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Porn Wars

by DAVID ROSEN

Craigslist, the most popular Internet listing service, announced recently that it would, in effect, remake its popular “erotic services” category into “adult services.”  It acted under pressure from a number of state attorney generals for allegedly promoting prostitution and in the face of dubious claims as to its role in the actions of a Boston medical student, Philip Markoff, in a murder, armed robbery and kidnapping spree.

Action by Craigslist came at the same time that the Supreme Court ordered the federal Second Circuit court to reconsider its earlier rejection of the FCC’s effort to impose penalties on Fox and NBC for broadcasting “fleeting expletives” (i.e., “fuck” and “shit”) uttered by Cher, Bono and Nicole Richie.  This decision came only weeks before the Court ordered the Third Circuit court to reconsider its ruling throwing out a $550,000 fine against CBS for momentarily displaying Janet Jackson’s nipple during the 2004 Super Bowl halftime show.

Ironically, only days before Obama assumed the presidency in January, the Supreme Court ruled against a last-ditch Bush-administration effort to finally enforce the Child Online Protection Act (COPA), originally enacted by the Clinton administration in 1998.

Now, as the rightwing Christian culture wars are in eclipse, an effort to tighten the nation’s moral code seems underway.  For a quarter-century, personal health, family life, sexual relations, scientific knowledge and popular culture were battlegrounds of the culture wars.  While the 2006 elections marked the end of the Christian right’s momentum, the 2008 election appeared to put the final nail in its coffin.  Americans spoke out against rightwing intolerance, puritanical morality, divisive racism, imperialist foreign misadventures, false patriotism and vicious class polarization.

Like a legendary vampire, the tired, retrograde legal system holds to the darkness, seeking to deny or put-off as long as possible a forthright consideration of the values remaking American popular culture.   Two fictions are at the heart of the official legal system’s efforts to contain widely accepted notions of sexual values.  The first is the notion that “broadcasting” still exists; the second fiction is the belief that restricting “obscenity” protects childhood innocence.  While most Americans have left these notions in the 20th century, legal opinion, moralistic proclamations and police actions still seek to enforce this retrograde outlook.

Unfortunately, as more conservative aspects of the Obama program become evident, one can only wonder if these recent retrograde legal actions are not in keeping with the administration’s overall tenor.  Obama has aligned with the corporate, militaristic wing of imperialist capital, the centrists around Bush-senior, Robert Rubin and Dr. Brezinsky, Condi’s mentor.

This alignment is reflected in Obama’s Afghan-Pakistan quagmire strategy, his refusal to release the torture photos, his recourse to military tribunals, his acceptance of prosecutions under Don’t Ask/Don’t Tell, his bailout of the banks (and their principal shareholders who directed the current economic crisis) and his impotent effort to help those suffering foreclosure.  The recent legal actions seem to mirror this greater agenda.

* * *

Law enforcement officials throughout the country long railed against Craiglist as the nation’s biggest brothel.  Attorney generals from South Carolina, Illinois, Connecticut, Missouri and New York mounted an apparently coordinated campaign against Craigslist to remove ads they considered promoting illegal sexual services.  They also shared a perception that the site was pornographic.

The chorus against Craigslist found local voices as well.  For example, Illinois’ Cook County Sheriff Tom Dart sought to have its erotic section eliminated and requested a court to award $100,000 to the local police in compensation for its investigate services.  Dart insists that Craigslist facilitates youthful prostitution through placement of false ads by juveniles.

Cries against the website grew in the wake of a series of isolated violent incidents tenuously linked to random Craigslist postings.  The one that garnered the biggest media attention involved Phillip Markoff, dubbed the “Craigslist Killer.”   At the same time, a New York radio reporter, George Weber, was stabbed to death in his Brooklyn home by an underage youth who answered his posting on Craigslist seeking “rough sex” for $60.  In addition, Michael John Anderson, 20, of Savage, MN, was sentenced to life in prison for killing a young woman who answered an ad he posted for a nanny.

