Forlorn Search for Decency

William F. Buckley
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Posted: Mar 14, 2004 12:00 AM

The good news is that there is public pressure to maintain standards of some sort in public scenes and over the airwaves. On Thursday, the House even passed the Broadcast Decency Enforcement Act, which would fine offenders impressive sums of money. The trouble has to do with the difficulty in defining objectionable, though you feel this in your groin. The Janet Jackson display at the Super Bowl crossed the threshold and awakened some latent sense of decorum. The public sense of it was that to bare a breast as part of the half-time entertainment at the largest annual sports event in the world was an excess. An excess is defined as something the public thinks of as inappropriate and perhaps, even, wrong.

The protests overruled the general public unconcern over semi-nakedness. Although bared breasts are increasingly routine, there is still a consensus against public striptease. The sense of it is, Okay, do this kind of thing and more ? much more ? on the Playboy Channel and in Las Vegas, but draw the line somewhere this side of the Super Bowl. It isn't obvious which authorities to appeal to in the matter of displays at ordinary football games, but inasmuch as this one was carried on television, the Federal Communications Commission was invoked. It has the power, given to it by Congress and reinforced on Thursday, to uphold some standards, even if they are by and large in shreds, that hold out against exhibitionism, obscenity, and blasphemy.

The FCC faces a problem at the level of language. The defendant here is one "Bono," who, when the Golden Globe awards were given out, expressed his pleasure at receiving one by saying, "This is really, really f ? -ing brilliant!" The exclamation point here is my contribution to the defense being pleaded: Mr. Bono's spokesmen tell us that the disputed word was used purely as, well, a verbal exclamation point. And that is entirely plausible. By no means everyone uses the word as a mere intensifier, but many people do, if they are expressing themselves theatrically. You cannot, of course, cross the stage of The Sopranos without using that word as a kind of verbal connective tissue, sometimes positive (as when you get a Golden Globe award), sometimes negative (as when the car behind you honks), sometimes as a kind of hiccup punctuating conventional speech. You can even call up a formulation in which you might use it as genuine anathema: "You have f ? -ed yourself out of the Christian community." But that, said seriously, might be offensive to those who believe that theological exclusions breach the wall of separation of church and state.

All of America seems to give immunity to any use of language when carried by cable television. The reasoning here is that if you subscribe to cable, you are making your own contract, on your own terms, with a carrier that does not need anybody's okay, especially that of the FCC, to go ahead and program anything the producer comes up with, and the consumer consents to pay money to view.

What isn't dwelled upon, of course, is that the idea of obscenity laws originally had nothing to do with whether airwaves were carrying the stuff, since the use of airwaves hadn't been devised back then. The obscenity laws are technically not dead, but they might as well be. The Supreme Court defined obscenity in Miller v. California in 1973. It held that that which was patently designed to appeal to prurient interests, and was accepted by the community as being that, could be legally prosecuted. The pornographers hired bright lawyers and, egged on by their camp followers, the First Amendment absolutists, set up a show trial in Memphis knowing that someone could be found to testify that he/she didn't consider this/that movie or book or play to be something that outraged community standards. Therefore, prosecution under the Supreme Court definition could not work, because community standards could not be invoked as agreeing that the material was obscene.

There is not the slightest visible protest against the legal maneuvers by which obscenity is held to be merely the exercise of free speech and therefore protected under the First Amendment. We are an ingenious people, but I hold it beyond the resources of the most creative American writer to come up with a book or a movie that is legally obscene. What the Super Bowl and the Bono experiences tell us, however, is that there is something there that still generates public disapproval.

We can't know what kind of precautions will be taken at half-time in next year's Super Bowl, or whether the figurative uses of the f word will safeguard its presence on broadcast television and radio. But that there is some sense of resentment out there is really . . . brilliant!