and HBO executives are themselves criminals; many actors probably are, too.
Pretty strange, but that’s the law, unless 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 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.
UPDATE: Here’s one item I forgot to mention. The Michigan court’s constitutional reasoning was two-fold: (A) Bans on public nudity are constitutional conduct restrictions, because of the government’s interest in banning such immoral conduct; for this the court relied on Barnes v. Glen Theatre, which upheld an Indiana ban on public nudity, as applied to nude dancing in a strip club. (B) Bans on public nudity may constitutionally extend to video (and presumably still photographic) distributions of nudity to the public, and not just to live nudity. Then, as a statutory matter, the court held that (C) the Michigan statute indeed extended to video nudity, (D) so long as the nudity was offensive to some viewers.
But Barnes upheld a law that barred public nudity even when no viewers were likely to be offended. (Recall that Barnes involved nude dancing at a strip club, where the audience is typically eager to see nudity, rather than reluctant to do so.) As it happens, the Michigan law was narrower than the Indiana law (that’s item D in the above paragraph); but it doesn’t have to be. A state legislature could well enact a law that, like Indiana’s law, bars public nudity even when it doesn’t offend any viewers.
Then element D would be absent, but the Michigan court’s constitutional logic would still hold. And then (assuming this slight change in the Michigan statute) distribution of material that depicts nudity would be outlawed in Michigan even if it’s distributed to entirely willing consumers. So it would be a crime in Michigan not just to sell Playboy, but to rent any video, sell any art book, or distribute anything else that depicts nudity — after all, public nudity may constitutionally be banned, and video or photographic nudity is the same as in-person nudity. Thus, under the Michigan court’s logic, all distribution to the public of material that depicts nudity, no matter how artistically, scientifically, or educationally valuable, would be constitutionally unprotected (again, so long as the Michigan legislature enacts an Indiana-like ban on public nudity). That further shows, I think, that the Michigan court’s reasoning is unsound, and inconsistent with the Supreme Court’s First Amendment precedents.
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