Craigslist rejects these accusations.  Moving to avoid potential legal challenges, Craigslist revised its “erotic services” to “adult services” to cover what it dubs “legal adult service providers.”  To prevent misuse, the website said it would “manually review” each posting before listing it and also increase its posting fee to $10 from $5 per ad to help cut down on dubious postings.

New York Attorney General Andrew Cuomo mocked Craigslist’s actions. “Rather than work with this office to prevent further abuses, in the middle of the night,” he said, “Craigslist took unilateral action which we suspect will prove to be half-baked.”

Prostitution is regulated in parts of Nevada and Rhode Island, and often treated with a wink-and-a-nod acceptance in many places throughout the U.S., especially if it is off-the-street commerce.   It is regulated in Australia, Finland, Germany, the Netherlands and New Zealand; selling sex is not illegal in Canada and Sweden’s 1999 law decriminalized the selling of sex but criminalized the john.  So, when will the attorney generals who went after Craigslist, as well as the others throughout the nation, finally take a fresh look at commercial sex and revise current efforts at criminalization for a more informed regulatory approach?  [see Emily Bazelon, “Why Is Prostitution Illegal?,” Slate, March 10, 2008]

* * *

In similar fashion, the Supreme Court actions against Fox/NBC and CBS over the “broadcasting” of alleged indecent or obscene materials points backwards.  These primetime incidents took place in the early 2000s and the Court’s action seem unaware of the significant changes in technology and popular taste fashioning a very different future.

The first incident involved the live broadcast of Billboard Music Award show in 2002 at which Cher was to receive an “Artist Achievement Award.” In her acceptance speech, she said:

I’ve had unbelievable support in my life and I’ve worked really hard. I’ve had great people to work with.  Oh, yeah, you know what?  I’ve also had critics for the last 40 years saying that I was on my way out every year.  Right.  So fuck ’em.  I still have a job and they don’t.

The following year, two incidents raised the FCC’s moralistic hackles.  First, NBC broadcast the Golden Globe Awards at which Bono uttered, “This is really, really, fucking brilliant.  Really, really great.”  Second, Nicole Richie and Paris Hilton at that year’s Billboard Awards had the following exchange:

Hilton: Now Nicole, remember, this is a live show, watch the bad language.

Richie: Okay, God.

Hilton: It feels so good to be standing here tonight.

Richie: Yeah, instead of standing in mud and

. Why do they even call it “The Simple Life”?  Have you ever tried to get cow shit out of a Prada purse?  It’s not so fucking simple.

The FCC’s original case also involved episodes of “NYPD Blue” containing the words “bullshit,” “dick” and “dickhead” and a live interview on CBS’ “The Early Show” in which the guest called someone a “bullshitter.”  The “NYPD Blue” and CBS incidents were dropped when the case made it to the Second Circuit.  The court rejected the FCC’s argument.

The FCC appealed to the Supreme Court and in April, in a 5-4 decision, the Court did not rule directly on the case, but ordered the Second Circuit to reconsider its original judgment.  Most troubling, Justice Antonin Scalia wrote the majority opinion, arguing: “Federal law prohibits the broadcasting of ‘any . . . indecent . . . language,’ 18 U. S. C. §1464, which includes expletives referring to sexual or excretory activity or organs, see FCC v. Pacifica Foundation, 438 U. S. 726 (1978).”

This indecency ruling referred to the groundbreaking case in which the community radio network broadcast George Carlin’s “seven dirty words” routine.  Most bizarre, Scalia’s opinion refers to the terms at issue in the Fox case as the “S-Word” and the “F-Word.”

Obviously missing from Scalia’s argument is any reference to President Bush’s well-publicized comment to Prime Minister Blair that the UN needed to “get Syria to get Hezbollah to stop doing this shit.”  Nor is there mention of Vice President Cheney’s much commented upon verbal slap at Senator Patrick Leahy, “fuck yourself.”

