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The Bush Administration, Sex and the Moral Agenda$

Edward Ashbee

Print publication date: 2007

Print ISBN-13: 9780719072765

Published to Manchester Scholarship Online: July 2012

DOI: 10.7228/manchester/9780719072765.001.0001

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Obscenity and indecency

Obscenity and indecency

Chapter:
(p.137) 5 Obscenity and indecency
Source:
The Bush Administration, Sex and the Moral Agenda
Author(s):

Ashbee Edward

Publisher:
Manchester University Press
DOI:10.7228/manchester/9780719072765.003.0006

Abstract and Keywords

This chapter discusses the policies of George W. Bush against indecency and obscenity. It explains the impact of the appointment of John Ashcroft as Attorney-General on these policies, and cites data indicating that the application of the law and the pursuit of the pornography industry appear to have had widespread backing that extended well beyond the ranks of the Christian right. The chapter suggests that the vigour with which the indecency issue was pursued by the administration and many Congressional Republicans, and the lack of action against obscenity, are tied together. It also discusses the administration's focus on television and radio indecency to compensate for their inability to curb obscenity in any sustained way.

Keywords:   George W. Bush, indecency, obscenity, John Ashcroft, Attorney-General, Christian right, pornography industry, television indecency, radio indecency

The nomination of former Missouri governor and Senator, John Ashcroft, as Attorney-General on 22 December 2000 led to celebrations among the groups associated with the Christian right. There were few doubts about Ashcroft’s faith or his politics. Andrea Lafferty, executive director of the Traditional Values Coalition, backed his confirmation in forthright terms:

John Ashcroft is a man of high integrity and respect for the rule of law … I join today with the representatives of millions of women who believe that John Ashcroft will be an excellent and honorable Attorney General. He has our support and our prayers as he faces confirmation next week.1

The hostility that Ashcroft’s nomination provoked among many Democrats and within the women’s and gay movements served only to bolster his standing among those on the right. Ashcroft’s views, his critics charged, placed him outside the American mainstream. The Senate Judiciary Committee backed confirmation but the vote (10 to 8) was almost entirely on along party lines.2 There was even some talk of a filibuster to prevent a vote being taken on the Senate floor although it came to nothing.3

Both his supporters and detractors saw Ashcroft as a bulwark of cultural conservatism within the administration. There was a widely shared expectation that the Department of Justice would, under his direction, confront the seemingly exponential growth of the pornography industry. This did not require legislation but the simple enforcement of existing statutes. Alongside the prohibition of child pornography, federal law includes provisions that make it an offence to mail, sell or transport obscene matter that ‘has been shipped or transported in interstate or foreign commerce’ or to possess it with intent to mail, sell or transport it.4 Alongside these direct restrictions, there are often other, albeit more indirect, charges that can be brought. The (p.138) making and distribution of hardcore pornography has long had ties with organised crime, as the history of Deep Throat, the first hardcore film to acquire a quasi-mainstream status, illustrates, thereby facilitating prosecution even when obscenity cannot be established. The RICO (Racketeer Influenced and Corrupt Organizations) Act permits seizures of assets including property, vehicles and bank accounts. Furthermore, alongside federal statutes, forty-three of the states as well as local jurisdictions have laws prohibiting obscenity. Although, for the most part, state laws reproduce federal statutes (while omitting the interstate commerce provisions), some states have gone further. In Alabama, Mississippi and some other states, laws also prohibit the advertising, sale or exhibition of ‘any three-dimensional device designed or marketed as useful primarily for the stimulation of human genital organs’.5 In Utah, the legislature created an Obscenity and Pornography Complaints Ombudsman so as ‘to assist citizens and local government with their concerns about obscenity and pornography in their communities’.6

The application of the law and the pursuit of the pornography industry appear to have widespread backing that extends well beyond the ranks of the Christian right. According to a March 2002 study, 81 per cent of the public believe federal laws against internet obscenity should be vigorously enforced.7

Campaigning against porn

What arguments were put forward by those seeking restriction? Firstly, campaigners assert, pornography encourages promiscuity that, in turn, contributes to family breakdown. Although the 1986 Final Report of the Attorney-General Commission on Pornography backed away from asserting that there was a causal link between pornography and family breakdown, it concluded:

it is far from implausible to hypothesise that materials depicting sexual activity without marriage, love, commitment, or affection bear some causal relationship to sexual activity without marriage love, commitment, or affection.8

Secondly pornography is an addiction. As such, it undermines the individual integrity of users, breaks relationships, and there is a process of progression as users seek ever ‘harder’ forms of material. Daniel Weiss from Focus on the Family has cited estimates that between 3 and 6 per cent of Americans can be regarded as pornography addicts.9 In November 2004, the Senate Committee on Commerce, Science and Transportation held hearings to study the subject. Witnesses such as (p.139) Mary Anne Layden of the University of Pennsylvania drew a direct comparison with drug abuse:

Research indicates that even non-sex addicts will show brain reactions on PET scans while viewing pornography similar to cocaine addicts looking at images of people taking cocaine. This material is potent, addictive and permanently implanted in the brain.10

Evangelical organisations such as Pure Life Ministries in Kentucky and Setting Captives Free seek to work with those who are making efforts to break their addiction.

