When I was thinking of doing a free speech week, I realized that I didn't just want to dump a bunch of speech related posts. I wanted to draw some conclusions about trends or attitudes or insights related to free speech.
That turns out to be harder that it sounds. I've spent some time floundering with drafts. "First rule of free speech … don't talk about free speech!" Maybe not.
OK, here's a free speech insight that's simple but pervasive: it's not just about the rules, it's about the people applying them.
Hence my backup title for this post: Sexual Organ, My Ass!
You can draft speech-limiting rules that pass constitutional muster, but if the people applying them are intellectually dishonest, they're cold comfort.
Case in point: Charlotte Ross' ass.
Charlotte Ross is an attractive actress who played a cop on NYPD Blue. Eventually her character married Dennis Franz' character, either mocking or comforting men who look like me and Dennis Franz with the notion that women who look like Charlotte Ross are hot for us. Anyway, Charlotte did a scene in NYPD Blue — a show that aired at 10 p.m. in my time zone — that featured her bare rear end for a few seconds. The context: she's getting into a shower when her young stepson walks in, emphasizing the theme of how awkward their blended family is.
Enter the FCC.
Now FCC rules forbid content that "depicts or describes sexual or excretory activities" in a "patently offensive way." As discussed at Volokh, the FCC is proposing to fine a total of 52 ABC affiliates a total of $1.4 million on the theory that the scene showing Ross's rear "it depicts sexual organs and excretory organs, specifically an adult woman's buttocks." The FCC dismissed in snippy terms, and with citation to inapt caselaw, the notion that the buttocks are simply not "sexual organs and excretory organs." This is simply "common sense," the FCC suggests.
I think that the FCC means something different by "common sense" than I do. Buttocks are not organs. They cannot excrete. Buttocks have never gotten anyone pregnant (directly) or gotten pregnant, either. Perhaps a rule that proscribes showing genitals and ani should also proscribe showing buttocks. But that's not the language of the rule. What this amounts to is the FCC officials saying "this should be prohibited," and finding an intellectually dishonest way to do it. Regrettably, many people support officials in this attitude — laws (even free speech restrictions) should be interpreted to achieve policy goals, even if the interpretation is not plausible. For example, see this hilarious meltdown in the same Volokh thread by Clayton Cramer, who rants and raves about how anyone who doesn't interpret "organs" to mean "anything naughty" want to force his child to watch sadomasochistic porn during the local news. Or something.
The Supremes would uphold, and have upheld, limits on showing sexual and excretory organs in prime time. They might even uphold a restriction on showing ass. But that wasn't how the restriction was drafted. The FCC simply turned an ass into a genital to suit its policy goal.
And that's one of the difficult things about defending free speech. You can oppose, and challenge, rules that on their face violate the First Amendment. You can even challenge vaguely worded rules that under some interpretations violate the First Amendment. But even if your vigilance leads to clear rules that meet constitutional muster, you still have to watch for dishonest officials willing to twist clear and constitutionally defensible language in order to achieve policy goals.
That's a pain in the ass.
Last 5 posts by Ken White
- Hate Speech Debate on More Perfect Live - September 5th, 2017
- Popehat Goes To The Opera: Un ballo in maschera - August 19th, 2017
- Department of Justice Uses Search Warrant To Get Data On Visitors to Anti-Trump Site - August 14th, 2017
- America At The End of All Hypotheticals - August 14th, 2017
- Lawsplainer: Why John Oliver Is Anti-Diversity Now - August 11th, 2017