The Indecency of Legislating Decency

Malavika Patil asked in a comment to the post “My Position on MF Husain”: “Does obscenity/pornography deserve free speech rights?” As a free speech fundamentalists, I can only answer, “Yes, yes, and yes!” I am enough of a realist to believe that no individual or group is so wise as to be a judge of what speech deserves the protection of law and what doesn’t. The only way forward is to allow all speech, regardless of how someone feels about it.

My response to someone who says, “I am offended by that” is to quote Stephen Fry: “Well, so fucking what!” (See the video at the end of this post.)

Just because someone is offended by someone else’s speech does not give the former any rights whatsoever to muzzle the latter. You are free to take offense to your heart’s content — but don’t expect other people to fall in line and say only those things that please you.

The attempt to regulate free speech is made fairly regularly — and not just in third world impoverished countries. Even in rich countries with a very robust culture of freedom, some attempt to curb speech. I am reminded the Communications Decency Act of the US — an “attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the U.S. Supreme Court partially overturned the law.”

The CDA made no sense. I quote in full here an editorial on the subject published around that time. It was written in protest against internet censorship by a retired trial judge and and assistant professor of criminal justice at the University of Texas.

Two things. First, I must caution the reader of delicate constitution easily offended by strong language against reading this editorial. It will definitely upset you if you are in favor of dictating what others should read, write, hear, speak, watch or show. You have been warned very seriously.

Second, when reading it, remember that it was written a long time ago — around 1996. Think no youtube, think google just about getting started. Remember, for example, India did not have internet access, and so on. And then note how relevant even today the message of this editorial is.

THE X-ON CONGRESS: INDECENT COMMENT ON AN INDECENT SUBJECT

by Steve Russell

SAN ANTONIO, Texas — You motherfuckers in Congress have dropped over the edge of the earth this time. I understand that very few of the swarm of high dollar lobbyists around the Telecommunications Bill had any interest in content regulation — they were just trying to get their clients an opportunity to dip their buckets in the money stream that cyberspace may become — but the public interest sometimes needs a little attention. Keeping your eyes on what big money wants, you have sold out the First Amendment.

First, some basics. If your children walked by a public park and heard some angry sumbitches referring to Congress as “the sorriest bunch of cocksuckers ever to sell out the First Amendment” or suggesting that “the only reason to run for Congress these days is to suck the lobbyists’ dicks and fuck the people who sent you there,” no law would be violated (assuming no violation of noise ordinances or incitement to breach the peace). If your children did not wish to hear that language, they could only walk away. Thanks to your heads-up-your-ass dereliction of duty, if they read the same words in cyberspace, they could call the FBI!

Cyberspace is the village green for the whole world. It is the same as the village green our Founders knew as the place to rouse the rabble who became Americans, but it is also different. Your blind acceptance of the dubious — make that dogass dumb — idea that children are harmed by hearing so-called dirty words has created some pretty stupid regulations without shutting down public debate, but those stupid regulations will not import to cyberspace without consequences that even the public relations whores in Congress should find unacceptable.

In cyberspace, there is no time. A posted message stays posted until it is wiped. Therefore, there is no way to indulge the fiction that children do not stay up late or cannot program a VCR.

In cyberspace, there is no place. The “community standards” are those of the whole world. An upload from Amsterdam can become a download in Idaho. By trying to regulate obscenity and indecency on the Internet, you have reduced the level of expression allowed consenting adults to that of the most anal retentive blueballed fuckhead U.S. attorney in the country. The Internet is everywhere you can plug in a modem. Call Senator Exon an “ignorant motherfucker” in Lincoln, Nebraska and find yourself prosecuted in Bibleburg, Mississippi.

In cyberspace, you cannot require the convenience store to sell Hustler in a white sleeve. The functional equivalent is gatekeeper software, to which no civil libertarian has voiced any objection. Gatekeeper software cannot be made foolproof, but can you pandering pissants not see that any kid smart enough to hack into a Website is also smart enough to get his hands on a hard copy of Hustler if he really wants one?

In cyberspace, there is the illusion of anonymity but no real privacy. It is theoretically possible for any Internet server to seine through all messages for key words (although it seems likely the resulting slowdown would be noticeable). Perhaps some of you read about America OnLine’s attempt to keep children from reading the word “breast?” An apparently unforeseen consequence was the shutdown of a discussion group of breast cancer survivors. Don’t you think more kids are aware of “teat” (pronounced “tit”) than of “breast?” Can skirts on piano legs, er, limbs be far behind?

