Jack Valenti, the creator of the Motion Picture Association of America, the group that supplies all the Gs, PGs, Rs and NC-17s for Hollywood movies, rarely had a good word to say about constitutional free speech while he headed the MPAA. But in the years since his retirement, Valenti seems to have reconsidered where his expression values lie, and in the afternoon session of Sen. Ted Stevens' (R-Aka.) "Decency in the Media" forum on Nov. 29, he gave the attendees an earful of it.
Valenti's remarks were apparently inspired by the censorious tone and wild exaggerations of another speaker, L. Brent Bozell, III, head of the Parents Television Council (PTC), which group, by most accounts, is responsible for 98 percent of the indecency complaints received by the Federal Communications Commission (FCC) over the past few years.
"I think we're discussing the wrong issue here," Bozell stated, referring to proposals from various broadcast and cable media moguls to strengthen public awareness and use of the V-chip, the device installed in all modern TVs which can block programming based on the show's assigned rating for sex, language, dialog and/or violence. "We're having a grandiose debate about – and the analogy that I've drawn before is the analogy of a pothole on 14th Street. We're all discussing ways of putting warning signs to alert motorists to a pothole on 14th Street: What size V-chip, what size warning label, content descriptors and everything else. But no one's addressing the potholes. They're still on 14th Street."
"If we are to say that we shouldn't address that pothole, then what we're saying is that we – there is a need, a demand, a call, a protection, a something for indecency on television," Bozell claimed. "And we're not talking about little indecencies here. We're talking about big, big indecencies. And I would ask the people around this room, and my friends in the networks, to tell me where there is a market demand for the kind of things that we're now talking about protecting, because we're saying V-chips and everything else is to protect the right to watch what? To watch pedophilia; to watch bestiality – it's on television now – to watch incest, to watch necrophilia – that's on in prime time now. Are we really so impassioned about defending some sort of a market right to watch this, or would we just be doing ourselves a big favor if we were to simply say that it doesn't matter what the law says; it's a simple function of decent civilized behavior? One does not put this on television when youngsters should be watching. And not to mention, by the way, adults, too – I don't know why adults would be wanting to watch this, but children, for goodness sakes. Do we have to have V-chips, or can we just not say – can we just say, we're not going to do that? And then we wouldn't be having these hearings."
Bozell's claim that depictions of adults having sex with children, with animals and with dead bodies was outrageous enough – that doesn't even happen on cable, much less broadcast TV, the only venue where the FCC currently has control – and Bozell neglected to name even one program that dealt with any of those acts.
He did, however, attempt to bolster his claim by citing a Pew Research poll which indicated that even the most popular show on TV (which he likewise did not name, but "Desperate Housewives" is a likely candidate) was watched by less than 10% of the population – yet if sterile, non-sexual fare were more popular than titillation, wouldn't shows like "Seventh Heaven" regularly outscore "CSI" in all its incarnations and "Law & Order: Special Victims Unit"?
For Bozell, the V-chip was just the top of a slippery slope that began with TV-MA ("mature audience") ratings and presumably would end with hardcore sex.
"As we predicted would happen when the V-chip debate began," Bozell warned, "beware of the law of unintended consequences. As soon as we got the V-chip, what we also got was almost immediately some of the lowest offensive programming and indecent programming ever on television. Why? Because now you could do it, because we had a V-chip and we had a rating system, and we could just put TV-MA and drop that bomb, because we had TV-MA... All I'm saying is that the V-chip has allowed some who have wanted to push the envelope ... to push it with the protection of the V-chip. And then we come back here two years later, all the more upset."
Bozell's comments seemed to inspire Valenti to remember his constitutional roots, though his initial argument was more a challenge to the degree of television's indecency than any defense of it.
"There's 2400 hours of television on the air today; 2400 hours a day," Valenti began. "How much of that is indecent? This is an imperfect world we live in."
But soon, Valenti hit his stride.
"What has made America great is, it's a free country, and when you are a First Amendment person, you must allow into the marketplace that which you find to be meretricious, untidy, unwholesome and sometimes just plain stupid, but that's the price you pay for democracy," Valenti rightly argued. "A democracy is quite messy. If you want to have a pristine television show, you go to Burma or you go to North Korea, and you'll find yourself in a pristine world where nothing that the government doesn't want on the air is on the air. That's the price you pay, Brent, for a democracy."
Picking up on Bozell's failure to mention which shows had depicted sexual acts, Valenti then gave some advice to Sen. Stevens.
"Mr. Chairman, I think you'll find that it's very fine to say you could have standards, but now when you begin to fine people, when you begin to force people, then you must be precise," he cautioned. "You cannot indict a man for a crime without defining what the crime is ... What is the standard? What is too much violence? Where do you draw this line? The idea that the whole country, all of us get upset about a three-second version of an artificial breast to me is the most absurd thing in the world, this Janet Jackson thing. It made no sense. And yet you can go in any museum, you can go anyplace and see nude women. Venus de Milo is known around the world. The point is, this thing got out of hand, it seems to me, that to have three, four seconds of a silicone breast and the country became ecstatic about it – I mean, it just doesn't make any sense."
If Valenti knew that Jackson's nipple was in fact exposed for less than half a second, he might have been even more outraged.
Earlier in the hearing, ABC's Preston Padden had mentioned that about one-third of his network's affiliates had decided not to air a repeat broadcast of Steven Spielberg's Saving Private Ryan due to worries that the FCC might level fines for the violence and vulgarities contained in the movie. But Valenti argued that lawmakers must look past the objections of modern puritans and deal with the core message of the film: War is hell.
