Lies, Damned Lies, and Supreme Court Decisions

The Supreme Court recently did something right for a change, and negated the fines levied against CBS for the brief airing of Janet Jackson’s nipple, ruling that the FCC had arbitrarily and unexpectedly wielded its authority to regulate and punish ‘indecency’.

The real problem, of course, is that the FCC is considered to possess authority over a thing no one is willing to properly define. As the SC claimed in its 1978 decision regarding the airing of George Carlin’s infamous monologue, “indecency is largely a function of context – it cannot be adequately judged in the abstract”.

So we can’t define indecency, but we know it when we see it? Riiiight.

The truth of the matter is that the function that determines indecency in the Supreme Court’s eyes, the one they use to evaluate the properties of the message and its context, can be abstractly defined and abstractly implemented. If it exists, it is necessarily the case that it can be so defined.

The truth is that people don’t like to bring implicit reasoning into rational awareness even in the best of times, and especially not when they know their reasoning won’t survive the analysis.

As best as I can determine, the standard being applied is that: something is ‘indecent’ if it violates certain societal taboos in a way that weakens those strictures in the public mind. If an expletive slips out in what appears to be an accidental self-censorship failure, and the speaker is aghast, it will be considered offensive but not indecent. If it appears to be done intentionally, or without concern at violating the asserted norm, it’s indecent. If it’s repeated enough for people to become accustomed to it, to lose its ‘shock value’ and thus weaken the response to the taboo violation, it’s indecent. The key matter is the respect for the authority of society’s norms (or the lack thereof).

That isn’t a suitable matter for governmental regulation, especially not in a country in which freedom of expression is a guaranteed right. Which is probably why no one wants to acknowledge what the standard is.

2 Responses to “Lies, Damned Lies, and Supreme Court Decisions”

  1. michael vassar Says:

    This is a really nice post.
    a couple caveats
    It’s not clear that there aren’t sometimes good reasons for at least some people sticking with implicit reasoning, mostly because its faster and because most people don’t know how to use explicit reasoning at all well. It’s also not clear what it means for something to be a suitable matter for government regulation.

  2. It’s also not clear what it means for something to be a suitable matter for government regulation.

    I am referring to, without explicitly mentioning, my various ideas about what the proper function of government is. The statement is an assertion of mine rather than an objective truth I expect people to immediately recognize as valid.

    It’s basically a short-cut – I could go on about what I think the proper role is, but it goes far beyond the nominal theme of this post and would also take up too much space.

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