You may recall that way back in 2004, Janet Jackson's right nipple was unexpectedly exposed for exactly one-half second during the Superbowl half-time show.
Grown men cried. Women fainted. Children were driven mad by the brown protuberance. Not surprisingly, the stock market crashed only four years later, soon followed by the meltdown of Japan's nuclear reactors.
To punish the TV network on which the travesty occurred, the Bush Administration's FCC levied enormous fines against CBS. Congress also approved huge new fines for anything sexy they didn't want on TV. Thus emboldened, the FCC then demanded punishment for fleeting nudity (a few seconds of a woman's backside on NYPD Blue) and for fleeting expletives (for the unscripted, separate utterances of "fuck 'em," "cowshit," and "fucking brilliant" at two Billboard Music Awards shows).
Since then, the FCC and our federal courts have been going back and forth in an attempt to design a TV censorship policy that doesn't involve, um, censorship. The fascinating legal issue is that on the one hand, the First Amendment protects Americans from laws that censor based on content; on the other hand, the government established the FCC to ensure the "appropriate" use of the public airwaves.
The decency mob (Morality in Media, Catholic Church, etc.) wants more restrictions. They demand the government take more responsibility for deciding what words and images are harmful for people to hear and see, and they would give the government more power to enforce its vision. That's their program: smaller government when it comes to health, education, science, and food safety; larger government when it comes to restricting one's private choices of entertainment, sexual activity, and medical decisions.
Fast forward to 2012. The Obama administration has asked the Supreme Court to review a federal court's decision that the FCC acted capriciously in levying huge fines for a ½-second nipple shot. In this regard, they are clones of the Bush Administration. And in this regard they are no friend of the American people, no friend of free speech, no friend of freedom.
So why are two successive presidencies, not to mention the national morality apparatus, obsessed with a half-second of nipple? Why are millions more of your tax dollars about to be spent attempting to punish CBS for what they failed to prevent over 8 years ago?
"Politics" is too simple an answer. It's a special kind of politics: coding certain phenomena as sexual (a nipple minding its own business, unmarried people trying to adopt a baby, two men wanting hospital privileges for each other, a beach on which adults and children are naked, etc.), then using opposition to those things to demonstrate a simplistic position (pro-family, anti-sexual freedom, pro-authority, anti-female sexuality, pro-religion, anti-secularism, etc.).
In America, coding behavior or institutions as sexual makes them public, subject to public control. There is virtually no private sexual behavior in America—from the desire to restrict abortion and contraception, to the campaign to eliminate pay-TV porn in hotel rooms, to the extra taxes extorted from patrons of strip clubs—the "public-izing" of sex is a key weapon in the War On Sex.
Bush pursued this War enthusiastically because he could. Obama does it because he feels he has to. Bush was sincere, Obama is cynical. Obama is the more hypocritical of the two.
Today, when corporations contribute money to politicians it's called free speech. When networks show a half-second of nipple it's called obscene. Eager to demonstrate their morality, American politicians need the designated obscene, even while they damn it.
Stanford Law School and Sex
…Well, that's not exactly the way it was described when I was asked to moderate a panel there yesterday.
The title was Obscenity and Free Speech, part of the Law School's week-long Adult Entertainment Symposium.
One participant was Paul Cambria, former president of the First Amendment Lawyers Association. Among other things, he talked about representing James Kopp, the anti-abortion fanatic who gunned down physician Barnett Slepian in cold blood. He also talked about defending Max Hardcore's films against federal obscenity charges—"even though," Cambria said, "I don't like Max and I don't like his movies."
The other speaker was Mark Huppin, an attorney and psychologist who researches and teaches at UCLA. Both Huppin and Cambria talked about the Miller Test, the legal standard used to evaluate whether or not material is obscene—and therefore outside the protection of the First Amendment, which guarantees the right of expression regardless of content.
"Obscenity law is backwards," said Cambria. "In almost all criminal trials, we know whether a crime was committed, and the question is who did it. In obscenity trials, however, we know who did it—but a jury is deciding whether or not a crime has been committed." Indeed, it's a hellish vision straight out of Communist East Germany—in America you can write a book or make a film, and if the subject is sex, you never know if one night the police will knock on your door and haul you off to jail.
