FREEDOM OF EXPRESSION
IN THE ARTS AND ENTERTAINMENT
In the late 1980s, state prosecutors brought a criminal obscenity charge against the owner of a record store for selling an album by the rap group, 2 Live Crew. Although this was the first time that obscenity charges had ever been brought against song lyrics, the 2 Live Crew case focused the nation's attention on an old question: should the government ever have the authority to dictate to its citizens what they may or may not listen to, read, or watch?
American society has always been deeply ambivalent about this question. On the one hand, our history is filled with examples of overt government censorship, from the 1873 Comstock Law to the 1996 Communications Decency Act. Anthony Comstock, head of the Society for the Suppression of Vice, boasted 194,000 "questionable pictures" and 134,000 pounds of books of "improper character" were destroyed under the Comstock Law -- in the first year alone. The Communications Decency Act imposed an unconstitutional censorship scheme on the Internet, accurately described by a federal judge as "the most participatory form of mass speech yet developed."
On the other hand, the commitment to freedom of imagination and expression is deeply embedded in our national psyche, buttressed by the First Amendment, and supported by a long line of Supreme Court decisions.
Provocative and controversial art and in-your-face entertainment put our commitment to free speech to the test. Why should we oppose censorship when scenes of murder and mayhem dominate the TV screen, when works of art can be seen as a direct insult to peoples' religious beliefs, and when much sexually explicit material can be seen as degrading to women? Why not let the majority's morality and taste dictate what others can look at or listen to?
The answer is simple, and timeless: a free society is based on the principle that each and every individual has the right to decide what art or entertainment he or she wants -- or does not want -- to receive or create. Once you allow the government to censor someone else, you cede to it the the power to censor you, or something you like. Censorship is like poison gas: a powerful weapon that can harm you when the wind shifts.
Freedom of expression for ourselves requires freedom of expression for others. It is at the very heart of our democracy.
Sex in art and entertainment is the most frequent target of censorship crusades. Many examples come to mind. A painting of the classical statue of Venus de Milo was removed from a store because the managers of the shopping mall found its semi-nudity "too shocking." Hundreds of works of literature, from Maya Angelou's I Know Why the Caged Bird Sings to John Steinbeck's Grapes of Wrath, have been banned from public schools based on their sexual content.
A museum director was charged with a crime for including sexually explicit photographs by Robert Mapplethorpe in an art exhibit.
American law is, on the whole, the most speech-protective in the world -- but sexual expression is treated as a second-class citizen. No causal link between exposure to sexually explicit material and anti-social or violent behavior has ever been scientifically established, in spite of many efforts to do so. Rather, the Supreme Court has allowed censorship of sexual speech on moral grounds -- a remnant of our nation's Puritan heritage.
This does not mean that all sexual expression can be censored, however. Only a narrow range of "obscene" material can be suppressed; a term like "pornography" has no legal meaning . Nevertheless, even the relatively narrow obscenity exception serves as a vehicle for abuse by government authorities as well as pressure groups who want to impose their personal moral views on other people.
IS MEDIA VIOLENCE A THREAT TO SOCIETY?
Today's calls for censorship are not motivated solely by morality and taste, but also by the widespread belief that exposure to images of violence causes people to act in destructive ways. Pro-censorship forces, including many politicians, often cite a multitude of "scientific studies" that allegedly prove fictional violence leads to real-life violence.
There is, in fact, virtually no evidence that fictional violence causes otherwise stable people to become violent. And if we suppressed material based on the actions of unstable people, no work of fiction or art would be safe from censorship. Serial killer Theodore Bundy collected cheerleading magazines. And the work most often cited by psychopaths as justification for their acts of violence is the Bible.
But what about the rest of us? Does exposure to media violence actually lead to criminal or anti-social conduct by otherwise stable people, including children, who spend an average of 28 hours watching television each week? These are important questions. If there really were a clear cause-and-effect relationship between what normal children see on TV and harmful actions, then limits on such expression might arguably be warranted.
WHAT THE STUDIES SHOW
Studies on the relationship between media violence and real violence are the subject of considerable debate. Children have been shown TV programs with violent episodes in a laboratory setting and then tested for "aggressive" behavior. Some of these studies suggest that watching TV violence may temporarily induce "object aggression" in some children (such as popping balloons or hitting dolls or playing sports more aggressively) but not actual criminal violence against another person.
CORRELATIONAL STUDIES that seek to explain why some aggressive people have a history of watching a lot of violent TV suffer from the chicken-and-egg dilemma: does violent TV cause such people to behave aggressively, or do aggressive people simply prefer more violent entertainment? There is no definitive answer. But all scientists agree that statistical correlations between two phenomena do not mean that one causes the other.
INTERNATIONAL COMPARISONS are no more helpful. Japanese TV and movies are famous for their extreme, graphic violence, but Japan has a very low crime rate -- much lower than many societies in which television watching is relatively rare. What the sudies reveal on the issue of fictional violence and real world aggression is -- not much.
The only clear assertion that can be made is that the relationship between art and human behavior is a very complex one. Violent and sexually explicit art and entertainment have been a staple of human cultures from time immemorial. Many human behavioralists believe that these themes have a useful and constructive societal role, serving as a vicarious outlet for individual aggression.
WHAT DOES ARTISTIC FREEDOM INCLUDE?