Thirdly, although the Meese Commission (as the Attorney-General’s Commission is often known), couched some of its findings in cautious terms, and divided pornography between different categories, its conclusions included the claim that some forms of ‘hardcore’ pornography contributed to sexual violence:

the available evidence strongly supports the hypothesis that substantial exposure to sexually violent materials … bears a causal relationship to antisocial acts of sexual violence and, for some subgroups, possibly to unlawful acts of sexual violence.11

Anti-pornography campaigners often cite the Meese Commission’s findings but also set much store by the interview that the convicted mass murderer, Ted Bundy, gave to Dr James Dobson of Focus on the Family, just hours before his execution. Bundy attributed his actions, at least in part, to his early usage of pornographic materials.

Fourthly, many of the women who participate in the making of pornographic films are coerced. Years after the film was made, Linda Marchiano testified that she had been held at gunpoint when performing in Deep Throat. Anti-pornography campaigners also draw on other surveys. A 1979 study of Phoenix, Arizona, has been widely cited. It:

found that neighborhoods with a pornography business experienced 40 per cent more property crime and 500 per cent more sexual offenses than similar neighborhoods without a pornography outlet. Michigan state police detective Darrell Pope found that of the 38,000 sexual assault cases in Michigan (1956–1979), in 41 per cent of the cases pornographic material was viewed just prior to or during the crime.12

Campaigners have also drawn upon a more recent survey. In 1993 Murray Strauss and Larry Baron reported that rape rates were at their highest in states that had high sales of sex magazines and relatively lax enforcement of pornography laws.13 This is an argument that has also won backing from sections of the women’s movement. From the 1970s onwards, radical feminists such as Andrea Dworkin, Susan (p.140) Brownmiller and Catharine MacKinnon attacked pornography’s abuse and degradation of women which, they asserted, contributed to rape and other forms of sexual violence. Pornography was a breach of a woman’s civil rights.

Lastly, campaigners believe that the overall moral character of society is a legitimate consideration in the making of public policy. Neoconservatives, the Christian right and some Democrats – most notably Senator Joseph Lieberman, the Democrats’ vice-presidential nominee in 2000 -have come together in arguing that the powers of government can be used to build, in William Bennett’s phrase, an ‘architecture of the soul’.14

Prosecutions

While the prosecutions that had begun during the Reagan / Bush years (1981–93) were continued during Clinton’s first term, federal prosecutions had fallen away and were all but abandoned by the beginning of Clinton’s second term in office (see Table 5.1). This was a conscious policy decision. In a later interview, former Attorney General Janet Reno said that she felt that national security and violence were more pressing issues.15 At the same time, however, there appears to have been a degree of self-censorship by the sex industry. While ‘hardcore’ pornography became widely available, most producers and distributors kept a distance from particular themes such as simulated rape, implied incest, and even hints of pedophilia that, despite the course set by Reno, might have invited prosecution.16

Table 5.1 Federal obscenity prosecutions, 1992–2001

Fiscal year

Prosecutions

Convictions

1992

42

25

1993

32

20

1994

27

26

1995

21

14

1996

19

21

1997

6

6

1998

8

7

1999

7

4

2000

7

4

2001

7

5

Source: Adapted from Patrick McGrath, The On-Line Obscenity Problem – An Overview, obscenitycrimes.org (n.d.), www.obscenitycrimes.org/pornproblem.cfm.

(p.141) Disappointment

Many activists associated with the Christian right believed that the policy of inaction that had characterised the Department of Justice’s approach to obscenity issues during much of Bill Clinton’s period of office, would be quickly reversed once John Ashcroft had taken office. The ‘adult’ industry believed much the same thing and began to look at the need to consider more restrictive forms of self-regulation. At the beginning of 2001, Paul Cambria, a lawyer with long experience in the field, drew up what became known as the ‘Cambria List’. It detailed sexual activities that should not be included in visual depictions and seemed to preclude most ‘hardcore’ content. However, there is little evidence that the list’s provisions constrained or inhibited the character of subsequent productions.17

