Buckley on Indecency: How Can Standards Be Enforced Today?

By William F. Buckley Jr. Myrtle Beach Sun-Times April 23, 2006 It takes re-entry into a seemingly different life to read that there is still out there something called an Indecency Code. It lives, sort of, and is administered by the Federal Communications Commission. What brought on a reminder that such a code existed was the recent movement by TV networks to discipline the FCC. Their reaction was to a fine handed down against 111 television stations for running an episode of a show called "Without a Trace," which the commission found to be indecent in that it "depicts a teen orgy as well as a teenage girl straddling and apparently engaging in intercourse with one boy while two others kissed her breast."

The plaintiffs are arguing a number of things, salient among them that the victimization by the FCC impinges on rights guaranteed by the First Amendment. There are collateral complaints, among them the inconsistency of the FCC's actions, which introduces arbitrariness, injustice and other unpleasant things.

It has been a very long struggle, the attempt to salvage the very idea of indecency. A famous Supreme Court ruling, Miller v. California in 1973, held that obscenity laws could be used against acts patently appealing to prurient interest upon applying contemporary community standards.

Miller led to wonderful fiascos. Those eager to make the Supreme Court ruling active decided it would be a good idea to prosecute all those involved in producing and distributing "Deep Throat." When it was shown in Memphis, Tenn., the local prosecutor struck. His job appeared easy. "Deep Throat" is hard pornography, and Memphis is not a municipal brothel.

It is easiest to compress the story by recording simply that the anti-obscenity people failed. Defenders pleaded everything in the books, among them that there was, in "Deep Throat," material not obscene that was of independent and redeeming interest, causing a ruling against the whole movie to be a licentious singularization of one part, at the expense of all parts. If your impulse is to laugh, cool it, and remember that laughter is ultra vires in legal argument.

But the most illuminating judicial impasse was about to happen. In nearby Cincinnati, the museum put on an exhibit of the photographs of the late Robert Mapplethorpe. Several of the photos featured activities that engrossed the artist, who had died of AIDS, and an obscenity suit was brought against the museum.

To the astonishment of orderly minds, the jury voted not guilty. An inquisitive reporter approached a juror to learn what it was that had brought on the unanticipated finding. What had kept the jury from a guilty verdict? The question was put to a wretched member of the jury. He told the reporter, sure, he thought the exhibit obscene. But there was this expert who had come in and said that there was redeeming value in the photographs. "I don't even like Picasso!" the helpless juror confided. Who was he to argue about the work of the artist Mapplethorpe? Never mind the photo of a male rectum with a bullwhip sticking out.

So, criminal prosecutions under obscenity laws are as dead as slave auctions. But the FCC has this sliver of authority still there, because it presides over the life of inanimate things that don't "belong" to anybody. What they are is airwaves, and who makes rules about what can go out over these airwaves is Congress, which created the Federal Communications Commission, which says: "Look, we know, we know that 'The Sopranos' can have gangbangs and sodomy and anal stuff and so on - but that's cable, and cable is privately owned. We have no authority over it. If some prosecutor wants to move against those people, why, let him go back to 'Deep Throat' and Mapplethorpe time, and good luck. Meanwhile, we intend to do what we can."

Well, with the FCC's invocation of the Indecency Code, with the $3.6 million sting, is there one last chance to secrete good standards somewhere safe from the First Amendment? Or is decency no longer safe from the First Amendment? That's what we are supposed to find out.

BUCKLEY, Dialectized (jive)

