Two major federal actions against naughty content have surprised observers only in the timing, and neither may ultimately prove to be more than appeals to social conservatives.
On Wednesday, the full House of Representatives passed, as expected, legislation sharpening penalties for broadcast indecency; the same day, the Bush administration announced plans to appeal a federal judge’s dismissal of obscenity charges against a maker and distributor of porn films that include faux-snuff scenes and other acts of violence.
Speaking of the indecency bill, a First Amendment lawyer familiar with the background of both federal actions said, “This is obviously something that will not be resolved by either Congress or the FCC. It’ll probably end up in the courts.” As for the obscenity case, the lawyer doubted the premise underlying the government’s action — that pornography is harmful to society — would withstand legal scrutiny.
“The science behind that is the same science behind ‘creation science’ and recovered memories,” the lawyer said.
Other media observers and experts have dismissed attempts to increase penalties for indecency or pornography as political demagoguery, unlikely to withstand court challenges. And some major broadcasters and media companies have vowed to issue those challenges.
While the decision to appeal the obscenity dismissal is the first legal decision made by Alberto Gonzales in his role as attorney general, both federal actions represent political and social currents that have been brewing for a while.
The Broadcast Indecency Enforcement Act of 2005, introduced by Rep. Fred Upton (R-Mich.), passed the House by a sweeping vote of 389-38. Bill, which passed out of the House Energy and Commerce Committee last week, raises the maximum fine from $32,500 to $500,000 per incident and makes artists liable for a first offense. Currently, the Federal Communications Commission is limited to issuing only a warning for a first offense. Bill also calls for revoking licenses of repeat offenders.
Upton had introduced essentially the same legislation in the previous Congress, where it passed but failed to be reconciled with differences in the Senate’s companion bill at the time. Complaints to the FCC about indecent material on both radio and television had been increasing in recent years, exploding to unprecedented numbers last year following Janet Jackson’s “wardrobe malfunction” during the Super Bowl’s halftime show.
The Senate has yet to consider its companion to the Upton bill, introduced by Sen. Sam Brownback (R-Kan.), who also introduced its predecessor in the previous Congress. Observers expect the Senate to pass the bill as it did before, and chances are good that the House and Senate will reconcile any differences this time because fewer amendments are expected to be offered.
Bush likely to sign bill
President Bush is likely to sign the legislation, should it succeed. The White House issued a statement supporting the Upton bill, saying, “This legislation will make broadcast television and radio more suitable for family viewing by giving the FCC the authority to impose stiffer penalties on broadcasters that air obscene or indecent material over the public airwaves.”
But the government’s standard for indecency has long been criticized for ambiguity. As NBC said in a prepared response to passage of the Upton bill, “Given the current vagueness and inconsistency of the FCC’s standards, this bill will indiscriminately threaten a wide variety of programming. Government cannot and should not decide what Americans can see on television. Threatening to impose huge fines on an athlete, entertainer or any individual being interviewed, for an isolated, emotional outburst or for graphic artistic material such as that in ‘Saving Private Ryan,’ raises very serious constitutional and free speech issues. This approach of increased government regulation and censorship is fundamentally misguided.”
Howard Stern, who’s been fined multiple times for indecency, spent a good part of his Wednesday morning radio show tracking the progress of the House vote. He eventually got a congressman on the telephone, who told him that should the Senate pass its version of the bill and the president later sign it, the new fines would go in effect in about five months.
But court challenges would likely follow almost immediately.
A new ruling in the obscenity case will take longer.
Charges thrown out
Last month, U.S. District Court Judge Gary Lancaster threw out obscenity charges against Extreme Associates, a husband-and-wife owned and operated company in California. In his ruling, Lancaster cited a right to privacy as well as First Amendment concerns.
The case against Extreme Associates originated from public and political pressure to prosecute pornography dating back to the Clinton administration. The ensuing indictment, issued in August 2003, was the first to result from that pressure. Former Attorney General John Ashcroft, who resigned last month, sought to make the Extreme Associates case an Internet-age test of the Supreme Court’s 1973 landmark decision on pornography, which established a three-pronged test for obscenity based on “the average person, applying contemporary community standards.”
Gonzales pledged to continue the effort.
“The Dept. of Justice places a premium on the First Amendment right to free speech, but certain activities do not fall within those protections, such as selling or distributing obscene materials,” Gonzales said in a statement released by the DOJ. “The Dept. of Justice remains strongly committed to the investigation and prosecution of adult obscenity cases.”
‘Shared views’ of morality
The statement continued: “The Justice Dept. believes that the reasoning of (Judge Lancaster) in dismissing the indictment, if upheld, would undermine not only the federal obscenity laws, but all laws based on shared views of public morality, such as laws against prostitution, bestiality and bigamy.”
However, attempts to legislate morality — and even the definition of pornography — have been fraught with failures and court orders to establish more clear standards. Even the 1973 Supreme Court decision could be revised.
“What’s interesting is that if you look at the recent history of obscenity law, through the ’60s and even ’70s, the Supreme Court has been sharply divided on the issue,” said the First Amendment lawyer. “Cracks have appeared in the edifice (of the 1973 decision), so it’s no surprise that some think it may no longer be strong.”
Hence, the administration’s attempt to reinstate the charges against Extreme Associates. But it’s equally possible, observers say, that the Supreme Court could force the government to meet a higher, more stringent standard in defining porn.