Some steps were taken during Ashcroft’s tenure at the Justice Department. The Department conducted annual ‘Investigating and Prosecuting an Obscenity Case’ symposiums to guide federal law enforcement agents and federal prosecutors on the handling of cases. In January 2004, the CAN-SPAM Act addressed the problem of unsolicited commercial email, much of which had a pornographic character. In the same month, Bruce Taylor, widely regarded as a very experienced prosecutor and a committed ‘porn fighter’ who had pursued Hustler publisher Larry Flynt during the early 1980s and served as a Department of Justice Special Attorney from 1989 to 1994, was appointed as Senior Counsel to the Assistant Attorney General for the Criminal Division.18 Before his appointment, Taylor had suggested that it was time to bring prosecutions against consumers as well as producers and distributors: ‘maybe a wife or a girlfriend could find this stuff on a guy’s computer and turn it into the cops’.19 Six months later, in June 2004, the Department announced that it was bringing forward revised regulations for the enforcement of Section 2257, the section of the criminal code that came into force in the mid-1990s and imposes record-keeping obligations on the producers of explicit material. The revised regulations established an inspection regime (which can be carried out from 8 a.m. to 6 p.m., 365 days per year), and required ‘secondary producers’ who host websites to keep records on participants even if the material that is carried was created by other companies. The revised rules followed a report from Attorney General John Ashcroft to the House Judiciary Committee in June 2004.20

Nonetheless, despite these steps, most of the Christian right’s hopes and many of the sex industry’s fears had been dissipated by the end of President Bush’s first term. Although Ashcroft garnered personal praise (p.142) when he left office, the comments about his record in confronting pornography were either guarded or critical. As The Washington Times noted:

But today, as Mr Ashcroft prepares to vacate the highest law enforcement office in the land, anti-porn advocates are deeply disappointed with the Bush administration’s record – under Mr Ashcroft’s guidance – for pursuing peddlers of smut.21

Patrick A. Trueman, who headed the Justice Department’s Child Exploitation and Obscenity Section (CEOS) under both Reagan and George H. W. Bush and joined Family Research Council in 2003 as Senior Legal Counsel was openly critical. In his words, President Bush had ‘a worse record in his first term than Clinton had’.22 By the end of 2004, the Washington Times noted, just 37 obscenity convictions had been secured.23 However, even this statement should be qualified. The first of the convictions was only obtained in December 2002 and, according to Paul Cambria, the Department of Justice had recorded prosecutions of obscene material together with child pornography and depictions of ‘fringe’ themes:

When you track down their convictions, most of them are pleas to child porn. Some of them have to do with extreme types of adult entertainment: bestiality, or really hard-core depictions of rape or situations like that… That is not mainstream product. I have not seen any mainstream adult products prosecuted.24

When, some months later, CEOS published its figures covering the period from 2001 to the beginning of February 2005, it reported that it had obtained convictions in 11 obscenity prosecutions involving adult obscenity, had pending indictments in 5 cases, and was then handling about 15 active investigations.25

There were other disappointments with Ashcroft’s record. Instead of making appointments drawn from the ranks of those most committed to the fight against obscenity, he had promoted Andrew Oosterbaan who had served as deputy in the Justice Department’s Child Exploitation and Obscenity Section (CEOS) under Janet Reno to head CEOS. Furthermore, as a June 2004 report from Attorney General John Ashcroft to the House Judiciary Committee revealed, there had been no inspections at all since Section 2257, requiring the keeping of records so as to ensure that participants are not under-age, had been enacted in the mid-1990s.26

For many anti-pornography campaigners, there seemed to be a marked contrast between the policies adopted in 2001–05 and those pursued during the Reagan and George H. W. Bush administrations. In (p.143) the years between 1981 and 1993, prosecutions had been intensified. Initiatives such as ‘Project Postporn’, which was directed towards major mail order distributors and the ‘Los Angeles Project’, brought together different law enforcement officials and led to the conviction of about twenty companies. The Meese Commission on Pornography, which reported in July 1986, highlighted the issue and sought to shift opinion away from laissez-faire attitudes. Although its initial enforcement was delayed by a series of lawsuits, the 1988 Child Protection and Obscenity Enforcement Act established internet child pornography as a federal offence and, through 18 USC Section 2257, required pornography producers to secure proof of a performer’s age and maintain records. It was passed partly because of the momentum established by the Meese Commission and in the wake of the Traci Lords affair. Lords became one of the industry’s ‘stars’ until it was revealed that she had been underage when many of her films had been made.

Lack of zeal

As the administration’s seeming lack of zeal became more evident, campaigners adopted increasingly open and visible forms of lobbying. In autumn 2002, the Reverend Don Wildmon of the American Family Association used blunt terms in a message directed towards the Justice Department:

Yet to date there have been no prosecutions for Internet obscenity or, for that matter, any efforts that we can discern against the major violators of obscenity laws in this nation … We feel we deserve to know why obscenity prosecutions have not begun, when they will, and what we may expect from your efforts.27

In May 2003, Concerned Women for America established a national campaign to contact CEOS and US district attorneys across the country calling for a response to the 22,697 obscenity complaints that were lodged, primarily through a dedicated website established by Morality in Media, between June 2002 and May 2003.28

Anti-pornography campaigners also called for action against the corporations that had, through partnership arrangements, established ties with the sex industry. They pointed to the cable networks, broadband television companies, and hotels that carried ‘adult’ programming:

