign books, as at present, by U. S. Customs agents whom Senator Smoot called “men of educaBon and broad informaBon, with a knowledge of the world,” but whose “knowledge of the world,” according to Senator Cuing, “is how to get from the Bowery to the Hudson River piers and open trunks and leave them in confusion.” 2) No censorship, leaving control of obscene books enBrely to the States. 3) Censorship by the U. S. courts, as a body of intelligence and literary discriminaBon above that of Customs agents.
Senator Reed Smoot, a Utah conservaBve who had gone to the school that would later become Brighan Young, and was beMer-‐known as the co-‐sponsor of the highly-‐restricBve Smoot-‐Hawley Tariff, proposed this amendment to the tariff law under consideraBon by the Senate:
Congressional Record, Mar. 17, 1930.
Sen. Smoot told the Senate, “I’d rather have a child of mine use opium than read these books.” He went on:
72nd Congress, Congressional Record, March 17, 1930, p. 5414.
South Carolina Sen. Coleman Livingston Blease supported Smoot: The image cannot be displayed. Your computer may not have enough memory to open the image, or the image may have been corrupted. Restart your computer, and then open the file again. If the red x still appears, you may have to delete the image and then insert it again.
The debate resulted in a compromise. Customs agents could conBnue to seize books, but only the courts could determine if they were obscene. Cuing felt saBsfied that this would reduce the number of reckless seizures, since agents would be more careful if their decisions were reviewed by a judge. Lady Cha8erley conBnued to be banned. And Smoot was content that the virtue of the naBon would conBnue to be protected.
Roth v. United States 354 U.S. 476 (1957) Samuel Roth was convicted under a federal statute criminalizing the sending of “obscene, lewd, lascivious or filthy” materials through the mail for adverBsing and for selling a publicaBon called American Aphrodite (“A Quarterly for the Fancy-‐Free”) containing literary eroBca and nude photography. QuesBon: whether obscenity is uMerance within the area of protected speech and press. J. William Brennan, who would write many of the Court’s obscenity opinions: The bills of right of 10 states had freedom of speech clauses but also criminalized various kinds of speech, including libel, blasphemy, profanity, even (in MA) obscenity. In light of this history, it is apparent that the uncondiBonal phrasing of the First Amendment was not intended to protect every uMerance.
Roth v. United States (1957) The consBtuBonal standard for judging obscenity is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. The goals of American free speech and free press protecBons were explicitly to encourage learning and poliBcal parBcipaBon: the advancement of truth, science, morality, and arts in general, in its diffusion of liberal senBments on the administraBon of Government, its ready communicaBon of thoughts between subjects, and its consequenBal promoBon of union among them, whereby oppressive officers are shamed or inBmidated into more honourable and just modes of conducBng affairs. [1 Journals of the ConBnental Congress 108 (1774)] It is therefore vital that the standards for judging obscenity safeguard the protecBon of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.
The Court does not need to define obscenity with a great deal of precision: The ConsBtuBon does not require impossible standards”; all that is required is that the language “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and pracBces. . . .”
Roth holds that obscenity is not protected speech. It upholds the federal statute that punishes the mailing of obscene maMer. Roth cites Chaplinsky v. New Hampshire (1942): [of lewd and obscene speech] such uMerances are no essenBal part of any exposiBon of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .
In addiBon, Roth introduces the idea of redeeming social value: The protecBon given speech and press was fashioned to assure unfeMered interchange of ideas for the bringing about of poliBcal and social changes desired by the people . . . . All ideas having even the slightest redeeming social importance— unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protecBon of the guaranBes, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejecBon of obscenity as uMerly without redeeming social importance.
Roth disBnguishes between sex and obscenity: sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scienBfic works, is not itself sufficient reason to deny material the consBtuBonal protecBon of freedom of speech and press . . . . It is therefore vital that the standards for judging obscenity safeguard the protecBon of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. And it established an obscenity test applying “contemporary community standards”: whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest
prurient is a word from the LaBn, meaning ‘to itch, esp. a sexual excitement.’ [The medical term for an itchy rash is pruriDs] More specifically, the Court defined material appealing to the prurient interest as material having a tendency to excite lusxul thoughts, And it defined prurient interest as a shameful or morbid interest in nudity, sex, or excreBon.
