Some Questions on Obscene and Indecent Speech
By ip4noman in Op-Ed
Wed Oct 09, 2002 at 06:11:07 PM EST
Tags: Politics (all tags)
The goal of this essay is to cause the curious reader to ponder the
- Does there exist a right not to be offended?
- Does there exist anywhere an example of someone who was injured
by exposure to "obscene" or "indecent" words, images, or ideas?
- Does there exist a definition of "obscene" or "indecent" which
is universally applicable and therefore, useful? That is, can we construct
a list of all obscene, indecent or profane words, and can we say that all
uses of these words are offensive by definition? Can there be no legitimate
use of these words? And what about words not on the list, are they always
safe? Is it possible to describe all objectionable images? Does not a specific law against obscenity itself become obscene?
- Are all cases of exposure to obscene or indecent material actionable?
- Do contracts placed upon community media producers and journalists which attempt to coerce producers into self-censorship, denote Prior Restraint, and are therefore unconstitutional under the First Amendment?
I am presently petitioning my local government to bring a Public Access Television Facility to my city. Recently, I had the priviledge of being asked to appear before the Mayor's special task force on the Cable Television Franchise Renewal.
History of Indecent Speech Regulation
As we discussed the details of my complaint against the cable provider, we hit upon one very sensitive issue.
The exclusive cable franchisee (Time Warner Cable) requires persons requesting use of Public Access television facilities to sign a contract, agreeing in part that "no obscene or indecent material will be cablecast", and other restrictions on speech, including certain political speech. (Refer: [-1-], [-2-], [-3-]) I argued that these
clauses are improper and illegal under the First Amendment. Moreover, they
give the Cable Provider improper editorial control and the power to censor,
that is, use prior restraint to prevent someone's idea of what might constitute
a future injury.
In 1972, George Carlin recorded "Class Clown"; on it was a
bit called "Seven Dirty Words You Can Never Say on Television". An underlying
premise of Carlin's (which is often overtly stated) is that words are simply
symbols, and inherently not harmful. There are no naughty words, Carlin
asserts, only naughty ideas.
Psychological Warfare & Torture, "Clear and Present Danger" Excluded
On October 30, 1973, Paul Gorman, a DJ at Pacifica Radio Station
WBAI, aired Carlin's "Seven Dirty Words" during a daytime slot of his show,
issuing a disclaimer that those who might be offended by strong language
should tune away.
John H. Douglas, a planning board member of Morality in Media, was driving
with his young son at the time, heard the disclaimer, but decided to listen
In a letter of complaint to the FCC enforcement bureau dated November
28, 1973, Douglas expressed concern that his 12-year-old son heard parts
of the Carlin routine. While Douglas acknowledged that Carlin's monologue
had some social value and that he understood selling the record for private
use, the complaint alleged the WBAI broadcast was inappropriate for children
to hear during the middle of the day.
The great irony, that the Carlin's routine is itself about censorship,
was apparently lost on the Supreme Court, who decided this case on July 3,
1978. Pacifica lost.
[sidebar] George Carlin's Magic Time Machine In 1974, George Carlin wanted to do a comedy routine about censorship.
Like a good writer, he researched the matter. He tried to obtain a
list of all the words he *couldn't* say, he found that no such list existed.
This is because of a simple paradox:
For the law to have force, it must define its scope and effect in very specific
terms. If the sovereign wants to make a law against writting the obscene word
"fuck" in a book, the lawmakers would have to write this in a book, becoming
obscene in the process. All obscenity law will suffer from this paradoxically
A democratic or republician form of government can never define obscenity
because of this contradiction. Only a fascist/despotic form of government
can define obscenity, but must deal with this axiomatically, that is, that
the King can utter "fuck" with such loyalty and grace as to not be sinful,
or having been endowed by God such powers to carry out executive enforcement,
the King is thus immune to all infractions. In a totaltarian fascist government,
the soverign (lawmaker) must declare themselves to be of a special class.
This is directly opposed to the Essential American Principle of Democratic
Self-Rule, where the people are sovereign.
A similar paradox was realized with the Congressional Record in 1984, when
Congress held hearings, on behalf of the Parents Music Resource Center (PMRC),
on pornographic lyrics in popular music. They read samples of these
lyrics into the record, thus makeing it pornographic. Frank Zappa alludes
of this irony in his opus "Porn Wars" from his Mothers of Prevention album.
So, in 1974, Carlin tried to find his Holy Grail. He wanted to find the
list of words he couln't say. They didn't exist in 1974, but they did exist
in 1978. So, Carlin essentially *visited the future*, and obtained the 1978
Supreme Court decision for this list of words. Now here is the amazing thing,
Hofstadterian Strange Loop of it all: The 1978 Supreme Court decision references the 1974 Carlin routine! This kind of temporal plot twist is straight out of a science fiction story!
