This Week In Censorship

JESUSLAND—It's been a banner week for opponents of free sexual expression, sadly not offset by the inauguration of the Woodhull Sexual Freedom Alliance announced on Tuesday. Familiar names in the pro-censorship biz have been busy making pronouncements and delivering letters, likely in the hopes of diverting their supporters' attention from the economic disasters being visited upon the country by Republican legislators, and laying the groundwork for various conservative candidates to run for federal office in 2012.

After promising to do so for just over a month, Morality in Media (MIM) CEO Patrick Trueman has finally delivered letters encouraging more obscenity prosecutions, signed by various senators and congressmembers, to Attorney General Eric Holder and the response so far has been ... crickets chirping.

The letters, signed by 42 senators and 75 representatives—nearly all Republicans (big surprise there)—call on Holder "vigorously to enforce federal obscenity laws against major commercial distributors of hardcore adult pornography" in order to "combat the growing scourge of obscenity in America."

The letter reminds Holder of a memo he wrote, as a Deputy Attorney General under Janet Reno, during the waning days of the Clinton administration that called on all 94 U.S. Attorneys around the country to give priority to "cases involving large-scale distributors who realize substantial income from multistate operations and cases in which there is evidence of organized crime involvement. However, prosecution of cases involving relatively small distributors can have a deterrent effect and would dispel any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations... In particular, priority also should be given to large-scale distributors of obscenity over the Internet."

"The need for consistent and vigorous enforcement is even greater today because both obscene pornography and evidence of its harms have multiplied since then," the Trueman-authored letter insists, citing "an important briefing in the Capitol outlin[ing] how pornography has changed, becoming more harmful, addictive, and available, and linked to other crimes."

Of course, the "briefing" did no such thing. Its speakers, which included an array of anti-porn activists such as Donna Rice Hughes, Shelley Lubben,  Drs. Gail Dines, Mary Anne Layden, Laura Lederer and relative newcomer Sharon Cooper, as well as Trueman himself, offered no peer-reviewed research but merely repeated the anecdotes the speakers have been using for years to convince Americans that sexual material is bad for them.

"Simply put," the letter continues, "we know more than ever how illegal adult obscenity contributes to violence against women, addiction, harm to children, and sex trafficking.  This material harms individuals, families, and communities and the problems are only getting worse."

On the contrary, as Reason magazine editor Radley Balko points out, "In 2009, teen pregnancy hit its lowest rate in the 70 years that the federal government has been tracking the statistic. ... The U.S. divorce rate is at its lowest level since 1970. ... The rate of reported domestic violence in the U.S. dropped by more than half between 1993 and 2004, and [t]he forcible rape rate in the U.S. has dropped from 41.1 per 100,000 people in 1990 to 28.7 in 2009. That latter figure is also an all-time low." (The article also links to an excellent video interview with Evil Angel owner John Stagliano about his success in fighting obscenity charges this past summer.) Also, as AVN reported, a recent conference held in Houston, Texas, shortly before the Super Bowl failed to demonstrate any link between porn and human trafficking.

"As you know, adult obscenity is not protected by the First Amendment," the letter concludes. "Congress has for decades passed laws seeking to curb the production and distribution of obscene pornography, including on the Internet. A consistent and strong commitment to enforcing these laws can have a significant impact. We believe it is imperative that the Department, with cooperation by the FBI, investigate and prosecute all major producers and distributors of adult obscenity. We need your leadership."

Bearing in mind that for Trueman and his compatriots, all sexually explicit material is obscene, his call for prosecution of "all major producers and distributors of adult obscenity" is actually a call for the prosecution of all makers and sellers of any sexual material—a "call to arms" that Holder is unlikely to take seriously. After all, the Justice Department's last three obscenity cases have resulted in a total acquittal for Stagliano and Evil Angel; six months of house arrest for Barry Goldman after pleading guilty (likely on the advice of his court-appointed attorney) to the "crime" of mailing several bondage videos; and the still-forthcoming trial of "scat" director Ira Isaacs, whose prosecution is now being handled by attorneys in the Child Exploitation and Obscenity Section (CEOS) following the disbanding of the Obscenity Prosecution Task Force—itself another sign that Holder understands the futility of suppressing non-violent non-child sexually explicit material. There also appears to be good (if anecdotal) evidence that the FBI is likewise none too keen on wasting its time trying to decide whether any given adult DVD or Web offering fits the Supreme Court's (non-)definition of "obscenity" under the Miller v. California standard.