In his dissent in Roth, J. Douglas cites studies demonstraBng a disconnect between reading and sexual thoughts, emphasizing the relaBve unimportance of literature in sex thoughts as compared with other factors in society. . . . if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor. J. Douglas will repeat this in later cases, the condiBon when speech may be suppressed: Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal acBon as to be an inseparable part of it.
We find D. H. Lawrence back in the obscenity news in 1960, when Penguin Books published Lady Cha8erley’s Lover in England in 1960 and a charge of obscenity ensued. The Obscene PublicaBons Act of 1959, under which Lady Cha8erley was judged: 1(1) For the purposes of this Act an arBcle shall be deemed to be obscene if its effect . . . is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the maMer contained or embodied in it. The prosecutor, Mervyn Griffith-‐Jones, told the court: The word ‘fuck’ or ‘fucking’ occurs no less than 30 Bmes. . . . ‘Cunt’ 14 Bmes; ‘balls’ 13 Bmes; ‘shit’ and ‘arse’ six Bmes apiece; ‘cock’ four Bmes; ‘piss’ three Bmes, and so on.
The numerous expert witnesses for the defense included Rebecca West, E M Forster, and Cecil Day Lewis. The jury may have been impressed by these literary luminaries; or they may simply have been put off by the patronizing tone of prosecuBng counsel, Mervyn Griffith-‐ Jones, asking them: Is it a book that you would even wish your wife or your servants to read? In 1959, the American publisher Grove Press published an unexpurgated version of Lady Cha8erley’s Lover. The U. S. Post Office, under the authority of the 1930 obscenity law, confiscated copies sent through the mail. Charles Rembar, working for Grove Press, sued the New York city postmaster and won in New York and then on federal appeal.
Obscenity in film: Jacobellus v. Ohio (1964), reversed the convicBon of a movie theater owner who had shown a film said to be obscene, or pornographic. The film was "Les Amants" ("The Lovers”), made in 1958 by new-‐wave French director Louis Malle and starring Jeanne Moreau. In 1978 Malle directed “PreMy Baby,” with Brooke Shields debuBng at age 12 in the role of a child prosBtute. He made a total of 33 films in France and the U.S. , including “AtlanBc City,” “Lacombe, Lucien,” “My Dinner with André,” and “Zazie dans le métro.”
From the Brennan opinion: “The Lovers” involves a woman bored with her life and marriage who abandons her husband and family for a young archaeologist with whom she has suddenly fallen in love. There is an explicit love scene in the last reel of the film, and the State's objecBons are based almost enBrely upon that scene. The film was favorably reviewed in a number of naBonal publicaBons, although disparaged in others, and was rated by at least two criBcs of naBonal stature among the best films of the year in which it was produced. It was shown in approximately 100 of the larger ciBes in the United States, including Columbus and Toledo, Ohio. We have viewed the film, in the light of the record made in the trial court, and we conclude that it is not obscene within the standards enunciated in Roth v. United States and Alberts v. California, which we reaffirm here.
There is no nudity and sex scene is portrayed in such a way as to leave most of the acBon to the audience’s imaginaBon; the objecBon apparently had to do with the suggesBon of sex outside of marriage, and with any scene depicBng a sex act at all.
Screenshot from the “bedroom” scene in Louis Malle’s Les Amants. This is preMy much all you see in the short sequence. The acBon is suggested rather than explicitly shown. It is followed by a brief romp in a bathtub, but again with very liMle skin displayed.
The Jacobellus Court rejected any noBon that local standards could differ from ConsBtuBonally-‐mandated federal speech protecBons. J. PoMer Stewart, in a concurrence, made the oGen-‐quoted comment that he could not define hard-‐core pornography, “but I know it when I see it”: I shall not today aMempt further to define the kinds of material I understand to be embraced within that shorthand descripBon [hard-‐core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the moBon picture involved in this case is not that.
