Archive for August 3, 2008

Selling Sin: Why Obscenity Law Fails

First amendment jurisprudence, a judge-made doctrine of recent invention, steeped in 20th-century values, proves that the Constitution works – and works well – when interpreted to accommodate changing values. It also firmly proves the inadequacy of originalism to produce a stable constitutional foundation: early first amendment law, and constitutional history, were alternately contradictory and overbearing, requiring judges to improvise over the years. While the judge-made first amendment doctrines have managed to adequately define the outer limits of protected speech (protecting subversive advocacy, distinguishing between viewpoint and subject-matter neutrality, etc.), it does have one failure. Our nation’s best judicial minds have utterly failed to define and control “obscenity,” despite recent attempts at judicial necromancy.

Why? The answer is simple: the public’s taste changes, for the worse, faster than obscenity law can define and prosecute. And, sin sells. While we can debate the problems the profit motive creates in the free marketplace of ideas – by squeezing out politics for sensationalism – capitalism surely ensures that the profitable will find its way into the marketplace, and obscenity is profitable. Given a venue for expression – any venue really, but the more widespread and unregulated the better (hint hint: internet) – the profit motive and secret desire for the forbidden will trump free speech law, those that want obscenity will get it, and the subculture will desensitize the broader society to what it once abhorred.

Advertisers even bank on the allure of the forbidden:

In case you can’t tell, that’s “Gossip Girl” proudly advertising the disapproval of the Parent’s Television Council (“Mind-blowingly inappropriate,” NRW downtown platform, 5th Ave & 59th).

In this sense, obscenity law is and was always more aspirational than anything. We can pretend to hate the sexual filth pumped into our living rooms, and many of those protestations will be made in good faith, depending on how bad it gets. But more than a few will protest just because they think they should, while secretly buying into the dirty stuff they pretend to hate. We want to be shocked. The market’s equilibrium between tolerance and disgust is a lot lower than the censors would have us believe, and the law ultimately cannot divorce itself from the people it governs.

“The Obama Nation”

Swiftboat Veterans veteran Jerome Corsi, intellectually insecure enough to remind us on his book’s cover of his “Ph.D.,” has a new thriller nonfiction bestseller about Obama. Luckily, Corsi’s penetration seems small: according to Amazon’s stats, it’s being bought mostly by Gingrich & Goldberg-style Americans. Please take the time to give the book a one-star review: Amazon reviews are the latest front in the culture wars.

Misdirection, and the Media’s Double Standard for Grading John McCain

In the face of a nasty slew of McCain attack ads against Barack Obama, equating him with the likes of Paris Hilton, somehow the news media have decided that the whole fracas is Obama’s fault.  If spin incidents are the battlegrounds in the war to win the 24-hour newsday, the battle and the war have, curiously, gone to McCain.  The media have wholly ignored McCain’s sucker punch, and focused on Obama’s feeble defense (“playing the race card”).

This is rather like the younger sibling who, after being beaten by the older sibling, flips off his abuser, and gets punished for vulgarity, while the true guilty party gets off free   Somehow blaming the other side’s dirty tactics on race is worse than the dirty tactics themselves.

And McCain’s going along with it, letting the media exculpate him for both the betrayal of his promise to run a polite campaign, and the nastiness of the attacks themselves.  Talk about misdirection.  Can this man’s character slide any farther?

What we’re facing here is probably part of the reason why Obama’s not running as far ahead of the feeble McCain campaign as he should be.  For one, Obama has yet to prove his qualifications for office, but a deft vice presidential pick should be ameliorate that fear.  But the real problem is the media’s nasty double standard, by which they’re willing to praise Obama for anything, but excoriate him for the slightest mistakes.  McCain can do no right, but at least he can do no wrong.

Recall McCain’s discussion about the Iraqi/Pakistan border:

In case you weren’t aware, the border between Iraq and Pakistan is IRAN.  The media gave McCain almost a complete pass on this ridiculous error of geography.  Can anyone imagine the fallout had Obama made a comparable mistake?

The media covered Obama’s success abroad as if it was inevitable, and ignored the seriousness with which world leaders treated his perspective on foreign relations.  When Iraq gave the go-ahead to Obama’s plans for the nation, even McCain had to stop and think.  “Empty promise” indeed.  Why the sparse praise?  Because, I imagine, we expect that of him.  The media are willing to play Obama up as the celebrity rockstar god of politics, but their coverage, in the process, omits his substantive victories of policy.  If Obama looks like an “empty suit,” it might be the result of paradoxical media coverage, highlighting his spin, downplaying his substance.

If we “expect,” and therefore ignore, Obama’s success, McCain’s failures are treated with the same nonchalance.  Do we expect gaffes of McCain?  Thus always to underdogs, I imagine.  Similarly, if the media ignores Obama’s substance, it also ignores McCain’s lack thereof:

Because substance is expected of him, he need provide none.  Even when the media appear to be on the Democrats’ side, they’re still short-changing our candidates on their ideas and cultivating the false, Republican myth that Obama is long on rhetoric, short on ideas.

Obama needs to take a page from Rove’s book – ergo McCain’s book – and attack McCain where he’s strong.  McCain is vulnerable on the weakness of his ideas, while Obama continues to accrue accolades for the result of his deep analysis of the issues.  Intelligence over experience.  Time for Obama to attack.

Offshore Drilling Compromise?

Principled compromise might be in store for Barack Obama.  Although I still think offshore drilling is a mistake, I’m persuaded that, if done responsibly and not sold as a one-stop solution, it might be okay, and it might be a politically good move.  There’s a way to frame it without it being seen as a “flip-flop.” Let’s hope Barack Obama does it.