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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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May 13, 2005

Michigan Court of Appeals Returns to 1950s in Free Speech Ruling

Posted by Ernest Miller

The Michigan Court of Appeals has declared that nudity on television, even during the safe harbor period, is a violation of Michigan law prohibiting indecent exposure and such laws do not violate the First Amendment. Detroit Free Press article: Joke-telling Genitals Don't Get Free-Speech Protection. Read the 10-page opinion here: People v. Timothy Bruce Huffman [PDF]. Perhaps one of the major cable casters could consider supporting a further appeal, else they may also end up facing prosecution in Michigan.

One segment of the defendant's public access cable show (cable, not broadcast), "included a three minute segment in which a flaccid penis and testicles marked with facial features was the only object within camera range. During this segment, a voice-over was heard identifying the penis character as “Dick Smart” and providing purportedly humorous commentary as if on behalf of the character. Only Dick Smart was shown on the videotape; the rest of the body that would otherwise be visible was shrouded with a cloth." The jokes were weak, the humor non-existent, sort of like Saturday Night Live, only with a visible penis.

Unfortunately, the court decision isn't particularly funny, either. This is a serious attack on the First Amendment.

Indecent Exposure on TV - "Powerfully Effective"

First, the court determines that the "Open or Indecent Exposure" statute applies to television images:

At issue here is whether televising an image of a naked penis is an “open or indecent exposure” under the language of the statute. Defendant argues that “the application of this statute or, indeed, any indecent exposure statute, to television or film images is unprecedented.” While that may well be the case, defendant points to no authority holding that the language of this statute, or any similar statute, does not encompass televised images.
Presumably, there is no authority regarding application of the statute to still images, film, DVD, videogames or any other form of image. Is there any particular reason why this statute could not be applied to any and all media? Why even bother with obscenity law when you can simply ban all displays of public nudity?
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 on Calder Plaza or in some other public square.
Can you imagine? Having to watch a whole 3-minutes of "Dick Smart," frozen in place, unable to turn the channel, entranced by the larger-than-life-size image of a flaccid penis with facial features. Can you imagine the power of a print publication? Why, you could be forced to stare for hours at a photo of a flaccid penis.
There is no doubt that defendant should have, or, in fact, did, expect someone would observe the Dick Smart segment and be offended by it. Like the courts below, we see no reason to read into the statute a limitation that would prevent its application to defendant’s televised and, therefore, powerfully effective exposure. We hold that the statute was properly applied to encompass an “open or indecent exposure” in the form of a televised image. [citation omitted]
"[P]owerfully effective exposure"? Gee, that television is a dangerous beast. Can you imagine how powerfully dangerous the internet might be?

Locus of Crime is Where Broadcast Takes Place

The defendant argued that there was no evidence as to where he filmed his show. He could have filmed outside Michigan for all anyone knew. That line of argument failed (perhaps out of state creators of films with nudity should take note):

Defendant’s argument concentrates on the lack of evidence regarding the place where the Dick Smart film was taped. However, that taping did not constitute the “exposure” for which defendant was charged under the statute; no one allegedly observed the taping or took offense because of it. Instead, the exposure offense occurred when defendant arranged for the tape’s delivery to GRTV, in Grand Rapids, for the purpose of having it distributed by cable network into thousands of homes, many of which are located in Grand Rapids. We reject defendant’s argument in this regard.
Does the First Amendment Protect? Nope.

The court relies heavily on US v. O'Brien, the draft card buring case that stands for the proposition that the government can regulate conduct (such as burning a draft card) even though it might have some impact on symbolic speech. This court writes:

The Court held that “a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms” applicable to the speech elements.
The Michigan court also relies on Barnes v. Glen Theatre, which upheld a statute barring all public nudity (and thus requiring nude dancers to wear pasties and g-strings).
With respect to the first two parts of the O’Brien analysis, the Barnes plurality held that “[t]he public indecency statute is clearly within the constitutional power of the State and furthers substantial governmental interests.” The justices noted that “the statute’s purpose of protecting societal order and morality is clear” and that “[p]ublic indecency statutes of this sort are of ancient origin and presently exist in at least 47 States.” Further, “[p]ublic indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places.” “This and other public indecency statutes were designed to protect morals and public order. The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation.” [citations omitted]
Interestingly, however, the Supreme Court wasn't applying this reasoning to media of any sort, but actual, physical nude dancing. Why didn't anyone ever notice before that these statutes could be used to ban books and films with nudity? Heck, why all this discussion of the FCC's right to regulate indecency on television? Just pass a federal statute banning public nudity and *poof* all First Amendment questions go away with regard to Miss Jackson's wardrobe malfunction.
Similarly, the “perceived evil” that Michigan seeks to address through its indecent exposure statute is not the communication of some message associated with indecent exposure; it is the indecent exposure itself. In other words, defendant’s 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. Thus, Michigan’s indecent exposure statute does not prevent the conveyance of any message. It merely requires that messages must be conveyed within minimal bounds of proscribed conduct having nothing to do with expression.
Yep, no effect on free speech. So, that tastefully artful nude photograph ... be sure to add a fig leaf, no problem.

