The Return of the Porn Wars

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"The Return of the Porn Wars"

By Alyssa Rosenberg

Yesterday, Solicitor General Neal Katyal asked the Supreme Court to uphold two Federal Communications Commission decisions that had been overturned by the Second Circuit late last year on the grounds that the Commission’s standards for what’s indecent are so vague as to be unconstitutional. As annoying as it is to see the Obama administration doing something that brings joy to the hearts of the Parents Television Council, Katyal’s decision to back up a federal agency was probably inevitable.

What’s interesting about the request, though, is that it comes at a moment when there’s a spike in anti-indecency anxiety. Earlier this month, more than 100 lawmakers signed a letter to Attorney General Eric Holder asking him “to direct that the FBI and U.S. Attorneys work together to combat the growing scourge of obscenity in America.” Obviously, there are legitimate issues connected to the production of pornography, among them child exploitation and sexual abuse and human trafficking. But there’s more than a whiff of moral panic about the letter.

And on Tuesday, a federal grand jury handed down five felony charges against fetish filmmaker Ira Isaacs; he’s already scheduled to go on trial on three pending obscenity charges in May. Isaacs makes content that I will not attempt to describe on a family blog, and that I devoutly hope to avoid encountering at any point in my life. But he’s mounting a vigorous defense of his work, arguing that the federal government is wrong to say it has no artistic merit. The trial, I imagine, will be entertaining, considering what it’s already revealed about the tastes of the judge originally assigned to preside over it.

Does all of this mean we’re about to see more restrictive policies on obscenity and the regulation of indecency? I doubt it. There isn’t a high-profile anti-indecency advocate like Tipper Gore to elevate the issue to national prominence. The letter to the AG feels more like an impending-election-checking-of-the-box for most of the folks who signed on.

If the Supreme Court does take the FCC’s case, though, it’ll be interesting to see what happens. As The Hollywood Reporter’s Eriq Gardener wrote in 2009, the last time Supreme Court ruled on the agency’s power to regulate indecency, the Justices left open the possibility that they’d revisit the issue soon.

I talked to Adam Thierer, a researcher at George Mason University’s Mercatus Center who tracks tech policy, who says he isn’t optimistic that the high court will change course, because when it comes to First Amendment rights, broadcasting is traditionally a “second-class citizen.”

“Because the spectrum broadcasters use is still licensed by the FCC, the Court will probably say diminished First Amendment scrutiny is acceptable,” he told me by email. “Of course, such a rationale is silly since many other professions are licensed (doctors, lawyers, etc.), but not censored by our government. But abandoning the old regulatory regime will still be hard for the Court and licensing provides the easiest hook to keep it around.”

The ACLU’s legal director, Steven Shapiro, held back from handicapping the case when I talked to him, but seemed more optimistic. “There’s a lot of evidence that the agency has taken advantage of that vagueness to apply the standard in ways that are incompatible with our first amendment rules,” he told me, and the Second Circuit’s decision is a persuasive statement of that case. If this momentary kerfuffle over indecency produces more clarity for the FCC and prevents future ratings brouhahas in the future, maybe it’ll all be worth it.

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