Brown v. EMA and the obscenity double standard

July 8, 2011

Here's something that doesn't
happen everyday: Commonweal contributor
and Notre Dame professor Cathleen Kaveny agrees
with outspoken conservative Charles Chaput, the Catholic archbishop of Denver.

The subject is violence in
video games, specifically the recent Supreme Court decision striking down--on First Amendment
grounds--California's ban on selling or renting violent games to minors. Chaput
Justice Clarence Thomas's dissenting opinion, and he argues persuasively that
"when we too readily stretch an individual's right to free speech to include a
corporation's right to sell violence to minors, we collude in poisoning our own

Kaveny concurs
and offers
some thoughtful questions. Later in the comment
thread--always a lively place over at dotCommonweal--she adds this: "I've never
been sure why some Catholic conservatives I know--friends of mine--are way more
worried about sex in movies than violence." Kaveny commends Chaput for
"worrying about violence, as well as sex."

Chaput doesn't mention that
Scalia, himself a conservative Catholic, explicitly defends the sex/violence double standard
in his majority opinion: "The obscenity exception to the First Amendment does
not cover whatever a legislature finds shocking"--e.g., a gory depiction of a
woman being eviscerated by two men--"but only depictions of 'sexual conduct.'"

I found Jean Raber's response
to Kaveny's comment interesting:

A conservative friend gave me an answer worth thinking
about: Not everybody has the urge to be violent, ergo fewer people are
influenced by violent images. Very few people, particularly kids with hormones
a-ragin', don't want to have sex. Hence the sexual images and situations they
see might be used to rationalize their own desires.

Yes, that's worth thinking about, but it's not a bit
persuasive. As another commenter adds, Freudian thought troubles the assertion
that "not everybody has the urge to be violent." But the more fundamental issue
is the staggering false parallel. Perhaps sexual desire is more common than
violent urges, and perhaps media images depicting the two function in different
ways. But it's telling that the argument starts from the assumption that both
impulses are bad, even equally so.

The Court's decision implies that sex and violence aren't
equal: sex is worse. Good for Chaput for taking Scalia and the majority to


Steve's Big Leap

"But it's telling that the argument starts from the assumption that both impulses are bad, even equally so."

No, the argument starts from the fact that there is precedent for an obscenity exception to the first amendment. Scalia's job is to interpret the constitution and legal precedent, and he makes it clear that the decision rests on that responsibility.

Sex (in the right context) is good. Violence is bad. Watching depictions of others having sex is bad. Watching depictions of violence is not good, but it is not officially obscene.

"The argument" is referring

"The argument" is referring to the anecdote about a particular citizen's moral reasoning, not to Scalia's legal argument. Perhaps I could have made that clearer. I'm interested in the moral implications of the legal precedent, not just the fact of its existence.

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