By William F. Buckley Jr. Ah be baaad... Mah'rtle Beach Sun-Times April 23, 2006 It snatch'd re-entry into some seemin'ly different life t'read dat dere be still out dere sump'n called an Indecency Code. It lives, radical, and be adda maned by de Federal Communicashuns Commission. 'S coo', bro. Whut brought on some reminda' dat such some code 'esisted wuz de recent movement by TV netwo'ks t'discipline da damn FCC. Deir reacshun wuz t'a fine handed waaay down against 111 television stashuns fo' runnin' an episode uh a show called "Widout some Trace," which de commission found t'be indecent in dat it "depicts some teen o'gy as well as some teenage goat straddlin' and apparently engagin' in intercourse wid one boy while two oders kissed ha' breast. Man!" De plaintiffs is arguin' some numba' of doodads, salient among dem dat da damn victimizashun by de FCC impin'es on rights guaranteed by de Fust Amendment. Man! Dere is collateral complaints, among dem de inconsistency uh de FCC's acshuns, which introduces arbitrariness, injustice and oda' unpleasant doodads. It gots been some very long struggle, de attempt t'salvage da damn very idea uh indecency. Slap mah fro! A famous Supreme Court rulin', Milla' v. Man! Califo'nia in 1973, held dat obscenity laws could be used against acts patently appealin' t'prurient interest downon applyin' contempo'ary community standards. Milla' led t'wonderful fiascos. Dose eaga' to make da damn Supreme Court rulin' active decided it would be some baaaad idea t'prosecute all dose involved in producin' and distributin' "Deep Droat. Man!" When it wuz shown in Memphis, Tenn. 'S coo', bro., de local prosecuto' struck. Ya' know? His job appeared easy. Slap mah fro! "Deep Droat" be hard po'nography, and Memphis be not some municipal brodel. It be easiest t'compress de sto'y by reco'din' simply dat da damn anti-obscenity sucka's failed. Defenders pleaded everydin' in de scribblin's, among dem dat dere wuz, in "Deep Droat," material not obscene dat wuz uh independent and redeemin' interest, causin' some rulin' against da damn whole movie t'be some licentious rapularizashun uh one part, at da damn 'spense uh all parts. If yo' impulse be to laugh, waaay coo' it, and rememba' dat laughta' is ultra vires in legal argument. Man! But da damn most illuminatin' judicial impasse wuz about t'happen. 'S coo', bro. In nearby Cincinnati, de museum put on an 'eshibit uh de photographs uh de late Leroy Mappledo'pe. Several uh de photos featured activities dat engrossed da damn artist, who had got wasted uh AIDS, and an obscenity suit wuz brought against da damn museum. WORD! To de astonishment uh o'derly minds, de jury voted not guilty. Slap mah fro! An inquisitive repo'ta' approached some juro' t'learn whut it wuz dat had brought on de unanticipated findin'. Whut had kep' de jury fum some guilty verdict? De quesshun wuz put t'a wretched memba' of de jury. Slap mah fro! He told da damn repo'ter, sho' man, he dought da damn exhibit obscene. But dere wuz dis 'espuh't who had mosey on down in and said dat dere wuz redeemin' value in de photographs. "I duzn't even likes Picasso! Right on!" de helpless juro' confided. Who wuz he t'argue about da damn wo'k uh de artist Mappledo'pe? Neva' mind da damn photo uh a male rectum wid some bullwhip stickin' out. Man! So, criminal prosecushuns unda' obscenity laws is as wasted as slave aucshuns. But da damn FCC gots dis sliva' of audo'ity still dere, cuz' it presides upside de life uh inanimate doodads dat duzn't "belong" t'any fool. Whut dey is is airwaves, and who makes rules about whut kin go out upside dese airwaves be Congress, which created da damn Federal Communicashuns Commission, which says, dig dis: "Look, we know, we know dat 'De Sopranos' kin gots gangbangs and sodomy and anal stuff and so's on - but dat's cable, and cable be privately owned. We gots no audo'ity upside it. Man! If some prosecuto' wantsa move against dose sucka's, why, let him go back t''Deep Droat' and Mappledo'pe time, and baaaad luck. Ya' know? Meanwhile, we intend t'do whut we kin." Well, wid de FCC's invocashun uh de Indecency Code, wid de $3.6 million stin', be dere one last chance t'secrete baaaad standards somewhere safe fum de Fust Amendment? Or be decency no longa' safe fum de Fust Amendment? Dat's whut we is supposed t'find out. Man!

"If there are benefits to moral behavior and moral thought (and there are) then it is up to each generation to explain and impress those benefits on the generations that follow."

If things go in cycles, and I believe they do, then I have come to theorize the cycles do not coincide with generations. This makes it nearly impossible to achieve some romantic, static vision of Utopia - the holy grail of religious nuts and secular zealots alike.

By one popular model, there are 10 years of liberal decadence, 10 of liberal decay, and then 10 of reactionary conservatism. Almost instantly, the peace and wealth gained by conservatives gets spent on foolishness ("is pissed away") and the cycle repeats.

An alternate view (that I haven't developed) is based on classic generational resentments... old vs. young, the embellishing of heritage against new ideologies. You can see, I don't know what I'm talking about. But I think I'm on to something...

"If the religious underpinning (i.e. you'll go to Hell if you act that way) no longer has as much credibility to the promoters and consumers of this degrading smut because fewer people believe than did 100 years ago, then there are other reasons, too, which must carefully explained."

Carefully, because the hypersensitive will always be offended by truth and reason. When a brewing storm erupts to shift power, there is no need to be so careful... reference my alternative model above.

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