"When you look at, say, Saving Private Ryan, is the classic example; is that too much violence?" Valenti asked. "Most would say not, because men are being killed. You saw the brutal realisms of a war, and yet I think every young boy in this country, particularly young boys and young women under the age of 12 ought to see that movie because it has to do with war, and every now and then, we go to war. What is it like? So this is very delicate ground we're on. I'm saying to you, there's no way that we can do what Brent wants, and that is to scour the airwaves of everything that offends his sense of decency, which might be different than somebody else's, but I say to you again, if you're going to indict somebody, you must be precise, what it is they're violating."
That latter point was exactly what no one on the pro-censorship side could address, though Bozell took a stab at doing so by attempting to distinguish between "artistic" and "gratuitous" violence. But first, he had to admit that, like obscenity, no one had yet defined "indecency."
"There's been this discussion about how does one define indecency," Bozell said. "I don't know how to do it. It's not that one says that it can't be done; I just don't know how to do it, and I don't know of anyone who's come up with a definition of indecency."
Bozell's lack of ability to define the term hasn't stopped his organization from urging members and the general public to shower the FCC with complaints about "indecent" programming, but rather than own up to this basic contradiction at the heart of PTC's entire program, Bozell changed the subject.
"Note that we're not talking about obscenity, and so much of what is on television today is obscene in the Webster definition of the word "obscenity,'" Bozell claimed. "And yet it isn't legally obscene because the word obscenity has been defined in such a way that I believe it must include visual insertion, so nothing can be obscene on the radio. So this is the slippery slope you get into when you get into a full definition."
"Full definition?" How about any definition that doesn't run smack up against the First Amendment's prohibition against Congress making any law that abridges freedom of speech? But no definition, full or otherwise, was to be forthcoming at this hearing.
But there's another point, senators, that needs to be hammered home here," Bozell pressed on. "Contrary to what we heard across the table, which is flat-out wrong, it is not a function that the public doesn't care and doesn't want government to do something. The Pew Center shows that 75 percent of the public wants tighter enforcement from the government on these rules. Now, why is that? These airwaves are owned by the public. They're not owned by any company represented here, and they're not owned by the Parents Television Council either. They're owned by the public. The law states that you have to abide by community standards of decency. Now, there's going to be some gray area here, but there's a black and white area here as well. There are things that are on broadcast television that are simply indecent, and I really don't care about how many Band-Aids we talk about it. Senators, the law says you can't be indecent. And people who violate that, willfully violate that, gratuitously violate that – Saving Private Ryan wasn't gratuitously violating anything, and that's a smokescreen. I'm talking about programming that gratuitously violates community standards of decency should be fined."
Bozell was just digging his hole deeper. Despite his inability to define "indecency," now he assured the audience, including Sens. Stevens and Daniel Inouye (R-Hi.), that there were both gray areas of non-definition and black-and-white areas of same – a contradiction that Valenti would later seize upon. But Bozell, like Supreme Court Justice Potter Steward, apparently knows indecency when he sees it; he just can't tell anyone else exactly what it is – except, of course, that it's "gratuitous," as evidenced by some imagined poll of "community standards of decency." Sadly for Bozell and his compatriots, the Constitution requires much more than a "show of hands."
Sen. Stevens, however, apparently recognized Bozell's problem and attempted to save him.
"I believe that it would be correct to say that the FC has interpreted the criminal law and has said, according to a note that I have here, that indecent is language that – or material that depicts or describes sexual or excretory activities or organs in terms of patently offensive as measured by contemporary community standards for the broadcast media," Stevens declared. "Now, that's pretty vague, but it is defined by past FCC decisions. That's what you're talking about, and greater enforcement of that standard, is that right, Brent?"
Bozell probably would have agreed with that, and perhaps would even have been happy that Stevens had described the FCC's standard as "pretty vague," but before Bozell could respond, Valenti chimed in.
"Mr. Chairman, again, that standard is not an indictment, it's not a description of a crime," Valenti properly pointed out." As a matter of fact, in the motion picture business, we have obscenity laws in about 40 states pertaining to motion pictures. The last time that an obscenity case was filed against a motion picture was in Albany, Georgia, and the picture was ... Carnal Knowledge, and it went all the way to the Supreme Court in a 9-0 decision; they threw it out. The reason why is, we go by the Miller standard, which is prevailing community standards. That is a loophole big enough for 10 Hummers to get through, and as a result, no district attorney, no attorney general has filed any obscenity charges against a motion picture because it'll get thrown out in the higher court because of a lack of precision."
Sadly, Valenti had apparently bought the claim that the Supreme Court's decision in Miller v. California had defined and legitimized "community standards" for "obscenity" in some manner that, it was clear, had not been done for "indecency," but thankfully, Valenti then returned to his point about the need for specificity of definition when bringing criminal charges, or even FCC fines.
"Now, when Brent talks about all of this terrible stuff is on television, I'd like him to make a catalog of it," Valenti requested, "because what you find is, nobody can make this judgment. When I first started the motion picture rating system, I retained two social scientists, one child behavioral expert and a psychiatrist, and I said, 'What I need from you is, I'm doing this rating system; put down on a piece of paper exactly where the demarcation lines are in these various categories that we have, but it's got to be specific, because otherwise we go back to subjective standards again.' Guess what? They couldn't do it... I say again, standards are different from a specific definition that is lacking, and that's what you have in the Supreme Court today, and that's the reason why, to repeat, in the last 25 years, there have been no cases filed because the district attorneys understand there's no case there."
However, with four bills dealing with "indecency" in the media currently pending before Congress, and with Stevens himself having scheduled another hearing on the subject for Jan. 19, it is unlikely that Stevens had the "ears to hear" what Valenti was saying. Therefore, even fans of the soft adult material available on both broadcast and cable/satellite TV and radio should gear up for court fights on this issue, perhaps as early as the spring of 2006.
