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Violence As Obscenity: Limiting the Media's First Amendment Protection

Violence As Obscenity: Limiting the Media's First Amendment Protection

by Kevin W. Saunders

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This timely and accessible volume takes a fresh approach to a question of increasing public concern: whether or not the federal government should regulate media violence. In Violence as Obscenity, Kevin W. Saunders boldly calls into question the assumption that violent material is protected by the First Amendment. Citing a recognized exception to the First


This timely and accessible volume takes a fresh approach to a question of increasing public concern: whether or not the federal government should regulate media violence. In Violence as Obscenity, Kevin W. Saunders boldly calls into question the assumption that violent material is protected by the First Amendment. Citing a recognized exception to the First Amendment that allows for the regulation of obscene material, he seeks to expand the definition of obscenity to include explicit and offensive depictions of violence.
Saunders examines the public debate on media violence, the arguments of professional and public interest groups urging governmental action, and the media and the ACLU’s desire for self-regulation. Citing research that links violence in the media to actual violence, Saunders argues that a present danger to public safety may be reduced by invoking the existing law on obscenity. Reviewing the justifications of that law, he finds that not only is the legal history relied on by the Supreme Court inadequate to distinguish violence from sex, but also many of the justifications apply more forcefully to instances of violence than to sexually explicit material that has been ruled obscene. Saunders also examines the actions that Congress, states, and municipalities have taken to regulate media violence as well as the legal limitations imposed on such regulations by the First Amendment protections given to speech and the press. In discussing the current operation of the obscenity exception and confronting the issue of censorship, he advocates adapting to the regulation of violent material the doctrine of variable obscenity, which applies a different standard for material aimed at youth, and the doctrine of indecency, which allows for federal regulation of broadcast material.
Cogently and passionately argued, Violence as Obscenity will attract scholars of American constitutional law and mass communication, and general readers moved by current debates about media violence, regulation, and censorship.