If the Justice Department targeted some of the mainstream companies, the case probably wouldn’t even get to the point of going to trial. For example, if a grand jury began to investigate Marriott’s supplier of illegal porn and Marriott received a subpoena for all their records on this, Marriott (p.144) would likely come in and want to know how to get out of a potential prosecution. I believe a settlement could be reached quickly that would result in Marriott removing pornography.29

They backed this with direct action and secured some successes. Consumer boycotts and the judicious use of negative publicity curbed or ended some of the commercial liaisons between corporations and ‘adult’ providers. A number of video rental stores cut back on the forms of material that they held in stock. Just after Ashcroft left office, in early 2005, Adelphia Communications Corporation, the fifth largest cable company, dropped a plan to offer hard-core programming supplied by Playboy Enterprises after American Family Association supporters publicised Adelphia’s intentions and sent over 130,000 emails to the newly appointed Attorney General, Alberto Gonzales, asking that he begin obscenity investigations.30

The anxieties and concerns of the campaigners were shared in Congress, particularly among the most committed social conservatives. In November 2003, the Senate agreed to a resolution:

Whereas it continues to be the desire of the People of the United States of America and their representatives in Congress to recognise and protect the governmental interests recognised as legitimate by the United States Supreme Court… That it is the sense of Congress that the Federal obscenity laws should be vigorously enforced throughout the United States.31

The issue was kept on the Congressional agenda. In March, Senator Jeff Sessions of Alabama added a sentence to the Senate budget bill for fiscal year 2004.

It is the sense of the Senate that of the funds appropriated in Function 750 of the Budget Resolution for the Department of Justice, there will be provided adequate funding in the relevant appropriating committee in Fiscal Year 2004 for the purpose of vigorously enforcing the Federal obscenity laws throughout the United States.32

There were other initiatives. Some Republicans, particularly those who were members of the Values Action Team, joined forces with Concerned Women for America and its allied organisations in observing and promoting Victims of Pornography Month in May of each year. The month of activities customarily incorporated a ‘summit’ on Capitol Hill with members of Congress and expert witnesses. The 2005 summit’s sponsors included Concerned Women for America and the Beverly LaHaye Institute with which it is associated, the American Decency Association, Citizens for Community Values, Center for Reclaiming America, Enough is Enough, Focus on the Family, Kids First Coalition, (p.145) Morality in Media, National Law Center for Children and Families and the Salvation Army.33

Some members of Congress not only sought the enforcement of the law but the broadening of its scope. In 2005, for example, Republican Congressman Mike Pence of Indiana sought to extend the application of Section 2257 which imposes record-keeping obligations on those who produce material that depicts ‘actual sexually explicit conduct’ by deleting the word ‘actual’. All forms of simulated sexual activity (and therefore ‘softcore’ pornography) would therefore be subject to regulation. Alongside this, in a clause that might also be subject to judicial review were it to reach the statute book, the bill would prohibit the production of obscenity as well as the interstate transportation of it.34

Reasons

Why did the administration fail to initiate more prosecutions? Why did it open itself up to criticism from Christian conservatives and the ‘pro-family’ movement? Self-evidently, the Department of Justice had other priorities after the September 11 attacks although, for their part, Christian right campaigners sought to argue that that the pursuit of obscenity cases would add to, rather than distract from, the fight against terrorism. Investigations of internet chatrooms – a forum used by the hijackers – could, they asserted, yield intelligence about terrorist activity as well as information about pornographers and pedophiles. Concerned Women for America added a further point. A clampdown on pornography might send a signal to those whose assistance the US was seeking in the war on terror: ‘fighting porn would show good will to Muslim nations … They currently see us as pouring moral garbage into their countries’.35

The Department of Justice also faced, as some campaigners acknowledged, organizational and administrative difficulties. After the ‘neglect’ of the Reno era, the rebuilding of teams and initiation of investigations required a period of time. Resources were limited and the federal government had to concentrate its efforts, as it had during the Reno years, on child pornography. It was a straightforward question of opportunity cost. As Frederick Schauer from the John F. Kennedy School of Government at Harvard University told the Constitution, Civil Rights, and Property Rights subcommittee of the Senate Judiciary Committee in March 2005:

there remain questions about the appropriate allocation of scarce prosecutorial resources. Because the production of child pornography by definition involves the abuse of real children, and because dealing with (p.146) such child abuse should remain at the highest level of priority, there is a risk that increasing the quantity of obscenity prosecutions in a world of limited prosecutorial resources – both financial and human – will be at the expense of child pornography prosecutions … Every dollar spent on an obscenity prosecution is a dollar not spent on child pornography prosecution, and only under circumstances in which it can be said that no more can be done about child pornography would this tradeoff fail to exist.36

The US Supreme Court and the Millertest

Although these factors undoubtedly played a part, other considerations may be more important. The administration secured some legal victories, including United States v. American Library Association (2003), which upheld the Children’s Internet Protection Act requiring schools and libraries to install filtering software on public internet terminals as a condition for receiving federal technology funds. There was, nonetheless, legitimate uncertainty about the attitudes that would be taken by the federal courts and a fear that even the most carefully crafted of cases could well be lost. This was because the definition of obscenity around which federal and state law is structured created significant legal dilemmas.

