Penile humor and the First Amendment

Via How Appealing comes this Michigan Court of Appeals decision (PDF file) about whether televised jokes told by a human penis are protected by the First Amendment.

Seems Timothy Huffman produced a program called “Tim’s Area of Control” on a public access cable channel in Grand Rapids, Mich. One episode, that aired between 10:30 and 11 p.m., included a three minute segment where “a flaccid penis and testicles marked with facial features” was the only thing on camera. A voice-over identified the “character” as “Dick Smart” and gave “purportedly humorous commentary” by the penis. (Purportedly may be a good description, as the commentary consisted of jokes like, “I was in the army ya know, yeah, yeah, yeah. I didn?’t do much, ya know what I mean? I just hung around.”)

Huffman was charged with and convicted of violating a statute banning “open or indecent exposure.” His appeal raised a couple interesting issues about expression and television.

First, Huffman claimed that simply televising the image of a naked penis was not an exposure covered by the statute. Wrong, said the court:

While we agree that a televised exposure is qualitatively different than a physical exposure, we note that, in some ways, it can be more offensive and threatening. While a person might minimally suspect that some stranger might expose himself in a public forum, to be subjected to a televised exposure in the privacy of a home is likely a more shocking event. Further, defendant?s exposure, while televised, was likely more of an immediate close up than would occur if he had been physically present with those subject to his exposure. The Dick Smart character portrayed on TV screens was likely larger than life and it continued for fully three minutes, much longer than would have likely been allowed [in a public square].

Apparently, unwilling viewers are so enchanted by such images they cannot reach the remote to change channels or hit the off button, let alone get their arse off the couch to go the television itself. And if the size of the portrayal is important, does this not depend on the television owned by any particular person? Does this mean viewers who can afford big screen TVs are more likely to be victimized than those who can’t? Likewise, if the length of the portrayal is a factor, let’s hope a prosecutor never picks up an art magazine or book or even something like Vanity Fair. Did you know that printed images can be bigger than life and you can’t turn the damn things off? All you can do is maybe turn the page or close the book or magazine. Still, that’s as much, if not more, work than pushing a button or two on a remote.

Huffman also claimed he was merely exercising his free speech rights. The court said, though, that his conviction had nothing to do with suppressing speech. The “Dick Smart segment is not proscribed because of any message that it conveys; others engaged in similar conduct but having no message whatsoever would be similarly proscribed. Further, the requirement of some minimal clothing does not deprive Dick Smart of his message; it simply makes that message slightly less graphic.”

Ah, that’s it, the depth or meaning of expression by use of still or moving pictures is not affected if you simply render it “slightly less graphic.” Thus, putting a fig leaf on Michelangelo’s statue of David does not impact the essence of the expression. (Or you could do what Sioux Falls did for years — turn the statue so anyone going by could not see the front). Likewise, I imagine if someone painted over the bare breasts of a woman in the “Gate of Justice” mural that dominates the chambers of the South Dakota Supreme Court, the artist’s meaning would not be affected.

Undoubtedly, distinctions can be drawn between showing penises, breasts or whatever on television or film compared to static artistic renditions. These are distinctions without a difference. As the opinion seems to concede, this is not a case of obscenity (which is not afforded First Amendment protection) or a threat to the government or public order. Nor is this the dire threat posed by Janet Jackson’s nipple being exposed to a national television audience for seconds.

I am far from a libertine but this decision seems to illustrate the hypocrisy in defining “activist judges” as those “making” law rather than applying the intent of the law. The ultimate result of such an approach is to subsume logical legal analysis in the fallacy that no protection exists because there’s no way the drafters of the First Amendment ever envisioned someone showing their penis on some fancy box that transmits moving pictures. Moreover, as illustrated above, the logical extension is to books, magazines and other forms of media. Virtually any library in the country would be at risk under this approach.

[D]efendant would have been properly subject to conviction for indecent exposure had he staged the Dick Smart segment in a traditional public square. He becomes entitled to no greater First Amendment protection and cannot inoculate himself from criminal liability by channeling his exposure through a cable television network.

People v. Huffman, Michigan Court of Appeals (May 10, 2005)

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