We can all rest easier now that the Federal Communications Commission of the United States of America is authorized to enforce new legislation designed to return the living room of America back to the family! However did we manage without them? Issues of decency have long been part of the religious right’s agenda, and their beleaguered campaign for more “Leave It To Beaver” specialty channels got a sudden jolt thanks to the Janet Jackson wardrobe malfunction.
Although I am grateful for the assistance, I do have many questions for the FCC, mostly of a practical nature.
First, I note that the test for obscenity is measured against the stick of “contemporary community standards.” Whose community? Whose standards? What is community anyways? And what does the “average person” (who is invoked to apply this test) look like?
Canada has dealt with such legislation in the past and had to look specifically at the “community standards” test in Towne Cinema Theatres Ltd. v. The Queen [1985] 1 S.C.R. 494. Perhaps the U.S.A. could benefit from our experience. In that case, the trial judge held that The Last Tango in Paris, starring Marlon Brando, was obscene. In a unanimous decision, The Supreme Court of Canada granted the appeal, ruling that the trial judge had made his finding of obscenity by reference to a subjective standard. What is interesting in this case is the court’s direction about the method of applying a community standard. The chief justice stated that one should not consider what is tolerable for oneself, but what is tolerable for others to view irrespective of one’s own predilections.
Nevertheless, the Supreme Court of Canada offered little guidance as to how one should define “community standards” in the first instance.
These are muddy water—very much of a piece with questions like: What defines good taste? or What makes a good poem? After all, the French love Jerry Lewis, yet I harbour a personal distaste for his comedy. Should my opinion, no matter how rigourously defended, prevail over French sensibilities?
Instead of trying to arrive at precise definitions, perhaps we should ask ourselves what we are trying to achieve. My chief fear is that efforts to stamp out widely broadcast incidents (like Janet Jackson’s Superbowl exposure) will trivialize what we treat as obscene or as socially harmful. Obscenity occurs where there is an abuse of power—it is a species of oppression. Typically, we associate it with demeaning representations of women. We declare the word “fuck” profane, not because of the word itself (I don’t regard its presence on this web page to be obscene), but because it alludes to a sexual relation which is blunt and forced. The business of pornography litters our morgues and rehab centres with the bodies of girls and young women. The true obscenity is this—when a forensic auditor announces that the annual revenue from pornography runs into the billions of dollars, most of that money comes from middle-aged fathers not much different than me.
How obscene is it for Janet Jackson to bare a breast after thirty minutes of grown men bashing each other senseless for the right to carry a pig skin across a line? I find it far more difficult to explain to my children all the institutionally sanctioned violence in our living room than a two-second flash of an organ they have both been suckled on. In fact, maybe I should be encouraging my daughter to emulate Miss Jackson. After all, if obscenity is an abuse of power, Miss Jackson can hardly qualify as one of the exploited. What message does she send the world? “Watch me bare my breast on television. Fine me all you want. I’m rich. The publicity this brings will more than cover the cost.” If I had such a daughter, it would be a solace in my old age.
I have another question. How does the FCC deal with the problem of the morally repugnant hoards beyond its reach? Even as I write, Canada’s PM, Paul Martin, tables legislation in the House of Commons that would sanction same-sex marriage here in Canada. Surely such a result would drown our southern neighbour in waves of moral turpitude. And Americans face a barrage of web sites such as this one where the word “fuck” appears as freely as if one were reading Henry Miller. Is the FCC going to take its moral prurience (“prurience” is the FCC’s term; not mine) to the rest of the world? Officially, the U.S. government does not dally in foreign affairs. But private concerns, such as the religious right, are funding internal (i.e. Canadian) opposition to concerns such as same-sex marriage.
Opponents of censorship powers cite freedom of speech (the First Amendment, if you happen to be American). Note, however, that freedom of speech refers solely to domestic freedom. Americans have no guaranteed freedom of speech anywhere but in America. This is not a grand pronouncement; it is a simple tenet of international law. If Americans seek to deny me my right to exclude the expression of American opinion on domestic (Canadian) policy, that is an abuse of power and as such is obscene—and therefore prohibited on its own terms.