A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. A8orney General of Com. of Mass., 383 U.S. 413 (1966) The Fanny Hill case affirms Roth, but further defines the standards for judging obscenity with a three-‐part test, in which each part is independent of the others. It must be established that, (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relaBng to the descripBon or representaBon of sexual maMers; and (c) the material is uMerly without redeeming social value.
In Memoirs v. Massachuse8s, the Court ruled, A book cannot be proscribed unless it is found to be uMerly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. In his concurrence, J. Douglas wrote, the First Amendment does not permit the censorship of expression not brigaded with illegal acBon. . . . Censorship is the most notorious form of abridgment. It subsBtutes majority rule where minority tastes or viewpoints were to be tolerated. As I read the First Amendment, judges cannot gear the literary diet of an enBre naBon to whatever tepid stuff is incapable of triggering the most demented mind.
Miller v. California (1973): Miller was convicted of sending unsolicited sexually-‐explicit materials through the mails. The sentence was reversed on appeal. The Supreme Court vacated that reversal and remanded the case for retrial. Miller retreats from Memoirs-‐-‐rejecBng “uMerly without redeeming social value”-‐-‐and replacing its three-‐part standard for judging obscenity with a new one replacing naBonal standards for defining obscenity with “contemporary community standards.” 1. the average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to prurient interests 2. the work depicts or describes, in a patently offensive way, sexual conduct as defined by state law 3. the work, taken as a whole, lacks serious literary, arBsBc, poliBcal, or scienBfic value.
Chief JusBce Burger noted in his opinion that aGer Roth, no majority of the Court has at any given Bme been able to agree on a standard to determine what consBtutes obscene, pornographic material subject to regulaBon under the States' police power. Burger suggests that consBtuBonal state statutes could include bans on, (a) Patently offensive representaBons or descripBons of ulBmate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representaBons or descripBons of masturbaBon, excretory funcBons, and lewd exhibiBon of the genitals. He adds, prurient, patently offensive depicBon or descripBon of sexual conduct must have serious literary, arBsBc, poliBcal, or scienBfic value to merit First Amendment protecBon.
from Chief JusBce Burger’s opinion: Appellant’s convicBon was specifically based on his conduct in causing five unsolicited adverBsing brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police. The brochures adverBse four books enBtled “Intercourse,” “Man-‐Woman,” “Sex Orgies Illustrated,” and “An Illustrated History of Pornography,” and a film enBtled “Marital Intercourse.” While the brochures contain some descripBve printed material, primarily they consist of pictures and drawings very explicitly depicBng men and women in groups of two or more engaging in a variety of sexual acBviBes, with genitals oGen prominently displayed.
The Memoirs Court called on the prosecuBon to prove a negaBve, i. e., that the material was “u8erly without redeeming social value”—a burden virtually impossible to discharge under our criminal standards of proof. The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest. The new rules: (a) Patently offensive representaBons or descripBons of ulBmate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representaBons or descripBons of masturbaBon, excretory funcBons, and lewd exhibiBon of the genitals. At a minimum, prurient, patently offensive depicBon or descripBon of sexual conduct must have serious literary, arBsBc, poliBcal, or scienBfic value to merit First Amendment protecBon.
In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated above, without a showing that the material is “u8erly without redeeming social value”; and (c) hold that obscenity is to be determined by applying “contemporary community standards,”. . . not “naBonal standards.”
In his dissent, J. Douglas outlines the new three-‐pronged obscenity test of Miller: (a) whether `the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, arBsBc, poliBcal, or scienBfic value.” J. Douglas warns, What shocks me may be sustenance for my neighbor. He fears that the law provides no “fair warning,” and one can now be convicted for publishing something that is not defined as obscene unBl aQer it has been published.
The Court further ruled that local rather than naBonal community standards and state statutes that describe sexual depicBons to be suppressed could be used to prosecute Miller, who operated one of the largest West Coast mail order businesses dealing in sexually explicit materials: It is neither realisBc nor consBtuBonally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depicBon of conduct found tolerable in Las Vegas, or New York City. In his dissent, J. Douglas warns, What shocks me may be sustenance for my neighbor. He fears that the law provides no “fair warning,” and one can now be convicted for publishing something that is not defined as obscene unBl aQer it has been published.
