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.