Commentary: Andy Rooney Needs Refresher Course on Free Speech

On "60 Minutes" Sunday night, resident commentator Andy Rooney held forth on the subject of "indecency" on television – and went a long way toward living up to the description George Bernard Shaw had Julius Caesar give of his secretary, Brittanius, in Caesar and Cleopatra: "He is a barbarian, and thinks that the customs of his tribe and island are the laws of nature."

"I think it's wrong to use dirty stuff to attract an audience to anything," Rooney opined, noting that he "never use[s] dirty words."

"I say 'damn' and 'hell' occasionally, but nothing vulgar; no body function words," he explained, apparently not realizing that most of those objecting to "body function words" like "fuck" and "shit" on the tube – that is, the insanely religious – object even more strongly to "hell" and "damn."

"I don't mind some nudity, but I hate filth," Rooney continued, apparently oblivious to the fact that most pro-censorship types think nudity is filth, and that the FCC doesn't permit any nudity on TV. "There's some dirty stuff on television, but less than there would be if we didn't have a federal law that says whoever utters any obscene, indecent or profane language shall be fined or imprisoned not more than two years or both. I don’t know about 'whoever,' but I know they've never imprisoned anybody for 20 minutes, let alone two years, for saying something dirty on television."

Rooney's diatribe wasn't about "indecent" speech in general, just what shows up on the tube, but surely he knows that people have spent years in jail for having crossed the "indecency" line into the equally ill-defined area of "obscenity" in other media?

And whether there is "less [dirty stuff] than there would be if we didn't have a federal law" against it is certainly open to question. Lenny Bruce used to have a routine where he spent several minutes repeating ethnic slurs over and over again, his objective being to deprive those words of their power – a lesson still not learned, which is why comedian Michael Richards has spent the last several nights apologizing all over the radio and TV networks for his own use of them in answering some hecklers from the stage of a comedy club.

But as Dr. Marty Klein has pointed out in his vital work, America's War On Sex, "[N]o government, no religion, can eliminate the desire for sex, for sexual experimentation, for the taboo, the naughty, the novel, the intense. Read a century of science fiction: no one can stop people from somehow creating erotic entertainment and pleasure outside the bounds of whatever is considered 'decent.'"

"So when the Religious Right hyperventilates, sputters, rages, and prophesies doom regarding premarital sex, extramarital sex, nonmarital sex, and pornography, abortion, 'Grey's Anatomy', STDs, and dildoes, they're talking about themselves, but blaming a 'them.' People who feel powerless are cheering this war on 'them,' even though it's ultimately a war on themselves. But people who feel powerless and ashamed of their own sexuality can't possibly stand up for themselves in this battle."

But one would think that a commentator on 60 Minutes would have a better grasp of the free speech issues at stake than to deliver an off-handed defense of censorship.

"They have fined broadcasters millions of dollars over the years," Rooney acknowledged. "CBS was fined half a million dollars for the Janet Jackson bare breast fiasco two years ago at the Super Bowl. I thought CBS got a bum rap; you couldn't really see anything."

That's the point! Jackson's breast was exposed for less than half a second, yet the FCC has determined that that fleeting glimpse was worth, to the damaged American psyche, half a million dollars?!? Any adult producer's first reaction would probably be, "Hey; slice me off a piece of that!" But upon reflection, that person would realize that the same government that's coming after CBS is coming after adult producers as well.

And by the way, CBS paid that fine only so it could have a legal basis to sue the FCC to get it back, filing a brief in its case just last week ... joining briefs from NBC and Fox, also seeking to overturn adverse "indecency" rulings and huge fines by the agency.

"The law also says it's a federal offense to broadcast obscene material any hour of the day, or indecent or profane material outside certain late-night hours," Rooney further noted. "I'm a little fuzzy about the difference between 'obscene', 'indecent' and 'profane', and I don't know why dirty stuff is any more acceptable late at night than during the day."

Guess what, Andy: We're all a little fuzzy about the difference between 'obscene', 'indecent' and 'profane' because the law contains no clear definition of any of them, and considering the freedom of speech guaranteed in the First Amendment, we're even less clear how the government has any power to persecute any of them, much less worry about the distinctions between them! We're also unclear why so-called "dirty stuff" has to be relegated to the 10 p.m. to 6 a.m. time slot, since there's no evidence that hearing or seeing it has any adverse effect on young people's psyches. (See our editorial in the January AVN.)

But Rooney screws up royally when he concludes his segment with, "The fact of the matter is, we all have to behave in a way that's better than what comes naturally to us." Because if there's one thing that's relatively clear in First Amendment law, it's that "speech" isn't "behavior." That's why the Supreme Court can force dancers to stay six feet away from customers, and adult bookstores to take the doors off viewing booths: Because, in their view, the communicative value of the speech (erotic dance; adult movies) is outweighed by the so-called "secondary effects" (public behaviors) attendant to that speech. And if the court decides that some types of speech – like "obscenity" – have no communicative value, it can ban it completely from commerce.

Moreover, Rooney actually does understand the power of pandering to salacious material. He opened his segment with a placard that read, "Viewer Discretion Advised," and explained that, "You often see that warning on the screen before a television show, 'Viewer Discretion Advised.' The suggestion is, the children shouldn't watch it. What it does, of course, is alert the kids to be sure to watch it. We're trying to get a younger audience here at 60 Minutes, so I thought, if we showed that warning, 'Viewer Discretion Advised,' maybe more kids would tune in to watch me."

In other words, although Rooney quickly explained that it was a ruse, anyone tuning into the show just as that placard was on the screen would likely be tempted to continue watching, hoping for some raunchy material – and that's exactly what Rooney counted on!

Rooney claims to "live by four or five of the 10 Commandments" – "I don't steal; I don't lie very often; once in a while." – but apparently the admonition contained therein, "Neither shall you bear false witness against your neighbor," isn't one of them.