Broadcas9ng bad language FCC v. Pacifica (1978): Do First Amendment protecBons extend to a radio staBon's dayBme broadcast of comedian George Carlin's “Filthy Words” monologue. FCC has authority to sancBon radio or television staBons broadcasBng material that is obscene, indecent, or profane. The FCC may not edit proposed broadcasts in advance. Broadcast materials have limited First Amendment protecBon because of the uniquely pervasive presence that radio and television occupy in the lives of people, and the unique ability of children to access radio and television broadcasts. A transcript of the monologue was aMached as an appendix to the Court's opinion.
These are Carlin’s 7 words: shit, piss, fuck, cunt, cocksucker, motherfucker, Dts. A tape of Carlin’s nightclub comedy rouBne was rebroadcast by KPFA Radio at 2:00 pm on a Tuesday aGernoon. A man wrote to the FCC complaining that the broadcast came on while he was driving with his young son. The FCC invesBgated and found that the broadcast violated its rule against indecent language. It did not fine the staBon, but filed the complaint and warned that further complaints could impact the renewal of the staBon’s broadcast license. Pacifica FoundaBon, owner of the staBon and its licensee, sued the FCC.
In this case, the Court must decide • whether the FCC may ban speech that is not obscene • whether such a ban amounts to “prior restraint” censorship, which is forbidden by the TelecommunicaBons Act. • whether the words in quesBon are indecent, as defined by the Act • whether the ban on such words is unconsBtuBonal The jusBces generally agree that these words are not used literally, that they are not obscene, and that they are used saBrically to challenge social taboos. Nonetheless, the Court majority finds the words indecent and offensive, as defined in secBon 1464 of the TelecommunicaBons Act, and therefore punishable under the FCC’s authority.
SecBon 29 of the Radio Act of 1927 provided: Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communicaBons or signals transmiMed by any radio staBon, and no regulaBon or condiBon shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communicaBons. No person within the jurisdicBon of the United States shall uMer any obscene, indecent, or profane language by means of radio communicaBon. 44 Stat. 1172. The prohibiBon against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves. The prohibiBon, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duBes.
18 USC 1464 covers the relevant infracBon: Whoever uMers any obscene, indecent, or profane language by means of radio communicaBon shall be fined under this Btle or imprisoned not more than two years, or both. The FCC called Carlin’s language “patently offensive,” though not necessarily obscene. One quesBon the Court split on is whether “obscene, indecent, or profane” refers to three different kinds of speech, or whether these adjecBves are synonyms. The Court majority finds they are three different kinds of speech, and that “indecency is largely a funcBon of context— it cannot be adequately judged in the abstract.” Indecent language, describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory acBviBes and organs, at Bmes of the day when there is a reasonable risk that children may be in the audience.
The FCC claimed that it never intended to place an absolute prohibiBon on the broadcast of this type of language, but rather sought to channel it to Bmes of day when children most likely would not be exposed to it. 47 USC 326 prevents the FCC from censoring broadcasts: Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communicaBons or signals transmiMed by any radio staBon, and no regulaBon or condiBon shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communicaBon.
The opinion states that any chilling impact will not be very significant: It is true that the Commission's order may lead some broadcasters to censor themselves. At most, however, the Commission's definiBon of indecency will deter only the broadcasBng of patently offensive references to excretory and sexual organs and acBviBes. While some of these references may be protected, they surely lie at the periphery of First Amendment concern.
J. Stevens, in his opinion, rejects protecBon on the basis that the monologue saBrizes our aitudes toward “dirty words”: If there were any reason to believe that the Commission's characterizaBon of the Carlin monologue as offensive could be traced to its poliBcal content—or even to the fact that it saBrized contemporary aitudes about four-‐leMer words[22]— First Amendment protecBon might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends.[23] Their place in the hierarchy of First Amendment values was aptly sketched by Mr. JusBce Murphy when he said: "[S]uch uMerances are no essenBal part of any exposiBon of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."