But what's most troubling about the Morality in Media letters is the fact that any Democrats at all signed onto the boondoggle—particularly one Democrat, Sen. Dianne Feinstein of California, whose previous job was as mayor of San Francisco, once one of the adult production capitals of the country (and no slouch in that department even today).

Though "pornography" is not an "issue" that Feinstein's website recognizes or that she's made any pronouncements about, she must surely know that California is essentially the adult video capital of the world, and that its producers and distributors employ thousands of workers in the state and pay millions of dollars in state taxes. Therefore, it is unconscionable that Feinstein—who, like any adult, is free to watch or not watch any form of entertainment including adult—would seek to deprive her state of the revenues from its businesses and workers based on the ravings of a group of religious conservatives who are completely ignorant—in fact, deliberately so—about the actual effects of pornography on individuals and on society in general. It's a subject that all supporters of free sexual speech in California should seriously consider when deciding whether to support Feinstein's reelection in 2012.

But while its congressional letters have been trumpted widely this week, they're not the only subjects MIM has weighed in on: They're also upset that the Justice Department may not press its appeal of the Second Circuit Court of Appeals' most recent ruling in the Fox Television v. FCC case, where for the second time a three-judge panel of the circuit overturned the Federal Communications Commission's attempts to fine the network for various "fleeting expletives" used by Hollywood stars such as Cher and Nicole Richie during live broadcasts of the Billboard Music awards.

"Is the U.S. Department of Justice of the opinion that broadcasters have a 'constitutional right' to air as much obscene, indecent and profane 'language' (which encompasses visual depictions) as they want?" asked MIM general counsel (and former president) Robert Peters.  "The Department of Justice is the government's lawyer and as such it represents the people, not the broadcasters."

Of course, when asked, "the people"—70 percent to 80 percent of them—usually come down on the side of less censorship, but that's not a concept MIM or Peters recognizes.

"U.S. Attorney General Eric Holder should order the Solicitor General to appeal this critical decision," Peters stated. "The FCC's current indecency policy is clear enough. The problem is not that TV networks can no longer discern community standards for broadcasting. The problem is that they no longer care about community standards or about the well-being of children."

Of course, the whole issue in Fox was that the FCC, under the leadership of Republicans Michael Powell and  Kevin Martin, had changed its historic policy of ignoring "fleeting expletives"—a change which Second Circuit Judsge Rosemary Pooler said had led to "ample evidence in the record that the FCC's indecency policy has chilled protected speech."

The Solicitor General's office had recently asked the court for yet another extension of the deadline—April 21—by which it is supposed to file its appeal from the Second Circuit ruling if it intends to do so, and MIM has filed no les than three amicus briefs urging that the appeal be taken. Part of the government's reluctance is likely the fact that conservative Justice Clarence Thomas, in a concurrence to the Supreme Court's first consideration of this case, stated, "This deep intrusion into the First Amendment rights of broadcasters, which the Court has justified based only on the nature of the medium, is problematic." Although the Supreme Court reversed the Second Circuit's finding in favor of Fox purely on procedural grounds, it remanded the case for consideration of the First Amendment issues involved, and again, the circuit ruled for Fox.

Also jumping on the anti-speech bandwagon was the ever-reliable Parents Television Council (PTC), founded by conservative columnist and frequent Sean Hannity guest L. Brent Bozell.

"The Parents Television Council released new IBOPE Zogby International poll results today," begins a press release on the PTC website, "which show 75 percent of Americans agree there is too much sex, violence and coarse language on television. A majority also supports the Federal Communications Commission’s legal authority to fine broadcasters if they air indecent material. Support for FCC indecency enforcement was highest among African Americans (71 percent) and women (62 percent), the two groups Nielsen identified as watching more TV than their race and gender counterparts."