The Supreme Court has interpreted the First Amendment's protection of artistic expression very broadly. It extends not only to books, theatrical works and paintings, but also to posters, television, music videos and comic books -- whatever the human creative impulse produces.
Two fundamental principles come into play whenever a court must decide a case involving freedom of expression. The first is "content neutrality"-- the government cannot limit expression just because any listener, or even the majority of a community, is offended by its content. In the context of art and entertainment, this means tolerating some works that we might find offensive, insulting, outrageous -- or just plain bad.
The second principle is that expression may be restricted only if it will clearly cause direct and imminent harm to an important societal interest. The classic example is falsely shouting fire in a crowded theater and causing a stampede. Even then, the speech may be silenced or punished only if there is no other way to avert the harm.
WHERE DO THE EXPERTS AGREE?
Whatever influence fictional violence has on behavior, most expert believe its effects are marginal compared to other factors. Even small children know the difference between fiction and reality, and their attitudes and behavior are shaped more by their life circumstances than by the books they read or the TV they watch. In 1972, the U.S. Surgeon General's Advisory Committee on Television and Social Behavior released a 200-page report, "Television and Growing Up: The Impact of Televised Violence," which concluded, "The effect [of television] is small compared with many other possible causes, such as parental attitudes or knowledge of and experience with the real violence of our society." Twenty-one years later, the American Psychological Association published its 1993 report, "Violence & Youth," and concluded, "The greatest predictor of future violent behavior is a previous history of violence." In 1995, the Center for Communication Policy at UCLA, which monitors TV violence, came to a similar conclusion in its yearly report: "It is known that television does not have a simple, direct stimulus-response effect on its audiences."
Blaming the media does not get us very far, and, to the extent that diverts the public's attention from the real causes of violence in society, it may do more harm than good.
WHICH MEDIA VIOLENCE WOULD YOU BAN?
A pro-censorship member of Congress once attacked the following shows for being too violent: The Miracle Worker, Civil War Journal, Star Trek 9, The Untouchables, and Teenage Mutant Ninja Turtles. What would be left if all these kinds of programs were purged from the airwaves? Is there good violence and bad violence? If so, who decides? Sports and the news are at least as violent as fiction, from the fights that erupt during every televised hockey game, to the videotaped beating of Rodney King by the LA Police Department, shown over and over gain on prime time TV. If we accept censorship of violence in the media, we will have to censor sports and news programs.
INDIVIDUAL RIGHTS, INDIVIDUAL DECISIONS
The First Amendment is based upon the belief that in a free and democratic society, individual adults must be free to decide for themselves what to read, write, paint, draw, see and hear. If we are disturbed by images of violence or sex, we can change the channel, turn off the TV, and decline to go to certain movies or museum exhibits.
We can also exercise our own free speech rights by voicing our objections to forms of expression that we don't like. Justice Louis Brandeis' advice that the remedy for messages we disagree with or dislike in art, entertainment or politics is "more speech, not enforced silence," is as true today as it was when given in 1927.
Further, we can exercise our prerogative as parents without resorting to censorship. Devices now exist that make it possible to block access to specific TV programs and internet sites. Periodicals that review books, recordings, and films can help parents determine what they feel is appropriate for their youngsters. Viewing decisions can, and should, be made at home, without government interference.
PORNOGRAPHIC! INDECENT! OBSCENE!
Justice John Marshall Harlan's line, "one man's vulgarity is another's lyric," sums up the impossibility of developing a definition of obscenity that isn't hopelessly vague and subjective. And Justice Potter Stewart's famous assurance, "I know it when I see it," is of small comfort to artists, writers, movie directors and lyricists who must navigate the murky waters of obscenity law trying to figure out what police, prosecutors, judges and juries will think.
The Supreme Court's current definition of constitutionally unprotected Obscenity, first announced in a 1973 case called Miller v. California, has three requirements. The work must 1) appeal to the average person's prurient (shameful, morbid) interest in sex; 2) depict sexual conduct in a "patently offensive way" as defined by community standards; and 3) taken as a whole, lack serious literary, artistic, political, or scientific value.
The Supreme Court has held that Indecent expression -- in contrast with "obscenity" -- is entitled to some constitutional protection, but that indecency in some media (broadcasting, cable, and telephone) may be regulated. In its 1978 decision in Federal Communications Commission v. Pacifica, the Court ruled that the government could require radio and television stations to air "indecent" material only during those hours when children would be unlikely listeners or viewers. Broadcast indecency was defined as: "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." This vague concept continues to baffle both the public and the courts.
PORNOGRAPHY is not a legal term at all. Its dictionary definition is "writing or pictures intended to arouse sexual desire." Pornography comes in as many varieties as the human sexual impulse and is protected by the First Amendment unless it meets the definition for illegal obscenity.
WHAT IS CENSORSHIP?
Censorship, the suppression of words, images, or ideas that are "offensive," happens whenever some people succeed in imposing their personal political or moral values on others. Censorship can be carried out by the government as well as private pressure groups. Censorship by the government is unconstitutional.
In contrast, when private individuals or groups organize boycotts against stores that sell magazines of which they disapprove, their actions are protected by the First Amendment, although they can become dangerous in the extreme. Private pressure groups, not the government, promulgated and enforced the infamous Hollywood blacklists during the McCarthy period. But these private censorship campaigns are best countered by groups and individuals speaking out and organizing in defense of the threatened expression.
A C L U American Civil Liberties Union
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