Stevens cites the precedents for limiBng First Amendment protecBons: • Schenck: -‐-‐content and context must be considered (speech that may be protected in peaceBme may be barred during warBme). • Chaplinsky v. New Hampshire: (-‐-‐fighBng words are not protected speech. (Chaplinsky was arrested for calling a police officer names) • Bates v. State Bar of Arizona: the Court may consider the “commonsense differences” between commercial speech and other varieBes, and that some forms of commercial speech deserve First Amendment protecBon. (Can aMorneys adverBse their services?) • Gertz v. Robert Welch, Inc.: libels against ordinary ciBzens may be treated more severely than those against public officials (Gertz, an aMorney, sued a conservaBve journal that called him a communist) • Miller v. California: obscenity is not protected (Miller sent unsolicited, sexually-‐ explicit ads through the mails)
The pervasive nature of the broadcast media makes them hard to avoid: the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the ciBzen, not only in public, but also in the privacy of the home, where the individual's right to be leG alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 U. S. 728. Pacifica warned listeners before the broadcast that the language might be offensive, but that is not enough: Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away aGer the first blow. One may hang up on an indecent phone call, but that opBon does not give the caller a consBtuBonal immunity or avoid a harm that has already taken place.[27]
Children need special protecBon: broadcasBng is uniquely accessible to children, even those too young to read. Although [in Cohen v. California] Cohen's wriMen message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. Bookstores and moBon picture theaters, for example, may be prohibited from making indecent material available to children. Words that are commonplace in one seing are shocking in another. To paraphrase Mr. JusBce Harlan, one occasion's lyric is another's vulgarity.
Stevens emphasizes that the ruling is narrow—covering this specific broadcast and others like it, not speech between a dispatcher and driver over a two-‐way radio or the telecast of an Elizabethan comedy. He concludes that the language is indecent in the context—the Bme of broadcast, when children may be in the audience—and so it may be sancBoned by the FCC: As Mr. JusBce Sutherland wrote, a "nuisance may be merely a right thing in the wrong place,—like a pig in the parlor instead of the barnyard." Euclid v. Ambler Realty Co., 272 U. S. 365, 388. We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.
In dissent, J. Brennan rejects the Court’s value-‐based assessment that, the degree of protecBon the First Amendment affords protected speech varies with the social value ascribed to that speech by five Members of this Court. He cites Cohen v. California: The ability of government, consonant with the ConsBtuBon, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substanBal privacy interests are being invaded in an essenBally intolerable manner. Any broader view of this authority would effecBvely empower a majority to silence dissidents simply as a maMer of personal predilecBons.
Brennan points out that, unlike a harassing phone call, the radio does not invade privacy if the homeowner invites it into the home voluntarily: Because the radio is undeniably a public medium, these acBons are more properly viewed as a decision to take part, if only as a listener, in an ongoing public discourse. Broadcasters have a consBtuBonally protected right to send out their message to those who may choose to receive it. [t]he radio can be turned off and with a minimum of effort.
The Court’s decision fails to accord proper weight to the interests of listeners who wish to hear broadcasts the FCC deems offensive. It permits majoritarian tastes completely to preclude a protected message from entering the homes of a recepBve, unoffended minority. Warns of the danger that all broadcasts will be limited only to what is appropriate for children. He cites research showing many of the words considered indecent by the Court are common in households across America. In confirming Carlin's prescience as a social commentator by the result it reaches today, the Court evinces an aitude toward the "seven dirty words" that many others besides Mr. Carlin and Pacifica might describe as "silly." Brennan concludes that to forbid the speech in quesBon is, to follow MR. JUSTICE STEVENS' reliance on animal metaphors, is "to burn the house to roast the pig." Butler v. Michigan, 352 U. S. 380, 383 (1957).
updates: In FCC v. Fox Television StaDons (2009), the Supreme Court reaffirmed its ruling in Pacifica, adding that the FCC has the power to fine staBons for broadcasBng “fleeBng expleBves,” unscripted, spontaneous indecent speech that may occur during live broadcasts. The case involved two award shows: At the 2003 Golden Globe Awards, the performer Bono commented, on receiving an award, “‘This is really, really, f* * *ing brilliant.’” During the 2002 Billboard Music Awards, the singer Cher exclaimed, “I’ve also had criBcs for the last 40 years saying that I was on my way out every year. Right. So f* * * ‘em.”