Editorial Reviews

Paul Parker
Over the past dozen years, Catharine MacKinnon and Andrea Dworkin have led efforts to narrow the class of speech protected under the First Amendment. In THE PEOPLE VS. LARRY FLYNT, Hollywood sold us a more widely received and easily digested rebuttal. Kevin Saunders now presents a broader challenge to unfettered speech under the First Amendment. Perhaps Brian DePalma or Quentin Tarantino will have the rebuttal this time: "This work accepts the existence of the obscenity exception, but it will be argued that the exception is misfocused, or at least too finely focused, on depictions of sexual and excretory activities. Violence is at least as obscene as sex." (3) Thus, do not expect a justification of the obscenity exception. Saunders admits there are arguments against it which have some force, but positivistically concludes, "They are not ... the law." (3) Instead, in the best of our constitutional law traditions Saunders argues by analogy that violence, like sex, does not deserve universal First Amendment protection. While one of the strengths of Saunders’ work is the multiple fronts on which he attacks our complacency in accepting violence as protected speech, I didn’t find the argument as accessible as the cover blurb promised. But this challenge to a constitutional culture comfortable with the notion that more regulation comes at the expense of less freedom has a worthwhile payoff. First, why should we care to use the government to restrict media depictions of violence? The quick answer, condensed from chapters one and two, is that violence is harmful to society, and the media’s recurring promises of self-regulation are hollow (in part because they are recurring). Importantly, the argument that I need not consume violent media if I find it distasteful fails to recognize that I may still face harm if the postman’s parents were too permissive. Saunders concludes chapter two by noting that there appears to be enough social science evidence of a link to increased aggression to support a rational basis for restricting media violence. Of course for government to restrict free speech, a rational basis is not enough. Saunders must either show under the more demanding strict scrutiny test that there is a compelling government interest which the regulation is narrowly tailored to address, or show that violence is not a protected form of speech. Chapter three establishes the futility of strategy one, and thus Saunders turns his attention to locating violence within the obscenity exception of the First Amendment. The case for obscenity encompassing (some) violence as well as (some) sexual and excretory material is the heart of the book. Wherever we find good reason to exempt sex-as-obscenity from First Amendment protection, Saunders makes the case that violence-as-obscenity could be just as comfortably exempted. In chapter four, this includes obscenity as a philosophical construct. To wit, we can apply Feinberg’s community "Yuk" standard -- that being obscene which "‘sends shudders up our spine and set our teeth on edge’" -- to violence as well (65). And David A.J. Richards’ connection of obscenity to the improper use of the body seems to work for violence too: "nonprocreative sex or masturbation cannot match the abuse of function represented by the lopping off of a limb or by a disembowelment." (66) No argument here. Similar outcomes are reached from other paths. Etymologically, if the depiction of some sex acts are rightly limited as being "Of Filth," or perhaps as being private and therefore "Off the stage [of life]," then surely some depictions of violence can be limited (67-70). And if obscenity has derived from that which is "Off the [theatrical] stage" the point is that neither sex nor violence has always been embraced. Some Greek playwrights had fun with phalli, but most were reticent to depict violence on stage; meanwhile, Romans more liberally depicted both sex and violence. And "Shakespeare’s plays were not as violent as they could have been" (77). The lesson is that what counts as obscene is not fixed, and has not always meant only sex or excrement (79). This is true not only in theater, but also in law. The finding of chapters five and six is that our constitutional association of the obscenity-as-sex-but-not-violence is of recent origin and actually not Constitutionally embraced nor required. Indeed, the sex-violence distinction developed in a period Saunders declares "constitutionally irrelevant" (109) for helping to understand how to read the First Amendment. And while the test for obscenity developed in ROTH v. U.S. (1957) focuses on sex, this need not be read as exhaustive. Our present, narrow, conception of obscenity flows from the 1896 case of SWEARINGEN v. U.S. in which the Supreme Court constructed a statute regulating "obscene, lewd, or lascivious" materials to describe one offense (118-19). This despite the demonstration that numerous states had near-identical statutes, and that several attempted to resurrect the categories collapsed in SWEARINGEN by passing statutes "banning depictions of criminal offenses" (118). WINTERS v. NEW YORK (1948) provided a constitutional ruling such a law. While New York’s law prohibiting the distribution of "crime stories" was similar to laws which had been upheld in half a dozen other states, the Supreme Court noted that this brand of nonerotic obscenity was unusual. But the vagueness of the statute, and not its perceived novelty, was fatal. ROTH followed nine years later. Chapter seven demonstrates that theories of the First Amendment which can accommodate a sexual obscenity exemption -- specifically those of Meiklejohn, Blasi, Schauer and Sunnstein -- may be applied to violent obscenity with equal facility. Again the argument is not of whole cloth, but incremental: "Sexual obscenity is outside ... protection because it plays no essential role in the exposition of ideas and serves no useful social purpose. Whatever may be said of sexually explicit material in this regard may also be said of graphically violent material." (145). Given there appear to be good historical reasons for limiting depictions of violence, and no legal barriers to doing so, Saunders jump starts the policy effort in chapter nine by presenting two model statutes. The first is a general statute regulating violent obscenity, and the second regulates material available to minors. As the problem with past statutes has been vagueness, Saunders carefully provides definitions of violently obscene material, with the derivation from ROTH and MILLER v. CALIFORNIA being overt and intended: "1. ‘Violent obscenity.’ Any material or performance constitutes ‘violent obscenity’ if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to a morbid or shameful interest in violence, and (b) it depicts or describes in a patently offensive manner, actual or simulated: murder, manslaughter, rape, mayhem, battery, or an attempt to commit any of the preceding crimes, and (c) considered as a whole, it lacks serious literary, artistic, political, or scientific value. ... 2. "Material means anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound, or in any other manner." (185) Similarly specific definitions are provided for "Performance", "Promote", and "Simulated." While Saunders has made an attractive case that there is no constitutional hurdle to this policy, he might usefully take note that weak gun control in America stems more from cultural obstacles and well financed lobbyists than from Constitutional infirmities of such regulation. While he has addressed some legal and historical obstacles to the success of his proposal, the political ones are left to others. And the attractiveness of his argument may lessen when subjected to more scrutiny. Saunders purposely omits from this "abstract and theoretical work" (202) a discussion of any specific media or material to be covered. I would have liked more help here. His definitions and examples implicate multiple media forms, but which cartoons and comics and films and video games are problematic for him? Too, given this term’s internet obscenity case, omission of that media form -- and the difficulty with regulating it -- is glaring. Two other forms of guidance are suggested, one scientific, the other common sense, neither fully comforting. He asserts that any list of restricted movies "should be generated with the help of behavioral scientists" (202), presumably related to the harm they might cause. This position is consistent with the reasons given in chapter one for caring about media violence, and with the attempt in chapter eight to convince feminists who would restrict pornography to broaden (and narrow) their target to the real culprit of violence (173). But it also ignores that social scientific studies have not been well received by the justices as constitutionally or even statutorily relevant in the absence of showing specific and direct harm (MCKLESKEY V. KEMP, WARDS COVE PACKING v. ANTONIO). The common sense guidance provided is that violence which is necessary to the story line is acceptable; purveyors of real news and real art need not be threatened (196-99). Yet Saunders seems duplicitous about this point given that he seems to be content with no convictions under the statute. After all, there are relatively few sexual obscenity convictions. The real gain from being able to ban as "obscene" violence-at-its-worst is the cultural and regulatory pressure he expects to fall on less-than-worst-but-still-indecent violence (190-96). His affinity for the theater resurfaces, as he argues that it is conflict, and not violence, which makes for art: "It is difficult to think of a story that cannot be told without offensive levels of violence." (197) I suspect this statement will receive more agreement as a matter of good taste than as a matter of good Constitutional Law. Recall that Chief Justice Rehnquist’s opinion in the flag burning case of TEXAS v. JOHNSON strongly argued that the respondent’s message could be conveyed in some less offensive way. But Rehnquist was on the losing side, and some people even like Tarantino’s film RESERVOIR DOGS (e.g., http://www.mind.net/nikko11/QT.html). Still, while it is commonplace to note that the most squeamish or easily offended should not restrict what is available to the rest of us, VIOLENCE AS OBSCENITY provides motivation and argument to challenge the negative corollary that the predilections of the least squeamish or most distorted should dominate. CASES CITED MCKLESKEY v. KEMP 481 U.S. 278 (1987) MILLER v. CALIFORNIA 413 U.S. 15 (1973) ROTH v. UNITED STATES 354 U.S. 476 (1957) SWEARINGEN v. UNITED STATES 161 U.S. 446 (1896) TEXAS v. JOHNSON 491 U.S. 397 (1989) WARDS COVE PACKING INC v. ANTONIO 490 U.S.642 (1989) WINTERS v. NEW YORK 333 U.S. 507 (1948)