Typically, PTC has played fast and loose with its own poll results. For one thing, the first question the poll asked reads, "Do you agree or disagree that there is too much sex, violence and coarse language on television?" Since anyone agreeing with any of the three categories mentioned—most notably "violence"—would answer in the affirmative, the responses say nothing about either sex or "coarse language," since just about everyone can agree that TV is too violent.

PTC's second question is even more misleading: "Congress instructed the FCC to fine radio and TV broadcasters if they air indecent material during times when children are likely to be in the audience. The broadcasters are suing the FCC to overturn this rule. Do you agree or disagree that the FCC should keep its legal authority to fine broadcasters if they air indecent material during times when children are likely to be in the audience?" In fact, the issue in Fox Television v. FCC isn't "indecent material" as a whole; it's "fleeting expletives": momentary utterances like "fuck" and "shit" that most normal people consider a natural part of modern life, or perhaps the momentary revelation of a tit, like the half-second exposure of Janet Jackson's breast during the 2003 Super Bowl. No one in the mainstream communications industry—certainly not Fox Television—is suggesting that the FCC should approve, for instance, broadcasting a half-hour program devoted to women's bare breasts, whether kids are in the audience or not. And neither Fox nor CBS, which is continuing to contest its Super Bowl fine, nor ABC, which is appealing its fine for showing eight seconds of bare female ass on an episode of NYPD Blue, is "suing the FCC to overturn this [indecency] rule."

"The U.S. Second Circuit Court of Appeals seems intent on obliterating the FCC's ability to enforce the broadcast decency law," lied PTC president Tim Winter. "Unless the Obama Administration acts before the April 21 deadline, a three-judge panel in New York City will succeed in nullifying the will of the American people, the intent of the U.S. Congress and several decades of Supreme Court precedent."

Actually, the Supreme Court said just the opposite in its seminal indecency case, FCC v. Pacifica Foundation—the George Carlin "seven filthy words" case—that fleeting uses of indecent words were not actionable.

"It is appropriate, in conclusion, to emphasize the narrowness of our holding," wrote Justice John Paul Stevens for the majority. "This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution." [Emphasis added]

But Bozo, er, Bozell himself has moved on from PTC, and in his column just today, he decided to go after a TV show that hasn't even been scheduled by a network, much less aired yet: The Playboy Club.

"Some Tinseltown pundits have already pegged it as 'likely' that NBC will pick up a show for fall called The Playboy Club," Bozell predicted. "Just like it sounds, the show is based on Hugh Hefner's original Playboy Club in Chicago in swinging 1963. If that doesn't sound porn-friendly enough, the pilot's producers at 20th Century Fox TV required all actors on the show to sign a nudity clause—virtually unheard of in broadcast television."

Of course, those who actually went to Playboy Clubs back in the old days know that there was little if any nudity; its main attraction, aside from the food and music (and the possibility of catching a glimpse of some celebrity), was the "bunnies," clad in low-cut costumes with little tails that displayed plenty of cleavage, but no nipples.

Beyond that, Bozell certainly knows that if the proposed show airs during the FCC's "safe harbor" period—10 p.m. to 6 a.m.—it could show full nudity with no problem, since the FCC assumes that during that time slot, no kids are watching, and the whole purpose of its indecency rules are supposedly to protect the kids.

But Bozell appears to be more interested in the fact that not only NBC is having actors in the series sign a release that it would be okay to show them nude on the air, but also that the show might feature simulated sex.

"'Nudity as defined above and/or simulated sex acts may be required in connection with player's services in the pilot and/or series,' the clause reads, according to Variety," Bozell reported. "Despite this new low, Variety was told there was no nudity in the pilot, and producers didn't plan any such thing for NBC. But apparently, the broadcast version would provide temptation for the titillated to buy the DVD for the 'extras.' (And if there will be no nudity, why a nudity clause?) Variety guessed that the Playboy show could travel in the opposite direction from edgy HBO fare like The Sopranos and Sex and the City. A 'clean' version would air on NBC, and then a sleazier version might appear on pay cable—or perhaps on an edgy basic-cable channel like FX."

So now, according to Bozell, the problem isn't that nudity might appear on broadcast TV, but that a show with no nudity would encourage people to go out and buy a DVD of the show that did have nudity?

George Orwell had a word for that: Thoughtcrime.

But then again, thoughtcrime is the censors' stock in trade!