From 1973 onwards, ‘obscenity’ rested upon the US Supreme Court’s ruling in Miller v. California. It established a three-part test so as to determine what was, or was not, obscene. Firstly, a court had to determine whether the ‘average person’, applying ‘contemporary community standards’, would feel that a particular work ‘appeals to the prurient interest’. Put another way, it would consider the extent to which the work caused ‘lascivious or lustful thoughts’. Secondly, to be obscene, a work had to breach a narrowly worded statute. In other words, the work ‘depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law’. In writing the majority opinion, Chief Justice Warren Burger gave examples of the forms of regulation that could be adopted by states. These might prohibit: ‘(a) patently offensive representatives or descriptions of ultimate sexual acts, normal or perverted, actual or simulated or (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of genitals’.37 Thirdly, a court had to assess whether the work, in its entirety ‘lacks serious literary, artistic, political or scientific value’.

At the time the ruling was made, Miller was seen as a setback for the pornography industry. The third form of test – that a work had to lack ‘serious… value’ – was rather less broad-ranging than that adopted in a 1962 ruling which had based the standard, more loosely, on a work (p.147) being ‘utterly without redeeming social value’.38 Furthermore, because ‘community’ upon which the Miller ruling rested was defined in local terms, it opened the way for prosecutions in the more traditionalist areas. Producers and distributors could have no clear or precise idea of the limits that they should observe. As Scot Powe from the University of Texas put it: ‘the standards are whatever 12 jurors bring to bear’.39

Despite this, it became clear, with the passage of time, that the uncertainties associated with the Miller test also posed difficulties for prosecutors. They became increasingly uncertain about the likelihood of a conviction and by the late 1980s, anti-pornography campaigners began to support the adoption of a ‘per se’ approach based on specific criteria such as clearly visible penetration.40 For their part, however, the courts were nonetheless reluctant to embrace a different or more rigorous definition of obscenity.

Although the Miller test was maintained, the concept of ‘community’, one of the three prongs upon which it rested, posed increasing difficulties. In making the ruling, Chief Justice Warren E. Burger had emphasised that ‘community’ was to be defined locally and that the notion of ‘national’ standards was unacceptable:

Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable ‘national standards’ when attempting to determine whether certain materials are obscene … It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City.41

In the era of local distribution and sales, this was straightforward. However, the emergence of mail-order companies supplying a nationwide market comprising many different communities and, to a much greater extent, the development of the internet, raised legal dilemmas. At first, the federal courts seemed reluctant to accept that the changing character of the pornography industry required a revision of the Miller test. In United States v. Thomas (1996), the 6th Circuit Court of Appeals considered the case of a California couple, who operated a bulletin board allowing members to download pornographic materials. They were indicted in the Western District of Tennessee following the actions of a United States Postal Inspector who downloaded files that included images of bestiality, oral sex, incest and sado-masochism. The materials were judged to be obscene – and the couple convicted – on the basis of ‘community standards’ in Tennessee rather than California. Citing earlier judgments, the Court ruled that they could have limited distribution so as to avoid communities with less tolerant obscenity standards and established that ‘there is no constitutional impediment (p.148) to the government’s power to prosecute pornography dealers in any district into which the material is sent’.42

The Thomas case did not, however, settle the issue. The development of the internet placed a much larger question mark against the viability and constitutionality of using local ‘community’ standards as a basis for defining obscenity. Self-evidently ‘web publishers cannot restrict access to their site based on the geographical locale of the Internet user visiting their site’.43 In 1999 the 3rd Circuit Court of Appeals struck down the Child Online Protection Act (COPA) arguing that the Act – which addressed internet material that was ‘harmful to minors’ rather than ‘obscenity’ – was too broadly worded in using ‘community standards’ as a basis for judging what should be regarded as ‘harmful’ by appealing to the ‘prurient interest’. Opinion was, however, divided when the Supreme Court considered the case (Ashcroft v. ACLU) for the first time in 2002. Although the Court reversed the Court of Appeals ruling and sent the case back, there were five separate opinions. The most conservative members of the bench – Clarence Thomas, Antonin Scalia and Chief Justice William Rehnquist – were most committed to the maintenance of local standards as the basis for determining what should be regarded as ‘harmful to minors’ or obscenity. Web providers would have to shape the content of their sites with this in mind and defer to the moral beliefs of more traditionalist communities. If this prevented them from using the internet, so be it. As Clarence Thomas argued:

if a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.44

Others on the bench recognised the logic and coherence of Thomas’s argument but could not accept the conclusions that he had drawn. As Stephen Breyer put it, if local standards were applied, the content of websites would be subject to a veto by the most traditionalist groupings in the country:

to read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s veto affecting the rest of the Nation.45

