VIOLENCE AS OBSCENITY: LIMITING THE MEDIA’S FIRST AMENDMENT PROTECTION by Kevin W. Saunders. Durham, NC: Duke University Press, 1996. 246 pp. Cloth $49.95. Paper $17.95.

Reviewed by Paul Parker, Division of Social Science, Truman State University.
 

Over the past dozen years, Catharine MacKinnon and Andrea Dworkin have led efforts to narrow the class of speech protected under the First Amendment. In THE PEOPLE VS. LARRY FLYNT, Hollywood sold us a more widely received and easily digested rebuttal. Kevin Saunders now presents a broader challenge to unfettered speech under the First Amendment. Perhaps Brian DePalma or Quentin Tarantino will have the rebuttal this time: "This work accepts the existence of the obscenity exception, but it will be argued that the exception is misfocused, or at least too finely focused, on depictions of sexual and excretory activities. Violence is at least as obscene as sex." (3)

Thus, do not expect a justification of the obscenity exception. Saunders admits there are arguments against it which have some force, but positivistically concludes, "They are not ... the law." (3) Instead, in the best of our constitutional law traditions Saunders argues by analogy that violence, like sex, does not deserve universal First Amendment protection. While one of the strengths of Saunders’ work is the multiple fronts on which he attacks our complacency in accepting violence as protected speech, I didn’t find the argument as accessible as the cover blurb promised. But this challenge to a constitutional culture comfortable with the notion that more regulation comes at the expense of less freedom has a worthwhile payoff.

First, why should we care to use the government to restrict media depictions of violence? The quick answer, condensed from chapters one and two, is that violence is harmful to society, and the media’s recurring promises of self-regulation are hollow (in part because they are recurring). Importantly, the argument that I need not consume violent media if I find it distasteful fails to recognize that I may still face harm if the postman’s parents were too permissive. Saunders concludes chapter two by noting that there appears to be enough social science evidence of a link to increased aggression to support a rational basis for restricting media violence.

Of course for government to restrict free speech, a rational basis is not enough. Saunders must either show under the more demanding strict scrutiny test that there is a compelling government interest which the regulation is narrowly tailored to address, or show that violence is not a protected form of speech. Chapter three establishes the futility of strategy one, and thus Saunders turns his attention to locating violence within the obscenity exception of the First Amendment.

The case for obscenity encompassing (some) violence as well as (some) sexual and excretory material is the heart of the book. Wherever we find good reason to exempt sex-as-obscenity from First Amendment protection, Saunders makes the case that violence-as-obscenity could be just as comfortably exempted. In chapter four, this includes obscenity as a philosophical construct. To wit, we can apply Feinberg’s community "Yuk" standard -- that being obscene which "‘sends shudders up our spine and set our teeth on edge’" -- to violence as well (65). And David A.J. Richards’ connection of obscenity to the improper use of the body seems to work for violence too: "nonprocreative sex or masturbation cannot match the abuse of function represented by the lopping off of a limb or by a disembowelment." (66) No argument here.

Similar outcomes are reached from other paths. Etymologically, if the depiction of some sex acts are rightly limited as being "Of Filth," or perhaps as being private and therefore "Off the stage [of life]," then surely some depictions of violence can be limited (67-70). And if obscenity has derived from that which is "Off the [theatrical] stage" the point is that neither sex nor violence has always been embraced. Some Greek playwrights had fun with phalli, but most were reticent to depict violence on stage; meanwhile, Romans more liberally depicted both sex and violence. And "Shakespeare’s plays were not as violent as they could have been" (77). The lesson is that what counts as obscene is not fixed, and has not always meant only sex or excrement (79).

This is true not only in theater, but also in law. The finding of chapters five and six is that our constitutional association of the obscenity-as-sex-but-not-violence is of recent origin and actually not Constitutionally embraced nor required. Indeed, the sex-violence distinction developed in a period Saunders declares "constitutionally irrelevant" (109) for helping to understand how to read the First Amendment. And while the test for obscenity developed in ROTH v. U.S. (1957) focuses on sex, this need not be read as exhaustive.

Our present, narrow, conception of obscenity flows from the 1896 case of SWEARINGEN v. U.S. in which the Supreme Court constructed a statute regulating "obscene, lewd, or lascivious" materials to describe one offense (118-19). This despite the demonstration that numerous states had near-identical statutes, and that several attempted to resurrect the categories collapsed in SWEARINGEN by passing statutes "banning depictions of criminal offenses" (118). WINTERS v. NEW YORK (1948) provided a constitutional ruling such a law. While New York’s law prohibiting the distribution of "crime stories" was similar to laws which had been upheld in half a dozen other states, the Supreme Court noted that this brand of nonerotic obscenity was unusual. But the vagueness of the statute, and not its perceived novelty, was fatal. ROTH followed nine years later.