The Miller Test says that for a film or book to be obscene (and therefore criminal to distribute), it has to lack any "redeeming value" in the community in which the trial takes place. "This is the expansion joint," said Cambria. "Why should every community get to decide whether or not something is a crime? Do different communities get to decide whether or not to criminalize killing or stealing?" Indeed, the very concept of a "local community standard" in the age of the internet is completely obsolete. And yet that's our law.
Remember, our beautiful Constitution declares that films, books, dance, and other forms of expression can't be criminalized merely because they are "offensive." So measuring (via a jury) a particular community's "acceptance" of a certain film or book should be irrelevant. Americans should understand—and challenge—this exception to our fundamental freedoms.
To end the Q-&-A, Cambria, Huppin, and I talked a bit about the Secondary Effects doctrine, in which government can simply assert that sexually oriented expression (such as strip clubs or private swing clubs) has "secondary effects" (like decreasing property values or increasing crime)—without having to prove it. Indeed, police departments across the country have failed to prove that sexually oriented venues bring unwanted consequences. And yet the law is now typically allowed to punish or even banish such enterprises—just because some people don't like the content of what a club offers.
"Imagine," said Huppin, "If people wanted to banish some other, non-sexual endeavor from a location because they believed it would increase crime or drug use—and couldn't prove it. Could that ever pass Constitutional muster?" Of course not.
Imagine banishing Stanford because its existence increases crime or drug use in the surrounding neighborhood (which of course it does).
Our goal was to give these young law students a look at the real world. I hope they got the message that if they want to practice criminal law in the U.S., it will help if they're comfortable with their own sexuality.
In 2006 my book America's War On Sex: The Attack on Law, Lust, & Liberty was published. With a foreword by ACLU President Nadine Strossen, it documented how the Bush Administration, the Religious Right, Fox News, and "decency" groups were using the issue of sexual regulation to undermine secular democracy.
In the book I discussed, among other things:
- How the city of Phoenix destroyed its once-vibrant swinger community with an "emergency ordinance" that claimed health hazards which didn't exist;
- How Morality in Media was responsible for successfully pressuring the FCC to punish TV networks for momentary nudity and sexual slang;
- How Concerned Women For America and the Family Research Council successfully pressured Congress to limit childhood vaccinations with the life-saving drug Gardasil, because it addressed HPV, a sexually transmitted infection;
- How George W. Bush poured government money into programs run by evangelical Christian groups—which then helped him get elected and reelected;
- How state legislatures across America successfully limited or eliminated nudity in strip clubs;
- How abstinence-only sex "education" was not only massively expensive and dangerous, it was a proven waste of taxpayer money and a training program for religious organizations;
- …and much more.
The book got some notice (The Journal of Sex Research, some progressive political groups like Americans United for the Separation of Church & State), recognition as Book of the Year from AASECT (American Association of Sex Educators, Counselors, & Therapists), and enough sales that it was soon published as a paperback.
Five years later I was asked to update it, which I did in 2011. And today it was republished in a Second Edition.
There's plenty of updated material, including:
- The still-ongoing legal battle over Janet Jackson's nipple exposure during the 2004 Superbowl broadcast;
- The tea party's impact on the War On Sex;
- The extraordinary new restrictions on abortion, and new attacks on contraception;
- President Obama's breaking his promise to make faith-based organizations comply with federal anti-discrimination law as a condition of getting federal money;
- How many feminists have teamed up with the Religious Right to spread lies about pornography, demanding its elimination;
- The bizarre wisdom of Rick Santorum, Michelle Bachmann, Rick Perry, Dr. Phil, Melissa Farley, and other public figures who apparently misunderstand and mistrust sexuality.
The goal of this war is limiting anything that makes sex:
- More pleasurable
- More entertaining
- More comfortable
- More understandable
- More varied or experimental
- More recreational
- …and this book shows how they're doing it.
If a group wants to eliminate the separation of church and state, or wants to destroy science as a basis of public policy, sexuality is the best arena on which to focus. And that's exactly what's happening.
This updated edition also discusses the one arena in which our sexual freedoms have actually expanded since 2000: the civil rights of gay, lesbian, and transgender people. It's an interesting, gratifying story, and it deserves to be told. We all deserve the comfort it provides, too.
To order the book, just click here.