Further uncertainties

The uncertainties and complexities stemming from notions of obscenity and the burdens imposed by restrictive measures were compounded by three other issues. Firstly, there were questions about the extent to which (p.149) proactive steps should be taken to prevent ‘adult’ images and other materials falling into the hands of children and minors and, if so, should the protection of young people be the responsibility of website operators, adults who use the internet, or parents? The 1996 Communications Decency Act (CDA) prohibited the ‘knowing’ transmission of ‘obscene or indecent’ messages or anything ‘that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs’ to a person under eighteen. In Reno v. American Civil Liberties Union (1997), the Supreme Court voted 9-0 to strike down two of its provisions. The CDA was, the Court said, overly vague and would inevitably curb the free speech of adults. According to John Paul Stevens, who wrote the Court opinion, it ‘threatens to torch a large segment of the Internet community’. He added:

The Communications Decency Act lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.46

The 1998 Child Online Protection Act (COPA) was an effort to address the Supreme Court’s concerns and was written in narrower terms. As noted above, COPA sought to block access by those aged under 17 to material that was ‘harmful’. It imposed penalties on commercial websites that failed to make ‘good-faith efforts’ to ensure that minors could not visit websites that depicted ‘soft’ as well as ‘hardcore’ pornography. The measure was required, Theodore Olson, the Bush administration’s solicitor-general said in oral argument before the Supreme Court, to address the ‘menace’ of ‘pervasive and essentially unavoidable Internet pornography that inflicts substantial physical and psychological damage on children’. Under the terms of the Act, first-time offenders could spend six months in prison and be subject to a fine of $50,000. Repeat offenders would face additional fines.47 The enforcement of COPA was blocked by a court injunction which was later upheld by the 3rd Circuit Court of Appeals. In June 2004 (Ashcroft v. American Civil Liberties Union), the Supreme Court upheld the block on enforcement declaring that COPA was likely to be unconstitutional. COPA was not struck down but sent back to the US District Court in Philadelphia for further consideration. Although the Court appeared to lean towards the argument that the law was unconstitutional, the federal government was provided with an opportunity to establish that filtering software was ineffective and the burden of protecting the young should therefore be borne by website providers and adult users.48

(p.150) Secondly, those seeking the restriction of obscenity had to contend with the evolution of graphics software and the intermingling of ‘virtual’ images alongside ‘real’ forms of pornography. The issue arose because of ‘virtual’ representations of children but had wider implications. The 1996 Child Pornography Prevention Act – that Congress had passed in response to technological change – incorporated provisions that prohibited the distribution and possession of sexually explicit computer-generated images of children or the use of persons over eighteen who looked under eighteen. In Ashcroft v. The Free Speech Coalition (2002), by a 6-3 ruling, the Supreme Court noted that the law did not prevent the direct sexual exploitation of children and found it to be unconstitutionally ‘overbroad’. It imposed too great a limitation upon free expression. Writing for the Court, Justice Anthony Kennedy suggested that the law might have been enforced against such films as American Beauty, Traffic and Romeo and Juliet. In a dissent, Chief Justice William Rehnquist recorded his strong disagreement with the majority arguing that ‘the computer-generated images are virtually indistinguishable from real children’.49

A third issue posed difficulties for prosecutors. From 1965 onwards, the Supreme Court had identified a ‘right to privacy’ in the Constitution. It rested on its ‘penumbras’ and ‘emanations’ and, in particular, notions of ‘due process’ in the 14th Amendment and laid the basis for Griswold v. Connecticut which established access to contraception as a constitutional right. Griswold was built upon in Roe v. Wade (1973) and Lawrence v. Texas (2003) which extended the right to privacy to abortion and gay sex respectively. However, privacy rights were also built upon by the Supreme Court in Stanley v. Georgia (1969) which established that they permitted the legal possession of ‘adult’ (but not child) pornography. As Thurgood Marshall put it on behalf of the Court: ‘fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy’, particularly the ‘right to satisfy [one’s] intellectual and emotional needs in the privacy of his own home’.50