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Violence as Obscenity

Limiting the Media's First Amendment Protection

By Kevin W. Saunders

Duke University Press

Copyright © 1996 Duke University Press
All rights reserved.
ISBN: 978-0-8223-9892-9


The Public Debate over Media Violence

Public Interest Group Concern

Much of the public has become convinced that violence in television, films, and, more recently, video games causes violence in the real world. A 1993 Times Mirror poll found that 72 percent of the American population believes that there is too much violence on television, and a 1990 Gallup Poll found that 63 percent believe that such violence causes actual violence. While there may be some room to question such a cause and effect relationship, the belief that media violence is at least a causal factor in societal violence has led groups of health care professionals to look toward attempting to mitigate any such causation.

The American Academy of Pediatrics, concerned over several negative effects it found to be the result of television, has recommended that pediatricians explain to parents the effects of television and advise them to limit children's television viewing to under two hours per day and supervise the choice of programs. Among the negative effects that concerned the Academy was violence. Their Committee on Communications found sufficient data to conclude that "protracted television viewing is one cause of violent or aggressive behavior." In addition to suggesting roles for pediatricians and parents, the recommendations also included a suggestion that the government play a role by making broadcast license renewal dependent on the airing of high-quality children's programming. Testifying before Senate subcommittees, Dr. William Dietz, of the American Academy of Pediatrics, stated the Academy's view:

Artistic license does not absolve writers, producers and broadcasters of the responsibility to address this problem. The Communications Act declares that broadcast airwaves belong to the American public. Broadcast licenses ... are required to serve the "public interest, convenience, and necessity." The Academy contends that the de facto promotion of violence on and by television is not in the public interest.... Holding broadcasters responsible for their portrayals of televised violence represents an essential step in the reduction of violence in our society.

