6.6 Obscenity and the Electronic Media

Part: 
Two
Chapter: 
6

Where legally obscene material is transmitted by radio, television, telephone, or cable, the same legal sanctions are or should be available as are available for any other form of distribution or exhibition. Although federal law has long prohibited the transmission of legally obscene materials by radio, television, and telephone, the advent of cable television left a gap in the law. The Cable Communications Policy Act of 1984 attempts to provide criminal penalties for anyone transmitting over any cable system "any matter which is obscene or otherwise unprotected by the Constitution." A number of states have or are on the verge of adopting similar changes in their obscenity laws to include cable transmission, and we support those legislative efforts to ensure that the law keeps up with technological changes. To the extent that obscene material appears on cable television, we urge prosecution to the same extent and with the same vigor as we do with respect to any other form of distribution of obscene material. We note that this has not always been the case, and we urge that enforcement efforts directed to legally obscene material, in whatever regulatory form those enforcement efforts might take, be as aggressive with respect to cable transmission of the legally obscene as with other forms of distribution of the legally obscene.

Under existing law, however, the Federal Communications Commission has the power to impose some sanctions against certain broadcasting of sexually explicit language or pictures over radio and television even where the material is not legally obscene. In FCC v. Pacifica Foundation,[67] the Supreme Court upheld the constitutionality of this form of regulation, in the context of sanctions against a radio station for a daytime broadcast of George Carlin's "Seven Dirty Words" monologue, which is in fact about the FCC regulations, and which uses repeatedly the words the FCC prohibits.

As we have explained in Chapter 4 and will do later, there is a great deal available on cable television today that is sexually explicit but which is not legally obscene. Some of this material contains sexual violence, some of it is degrading as we have used that term here, and some of it is, although rather explicit, neither violent nor degrading. In almost all of these cases the films shown have simulated rather than actual sexual activity, most have a rather sustained story line, and many are mainstream and highly acclaimed Hollywood productions.

With respect to these materials that are not legally obscene, they are beyond the reach of the law as it stands today. Nevertheless, we have been urged to recommend changes in the law so that material which is "indecent" as well as legally obscene might be kept from cable television to the same (or greater) extent as it has been kept from broadcast non-subscriber radio and television. We have not adopted these suggestions, however, although it is an issue on which we are deeply divided. Some of us believe that enforcement of obscenity laws with respect to such material, when combined with vigorous enforcement of the "lockbox" requirements so that children may be prevented by their parents from seeing such material, are all that is appropriate at this time. Some of us are persuaded by the fact that the suggestions made to us are all, on the existing state of the law, unconstitutional, with all of the courts that have confronted the issue deciding that cable cannot be controlled by the standards applicable to broadcast non-subscriber television.[68] Some of us are skeptical about Pacifica itself, and do not wish to extend to new areas a principle that we find dubious even with respect to broadcast media. In light of the existence of, for example, serious and non-pictorial sexual advice programs as well as serious mainstream motion pictures containing more explicit sexuality than would be available on broadcast television, extension of the limitations of broadcast television to cable seems highly likely to restrict that which simply ought not to be restricted. Some of us question the current state of the law, but would urge change in the direction of permitting restriction of pure violence rather than indecency. Some of us are also uncomfortable once again about taking on any doubtful causes and courses of constitutional adjudication when existing law seems sufficient for the more extreme cases. And some of us reject all of the above, and feel that cable television, even with lockboxes, is so similar to broadcast television that regulation of more than the legally obscene should be permitted with respect to cable just as it is when the airwaves rather than wires are the medium of transmission. Some of us who hold this view would prefer somewhat broader definitions of what can permissibly be regulated in many areas. And others of us who take this position are comfortable with the existing definition of obscenity, but feel that television is a medium with a special power and a special intrusiveness in contemporary society.

These are difficult questions, going not only to the roots of First Amendment doctrine and theory, but also to the nature of television in American life. As with other fundamental issues, we are unable to agree here, and as a result there is no consensus among us that would justify urging that regulation of cable encompass more than the legally obscene.

Many of the same considerations apply to the regulation of those telephone services, commonly referred to as Dial-a-Porn, that provide sexually explicit messages. As we discuss at length in a later Part, there is no doubt that the number and variety of these services is increasing, and that they have generated substantial citizen concern. Some of the concerns relate to the way in which these services are advertised, and some relate to the messages themselves regardless of who uses the service. Most of the concerns, however, relate to the frequent use of these services by minors, a concern that seems accentuated by the extent to which many of the services seem designed to cater to the particular asexual perceptions of teenagers rather than adults. We have heard a number of these messages, and we have little doubt that the bulk of them could be considered to be legally obscene under existing law.[69] Although they use words rather than pictures, even those of us who would refuse to apply obscenity law to materials containing only the printed word would not apply that principle to these materials. Apart from the fact that many seem implicitly if not explicitly directed at minors, the nature of the spoken voice, especially in this context,contains enough of the characteristics of the visual image that we have no difficulty in saying that such material should be dealt with consistent with our recommendations concerning films, tapes, and pictorial magazines.

Although once again we have been urged to recommend new laws that are substantially more encompassing than the existing definition of the legally obscene, we find such approaches both unnecessary and undesirable. The vast bulk of this material seems to us well within the Miller definition, and thus could be prosecuted in accordance with the concerns and the priorities we have urged here. In light of that, we see few advantages and substantial risks in going further. But we also urge that there be laws allowing the prosecution of such legally obscene material, and we urge as well that such laws be enforced. There seems now to be little enforcement, and in light of the frequency with this material is used by minors, we deplore the failure to have and to enforce obscenity laws with respect to material of this type.

Notes

  1. 438 U.S., (1978), p. 726.
  2. Cruz v. Ferre, 755 F.2d, (11th Cir. 1985), p. 1415. Community Television of Utah v. Roy City, 555 F. Supp. 1164 (D. Utah 1982); HBO v. Wilkinson, 531 F. Supp., (D. Utah 1982), p. 987. The Supreme Court has yet to be faced with the question.
  3. We believe this to be the case even when the messages are directed at and available only to adults. To the extent that they are directed at and available to minors, the application of the test for obscenity may properly take that into account. Ginsberg v. New York, 390 U.S., (1968), p. 629.