In January 2005, a district court in western Pennsylvania considered the case of Forced Entry, a ‘horror-porn’ film that featured Satanic rituals as well as sexual activity. In United States v. Extreme Associates, Judge Gary L. Lancaster reasserted the importance of privacy rights: ‘public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual, sexual conduct even if that conduct is deemed offensive to the general public’s sense of morality’. On the basis of the ruling in Stanley v. Georgia, he asserted that individuals could not be prohibited from obtaining the film through the (p.151) imposition of restrictions on distribution. There was, otherwise, a ban on possession. The laws against obscenity ‘burden an individual’s fundamental right to possess, read, observe and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials’. Judge Lancaster also noted that the Lawrence ruling, which had struck down state sodomy laws, had established that government no longer had ‘a legitimate, let alone a compelling state interest’ in ‘preventing consenting adults from entertaining lewd or lascivious thoughts’.51 In response to the ruling, the Department of Justice – under Ashcroft’s successor, Alberto Gonzales – said that if the ruling – and the interpretation of federal law upon which it was based – were to be upheld, it would undermine not only anti-obscenity prohibitions, but also laws against prostitution, bigamy, bestiality and others ‘based on shared views of public morality’.52 At the beginning of December 2005, however, the Third Circuit Court of Appeals overturned the ruling and reinstated all charges against Extreme Associates.53

Obstacles

Above and beyond the problematic concept of ‘obscenity’, the federal government as well as state and city prosecutors faced other legal, constitutional and practical uncertainties.54 Adult ‘porn squad’ work has little status within law enforcement agencies and is not seen as a route to career advancement. Furthermore, according to anti-pornography campaigners, state, city and local authorities lack the resources to challenge the sex industry. As a spokesman for the American Family Association put it: ‘local law enforcement and city attorneys get “crushed” by high-powered lawyers hired by adult book stores or video stores when there are efforts to shut those establishments down … “You need the federal government to assist” …’.55

At the same time, the mechanics of pursuing prosecutions became more complex. High-profile cases were lost and prosecutors have had to settle for plea bargains in which few penalties were imposed upon the defendant. During the George H. W. Bush administration, the Department of Justice had acted against mail-order distributors by using multi-district prosecutions. A single company would be prosecuted in up to four jurisdictions simultaneously making a legal defence prohibitively expensive. In 1993, the courts asserted that this placed a defendant’s rights in jeopardy and the policy was brought to an end. All too often, from the prosecution perspective, cases failed and had to be abandoned on the basis of a plea bargain. These concerns were compounded in March 2002 when Los Angeles prosecutors abandoned (p.152) their high-profile case against Adam Glasser (who is known in the sex industry as ‘Seymour Butts’), and his film Tampa Tushy Fest.

The Glasser case – which had been initiated in the Clinton era – was initially hailed by those bringing the case, including the Deputy LA city attorney, as a turning point and the industry prepared for a clampdown. There would be, it was said, far fewer plea bargains.56 News reports suggested that prosecutors had been emboldened by Bush’s election victory and the appointment of Ashcroft as Attorney-General. Criminal defense attorney Jeffrey Douglas was among those warning that the mood had now changed:

I’ve been at meetings and events where, if you’re talking to a 25-year-old porn-maker about federal prosecutions for obscenity, you might as well be talking about the Spanish-Mexican War.57

Nonetheless, there was a climb down. Despite the early rhetoric, a plea bargain allowed Glasser’s company to plead ‘no contest’ to a charge of ‘creating a public nuisance’ and pay a fine of $1,000 into a ‘victims’ restitution’ fund. The agreement also included a provision specifying that customers would be made aware that a less extreme version of the film was available. In return, all other charges were dropped and all tapes and other materials that had been seized in a search were returned. Prosecutors were seemingly uncertain whether a jury would bring a conviction.58

The role of the Christian right

However, alongside the impact of cases such as this, there were other reasons why the Department of Justice was hesitant to pursue obscenity prosecutions. The most visible and consistent campaigners against pornography were tied to the ‘outsider’ groups within the Christian right rather than those with closer ties with the Republican ‘establishment’. The connections between organizations such as Concerned Women for America and the Traditional Values Coalition as well as single-issue campaigns such as the American Family Association (led by the Reverend Donald Wildmon), the American Decency Association (ADA) and Morality in Media, and administration officials were often distant and – in contrast with the defining characteristics of ‘insider’ organizations – sometimes marked by public fractiousness.

At the same time, there was an imprecision and ambiguity about these organisations’ goals and an uncertainty about the rationale that should be adopted for pursuing them. Their targets not only included ‘hardcore’ but also ‘soft’ porn and publications that simply had a ‘glamour’ (p.153) content. Little distinction was made between ‘obscenity’ and ‘indecency’. The ADA targeted the sales of magazines such as Maxim, Stuff, Cosmo and FHM and mounted campaigns against the content of advertising by companies such as Abercrombie & Fitch and Victoria’s Secret.59 The AFA established its credentials as a campaigning organization by forcing 7-Eleven stores to end its sales of Playboy and Penthouse.60

