Posted by Eugene Volokh:
It's a Crime for Cable Companies to Offer HBO in Michigan,
http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1116872582
and HBO executives are themselves criminals; many actors probably are,
too.
Pretty strange, but that's the law, unless [1]a Michigan Court of
Appeals decision handed down last week is overturned. Here's why.
Timothy Huffman produced a TV show for a Grand Rapids public access
cable channel; the show included a comedy routine (or perhaps an
attempt at a comedy routine) in which the "star" was a "flaccid penis
and testicles marked with facial features." Huffman was then
prosecuted -- but not for obscenity, since there's no reason to think
the presentation was in any way erotic (which is generally a
requirement for obscenity prosecutions; not all erotic material is
unprotected obscenity, but to be unprotected obscenity material must
be erotic).
Rather, he was prosecuted for public nudity, under a statute that
outlaws "knowingly mak[ing] any open or indecent exposure of [one's]
person or of the person of another." This statute, the court
concluded, covered not just physically appearing naked in public, but
also "televising" such a naked image, so long as one has reason to
"expect someone [to] observe the [material] and be offended by it."
And the court held that there's no First Amendment problem with it --
the court reasoned that state law is allowed to bar the conduct of
public nudity, and in the process also cover televised nudity as well
as in-person nudity:
[D]efendant would have been properly subject to conviction for
indecent exposure had he staged the . . . 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.
This, it seems to me, would apply equally to any cable company that
carries HBO, or any other channel that sometimes carries nudity. Under
the court's logic, the company -- corporations are generally treated
as "persons" -- and those working for it are making "open or indecent
exposure . . . of the person of another." Likewise, HBO executives,
who surely must know that their material would be carried in Michigan,
would probably be committing a crime. And it seems to me that the
actors who are openly exposing their bodies, doubtless knowing that
the material will one day be seen on cable in Michigan, would be
criminals, too. (I suspect Michigan courts would have jurisdiction
over such offenses, especially if the HBO executives or the actors one
day set foot in Michigan; but they certainly have jurisdiction over
the local cable company that chooses to carry HBO.)
It's not clear whether the Michigan statute applies to exposure of the
female breast or only to exposure of the genitalia, but in either case
any cable channel that has carried an unedited Basic Instinct would
surely be covered. Moreover, under the logic of the court's opinion,
the Michigan legislature could easily amend the statute to make clear
that it does cover exposure of women's breasts, and the law would be
perfectly constitutionally applicable to women's breasts shown on
cable.
What possible defenses could the HBO people raise? They couldn't
distinguish themselves from Huffman on the grounds that their movies
have more artistic value -- serious artistic value is a defense to an
obscenity charge, but not to an indecent exposure charge.
Of course, HBO is a premium service, and people usually deliberately
buy it. Most subscribers probably won't be offended if they're
channel-surfing and hit an HBO channel that contains nudity. But most
viewers probably weren't offended by Huffman's program; and the test
is whether the defendant could reasonably "expect [that] someone would
observe the . . . segment and be offended by it" (italics added).
That surely applies to HBO: A hotel guest who's unaware that HBO is
available and who accidentally runs across a nude scene may well be
offended. Likewise with a guest (or a visiting family member) who
doesn't realize that his hosts have HBO. Surely the HBO people must
know that someone would be offended by nudity on HBO programs. And if
some channels that carry unedited Basic Instinct are parts of basic
cable, then they would even more clearly be likely to offend someone
on some occasion.
I suspect the same may apply to video stores that rent movies
containing nudity, or bookstores that sell books that contain nudity
-- no matter how educational or unpornographic (remember that the law
applies to all nudity that may offend someone, with no requirements of
sexual explicitness or lack of serious value) -- at least if the
movies or books don't have prominent labels saying "Warning: This
material contains nudity." But cable companies, which really are (as a
legal matter) no different from Mr. Huffman, are the clearest example.
As you might gather, I think this is a bad decision, and I hope it
will be promptly reversed. The [2]Supreme Court has made clear that
material doesn't lose constitutional protection merely because it
contains nudity that might offend someone. And I think this is
correct; if you don't like what you see, a click of the remote control
-- coupled with remembering what channels tend to carry such material,
so you can avoid it in the future -- will solve the problem for you.
Nor am I much worried about children here; whatever harm may flow from
children being exposed to sexually themed material, let me stress
again that the law as interpreted by the court isn't limited to the
erotic.
It turns out that there are interesting conceptual questions about how
First Amendment law should treat nudity, and about what distinctions
there may be between live nudity and televised (or for that matter
painted or computer generated) nudity. Nonetheless, I don't think a
court needs to be detained by these theoretical issues here; the First
Amendment precedents are pretty clear, and they're in Huffman's favor.
References
1. http://www.michbar.org/opinions/appeals/2005/051005/27246.pdf
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=422&invol=205
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