THE FIRST AMENDMENT AND MEDIA VIOLENCE

Kevin W. Saunders, Michigan State University-DCL College of Law

Depictions of violence and depictions of sex should be treated similarly. This position is reflected in legislation offered by Congressman Henry Hyde and Senator Ernest Hollings over the past several years and would justify limiting broadcast violence to hours when children are less likely to be in the audience.

Such a limitation should be found consistent with the First Amendment, as explained by Federal Communications Commission v. Pacifica Foundation. Pacifica said that the FCC authority to limit indecent material reaches material not in conformance with "accepted standards of morality." That definition is broad enough to include violence.

It has been argued that Pacifica does not reach violence, because indecency is related to obscenity and must have sexual content. However, sufficiently explicit and offensive depictions of violence ought to be considered obscene. Less extreme depictions can then be considered indecent for purposes of channeling in broadcast television.

Including violence within the obscenity exception is justified by an examination of the ordinary language concept of obscenity, by the legal history of obscenity law and by the policy arguments that underlie the existence of the exception. Furthermore, the Supreme Court has never ruled that violent material cannot be obscene or at least regulable.

The ordinary language concept is broader than sex. What has historically been considered "ab scaena" or only to occur "off the stage," over a long term history from the Greeks on, has included violence as regularly as it has included sex.

The legal view of obscenity in the constitutionally relevant past provides additional, strong evidence. When the Supreme Court recognized the obscenity exception, it cited a history of statutes and cases dating to the constitutional era. Those cases and statutes did not focus exclusively on sex, a focus that emerged only in 1896 in Swearingen v. United States. The limitation to sex is the creation of Victorian Era obsessions. If law in the era of the Framers left obscene material unprotected, it should be what was obscene in the Framers era, not the Victorian Era, that is without first amendment protection.

The late 1800s limitation on the use of the word "obscene" did not lessen the states desire to regulate violent depictions that would formerly have been labeled "obscene." The majority of the states passed statutes limiting the distribution of such material.

Policies said to justify the First Amendment and its obscenity exception also equally justify limitations on violence.

The obscenity exception should include sufficiently explicit and offensive depictions of violence and lesser depictions should be considered indecent for purposes of FCC channeling rules.