June 10, 2009
For a half-century, the Federal Communications Commission (FCC) has had the right to decide which words and pictures are excluded from the Free Speech guarantees all Americans enjoy. The FCC's criterion for this cruel abridgment of the Bill of Rights is material that involves "sexual and excretory functions." This sounds clearer than it actually is. For example, do the words "dickhead" and "buttface" refer to sexual or excretory functions (controlling whether you're allowed to watch "South Park" or "The Daily Show")? Are plain buttocks (not the anus, just the cheeks) a sexual organ? (The FCC recently ruled that they are.)
The FCC's attitude, especially under the Bush regime, has been 'when in doubt, throw it out'. And so "Saving Private Ryan" was unavailable to many viewers last Memorial Day, as stations feared punitive fines for airing this testament to the (salty-mouthed) soldiers who died to preserve democratic institutions (like the FCC).
So the FCC is obsessed with sex, seeing it everywhere, and attempting to exclude depictions of or references to it--no matter how indirect or esoteric.
This week the Supreme Court affirmed that it, too, sees sex wherever it looks. First it affirmed the FCC's right to banish and therefore punish the occasional coarse word fleeting across your TV screen--say, Bono exclaiming something is "fucking brilliant" or Paris Hilton noting the difficulty of getting "cow shit out of a Prada purse."
Days later, the Supreme Court challenged a lower court ruling that the half second glimpse of Janet Jackson's breast during the 2004 Super Bowl halftime show should not be punished.
In both rulings, the Supreme Court sought to "protect" Americans from "sexual" words or images that would either harm them, offend them, or undermine the country's "morality."
Justice Scalia and colleagues offered absolutely no science to support their fear. Indeed, Scalia conveniently omitted the fact that the rates of sexual violence, divorce, and child molestation have remained stable since 300 million American eyeballs were seared with the horrifying image of the Jackson tit five and a half years ago.
Indeed, Scalia himself warned, in his scathing dissent in the case that de-criminalized gay sodomy (Lawrence v. Texas, 2003), that the majority decision would end the government's ability to legislate based on "morality." His anxiety about what he quaintly calls "the f-word" seems to have separated him from his own beliefs.
The obsession with seeing sex where it doesn't exist isn't limited to media issues.
Author Sally Wendkos Olds reminds us about those who successfully demand that mothers who breastfeed on airplanes or other public places stop or cover up--because breasts are sexual, and immature adults have a right to be "protected" from seeing them.
There are lots of fascinating technical arguments about these FCC cases, which legal writer Mark Kernes explains quite clearly.
But the real question is: why are people like Justice Scalia, Rush Limbaugh, and Bill O'Reilly more concerned about protecting the sensibilities of some people than the Constitution of everybody?
