The Moral Ground of Our Indecency Laws

At Right Reason, Hadley Arkes has an extraordinary essay on indecency laws and our problems with finding any ground of judgement to enforce those laws.  In FCC v. Fox Television Stations,

The heart of the argument before the Court was whether there was any clarity in those standards for judging the words and gestures that the FCC would filter as patently unsuitable for material diffused to a broad public. The case against this kind of screening was offered by those evidently accomplished lawyers, Carter Phillips, joined by Seth Waxman, a former Solicitor General. And yet, that vexing F-word was never sounded in the arguments they put before the Justices, woven as they were with analytic prose. But we had been told so often in the briefs, and in the opinions in the lower courts, that our public speech would be radically diminished—that it would be torn from the truth of life as lived—if it could not incorporate this kind of language in interviews and documentaries, no less than movies. And yet, why do we have the sense that if it were the N-word at issue, we would not be hearing how much our dramas and interviews were diminished when cops and truck drivers were not heard to be spitting out their contempt for "niggers?" Messrs. Phillips and Waxman are seasoned lawyers. They would not have ill-served their clients by holding back any useful tools in their arsenal. Evidently they did not think their arguments were impaired in any way because they did not invoke the F- or S-words.

But because of the elite educations offered in our prestigious law schools, the ones that generate lawyers today that make arguments based the subjectivity of the English language, the moral ground of indecency laws has been largely lost.  Instead, Solicitor General Donald Verrilli, in defending the law on behalf of the government, has to make claims such as this:

The corporations holding licenses to broadcast have been given a lucrative franchise, and in turn they should accept certain rules. Justice Kagan quickly noticed the absence of any moral rationale: The Solicitor General was suggesting an implicit "contract," but why, she asked, is "this condition [or rule] appropriate when many other conditions would not be?" Mr. Verrilli would permit himself only this response:

This condition is appropriate, Justice Kagan, because it has been a

defining feature of the broadcast medium from its inception in the 1920s in the Radio Act and has continued to be a defining feature of this medium throughout its history.

This is nothing more than an argument based on tradition and the simple fact that the law's enactment somehow means it is good.  Force in other words is equated to the good. 

Justice Kennedy, in a rare moment of clarity, argued that FCC indecency laws inspire a certain symbolic value, because we aspire to be a culture that is not vulgar.  Justice Scalia, citing Kennedy's concerns and noted that

these are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth.

But in the recent case in Brown v. Entertainment Merchants, under the majority opinion authored by Justice Scalia, in response to an argument brought forward by Justice Alito, Justice Scalia said that

"these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression." After all, children were resilient: "Grimm's fairy tales," he said, "are grim indeed." The Court could not let restrictions on speech be smuggled into the law under the banner of protecting children .

Arkes notes in closing:

But it went now without saying: The law was cast in terms of children because the Court had gradually pared back, over the years, any ground of judging and restricting the entertainment offered for adults. And yet that reporter, hearing a man savoring the dismembering of a woman on the screen, thought that something vicious was producing its effect on an adult. It was not less objectionable, not less debasing in its tendencies, not less harmful in the sensibility it shaped, than the same "entertainment" offered to a child. What Scalia glimpsed, in this rare moment, was a truth he had known long ago before it had become obscured in layers of theories built up in the law by his colleagues past and present. That small glimpse could be the epiphany come in time. It could be the opening that leads Scalia and his colleagues back to the grounds of judgment that the judges used to know, along with all of those ordinary folk around them.