Violence As Obscenity: Limiting the Media’s First Amendment Protection

257 Pages·1996·16.66 MB·English

by  Kevin W. Saunders

Violence as Obscenity
Constitutional Conflicts
A Series by the Institute of Bill of Rights Law
at the College of William and Mary
Edited by Rodney A. Smolla and Neal Devins
VIOLENCE AS OBSCENITY
Limiting the Media's First Amendment Protection
Kevin W. Saunders
DUKE UNIVERSITY PRESS Durham and London 1996
© 1996 Duke University Press
A!l rights reserved
Printed in the United States of America on acid-free paper @
Typeset in Minion by Tseng Information Systems, Inc.
Library of Congress Cataloging-in-Publication Data
appear on the last printed page of this book.
Contents
Acknowledgments Vll
Introduction 1
1 The Public Debate over Media Violence 9
2 The Social Science Debate on the Causative Effect
of Media Violence 29
3 First Amendment Limitations 45
4 The Concept of Obscenity 63
5 The History of Obscenity Law and the Development
of Its Limitation to Depictions of Sex 87
6 The Law and Depictions of Violence III
7 Sex, Violence, and First Amendment Policy 135
8 Violence and the Feminist Concern with Pornography 161
9 Statutes and Implications 179
Conclusion 201
Notes 205
Index 241
To my wife, Mary Scott,
and our daughter, Molly Saunders-Scott
Acknowledgments
My initial interest in the topic of this book grew out of a comment made in a
course I took as a University of Michigan law student. In James Boyd White's
class on rhetoric, law, and culture we read Sophocles' Philoctetes. In discuss
ing the violence that occurred in the play, Professor White commented on the
Greek view that violence was obscene and that "obscene" meant "off stage."
That comment led me to wonder how the law had come to view sex rather
than violence as obscene. While my initial question was whether or not sex
could be considered obscene, I later came to realize that an equally important
question is why violence is considered not to be obscene.
The topic remained of interest to me in the years following law school, as
I slowly gathered material on obscenity law and the history of drama. I also
developed some understanding of First Amendment theory while teaching
constitutional law. That exposure to various policies argued to motivate the
protections of speech and press, and a reading of the statutes and cases said
to justify the obscenity exception, convinced me that the exc1usion of violence
from the category of the obscene was unwarranted.
The actual development of any written work on violence as obscenity was
precipitated by the 1993 Workshop on Constitutional Law sponsored by the
Association of American Law Schools, again at the University of Michigan. I
submitted a proposal to present the topic at a small group session on topics of
current research. When the proposal was accepted I decided the time for seri
ous effort was at hand. At the time, I did not know just how at hand it was.
As I was preparing for the conference, the topic of media violence made one
of its periodic resurgences. To avoid missing the opportunity to make a con
tribution while the debate was of popular, as well as of scholarly, interest, I
wrote two articles. The first article, "Media Violence and the Obscenity Excep
tion to the First Amendment," appeared in the William and Mary Bill of Rights
Journal, and the second, "Media Self-Regulation of Depictions of Violence,"
appeared in the Oklahoma Law Review. Those articles, along with other ma
terial gathered later, grew into this book.
Vlll Acknowledgments
I want to express my thanks to several individuals for the help they have
provided in the development of this work. James Boyd White is due thanks
for providing the initial spark. Rod Smolla of William and Mary is also due
thanks for his comments on the first law review article and his suggestions
on material that had to be added and arguments that should be refocused or
expanded in enlarging that article into a book. Several colleagues in legal edu
cation, Fred Schauer of Harvard's Kennedy School of Government, Harry F.
Tepker of the University of Oklahoma, and an anonymous reviewer for Duke
University Press also provided valuable comments and counterarguments that
helped shape the final outcome. That outcome is not one with which they nec
essarily all share agreement, but arguments offered against my position were
very helpful in forming responses to potential criticism. Comments made by
participants in response to my original presentation of the thesis at the Work
shop on Constitutional Law and at a later meeting of the Law and Society
Association also proved helpful. Valuable assistance in providing entry into
and comment on topics in psychology and communications research was pro
vided, respectively, by Tony Nunez of Michigan State University and Haejung
Paik of the University of Oklahoma.
I also want to thank law librarian John Michaud and law student Craig
Sanders for the research assistance they provided during a visiting year at
Thomas M. Cooley Law School, and law students Greg Heiser, Beth Espy, Ryan
Hauser, and Russell Abbott for their research assistance at the University of
Oklahoma. Thanks are also due the people at Duke University Press for their
efforts in putting the manuscript into print. Finally, thanks to my wife and
daughter for their support and understanding, when I was particularly busy
with, or tired from, the preparation of this book.
Introduction
In 1961 Federal Communications Commission Chairman Newton Minow
called American television a "vast wasteland." Mr. Minow was concerned that
television would provide nothing of substance for his children. Thirty-some
years later, many would be happy with a benign wasteland. Instead of concern
that children would not benefit from television, Mr. Minow's 1991 concern was
that children would be harmed by it.l Much of the public agrees; a 1992 Times
Mirror poll found that seventy-two percent of Americans think television is
too violent.2
The concern would appear to be well-founded. The 1986 American Psycho
logical Association's task force on television and society produced startling
estimates on the exposure of children to televised acts of violence. They con
cluded that by the time the average child finishes elementary school, the child
has viewed more than 8,000 murders and more than 100,000 other acts of
violence.3 Depending on viewing habits, a child may have seen as many as
200,000 acts of violence before becoming a teenager.4 Even those statistics
don't measure the true scope of the exposure of children to media violence.
The American Psychological Association estimates are based on incidents of
violence on broadcast television and omit exposure from cable progranlffiing,
movies, videotapes, and video games.
The increasing availability of the entertainment media and the violence it
portrays have been accompanied by an increase in violence in the real world.
In the fifteen years following the introduction of television, homicide rates
almost doubled.s While the increase in the murder rate appears to have slowed,
violence is still of epidemic proportion in American society. In 1991 there were
over 24,000 intentional, non-justifiable homicides in the United States; the
total for all categories of violent crime surpassed 1,900,000.6 Gunshot wounds
have become the leading cause of death for teenage males.7 Other violent
crimes, such as rape and aggravated assault, are also on the increase.8
The degree of violence in both society at large and in the media naturally