Tag Archives: U.S. Supreme Court

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [‘hard-core pornography’], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

U.S. Supreme Court Justice Potter Stewart, opinion in Jacobellis v. Ohio, 1964

You know the old puzzle: if a tree falls in the forest, and no one is around, does it make a sound?  Using that logic, if a book is published, and no one finds its content offensive, is it obscene?

Obscenity seems to be subjective.  Right-wing extremists certainly feel that way, as they have (once again) assumed the role of moral overseer and decided they have the authority to determine what books are and are not appropriate for others to read.  To we writers and other artists, the term censorship is like holy water to a devil worshiper: it’s terrifying!  Whenever we learn that some people are challenging the presence of certain materials in a public venue, such as a library, we bristle.  But, instead of running and hiding, we’ve been known to stand and fight.

In the latest battle, the school board in McMinn County, Tennessee decided to ban the 1986 Art Spiegelman book “Maus: A Survivor’s Tale” from its library.  The illustrated tome is Spiegelman’s recounting of his parents’ experiences as prisoners of the Auschwitz Nazi death camp.  It won Spiegelman a Pulitzer Prize and, in 1992, the Museum of Modern Art mounted an exhibition displaying his original panels for the story.  “Maus” had been party of the school district’s lessons on the Nazi Holocaust.  The McMinn school board’s complaints about “Maus” are the usual gripes: language and nudity (animal nudity in this case).

It’s worth noting McMinn County, Tennessee is near the location of the infamous Scopes Monkey Trial, where the concept of evolution became intensely controversial.  In 1925 the state of Tennessee passed the Butler Act, a bill banning the teaching of evolution in its schools.  Evolution, declared legislators, contradicted the Christian Bible as the single standard of truth in public arenas, such as schools.  The move astonished – and frightened – many across the country.

The American Civil Liberties Union (ACLU) responded immediately by vowing to support any educator in the U.S. who dared to teach evolution.  A popular young high school teacher in – of all places, Tennessee – named John Scopes offered to be the defendant, if the state decided to make good on its promise.  They did.  On May 7, 1925, Tennessee authorities arrested Scopes and charged him with violating the Butler Act.

The ensuing legal battle made headlines across the country and the world.  The judge in the case showed his deference to the state by opening each session with a prayer and refusing to let Scopes’ defense call any scientific witnesses.  Ultimately Scopes was found guilty and fined $100.  The ACLU hoped the case would make its way to the U.S. Supreme Court, but the Tennessee State Supreme Court reversed the decision on a technicality.  Still, the repercussions were widespread.  The Butler Act was never enforced in Tennessee again, and similar measures in other parts of the U.S. met with failure.  But progressives realized they could never relax in the face of extremist ideology.

So, here we are in the third decade of the 21^st century, where the U.S. has come out of two brutal Middle East wars and is now facing an onslaught of urban violence.  We experienced 36 mass shootings in the month of January, resulting in 101 injuries and 42 deaths.  That’s just in the month of January 2022 alone!

But, as usual, social and religious conservatives are more upset with books.  In October of 2021, Texas State Representative Matt Krause asked the Texas Education Agency for information about 850 books in school libraries.  He wanted to know how many copies of these books were in each library.  It didn’t surprise observers that the majority of the books are by women, non-Whites and/or LGBT authors.  The imperial Krause is concerned that taxpayers are funding the presence of these books in school libraries.  Yet, my tax dollars are wasted if those books are removed because he and other like-minded folks find them unacceptable.

Some disputes have become hostile.  Police in Leander, Texas got involved in a controversy over one book, “Lawn Boy” in 2021.  Author Jonathan Evison says he received death threats because of it.  Texas – where any restrictions on guns is considered anathema – isn’t the only state under siege by moral zealots.  Similar attempts at censorship and assaults on free speech have played out in Missouri, Pennsylvania and Virginia.

“If I had a statement, it would be ‘Read the book or sit down,’” says Evison. “I feel like these people are frightened because they’re losing the culture wars.”

Yeah!  Sit down and read – more than the Bible or the TV guide.

I will concede parents have the right to be concerned by what their children view and read.  But I feel banning books from a school library is just one step away from banning books in any library or elsewhere.  It’s truly not an unrealistic stretch to envision such a scenario.  The world has witnessed such activities in totalitarian societies, and the results are often sanguineous.

Once again, though, what is obscene?

The 1920s was a decade of both progress and excess, particularly for the growing film industry.  Although silent and in black-and-white, movies had begun to show a variety of mature content – mainly heavy alcohol consumption and sexual behavior.  Concern over the material became so intense that, in 1934, Will H. Hays – then head of the Motion Picture Association of America (MPAA) – introduced his personally developed “Hays Code”, a standard production guide for what is and what is not acceptable content for motion pictures.  The code remained until 1968, when the MPAA introduced its film rating system: G (General Audiences), PG (Parental Guidance recommended), R (Restricted) and X (mainly for sex, but also for violence).