At the 2003 Billboard Music Awards, during the presentaBon of an award by Nicole Richie and Paris Hilton, principals in a Fox television series called “The Simple Life,” Hilton began their interchange by reminding Ms. Richie to “watch the bad language.” Instead, Richie proceeded to ask the audience, “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow s* * * out of a Prada purse? It’s not so f* * *ing simple.”
In Federal CommunicaDons Commission v. Fox Television StaDons (2012), the Court vacated the fines levied for fleeBng expleBves because at the Bme, such expleBves were not explicitly prohibited by FCC regulaBons. But the Court also reaffirmed the FCC’s right to regulate on-‐air speech for broadcast radio and television (these decisions do not affect cable or satellite broadcasts, which are not FCC-‐licensed) as part of its duty to protect the public interest. Such acBon does not violate First Amendment protecBons, and Pacifica is again reaffirmed.
In the UK, the CommunicaBon Act criminalizes obscene, offensive, or menacing electronic communicaBons:
Breaking the law can lead to prison: The 18-‐week sentence imposed on Peter Nunn, 33, from Bristol, on Monday is one of the longer terms of imprisonment handed to anyone in England for posBng menacing messages on social media. Earlier this month a Scoish man was given 16 months for obscene and racist comments made on TwiMer. [The Scoish man, Abdul Hafes, 35, posted on TwiMer he “hates Shia and Kurds” and said they should die. . . . “ He also wrote “I f****** hate Shia and Kurds you people should die”.] Nunn began bombarding [Labour MP Stella] Creasy with abusive messages last July shortly aGer the Bank of England revealed that Austen would be the new face of the £10 note. He retweeted a threatening message which read: “You beMer watch your back, I’m going to rape your arse at 8pm and put the video all over.” from the Guardian, Sept. 29, 2014
ImmigraBon is a volaBle issue in the US and in Britain. The BriBsh street arBst Banksy, known for his criBques of power and money, painted this mural at Clacton-‐on-‐Sea, where a local Tory poliBcian recently joined the anB-‐immigrant Ukip party. Tendring district council said it had received a complaint that “offensive and racist remarks” had been painted on a seafront building. “The site was inspected by staff who agreed that it could be seen as offensive and it was removed in line with our policy to remove this type of material within 48 hours.”
EU regulaBons balance freedom of expression with control of expression:
European Charter for Human Rights
The Hays Code, an example of industry self-‐regulaBon, imposed puritanical rules that regulated the content of Hollywood movies from 1930 to the 1967, forbidding sexual language or the depicBon of sexual situaBons, reference to drugs in any posiBve manner, violence, and many other things as well. The script of every film had to be approved by the Hays Office before going into producBon, and the completed picture had to be approved once more before its distribuBon to theaters.
Reasons Underlying the General Principles of the Produc9on Code: 1. No picture shall be produced which will lower the moral standards of those who see it. Hence the sympathy of the audience should never be thrown to the side of the crime, wrong-‐doing, evil or sin. This is done: (1) When evil is made to appear aMracBve or alluring, and good is made to appear unaMracBve. (2) When the sympathy of the audience is thrown on the side of crime, wrong-‐doing, evil, sin. The same thing is true of a film that would throw sympathy against goodness, honor, innocence, purity, or honesty.
The presentaBon of evil is oGen essenBal for art or ficBon or drama. This in itself is not wrong provided: a. That evil is not presented alluringly. Even if later in the film the evil is condemned or punished, it must not he allowed to appear so aMracBve that the audience’s emoBons are drawn to desire or approve so strongly that later the condemnaBon is forgoMen and only the apparent joy of the sin remembered. b. That throughout, the audience feels sure that evil is wrong and good is right.