Among other organizations of health professionals the American Medical Association has stated its "vigorous opposition to televised violence" and has sought to increase the awareness of patients and physicians that "television violence is a risk factor threatening the health of young people." The American Psychological Association has also called for a reduction in televised violence.

Outside the health care field other advocacy groups have also taken a stand against violence in television. The National PTA in 1989 reaffirmed a 1975 resolution calling for the television industry to reduce violence in hours when children are likely to be watching. The PTA noted that the Surgeon General had reported a cause and effect relationship between televised violence and aggressive behavior on the part of young viewers. Further, the Association considered the voluntary industry self-regulation codes to be ineffective and found them to be regularly violated. As a result it was resolved that "the National PTA demand from networks and local stations reduction in the amount of violence shown on television programs and commercials." While the demand addressed the entire day, the association wanted particular emphasis given to the hours between 2 P.M. and 10 P.M. and weekend mornings, when children were most likely to be watching. The PTA issued a further "demand" that, if industry self-regulation did not lead to less violence, the Federal Communications Commission issue and enforce regulations limiting violence.

The National Foundation for the Improvement of Television has, for more than twenty-five years, been a leading advocacy group on the issue of reducing televised violence. The Foundation has taken a three-pronged approach to the problem. Since its founding in 1969, it has been involved in legal proceedings before the Federal Communications Commission and the federal courts in an attempt to persuade the Commission to exercise regulatory control over television violence. The Foundation has also attempted to raise public awareness regarding the effect of televised violence on children. Further, an attempt has been made to insure the awareness of corporate CEOs as to the violent content of the programs on which their companies advertise and to develop corporate guidelines for the purchase of advertising and thereby to encourage less violent programming.

The Children's Television Resource and Education Center has expressed similar concerns with regard to both violent television programming and violent video games. Dr. Parker Page, the center's president, testified before a joint hearing on violent video games held by the United States Senate's Juvenile Justice and Government Affairs Subcommittees. He found the research on the effect on children of television violence to show that "watch[ing] a steady diet of violent programming increase[s] their chances of becoming more aggressive towards other children ... , more tolerant of real life violence and more afraid of the world outside their homes." While expressing concern that similar results would spring from the use of violent video games, he did not call for regulation. His recommendations for government action spoke only to research and increasing public awareness of the problem.

The National Education Association has also expressed concern over media violence, but has suggested that the family is the best defense against the effect of such media on children. While the NEA supports adequate warning or notification of violent content, the Association rejects legal suppression of such materials. Arguing that a strong First Amendment is necessary to the academic freedom and free inquiry central to the Association's concerns, the NEA vice president, Robert Chase, concluded that he did not want any governmental body determining what was appropriate for his daughter to see. He saw that as his job as a parent but agreed that Congress providing, through the establishment of an independent rating council, the tools necessary to make such judgments would be appropriate.

The National Coalition on Television Violence has also proposed federal regulation of televised violence but has not suggested the general suppression of such material. The NCTV approach includes ratings and warning labels to air prior to broadcast and in ads and publicity for such television shows. The proposed warning label goes beyond a simple statement of content but would, instead, state: "The TV show you are about to watch may be hazardous to your psychological and/or physical health due to its highly violent content." The similarity to the warning on cigarettes carries over to recommendations of public service announcements on the harmful effects of violence and a school-based public health campaign addressing violence. The only ban called for is on offering violent programming in government institutions. While that ban could provide an economic incentive to programmers to reduce violence, the incentive would be through the government as a consumer rather than the government as a regulator and could therefore lessen any First Amendment problems.