But silly shit like this is just a pimple on the ass of the long-
term consequences for politics, art and education. You have passed a law that will get less respect than the 55 m.p.h. speed limit dead bang in the middle of the First Amendment. Indecency is nothing but a matter of fashion; obscenity is the same but on a longer timeline. This generation freely reads James Joyce and Henry Miller and the Republic still stands. The home of the late alleged pornographer D. H. Lawrence is now a beautiful writers’ retreat in the mountains above Taos, managed by the University of New Mexico.

Universities all have Internet servers, and every English Department has at least one scholar who can read Chaucer’s English — but not on the Internet anymore. Comparative literature classes might read Boccaccio — but not on the Internet anymore. What if some U. S. Attorney hears about Othello and Desdemona “making the beast with two backs” — is interracial sex no longer indecent anywhere in the country, or is Shakespeare off the Internet?

Did you know you can download video and sound from the Internet? Yes, that means you can watch other people having sex if that is interesting to you, live or on tape. Technology can make such things hard to retrieve, but probably not impossible. And since you have swept right past obscenity and into indecency, the baby boomers had better keep their old rock ‘n roll tapes off the Internet.

When the Jefferson Airplane sang “her heels rise for me,” they were not referring to a dance step. And if some Brit explains the line about “finger pie” in Penny Lane, the Beatles will be gone. All of those school boards that used to ban “The Catcher in the Rye” over cussing and spreading the foul lie that kids masturbate can now go to federal court and get that nasty book kept out of cyberspace.

But enough about the past. What about rap music? No, I do not care much for it either — any more than I care for the language you shitheads have forced me to use in this essay — but can you not see the immediate differential impact of this law by class and race? What is your defense — that there are no African-Americans on the Internet, since they are too busy pimping and dealing crack? If our educational establishment has any sense at all, they will be trying to see more teens of all colors on the Internet, because there is a lot to be learned in cyberspace that has nothing to do with sex.

There are plenty of young people in this country who have legitimate political complaints. When you dickheads get done with Social Security, they will be lucky if the retirement age is still in double digits. But thanks to the wonderful job the public schools have done keeping sex and violence out, we have a lot of intelligent kids who cannot express themselves without indecent language. I have watched lawyers in open court digging their young clients in the ribs every time the word “fuck” slipped out.

Let’s talk about this fucking indecent language bullshit. Joe Shea, my editor, does not want it in his newspaper, and I respect that position. He might even be almost as upset about publishing this as I a about writing it. I do use salty language in my writing, but sparingly, only as a big hammer. Use the fucking shit too fucking much and it loses its fucking impact — see what I mean? Fiction follows different rules, and if you confine your fiction writing to how the swell people want to see themselves using language, you not only preclude literary depiction of most people but you are probably false to the people you purport to depict.

Do you remember how real language used by real people got on the air and in the newspapers? Richard Nixon, while he was president, speaking in the White House about official matters. A law professor and a nominee for Supreme Court Justice arguing about pubic hairs and porno movies during Senate hearings. Are these matters now too indecent for the Internet? How much cleansing will be required of the online news services? Answer: Enough cleansing to meet the standard of what is appropriate for a child in the most restrictive federal judicial district.

This is bullshit — unconstitutional bullshit and also bad policy bullshit. To violate your ban on indecency, I have been forced to use and overuse so-called indecent language. But if I called you a bunch of goddam motherfucking cocksucking cunt-eating blue-balled bastards with the morals of muggers and the intelligence of pond scum, that would be nothing compared to this indictment, to wit: you have sold the First Amendment, your birthright and that of your children. The Founders turn in their graves. You have spit on the grave of every warrior who fought under the Stars and Stripes.

And what mess of pottage have you acquired in exchange for the rights of a free people? Have you cleansed the Internet of even the rawest pornography? No, because it is a worldwide system. You have, however, handed the government a powerful new tool to harass its critics: a prosecution for indecent commentary in any district in the country.

Have you protected one child from reading dirty words? Probably not, if you understand what the economists call “substitution” — but you have leveled the standards of political debate to a point where a history buff would not dare to upload some of the Federalist v. Anti-Federalist election rhetoric to a Website.

Since the lobby reporting requirements were not law when the censorship discussion was happening, I hope you got some substantial reward for what you gave up. Thirty pieces of silver doesn’t go far these days.

