Indecent Legislation

By Crispin Sartwell

A bill now before the Senate allows the FCC to fine performers up to $500,000 for indecency over the airwaves..

This backlash arises, of course, from the Super Bowl halftime show and Howard Stern's recent shenanigans. Both of these, it is fair to say, are cases of witless titillation. The problem was their indecency in relation to their vacuity, not their indecency per se, because indecency is a central dimension of human political and artistic expression.

It has been argued, of course, that the Constitution is essentially concerned with political speech and public debate, and that indecent expression has no function in that the marketplace of ideas. That is false.

If the government enforces decency, indecency becomes civil disobedience, a form of political protest in favor of free speech. In other words, where indecency is censored, it is by the definition of the censors political speech. The Senate bill enacts its own unconstitutionality, or entails the political significance of indecency. Even if indecent speech had no political implications before it was banned, it is pointedly political from that point on.

But whether the FCC prohibits you from cussing or not, you've sometimes got to cuss to cut through the bull, to give your words the proper emphasis, to show that you feel strongly, or merely to express a criticism of standards of "decency" themselves which can make even matters of life and death the occasion of the merest etiquette.

Much of the most important political speech now being made - important for its originality, its frankness, its intelligence, and its power to communicate - emerges from hip hop music. I don't blame you if you think that's ridiculous. But if you do, I'm betting you've probably only heard the hip hop that's on the FCC-regulated airwaves: the vicious drivel put forward by P Diddy or 50 Cent.

Underground hip hop figures such as Sage Francis, Brother Ali, Paris, and Atmosphere are among our most eloquent political commentators. Their critique, however, is laced with profanity, and cannot be legally played in full on the radio. The profanity is intrinsic to their rhetoric of passion and clarity, intrinsic to their percussive or explosive aesthetic, intrinsic to their personae as outsiders: intrinsic, in other words, to their politics and their artistic form.

Profanity gives the work of these emcees a reality and an urgency that itself constitutes a critique of American political discourse. George and John mutter the same cliches over and over again, simulating passion but in fact simply detaching themselves from any human connection to the world they seek to govern. But Sage Francis and Brother Ali are absolutely present in their own words. That, we might say, requires access to the whole dictionary.

Even the work of Eminem is a demonstration that political speech can entail indecency. Consider, for example, "White America" - one of the sharpest and funniest recent commentaries on American race relations. And then consider the fact that it cannot be played in full on radio or television. That is a serious limitation on important social expression.

The strategy of more or less mechanically banning certain words or images constrains not only morons but those who would attack them. Queen Latifah once replied to male rappers by saying "I ain't a bitch or a ho." Latifah's song was itself banned. The poet Sarah Jones has been censored in the same manner in her critiques of the uses of language in oppression.

Black folks have reclaimed the word "nigger" from the racists and turned it around into something rich and maybe positive, as have gay people with "queer" and "fag." That is an important mode of resistance. Banning the word increases its mystical racist or homophobic power and makes its reappropriation into resistance impossible to present publicly.

Displaying breasts on television might on some occasions be meaningless softcore porn, but on others it might be important medical, artistic, or indeed political expression. In fact, as soon as the breast is banned, it is ipso facto important political expression.

The new legislation is clearly unconstitutional, because there is important indecent speech. And because it makes indecency political, it specifically renders whatever it prohibits significant and hence constitutionally protected.

Crispin Sartwell's most recent book is "Extreme Virtue: Leadership and Truth in Five Great American Lives."