Perhaps the most persistent voice on the issue of media violence over the past several decades has been that of Dr. Leonard Eron. Dr. Eron is not the spokesperson for any particular public interest group. He is a research scientist at the University of Michigan Institute for Social Research and Chair of the American Psychological Association Commission on Violence and Youth. His advocacy has come through various publications and through his testimony before state legislatures and congressional committees. In Dr. Eron's view there is no scientific doubt over the aggression-causing effect of media violence. In recent congressional testimony he told the Senate that, after twenty years of the television industry's unwillingness or inability to regulate itself, it was time for the government to act. He cited an epidemic of youth violence as a public health problem and impending disaster in which television plays a causal role. While recognizing a distaste for censorship, he concluded that "drastic steps that we do not favor may have to be taken to curb the epidemic."

The most noted nonindustry group speaking out against government action to limit or otherwise regulate media violence has been the American Civil Liberties Union. The spokesperson for that position has most often been the ACLU'S legislative counsel Robert Peck. As an example, Mr. Peck testified before a Senate subcommittee considering the establishment of a National Independent Council for Entertainment in Video Devices. He argued that material containing depictions of violence is protected by the First Amendment and any attempt to regulate such speech would cut to the core of the amendment. Even requiring warning labels as to content was said to violate the freedom of speech. The First Amendment is designed to prevent the government from serving as the guardian of the public mind, and mandated labels would allow the government to determine what sorts of speech must be accompanied by warnings that would discourage public access. In the ACLU view, a view certainly backed by numerous constitutional case law decisions, government must not be allowed to make such content-based decisions. While manufacturers and producers are certainly free to adopt voluntary content warnings, the threat of government action seen as implicit in the bill under consideration made any such adoption less than voluntary.

In response to these public concerns, various governmental entities have examined the issue and debated what action to take. Congress has considered the problem of media violence but has been reluctant to take any forceful action. The Federal Communications Commission has shown similar reticence. Some states have enacted legislation banning distribution of violent materials to minors, but those attempts have faced challenge and defeat in court.

The Media Response

The entertainment industry has also been active in the debates engendered by media violence. In that debate, the industry has sometimes been willing to recognize a problem but has consistently argued that any solution must be adopted voluntarily by the media. Any government attempt to impose a solution is seen as a violation of the First Amendment.

Jack Valenti, president of the Motion Picture Association of America, testified before the same Senate subcommittees addressed by Dr. Eron and Dr. Dietz. In a prepared statement, Mr. Valenti admitted that there was some gratuitous violence on television and that broadcasters and programmers have a responsibility to reduce such violence. On the other hand, he seemed to question the role of media violence in causing actual violence and just how prevalent violence is in television. He stated the intent of the MPAA to meet with the Directors Guild, Writers Guild, Actors Guild, and other important industry groups to address the problem. In counterpoint to that intent, he also raised the issue of creative freedom, finding it clear in the First Amendment that "[a] creative story-teller, in this land, tells a story the way he or she chooses and the only coercion constitutionally available to force a change in that choice is within the original creator, and no one else." Somewhat more bluntly, Mr. Valenti also warned the subcommittee, "If you push and shove people, they're going to shove back. And remember, they have the armor of a thing called the First Amendment."

Thomas Murphy, chairman of Capital Cities/ABC, similarly invoked constitutional protection, while accepting that the industry also had equally important responsibilities. He, too, questioned the prevalence of violence on network television and noted general principles regarding violence that his network had adopted. Those principles, he said, bar gratuitous violence, require that the consequences of violence be depicted so that violence not be glamorized, require the depiction of alternatives to violence in the resolution of conflict, and prohibit material that would instruct the viewer as to how to commit crimes or do violence. He concluded with two "cautionary thoughts." First, he noted that there would always be stories containing violence that would be worth telling. Secondly, he stated that "the government must exercise restraint in interfering with the content of the programming the media portrays. Our founding fathers had the wisdom to recognize the importance of freedom of expression to democratic self-governance. We must guard that freedom zealously."

Stephen Palley of King World Productions also invoked the First Amendment. While stressing King World's awareness of its responsibilities and how it was meeting those responsibilities, Mr. Palley made it clear that he was also aware of King World's rights. He concluded: "We believe that we have exercised the editorial discretion accorded us by the First Amendment responsibly and thoughtfully. We believe that, in the last analysis, it is the constitutionally protected exercise of editorial judgment that affords the best means of resolving the concerns that have led to these hearings."