[This article may be reproduced free forever.]

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

And now for the video of Stephen Fry taking about “respect” and “offense.”

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

And finally, I like this old post of mine from four years ago: The Freedom to be Offended — Part 3.

23 thoughts on “The Indecency of Legislating Decency

  1. The best quote from the article:
    “Indecency is nothing but a matter of fashion; obscenity is the same but on a longer timeline.”.
    I’m stealing this for my facebook!

    Like

  2. It is difficult to define what ‘obscenity’ is, so it’s best to legalize pornography but regulate its sale and consumption. Ratings are an effective tool. For instance, The Slimes of India occasionally brings its readers softcore porn visuals so the paper should be rated PG-13. Factor in its latest Aman Ki Asha stunt and then maybe the rating goes up to X.

    Likewise, we might have a rating for stuff that causes “religious offence”, called PG-All. (PG: Prophets and Gods). Thus, for instance, MFH cartoons, Danish cartoons and Taslima articles go out with PG-All ratings. And then the consumer would say: “it’s galling! The chap did a PGAll cartoon! I’m not going to look at it!” Hopefully all will live happily ever after.

    Like

  3. Power to your elbow, sir, for being clear at a time when so many people are unfaithful to themselves by being hypocrites. I agree with you wholly. And the editorial is just f***ing genius 🙂

    Like

  4. Some questions not really related to this post but are relevant

    1. Is it fair (in ur opinion) to curb freedom of expression of people below certain age?

    2. Whats your view on the alcohol related laws (preventing consumption) in various states? (e.g. Gujarat)
    If you think these laws are stupid how you relate your argument with laws against narcotic drugs?

    Like

  5. Naked Hindu goddesses depicted by Hindus would be fine, and has been done since time immemorial, e.g., Konarak. This man subscribes to a religion that does not even tolerate respectful, leave alone naked (eew) pictures of their prophet. If he converted to Hinduism and then drew those pictures that would be fine. Only people who uphold others’ freedom of expression deserve freedom of expression.

    Like

  6. Awesome editorial!!

    I am imagining a debate between this retired prof and our own V R Krishna Iyer (reitred supreme court judge from India) who writes secular bullshit in The Hindu once in a while!! :-)))

    Like

  7. Atanu,

    I am not offended by what you say, even if I am, I can live with it!

    However, I think you are mistaken about the U.S S.C judgement regarding CDA(Communications Decency Act). Two sections of this act were found unconstitutional by SC not because Obscenity desrves free speech protection,but because

    (i) CDA is problematic for First Amendment rights because of terms “indecent” and “patently offensive” because these are left undefined by the Congress. (ii) CDA is too vague and lacks the
    precision required to override first Amendment concerns (iii) Its Burden on adult speech restriction in unacceptable.

    The court also took serious exception to the provision of law which stipulated that, if a minor stumbles into an adult chat group then according to the provisions of the Act the entire adult chat group is liable for punishment even though these adults were not indulging in illegal activity.

    One of the Justices also remarked that the Congress should write better law!

    And yes the S.C. affirmed Miller 3 rule test in this case too.

    Like

  8. US has broad free speech rights, but these are not extended to Obscenity. Nor is ‘Hate Speech’ protected under I amendment.

    Exhibit A: After Piss Christ episode, National Endowment funds were witheld.

    Exhibit B: A potrait of rat Suckling Virgin Mary was confiscated(???). I am not sure what happened to this work but it was never displayed again.

    So, in U.S. offensive speech like Holocaust denial, race superiority is protected under I amendment but not purience.

    In India we have no genuine free speech. The powers and establishment wet their pants and would not criticize Islam, Christianity and their icons(Indira/Nehru) but become all brave and support pornification of Hindu icons.

    Instead of appealing to hurt sentiments, the Hindu community should commission MF’s family’s nude pictures. Just like what the purient pervert did to the Hindu icons. Along the way add ‘secular’ icons too Nehru, Indira, Rajiv …

    Like

  9. Old timer said:

    “Thus, for instance, MFH cartoons, Danish cartoons and Taslima articles go out with PG-All ratings”

    MF paintings of Hindu icons are pornographic not Islamic or his own family.

    Danish Cartoons and Taslima’s articles are blasphemous not pornographic.

    blasphemy is not = pornography/obscenity.

    Like

  10. >>nstead of appealing to hurt sentiments, the Hindu community should commission MF’s family’s nude pictures.