Where did this list come from? Was it a gift from God? The key to
acheiving our next evolutionary step? I think yes, perhaps. This
is just genius, and Carlin should be award the Noble Prize in Journalism
or Ethics for it, and for lifetime acheivement.
This decision is the precident which set the foundation of all Censorship
regulation in the United States for the next 30 years.
But with all due respect to the Supreme Court, in this case of Pacifica
v. FCC, they became belabored by an obscure point of law, i.e., whether the
FCC had the authority to regulate indecent speech broadcast over radio. However,
might they have overlooked an obvious defect in the complaint? That is,
was there sufficient cause of action?
First, let us state that we are speaking about so-called obscene
or indecent speech, and not torture or calls to violent action.
Cause of Action, defined
Nations defines torture as: "...any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person...." We
all can think of such cases, and others, which, while not exactly being torture,
present a clear and present danger to someone. Here are some examples of
such speech which perhaps should not be protected under the First Amendment:
Now, what distinguishes this sort of speech from George Carlin's Dirty
Words are that all these examples include at least one of the following elements:
- A parent who tells their child every day, multiple times per day,
"You're stupid! You will never amount to anything. You should kill yourself."
- A man who shouts "Fire!" in a crowded movie theater.
- Playing loud amplified music all night long, or recordings of the
sounds of animals being killed. [These psychological warfare tactics amount to torture, and are routinely used by the military and police agencies, and were used by the U.S. Army during the invasion of Panama (1989), against the Branch Davidians in Waco TX (1993), and against Shirley Allen in Roby IL (1997). There are certainly others. ].
- A man who publishes a list of doctors who performs abortions, including
their home addresses, and text which suggests they should be
- A man who publically states, "All niggers are deserving to die".
This could just as easily be "Jews", "Anarchists", "Drug Users", "Communists",
"Homosexuals", "Pagans", "Pacifists", "Animal Rights Advocates", "Arabs",
Obscene and Indecent speech often are defined in terms of sexual or excretory
images or profane language, and not in the terms above. We argue that this
is fundamentally different than the examples cited above, because everyone
is offended by different things, and these things do not present a "clear
and present danger" of violence.
- Intent to cause pain, suffering or death, optionally coupled with
- a captive audience, and/or
- repeated exposure
clear and present danger" (This language comes from
Schenk v United States
Let's say that you are driving home at 3pm, and you and your
young son hear something on the radio that offends you, and you feel your
son suffered pain and suffering, and irreperable harm because of what he
"I was injured by words! I was harmed by images!": Is
there a right not to be exposed to offensive material?
Before you can take someone to court in a civil matter, you must have a
valid claim, called a "cause of action". There are three components which
need to be shown to exist to denote a proper cause of action:
Certainly there was a petition, so let us now look for the right, and
- A right
- An injury (a violation of the right)
- A petition for an award of damages or restitution
As a child we all learned that "Sticks and stones can break my
bones, but names can never hurt me." Yet, as adults, we form government
policies which assert this no longer applies.
But the Vulgarian and the Nudist are not offended!
Does there exist one example anywhere now, or at any time in history
an demonstratable example of someone who was injured by exposure to naughty
words, or images of naked people? Sure you may be offended by such
a thing, but is being simply offended the same as suffuring an injury?
I would argue no. It is certain that no physical injury can occur from
exposure to words or images. While psychological injury might occur, it is
unprovable, since we don't have Joe Smith A (exposed to naughty words) and
Joe Smith B (not exposed to naughty words) which to compare. There is
only one Joe Smith. And I would argue that any proof of psychological injury
to hearing a naughty word would be based upon a science of dubious methods.
We have seen that most of these obscenity suits involve graphic
depections of nakedness or sexual activity or offensive language, but not
everyone is offended by these things.
Do the Vegetarian and the Pacifist have legal standing?
Some people (including the courts) think that persons (especially children)
are susceptable to injury from exposure to naughty words or images. Others
think these things are natural and normal and feel no shame or guilt over
these same materials. For example, a nudist would probably feel no shame
over seeing nakedness, and a vulgar man obviously has no objections to the
language he himself uses.
So you see, we all have different standards. This cannot be stressed
enough. This seems to be quite hard for many people to imagine, unless you
allow your mind to slip a little bit, outside the comfortable constraints
of the false-homoginized social norms which the commercial media reinforces.
Many people seem to have a belief they live in a uniform land, where perhaps
there are only two types of people, only two political parties which matter,
only two sides to the issue.
This belief is false, and is not based in reality. In fact, each human
soul is unique, a multi-timbral rainbow in 12 dimensions.