II. Sex Out of regard for the sancBty of marriage and the home, the triangle, that is, the love of a third party for one already married, needs careful handling. The treatment should not throw sympathy against marriage as an insBtuBon. Scenes of passion must be treated with an honest acknowledgement of human nature and its normal reacBons. Many scenes cannot be presented without arousing dangerous emoBons on the part of the immature, the young, or the criminal classes. Even within the limits of pure love, certain facts have been universally regarded by lawmakers as outside the limits of safe presentaBon. In the case of impure love, the love which society has always regarded as wrong and which has been banned by divine law, the following are important: 1. Impure love must not be presented as aMracBve and beauBful. 2. It must not be the subject of comedy or farce, or treated as material for laughter. 3. It must not be presented in such a way as to arouse passion or morbid curiosity on the part of the audience. 4. It must be made to seem right and permissible. 5. In general, it must not be detailed in method and manner.
Pictures shall not infer that low forms of sex relaBonship are the accepted or common thing. 1. Adultery and illicit sex, someBmes necessary plot material, must not be explicitly treated or jusBfied, or presented aMracBvely. 2. Scenes of passion (a) These should not be introduced except where they are definitely essenBal to the plot. (b) Excessive and lusxul kissing, lusxul embraces, suggesBve postures and gestures are not to be shown. (c) In general, passion should be treated in such manner as not to sBmulate the lower and baser emoBons. 3. SeducBon or rape (a) These should never be more than suggested, and then only when essenBal for the plot. They must never be shown by explicit method. (b) They are never the proper subject for comedy.
1930-‐1956: 6. MiscegenaBon (sex relaBonship between the white and black races) is forbidden. . . . IV. Obscenity Obscenity in word, gesture, reference, song, joke or by suggesBon (even when likely to be understood only by part of the audience) is forbidden. . . . VII. Dances 1. Dances suggesBng or represenBng sexual acBons or indecent passion are forbidden. 2. Dances which emphasize indecent movements are to be regarded as obscene.
Costume: 1. The effect of nudity or semi-‐nudity upon the normal man or woman, and much more upon the young and upon immature persons, has been honestly recognized by all lawmakers and moralists. 2. Hence the fact that the nude or semi-‐nude body may be beauBful does not make its use in the films moral. For, in addiBon to its beauty, the effect of the nude or semi-‐nude body on the normal individual must be taken into consideraBon. 3. Nudity or semi-‐nudity used simply to put a “punch” into a picture comes under the head of immoral acBons. It is immoral in its effect on the average audience. 4. Nudity can never be permiMed as being necessary for the plot. Semi-‐nudity must not result in undue or indecent exposures.
From 1939-‐1956 – banned words: (1) No approval by the ProducBon Code AdministraBon shall be given to the use of words and phrases in moBon pictures including, but not limited to, the following: Alley cat (applied to a woman); bat (applied to a woman); broad (applied to a woman); Bronx cheer (the sound); chippie; cocoMe; God, Lord, Jesus, Christ (unless used reverently); cripes; fanny; fairy (in a vulgar sense); finger (the); fire, cries of; Gawd; goose (in a vulgar sense); “hold your hat” or “hats”; hot (applied to a woman); “in your hat”; louse; lousy; Madam (relaBng to prosBtuBon); nance, nerts; nuts (except when meaning crazy); pansy; razzberry (the sound); slut (applied to a woman); SOB.; son-‐of-‐a; tart; toilet gags; tom cat (applied to a man); traveling salesman and farmer’s daughter jokes; whore; damn; hell (excepBng when the use of said last two words shall be essenBal and required for portrayal, in proper historical context, of any scene or dialogue based upon historical fact or folklore, or for the presentaBon in proper literary context of a Biblical, or other religious quotaBon, or a quotaBon from a literary work provided that no such use shall he permiMed which is intrinsically objecBonable or offends good taste).
Not only is it improper to glorify crime and criminals, “10. There must be no scenes, at any Bme, showing law-‐enforcement officers dying at the hands of criminals. This includes private detecBves and guards for banks, motor trucks, etc.” (a) The technique of murder must be presented in a way that will not inspire imitaBon. 3. Illegal drug traffic must never be presented. The use of liquor in American life, when not required by the plot or for proper characterizaBon, will not be shown.
