by Mark Wilson
Last week, the Supreme Court heard oral arguments in FCC v. Fox, where the Court must decide whether the FCC’s “fleeting” indecency policy, which includes isolated profanity and brief nudity, is unconstitutionally vague. The Second Circuit found that the FCC’s policy, which prohibits “all ‘patently offensive’ references to sex, sexual organs, and excretion,” did not adequately notify broadcasters what content might subject them to fines.
That’s all well and good, but there’s something missing from this discussion. One major omission in the Supreme Court’s “indecency” jurisprudence, famously described in FCC v. Pacifica Foundation, is that it deals almost exclusively with sexual indecency. Indeed, the Court’s non-broadcast-television obscenity standard leaves out any mention of non-sexual conduct. Obscenity, defined by Miller v. California, requires that the work in question appeal to the “prurient interest” (characterized by lustful thoughts) and describe “sexual conduct or excretory functions.” As far as the Supreme Court is concerned, a little bit of the ultra-violence does not fall outside the protections of the First Amendment.
Fox and other broadcasters argue that the FCC’s policy would have a chilling effect on permissible speech. But what type of permissible speech? At oral arguments, the justices discussed ABC’s airing of Saving Private Ryan, but only in as much as the film contained characters uttering expletives. Violence wasn’t even on the radar.
The reality is that violence almost always passes constitutional muster. The Court said as much in Brown v. Entertainment Merchants Ass’n. “California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none,” wrote Justice Scalia for a seven-justice majority. It’s just about sex. Dennis Franz can spend an entire episode of NYPD Blue violently interrogating suspects, but heaven forefend his butt shows up for two seconds.
When proponents of broadcast regulation advance the “save the children” arguments, violence is an afterthought. Unsurprising, as Michael Moore pointed out in Bowling for Columbine. Whatever else that film did not do, it is nevertheless notable for pointing out that the United States has such a history of violence that violence has become part of acceptable American social norms (and, conversely, sex made 17th-century Puritans squeamish). How else could 24, a show that promotes torture be so popular? And what’s a little “viewer discretion advised” among friends?
Justice Breyer, dissenting in Brown, seemed to suggest that Miller could be — and perhaps should be — extended to violence as well as sex. I happen to agree with the majority in Brown, but Justice Breyer’s point is well-taken: why the double-standard? If the state interest in regulating video game content as well as broadcast content is in saving the children, then there needs to be more honesty. When the country as a whole is desensitized to violence, bad things happen. For example, war happens with little or no consideration to the consequences. When consenting adults have sex, no one dies. War? Not so much.