By the 1960s, films were presenting increasingly controversial subject matter – and headaches for the MPAA.  The 1966 film “Who’s Afraid of Virginia Woolf?” shocked audiences with its blatant use of foul language and served as one catalyst for the rating system.  The 1968 film “Vixen” became the first movie branded with an X rating.  The following year John Schlesinger released “Midnight Cowboy” with Jon Voight in the titular role.  It, too, was branded with an X rating.  Despite that, it went on to win the 1969 Academy Award for Best Picture – the first and (to date) the only X-rated film to win such an honor.  Viewing both “Vixen” and “Midnight Cowboy” now might make somebody wonder what the fuss was all about.

The film rating system took an odd turn in 1983 when a remake of the classic film “Scarface” came out.  The MPAA initially granted the movie an X rating because of its excessive violence.  Director Brian DePalma reluctantly trimmed some of the footage, and the film was rebranded with an R.  If it had gone out with the X label, “Scarface” would have been the first movie released as such because of violence.

Another X controversy arose six years later with “The Cook, the Thief, His Wife & Her Lover”.  The film’s gratuitous sexual content garnered an X rating from the MPAA.  As with DePalma and “Scarface”, director Peter Greenaway reluctantly agreed to edit out a small portion of the sexual matter – small as in some 5 minutes – and the film was upgraded to R.  The fiasco upset many in the entertainment community – not just in the U.S. but across the globe.  If the difference between an R and an X rating is a paltry 5 minutes, then how valid is a film rating system?

What is obscene?

In the 1950s, the Hays Code was applied to a growing new medium: television.  In motion pictures, the code, for example, dictated that people of the opposite sex could not be filmed in bed together, unless one of the duo (usually the man) had at least one foot on the floor.  In TV, however, even married couples couldn’t be shown in the same bed.  The rule went into effect after a 1947 episode of “Mary Kay and Johnny” showed the title characters hopping into the same bed.  But that taboo dissolved completely in 1969 with “The Brady Bunch”.  Bathrooms also were generally off-limits in television.  One exceptional first was a 1957 episode of “Leave It to Beaver”, when the boys tried to hide a pet alligator in the tank of a toilet.  An early episode of “All in the Family” produced another first: the sound of a toilet being flushed.

As mundane as all of these events are today, they each sparked a ruckus at the time.

Personally, I find excessive violence offensive.  I never laughed when I saw men and boys get struck in the groin in slap-stick comedy scenes in films and on television.  I grimace at bloody acts in similar venues, while others react as if nothing more than a sharp wind blew past them.  Conversely, many of these same individuals are horrified by the sight of blatant nudity, especially if the nudeness is that of a male.  It’s difficult to imagine now, but even as recently as the late 1960s words like pregnant and diarrhea were forbidden on television.

The word “bitch” is used frequently on TV today.  But, in 1983, a musical group called Laid Back released a song entitled “White Horse”, which features the line: ‘If you wanna be rich, you got to be a bitch.’  MTV played the video, but bleeped out the term “bitch”.  In 1994, Tom Petty released “You Don’t Know How It Feels”, which contains the line: ‘But let me get to the point, let’s roll another joint.’  Music video networks deemed the ‘roll another joint’ verbiage unacceptable and bleeped it out whenever they played the video.

In 1989, rap group 2 Live Crew released two versions of their song “Me So Horny”: what they dubbed the G-rated version and the R-rated version.  Radio stations played the G-rated version frequently, but the R-rated version generated the most strife.  At the start of 1990 a federal judge in the state of Florida considered the group and their music obscene and in violation of community standards – whatever that’s supposed to mean – and forbid local radio stations from playing any of their music.  Consequently, 2 Live Crew’s reputation and music sales skyrocketed.

I remember the controversy that erupted with the video to Madonna’s 1990 song “Justify My Love”.  Once again, music video networks assumed the role of moral protectorate and either refused to play the video or played it late at night, when children and other fragile souls – such as moral crusaders – were asleep.  Undeterred by the skirmish, Madonna packaged the video and sold it independently.

In 1965, The Rolling Stones made their debut appearance on “The Ed Sullivan Show”, during which they performed a sanitized version of “Let’s Spend the Night Together”.  Producers convinced the group to sing ‘Let’s spend some time together’ instead.  Lead singer Mick Jagger leered at the camera – in the way only Mick Jagger can – when he spat out the words.

Two years later The Doors were presented with a similar option when they made their appearance on the show and performed their already popular and now seminal hit “Light My Fire”.  Sullivan’s son-in-law, Robert Precht, suggested they alter the line ‘Girl, we couldn’t get much higher’ to ‘Girl, we couldn’t get much better’.  The group refused and performed the song as it was.  Their act of defiance resulted in their permanent ban from the show – a move I know upset them to no end.

I’ve noticed social conservatives haven’t raised concerns about inappropriate material in books like “The Anarchist Cookbook” and “The Turner Diaries”.  The latter served as a blueprint for Oklahoma City bomber (domestic terrorist) Timothy McVeigh.  If conservatives really want to ban books with sexual references and violence, they should start with the Christian Bible, which is rife with salacious and unsavory behavior.

Meanwhile, “Maus” has experienced a surge in sales as a result of the squabble surrounding it.  If there’s one way to ensure something’s popularity or success, it’s to try to ban it.  In other words, censorship always backfires.

Yet, censorship will always remain a threat to freedom of speech, expression and the press.  The war will never be won – by either side.  But those of us on the side of true freedom can win individual battles by standing up to self-righteous demagogues.