Every one of us has different values. Every one of us has a different
idea about what is indecent or obscene. It is therefore impossible, moreover,
misguided to try to define obscenity or indecency in terms that
we all can agree upon. Such definitions will certainly fall short of the mark,
and even minimum standards are likely to be used as a tool for the censorship
of much more than just naughty words or images.
i.e., Are all cases of "injury due to exposure to obscene material" actionable?
Yes? Then if we allow the child who hears Carlin's Dirty Words
to bring an action, then we must allow the vegetarian and the pacifist as
well. For it is the same principle in both cases, although the vegetarian
and the pacifist may be offended by different things than you.
If there exists a right to live free of offensive words or images,
then all such violations should be actionable, right? For example, it is
likely that a vegetarian feels that McDonald's advertisements depicting
slaughtered cow flesh to be obscene, and advertisments targeted especially
towards children as indecent. Similarly, a pacifist might find CNN and the
other news networks cheerleading the latest United States campaign of bombing
civilian populations to be obscene.
If we allow that a father can bring a lawsuit because his child was
alegedly injured from hearing a word on the radio (which the kid probably
heard on the playground moments before), then we open the door to an endless
number of these "I was injured by words!" lawsuits. And the number will
be endless, because, and this is the key point to understand, we all have
For any given image or utterance, surely someone can be found who takes
objection to it. This is why this alleged right "not to be offended"
must be false, and therefore the tort of "being exposed to offensive material"
should be seen as ridiculous as that famous accusation from Monty Python:
"I was turned into a newt! (But I got better)". Sorry. The Grand Jury says
go home and stop wasting the Courts time.
Does there exist a definition of "obscene" or "indecent" which
is universally applicable and therefore, useful?
Certainly not. We have already heard of the nudist and the vulgarian
(who are not offended by nakedness, etc), and the vegetarian and the pacifist
(who are offended by what many may feel are some quite ordinary things).
Since we all have different standards, who gets to decide?
Also, since everyone has different standards, the law would either have to
be so broad to forbid any speech which might be offensive to someone, I dare
say that global silence would ensue. (We will leave discussion of the merits
of this for another time. ) Now otherwise, the law would have to be narrowly
defined so as to deny certain plaintiffs standing.
There are many unsolvable paradoxes regarding the definition of obscene speech,
such as this: if writting an obscene word a crime, how can making a law
against using this word not itself be obscene?
Do contracts such as Time Warner's which attempt to coerce producers
into self-censorship denote Prior Restraint, and would therefore be Unconstitutional
under the First Amendment?
Prior Restraint defined is "coercive action to prevent a future
injury". In First Amendment cases such as Zenger, Skokie, and the Pentagon
Papers case, where free speech, free press, or free assembly are at issue,
the Supreme Court has ruled repeatedly that the government could not, through
"prior restraint," block publication of any material unless it could
prove that the material would "surely" result in "direct, immediate, and
irreparable" harm to the nation, or that publication would provide a "clear
and present danger".
Now Time Warner is not the government, but as a Cable Provider, they are
acting as a common carrier, and cannot deny carraige to any class of patron.
Additionally, they have responsibilites under the First Amendment to
provide diverse points of view.
Another reason Time Warner's contract is improper is that according to the FCC,
The statutory prohibition against indecency does not apply
to programming aired on cable-only channels. See e.g., United States
v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000).
So, the law is clear. Whether the source of the censorship comes from the
FCC, the franchising authority, the New York State Public Service Commission,
or the cable franchisee (Time Warner in this case), in all cases the authority
of the censor must be challanged and the constitutionality examined.
It is hard to believe that a nation calls itself a republic, a representitive
government based upon democracy principles, yet has draconion laws prohibiting
any speech. And this issue goes beyond obscenity, indecency, and profanity.
These regulations go so far as to including the political speech of community
broadcasters and of the clergy.
Something has gone terribly wrong. These laws are not the product of
a democracy. These laws resemble the laws of the Fascists.
The "Free Press" is supposed to be like a mirror, reflecting us, showing
us how we are, our true nature. The essence of a Free Press is a natural
image of reality, not a manufactured one. It should be as free of bias and
control as possible. Sometimes the image will be unplesant. Sometimes the
world is profane, and community reporters need to be free to report this
as it is. Sometimes it will be ugly or offensive. But this is the nature
of truth. This is what free speech sounds like.
But the fact that our government recognizes a certain class of people
presently are seen to have legal standing (those offended by nakedness,
graphic depections of sexual or excretory functions, or naughty words),
and another class (people offended by arguments supporting human population
growth, bigotry, environmental destruction, war, and institutionalized exploitation
and savagry, especially in the abscence of any arguments to the contrary)
are denied standing, allows and even requires the media to present a biased
image of ourselves. The magnitude of this disservice is immense.