Chapter seven demonstrates that theories of the First Amendment which can accommodate a sexual obscenity exemption -- specifically those of Meiklejohn, Blasi, Schauer and Sunnstein -- may be applied to violent obscenity with equal facility. Again the argument is not of whole cloth, but incremental: "Sexual obscenity is outside ... protection because it plays no essential role in the exposition of ideas and serves no useful social purpose. Whatever may be said of sexually explicit material in this regard may also be said of graphically violent material." (145).

Given there appear to be good historical reasons for limiting depictions of violence, and no legal barriers to doing so, Saunders jump starts the policy effort in chapter nine by presenting two model statutes. The first is a general statute regulating violent obscenity, and the second regulates material available to minors. As the problem with past statutes has been vagueness, Saunders carefully provides definitions of violently obscene material, with the derivation from ROTH and MILLER v. CALIFORNIA being overt and intended:

"1. ‘Violent obscenity.’ Any material or performance constitutes ‘violent obscenity’ if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to a morbid or shameful interest in violence, and (b) it depicts or describes in a patently offensive manner, actual or simulated: murder, manslaughter, rape, mayhem, battery, or an attempt to commit any of the preceding crimes, and (c) considered as a whole, it lacks serious literary, artistic, political, or scientific value. ...

2. "Material means anything tangible which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound, or in any other manner." (185)
Similarly specific definitions are provided for "Performance", "Promote", and "Simulated." While Saunders has made an attractive case that there is no constitutional hurdle to this policy, he might usefully take note that weak gun control in America stems more from cultural obstacles and well financed lobbyists than from Constitutional infirmities of such regulation. While he has addressed some legal and historical obstacles to the success of his proposal, the political ones are left to others.

And the attractiveness of his argument may lessen when subjected to more scrutiny. Saunders purposely omits from this "abstract and theoretical work" (202) a discussion of any specific media or material to be covered. I would have liked more help here. His definitions and examples implicate multiple media forms, but which cartoons and comics and films and video games are problematic for him? Too, given this term’s internet obscenity case, omission of that media form -- and the difficulty with regulating it -- is glaring.

Two other forms of guidance are suggested, one scientific, the other common sense, neither fully comforting. He asserts that any list of restricted movies "should be generated with the help of behavioral scientists" (202), presumably related to the harm they might cause. This position is consistent with the reasons given in chapter one for caring about media violence, and with the attempt in chapter eight to convince feminists who would restrict pornography to broaden (and narrow) their target to the real culprit of violence (173). But it also ignores that social scientific studies have not been well received by the justices as constitutionally or even statutorily relevant in the absence of showing specific and direct harm (MCKLESKEY V. KEMP, WARDS COVE PACKING v. ANTONIO).

The common sense guidance provided is that violence which is necessary to the story line is acceptable; purveyors of real news and real art need not be threatened (196-99). Yet Saunders seems duplicitous about this point given that he seems to be content with no convictions under the statute. After all, there are relatively few sexual obscenity convictions. The real gain from being able to ban as "obscene" violence-at-its-worst is the cultural and regulatory pressure he expects to fall on less-than-worst-but-still-indecent violence (190-96). His affinity for the theater resurfaces, as he argues that it is conflict, and not violence, which makes for art: "It is difficult to think of a story that cannot be told without offensive levels of violence." (197) I suspect this statement will receive more agreement as a matter of good taste than as a matter of good Constitutional Law. Recall that Chief Justice Rehnquist’s opinion in the flag burning case of TEXAS v. JOHNSON strongly argued that the respondent’s message could be conveyed in some less offensive way. But Rehnquist was on the losing side, and some people even like Tarantino’s film RESERVOIR DOGS (e.g., http://www.mind.net/nikko11/QT.html). Still, while it is commonplace to note that the most squeamish or easily offended should not restrict what is available to the rest of us, VIOLENCE AS OBSCENITY provides motivation and argument to challenge the negative corollary that the predilections of the least squeamish or most distorted should dominate.
 

MCKLESKEY v. KEMP 481 U.S. 278 (1987)

MILLER v. CALIFORNIA 413 U.S. 15 (1973)

ROTH v. UNITED STATES 354 U.S. 476 (1957)

SWEARINGEN v. UNITED STATES 161 U.S. 446 (1896)

TEXAS v. JOHNSON 491 U.S. 397 (1989)

WARDS COVE PACKING INC v. ANTONIO 490 U.S.642 (1989)

WINTERS v. NEW YORK 333 U.S. 507 (1948)