The “benefits” of the MoBon Picture Code: … every error of judgment in the movies brings immediate criBcism and inevitably jeopardizes the essenBal freedom of expression on which our democracy has been built. . . . The development of high moral and arBsBc standards in moBon picture producBon has vastly improved the supply of popular entertainment and raised the arBsBc stature of the screen. . . . Our experience indicates clearly that self-‐regulaBon is wholly consonant with freedom of expression for the moBon picture art. . . . An alive and responsible public opinion is the guiding force in this, as in all systems of self-‐government. The moBon picture public is not millions more or less condiBoned to the SuggesBve and sensaBonal. It is a universal public aMracted to the moBon picture theatre by a vast variety of clean and arBsBc entertainment.
A spinoff of the code: TV couples had to sleep in twin beds.
Clark Gable and ClaudeMe Colbert, “It Happened One Night” (1934): Because of censorship, they had to sleep in separate beds in a motel with a curtain between them.
It wasn’t unBl Colbert’s screen marriage was annulled that they could be allowed to have sex, and that was portrayed only indirectly:
RheM Butler's memorable last line in “Gone with the Wind”—the best-‐selling novel that was being transformed into a moBon picture-‐-‐presented a serious problem to movie censor Joe Breen. He suggested that the line be replaced in the film by such alternaBves as, "Frankly my dear... I just don't care," "... it makes my gorge rise," "... my indifference is boundless," "... I don't give a hoot," and "... nothing could interest me less." David O/ Selznick, the film’s producer, wrote to Hays to request an excepBon for his movie.
Because the Hays Code banned the use of “damn,” David O. Selznick, producer of “Gone with the Wind,” wrote to Hays to request an excepBon for his movie. October 29, 1939 Hollywood, California Dear Mr. Hays— As you probably know, the punch line of Gone With the Wind, the one bit of dialogue which forever establishes the future relaBonship between ScarleM and RheM, is, "Frankly, my dear, I don't give a damn." Naturally, I am most desirous of keeping this line and, to judge from the reacBons of two preview audiences, this line is remembered, loved, and looked forward to by millions who have read this new American classic. Under the code, Joe Breen is unable to give me permission to use this sentence because it contains the word "damn," a word specifically forbidden by the code.
. . . . I have always aMempted to live up to the spirit as well as the exact leMer of the producers' code. Therefore, my asking you to review the case, to look at the strip of film in which this forbidden word is contained, is not moBvated by a whim. A great deal of the force and drama of Gone With the Wind, a project to which we have given three years of hard work and hard thought, is dependent on that word. It is my contenBon that this word as used in the picture is not an oath or a curse. The worst that could be said against it is that it is a vulgarism, and it is so described in the Oxford English DicDonary. Nor do I feel that in asking you to make an excepBon in this case, I am asking for the use of a word which is considered reprehensible by the great majority of American people and insBtuBons. A canvass of the popular magazines shows that even such moral publicaBons as Woman's Home Companion, Saturday Evening Post, Collier's, and The AtlanBc Monthly, use this word freely. I understand the difference, as outlined in the code, between the wriMen word and the word spoken from the screen, but at the same Bme I think the aitude of these magazines toward "damn" gives an indicaBon that the word itself is not considered abhorrent or shocking to audiences.
I do not feel that your giving me permission to use "damn" in this one sentence will open up the floodgates and allow every gangster picture to be peppered with "damns" from end to end. I do believe, however, that if you were to permit our using this dramaBc word in its righxully dramaBc place, in a line that is known and remembered by millions of readers, it would establish a helpful precedent, a precedent which would give to Joe Breen discreBonary powers to allow the use of certain harmless oaths and ejaculaBons whenever, in his opinion, they are not prejudicial to public morals. David O. Selznick
In response, the MoBon Picture AssociaBon amended the ProducBon Code. “Hell" and "damn" would be banned except when their use, "shall be essenBal and required for portrayal, in proper historical context, of any scene or dialogue based upon historical fact or folklore ... or a quotaBon from a literary work, provided that no such use shall be permiMed which is intrinsically objecBonable or offends good taste.” The ProducBon Board permiMed “Gone with the Wind” to end with Clark Gable’s classic line, "Frankly, my dear, I don't give a damn.” The movie won the Oscar for best picture in 1939, compeBng against such important films as “Mr. Smith Goes to Washington,” “Dark Victory,” “Goodbye, Mr. Chips,” and “The Wizard of Oz.”