The court then goes on to analyze a later nude dancing ruling, City of Erie v. Pap's A.M., that considered a law that banned public nudity for purposes of preventing "secondary effects."

Defendant here argues that such “harmful secondary effects” are necessary to justify Michigan’s public indecency statute but we do not conclude that Erie stands for this proposition. The prevention of such “secondary effects” is certainly sufficient to satisfy the second part of the O’Brien test, but nothing in Erie suggests that it is necessary. No such secondary effects were considered in Barnes; the plurality found sufficient governmental interest merely on the basis that preventing public nudity promotes public morality.
Ooooooo-kay. We don't need no reason to ban nudie media ... it's immoral!

Perhaps We Might Look at Other Regulations of Television


Defendant seeks to avoid the analysis of O’Brien, Barnes, and Erie by arguing that we should look to precedents involving regulations of cable television programmers, citing especially Denver Area Ed Telecom Consortium, Inc v Fed Communications Comm, 518 US 727; 116 S Ct 2374; 135 L Ed 2d 888 (1996) and United States v Playboy Entertainment Group, 529 US 803, 120 S Ct 1878; 146 L Ed 2d 865 (2000). However, as the plurality opinion in Erie expressly stated: “[w]e now clarify that government restrictions on public nudity such as the ordinance at issue here should be evaluated under the framework set forth in O’Brien for content-neutral restrictions on symbolic speech.” Erie, supra at 289. In his separate opinion, Justice Souter specifically agreed with that conclusion, id. at 310, (Souter, J., concurring in part and dissenting in part). Thus, a majority of the Supreme Court held that cases like that before us now, involving content-neutral restrictions on expressive conduct which constitutes symbolic speech, must be tested under the O’Brien analysis. Cases like Denver and Playboy, which involve content-specific restrictions on speech itself, are simply inapposite to the question presented on this appeal.
Don't confuse us with arguments that this is regulation of media ... it is public nudity no matter where it happens. But wait, it gets better.
Further, our Supreme Court has noted that, of all forms of communication, it is broadcasting that has “the most limited First Amendment protection.” Fed Communications Comm v Pacifica Foundation, 438 US 726, 748; 98 S Ct 3026; 57 L Ed 2d 1073 (1978). The Court so reasoned, in part, because “the broadcast media have established a uniquely pervasive presence in the lives of all Americans,” meaning that “[p]atently offensive, indecent material . . . confronts the citizen, not only in public, but also in the privacy of the home,” generally without sufficient prior warning to allow the recipient to avoid it. Id. This same reasoning applies to cable television broadcasting. Denver, supra at 744. Under O’Brien and its progeny, defendant 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.
Thank you, US Supreme Court. Thank you for encouraging the other courts to strip First Amendment protections from broadcast. We don't have to worry about the FCC regulating indecency on cable. Michigan has already banned all nudity on cable, and no worries about the First Amendment.


via The Legal Reader

Comments (2) + TrackBacks (0) | Category: Freedom of Expression


1. SFix on May 13, 2005 04:08 PM writes...


With this ruling, the defendant could be charged with a separate count of indecent exposure for every television that was tuned to the show.

I guess it is time for the Fahrenheit 451 "Firemen" to start rounding up all books and magazines contenting nudity, as they are all clearly illegal. Oh, and it is time to arrest all people involved with R Rated movies that contain nudity.

This judge is whacked and paid no attention to the unprecedented (literally) nature of his ruling and to the subsequent consequences.

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2. F.T. McKinty on May 14, 2005 07:10 AM writes...

Free speech gets a big boost in the important Calif Supreme Court case Varian v. Delfino:

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