Within a few days of its Fox ruling, the Supreme Court followed-up by ordering the Third Circuit court to review its FCC ruling concerning Janet Jackson’s famous “wardrobe malfunction” scene at the 2004 Super Bowl.  While the Fox case involved “fleeting expletives,” the CBS case involved fleeting images.  In this case, it was a 9/16th of a second display of Jackson’s nipple.  CBS argued that it had no control over the production of the show and that 85 percent of the complaints about the incident were copycat messages from conservative groups.

The Supreme Court sent back to lower courts for review the issues of fleeting expletives and images.  In the face of both the significant technological and culture changes that have occurred over the last 30 years, the Court holds tightly to the Pacifica decision.  The world has changed, surely should the Court’s assessment of pornography.

* * *

Over the last quarter-century, American popular media, but especially broadcast television, was transformed.  The once-upon-a-time Big Three networks, ABC, CBS and NBC, became the Big Four, with the addition of Fox.  More important, these broadcasters witnessed a sustained decline in their primetime viewers.  In 1980, the Big Three captured more than 90 percent of these viewers; by 2005, their share shrank to less than one-third (32%).

Making matters worse, the Big Networks’ audience aged.  For the 2007-2008 television season, the median age of the CBS viewer was 54 years old, ABC’s was 50, NBC ‘s was 49 and Fox’s was 44.   The median age of U.S. households is 38 years.   For ’07-’08, the audience for CW and Univision was 34.  The Big Networks are losing the coveted 19-49 age cohort.  [Magna Group, 2009]

The unstated irony at the heart of FCC regulation of “broadcast” television is that fewer and viewer viewers receive broadcast network programming.  Once upon a time, broadcasting referred to the transmission of an analog signal over-the-air from a central transmission antenna to a home TV antenna and set.  And once a network consisted of a group of local affiliate stations that localized and retransmit Big Network programming.

Today, between 13 and 15 million households (about 14%) continue to receive a handful of “broadcast” channels through over-the-air television; these household were recently required to purchase a digital-converter box to continue to receive the signal.  The vast majority of households receive hundred of channels, including broadcast networks, via cable and satellite services and more are turning to the Internet for video streaming programming.   And local affiliates, like local newspapers, are an endangered species.

Nevertheless, like the Hollywood studios, the Big Networks have the financial resources to offer the primetime blockbuster programs like the Billboard Awards and Super Bowl.  And, similar to the studios, the FCC seeks to preserve its version of the “G” rating for blockbuster shows.  The question facing the FCC and the Supreme Court is whether to penalize fleeting expletives and images (especially spontaneous utterances) presented on a broadcast network that are, for most viewers, indistinguishable from cable channels.

Television has shifted to a digital medium and is projected to increasingly become an Internet streaming service.  Given this, the Supreme Court’s rejection of the Bush-administration effort to enforce the Child Online Protection Act (COPA) suggests how the issue of TV porn might eventually be resolved.

COPA set stiff criminal penalties for Internet distribution of material deemed harmful to minors.  It grew out of the Communications Decency Act (CDA), originally part of Telecommunications Act of 1996, one of the most reactionary laws passed by Clinton.  In 1997, the Supreme Court ruled 9-0 that CDA violated First Amendment provisions.

With regard to COPA, ACLU staff attorney Chris Hansen argued:  “It is not the role of the government to decide what people can see and do on the Internet.”  Adding, “Those are personal decisions that should be made by individuals and their families.”  In January, the Court sided with the ACLU. [see “Nails in the Coffin: Last Gasps of the Culture Wars?,” CounterPunch, January 30-February 1, 2009]

The FCC and the Supreme Court need to reconcile its current approach regarding “broadcast” television in light of the CDA and COPA rulings.  If Americans want to implement a form of “G” ratings for television content, then new legislation needs to be applied across all digital video media, including cable and the Internet.  In the mean time, the Pacifica decision needs to finally over turned and the words of George Carlin, Allen Ginsburg’s “Howl” and so many others can finally be heard and seen by all Americans.

DAVID ROSEN is the author of “Sex Scandal America:  Politics & the Ritual of Public Shaming” (Key, 2009); he can be reached at drosen@ix.netcom.com.

David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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