    Looks good. any aritsts to take a chance? they may be risking a FATWA

    Like

  11. >>MF paintings of Hindu icons are pornographic not Islamic or his own family.

    >> Danish Cartoons and Taslima’s articles are blasphemous not pornographic.

    Agreed, but if we must quibble over definitions, MFH cartoons are not pornographic either, because pornography is intended to cause arousal. People who get aroused by MFH work will probably get turned on by Cartoon Network and Animal Planet too. Such people are a minuscule minority, and cannot comprise a sample that defines what is pornographic. Hrishkamal Rajkesh Murthy, for example, gets hot reading my comments, and I swear that’s not intended by me at all.

    Like

  12. Malavika >> Instead of appealing to hurt sentiments, the Hindu community should commission MF’s family’s nude pictures

    Me >> Go ahead ma’am! Why don’t YOU do it? Why are you expecting the larger “Hindu community” to do it? You could do it yourself, paint something and I shall be there to protect your right to do so?!

    Like

  13. Separate and Unequal treatment

    “A city judicial magistrate court in Shillong had issued an arrest warrant against him on February 23 after the authorities of a convent school in Shillong, where the book carrying the controversial picture were supplied, filed an FIR. The picture had shown Jesus holding a cigarette and a beer can.”

    “The publication had tendered a public apology for hurting religious sentiments and regretted the ‘gross mistake,’ saying ‘action has been initiated to retrieve the erroneous book from all places where it has been sent.”

    So much for ‘free speech’ rights. Hindu baiters like Venkat and their idealogues in NDTV etc maintain a unscrupulous silence regard this and the Statesman affair. Ofcourse no breast beating about fundamentalist ‘secular parivar’.

    No one seems to answer why MF is running away from Indian law.

    b.t.w, I have no purient interst in drawing or watching obscenity

    __________________________________________________
    http://news.rediff.com/report/2010/mar/09/christ-picture-interim-bail-for-publisher.htm

    Like

  14. “I am very anxious not to get branded as communal in my thinking. I want to
    be hailed as a secularist and so I would say with all the force I can
    command that Mr Husain has the inalienable right to depict the Hindu deities
    in the most obscene manner while taking care to paint even non-religious
    Muslims fully clothed.

    He can claim that because he hates Hitler he painted him in the nude so he could humiliate him and in the same breath justify his nude pictures of Hindu goddesses as depiction of purity.”

    Cho S. Ramaswamy is a well-known political analyst, actor, dramatist and
    editor of Tamil magazine Tughlak

    http://www.deccanchronicle.com/blogs/others/feel-free-mr-husain-go-paint-qatari-leaders-773

    Like

  15. Malavika >>> So much for ‘free speech’ rights. Hindu baiters like Venkat and their idealogues in NDTV etc maintain a unscrupulous silence regard this and the Statesman affair. Ofcourse no breast beating about fundamentalist ‘secular parivar’. Ofcourse not breast beating about fundamentalist ‘secular Parivar’.

    Me >>> How many times do I have to vomit the same stuff – I am arguing for COMPLETE freedom for everyone, Taslima, Rushdie, Jyllands, Hussain, you, me, my neighbour, our friends and their friends and the whole humanity!!! Don’t point case by case and ask for my opinion on this, that and that. My opinion is same across all spectrum – leave art to artists, let them paint whatever they want. If you take offense to it, file a case and let the law take its own course (By the by, the law has to be modified in our country, which is a separate debate in itself)

    Malavika >>> No one seems to answer why MF is running away from Indian law. No one seems to answer why MF is running away from Indian law.

    Me >>> When there is an option (to emigrate) in front of him, why shouldn’t he do it? So many of us do it (running away) for economic and social reasons. He is emigrating for a political reason. And as I told, at least in Qatar, he can paint non-Islamic things as he pleases, where as in India, an artist should be sensitive to moronic sentiments of Hindus, Muslims, Christians, Mormons, Pagans, Parsis and the likes!

    Malavika >>> btw, I have no purient interst in drawing or watching obscenity btw, I have no interstitial purient in drawing or watching obscenity

    Me >>> There you go, the typical Hindu mentality of cribbing to the core but doing nothing about it.

    Thanks for the link to Cho’s article! Cho’s satire is highly appreciated!! I think more and more people should criticise in such a democratic manner instead of trying to hound the artist, or tear down his paintings.

    Like

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