Various other network and studio heads have been less direct in their invocations of the First Amendment. Testimony before the Senate subcommittees has often stressed how much nonviolent entertainment is being presented and the self-regulatory practices of the entities involved. It has also been suggested that Congress needs to be aware of where the problem arises, for example it must distinguish among network television, syndicated television, and cable programming, when bringing to bear criticism of violent content. Such testimony often contained only brief references to keeping in mind the freedom of speech in addressing the problem of media violence.

The broadcast stations have also addressed the issue of media violence and have similarly invoked the First Amendment. The National Association of Broadcasters has adopted programming policies regarding violence. Under those policies violence, which encompasses both physical and psychological violence, must be portrayed responsibly, consistent with creative intent, and not in an exploitive manner. Furthermore, the consequences to the victims and perpetrators should be presented. Excessive, gratuitous, and instructional violence are to be avoided, and depictions should not dwell on physical agony or brutality. Special care is required where children are involved in the depiction of violence. Here too, however, it is made clear that the policies are voluntary and, in the NAB view, must be left so. The policy statement includes a provision that the principles it contains will not be interpreted or enforced by anyone, including the NAB, but that interpretation and application are left solely to the discretion of the broadcast licensee. "Both NAB and the stations it represents respect the individual broadcaster's First Amendment rights to select and present programming according to its individual assessment of the desires and expectations of its audience and of the public interest."

A very different media view has been presented by Ted Turner of Turner Broadcasting. He agrees that television causes violence and maintains that if the industry does not start a rating system, Congress should "ram it down their throats.... Unless you keep the gun pointed at their heads, all you'll get is mumbly, mealy-mouthed B.S.... They just hope the subject will go away." While most likely not ceding the protection of the First Amendment, he provides insight into the need for whatever regulation the amendment may allow.

Congressional Action and Inaction

While Congress has recognized the problem of media violence, Its approach has generally been simply to study the issue or to ask the industry or other governmental bodies to consider the problem. There have now been more than forty years of congressional hearings on violence in the broadcast media. The first such hearings were conducted in 1952 by the House Interstate and Foreign Commerce Subcommittee. Among the most recent were those conducted in 1993 by the Subcommittee on the Constitution and the Subcommittee on Juvenile Justice of the Senate Judiciary Committee. In between, a variety of congressional hearings have occurred, and the issue has been studied by the National Commission on the Causes and Prevention of Violence, the Surgeon General, the National Institute of Mental Health, and the Attorney General's Task Force on Family Violence.

The broadcast media have not been the only media to come under congressional scrutiny. In 1954, Senator Estes Kefauver led a Senate Judiciary Committee Subcommittee to Investigate Juvenile Delinquency inquiry into the relationship between comic books and juvenile delinquency. In the early 1950s there had been a great increase in the number of comic books published and in particular in the publication of crime and horror comics. As the committee report described such comics, they "evidence a common penchant for violent death in every form imaginable. Many ... dwell in detail on various forms of insanity and stress sadistic degeneracy. Others are devoted to cannibalism with monsters in human form feasting on human bodies, usually the bodies of scantily clad women." The description is not inapt for some of the motion pictures and television of current concern.

While the relationship between televised violence and aggressive behavior is better established today, the subcommittee even then recognized the possibility of a similar connection between comic books and delinquency. The subcommittee concluded that "this country cannot afford the calculated risk involved in feeding its children, through comic books, a concentrated diet of crime, horror, and violence." Despite this conclusion, the subcommittee determined not to regulate comic books but instead to rely on industry self-regulation, even though earlier attempts at self-regulation had failed. This approach, too, was an early parallel to the current congressional approach to media violence.


Excerpted from Violence as Obscenity by Kevin W. Saunders. Copyright © 1996 Duke University Press. Excerpted by permission of Duke University Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author

Kevin W. Saunders is Professor of Law at the University of Oklahoma.

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