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Freedom Of Speech, Obscenity, And The Super Bowl

This is the 4th article in our Civil Rights And The Freedom Of Speech series. The first installment was entitled Civil Rights And The Freedom Of Speech, the second was Freedom Of Speech, Gag Rules, Gag Orders, And Gagged Critics, and the third was entitled Freedom Of Speech, National Origin, And Religious Belief.


“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Well, the “Big Game” is upon us, and unless one took up residence under a rock last year, everyone knows of the famous -- or infamous -- Justin Timberlake and Janet Jackson performance during the half-time show, which culminated in the much discussed, often repeated, and endlessly apologized for breast-baring "wardrobe malfunction."

While this incident in and of itself was not nearly as a big a deal as commentators, press, and radio talk-show hosts would have us believe, it very nicely draws attention to an underlying societal trend which appears to stand in direct opposition to the fare CBS, MTV, their parent company Viacom, and other assorted media groups wish to feed us...the everything goes, no holds barred, sex sells, television program.

Almost overnight, the battle lines were drawn and on one side of the line we had Constitution-toting, banner bearing, cross-wearing moms and dads who decried the performance as obscene. On the other side of the line we had Constitution-toting, banner bearing, bigger-cross-wearing performers, television executives, and members of the television audience who claimed the performance was an expression of free speech. Who was right?

In the landmark case Miller v. California (413 U.S. 14 [1973]), the United States Supreme Court recognized a three-fold test to be administered in cases of obscenity prohibitions. This test was the yardstick that would separate the wheat from the chaff, or, more colloquially, guarantee that no obscenity would hide behind the mantle of First Amendment protection. In it, the law seeks to determine

  1. “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
  2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
  3. whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”
While #3, with respect to the Timberlake/Jackson performance, is debatable (unless your taste in musical performances runs along the lines of crotch-grabbing and breast-baring), #s 1 and 2 do appear to have a bearing in this case, and it appears that the fines levied by the FCC have some justification.

The critics of Miller claim that any exception to free speech is the death knell to freedom of expression. Further, they argue, obscenity has not been shown to cause measurable harm to individuals or society as a whole. Perhaps. Yet does it not aid in the overall desensitizing of society toward the proper respect between the genders?

The critics further argue that instead of limiting free speech to sift out obscenity, moral values should be taught within the confines of private education, thus raising a generation that will put an end to obscenity simply by its lack of commercial viability. From a parental point of view, I can easily answer this idea with one word: hogwash. Or is it?

This year, Americans may rest easy, since the "Ameriquest Mortgage Super Bowl XXXIX Halftime Show” features none other than Sir Paul McCartney, who is unlikely to rip off anyone’s clothes or expose himself in a misdirected effort at ratings grabbing.


Please take a look at your host’s book recommendation.

Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem
Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem

The publisher states: “Richard F. Hixson examines the various ways the United States Supreme Court - the individual justices as well as the collective body - has dealt over time with the intractable problem of obscenity. Hixson proceeds chronologically through eleven chapters, with each chapter featuring a specific aspect of the constitutional problem and the approach or solution espoused by a particular justice. Through his case-by-case analysis of the many Supreme Court obscenity rulings, Hixson relates each decision to the temper of the times. Omnipresent in this discussion, of course, is the United States Constitution, especially the First Amendment upon which the Court bases its decisions. What sets Pornography and the Justices apart from other studies of pornography is its unique focus and its fresh conclusion, which is a composite of views garnered from the Supreme Court justices. As long as the government does not discriminate against specific points of view and as long as there is ample protection of minors and nonconsenting adults, Hixson argues that the private collection of pornography is up to the individual. Hixson contends that the freedom to purchase obscene pornographic matter should be restricted only by time, place, and manner considerations. If a person wants pornography, he or she should be able to get it, albeit perhaps from a higher shelf, in a secluded room, or at a theater clearly marked for adults. Hixson sees no need to legislate personal morals beyond controlling public access.”

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