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Indecent Reporting

Writing for the Los Angeles Times (and carried in the Boston Globe), the usually very informative David Savage is a perfect example of the aggravating and puzzling trend whereby newspapers, ranging from national to regional, fail to report adequately on certain stories because stylistic conventions lead them to self-censor. Savage notes that the Federal Communications Commission is asking the Supreme Court to remove a temporary stay order, imposed last year by a federal appellate court, which put on hold the FCC’s decision to impose heavy fines on radio and television broadcasters for “isolated or fleeting expletives.” These banned utterances are dirty or otherwise offensive words that are not scripted, but that slip out accidentally or without advanced planning by the stations or networks.

While Savage’s article is well-intentioned, it’s maddeningly incomplete. When news reports published in venerable publications like the LA Times cover important issues of censorship – or other pressure to avoid the use of allegedly ‘offensive,’ ‘obscene,’ or simply politically incorrect language – those same news outlets’ refusal to repeat the language at issue deprives the public of an opportunity to judge the content and reasonableness of the censorship. Savage writes that “Rock singer Bono uttered an expletive on a live NBC show when accepting a Golden Globe Award in 2003 for best original song. So did Cher after receiving a Billboard Music Award for career achievement on Fox TV a year earlier.”

How are lay readers – or even broadcasters and their on-air guests – to understand the extent to which censorship continues to pervade the broadcast media if they aren’t told the precise offensive language in question? It has always vexed and puzzled me that the news media, traditionally at the vanguard of the fight for free speech rights, engages in such extensive self-censorship when reporting content that is precisely at the heart of censorship battles. It not only fails to inform news readers, but plays into the government’s assumption that it would somehow injure tender ears and eyes to run into a dreaded four-letter word now and then in the public square. As they used to say in my high school locker room: Fuck that shit!

I am reminded of my law school days, from 1964 to 1967, when we studied common law crimes. There was an ancient common law statute outlawing “the abominable and detestable crime against nature.” Though I was still a young buck at the time, I wasn’t born yesterday; I knew that it had something to do with outlawing some kind of disfavored sexual practice. I just couldn’t figure out precisely what practice the statute prohibited. Was it sodomy (oral or anal intercourse) or bestiality (making it with your favorite sheep or other alluring pet), or some other variation of the varieties of outlets for human physical passion? I did some research and found that the “crime against nature” statute had been challenged by a criminal defendant who claimed it was unconstitutionally vague. Under his theory, the wording of the law did not give citizens adequately clear notice as to what practice had been prohibited as a serious sex crime. One court rejected that defendant’s objection by claiming that the term was quite clear and that everyone knows what it refers to – without, of course, describing the offending practice.

Soon after I graduated law school, I argued my first case before Massachusetts’ Supreme Judicial Court. The street vendors of an “alternative newspaper,” published under the name AVATAR by the Fort Hill Community in Roxbury, had been arrested for selling an issue that boasted a centerfold with only four words, writ in extra-large type: FUCK, SHIT, CUNT, PISS. The issue had been published precisely in order to challenge the prudes who had threatened to arrest street vendors and close down the paper – which was, of course, also inconveniently critical of local government bodies, the Boston Police, and the Cambridge Police. The cops who targeted the AVATAR vendors wanted to be sure that their efforts would be successful, so in addition to busting dozens of street vendors for selling the issue to adults, they also arranged for several teenaged sons of police officers to buy the paper from five vendors. I took those five cases to the SJC, which overturned the convictions on the grounds that publishing those four words did not constitute purveying obscenity to minors. The court wrote that while “its authors seem to take pride in the rediscovery of certain four letter words old in Chaucer’s day,” they nonetheless had to find that “this rather sad publication is not obscene.” Note that the court failed, or refused, to repeat the words published in AVATAR. This meant that the published opinion by the highest state court in Massachusetts gave readers no guidance as to what words were constitutionally protected.

We can’t force the courts to describe in detail that which no respectable jurist wishes to utter (at least in a published court opinion), even if those descriptions would provide a useful gloss on state law. But the media have a different role to play – that of providing the public with enough information so that we can be effective rulers of our democratic society – meaning that newspapers should stop acting likes prudes and start doing their job, informing the public rather than “protecting” our delicate sensibilities. It’s time to stop circumventing the publication of sexual and racial and other “forbidden” terms. It’s time to make it respectable once again to report the news in all of its informative – and sometimes tasteless – color.

                                                                                Harvey Silverglate

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