Alongside this imprecision in terms of ‘targetting’, there were more fundamental tensions between the different political messages that were put forward. The rationale for prohibiting pornography remained imprecisely defined. For many in the movement, pornography was to be restricted because of the dangers that children and minors might gain access to it. In the 1994 Contract with the American Family, the Christian Coalition emphasised the importance of child protection and the proper ‘policing’ of the internet and cable television. Legislation, they argued, should be passed so as to ensure that the cable television networks blocked all audio and video access to adult channels to non-subscribers. It should also, the Coalition stressed, become illegal to transmit material ‘harmful to minors’ (softcore) ‘with reckless disregard of whether children will come into its possession’.61 However, the movement’s emphasis upon the interests of children was tied together with elliptical suggestions of a further argument. Some campaigners drew on the opinion put forward in Miller to suggest that the First Amendment was rooted in heroic notions of liberty rather than smut:

To equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom.62

Pornography (and perhaps, on the basis of the argument, indecency) was not therefore entitled to First Amendment protection. Others went a stage further by arguing that obscenity should be prohibited because of the damage that pornography inflicted upon the social and cultural fabric. They drew on the Supreme Court’s ruling in Paris Adult Theatre I v. Slaton (1973) when it had concluded that ‘there are legitimate state interests at stake in stemming the tide of commercialised obscenity’. These included, the Court asserted, the ‘quality of life’, ‘total community environment’, and ‘public safety’.63

This form of argument had implications. Miller v. California had stressed the importance of applying ‘contemporary community standards’ in determining what was or was not legally obscene. Yet, if considerations such as ‘public safety’ or the ‘total community environment’ had primacy, the community would not be left to decide whether obscene (p.154) materials might, or might not, be distributed. Indeed, majority opinion towards a particular book, magazine, or film would be of little relevance. As the justices concluded in the Paris Adult Theatre ruling:

The issue in this context goes beyond whether someone, or even the majority, considers the conduct ‘wrong’ or ‘sinful’. The States have the power to make a morally neutral judgement that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardise, in Mr Chief Justice Warren’s words, the State’s ‘right to maintain a decent society’.64

Visibility

Shifts in the character of public attitudes and perceptions of the sex industry may also have played a role in deterring prosecutors. Although the public backed the more rigorous enforcement of the obscenity laws, there had been a small but steady liberalising trend during the 1990s as opinion shifted away from the prohibition of pornography for all and towards the limitation of restrictions on its availability to those under eighteen (see pages 31–2). Public disquiet may have been allayed by two developments. Firstly, internet filtering software became more widely available. A March 2005 survey of young people and their parents showed that 54 per cent of families with online access used some sort of filter or monitoring software.65 Secondly, the sex industry has for the most part been evicted or at least contained in many city centres – where it often seemed associated with street crime – and this may have assuaged concerns. States and, if statutorily empowered, cities and counties, have imposed restrictions on sex shops and clubs (‘sexually oriented businesses’) successfully used zoning regulations, licensing requirements, and other laws to transform the character of some neighbourhoods most closely associated with ‘adult’ industries. The regulations include display restrictions, zoning laws limiting locations so as to prevent clusters, alcoholic beverage control (ABC) laws preventing nudity in clubs serving alcohol, restrictions on the character of those who are employed, open booth laws regulating peepshows, nuisance laws if lewd conduct occurs on premises, obscene device laws, public indecency laws requiring performers to wear some covering items, and legal limits on the number of ‘adult’ premises in a building. For the most part, these regulations have been upheld by the federal courts. Indeed, in City of Los Angeles v. Alameda Books (2002), the Supreme Court confirmed that the authorities have the right to prevent a concentration of adult businesses in a building because such concentrations are associated with a higher rate of crime.

(p.155) New York City Mayor Rudolph Giuliani’s transformation of the Times Square and the 42nd Street area is the most well known and widely cited example of the process. A 1995 law banned strip clubs and adult book and video shops operating within 500 feet of residential areas, schools, day-care centers, houses of worship – or each other.66 Although some sex shops evaded the regulations by stocking non-pornographic materials as well as adult supplies, many either closed or moved to neighbourhoods in Queens or Brooklyn. The opening of new retail outlets, restaurants and cafes that served a very different market and the subsequent rise in property prices ensured that the stores were not reopened. There was a further tightening of the law in 2001 although its implementation was long delayed by legal challenges. The City amended the zoning ordinance so as to close the loophole by which some shops had survived by stocking other products and established broader guidelines to define adult businesses.

The growth of the sex industry

Paradoxically, however, while the sex industry became less visible and lost its associations with urban decay, the scale of production, distribution and the nature of the market for its products changed significantly. At first sight, the industry became more fragmented. While professional films continued to be produced in areas such as the San Fernando Valley, far lower production costs and nil marginal distribution costs through the internet have allowed the construction and proliferation of amateur or low budget websites.

However, this is misleading as an overall picture of the sex industry. Just as the Meese Commission sought to turn the tide of opinion against pornography, video rental chains and retail distributors began to stock pornographic titles. In the 1990s, hotels and resorts – including many of the major chains – started to offer pay-per-view films to guests.67 As Citizens for Responsibility and Ethics in Washington (CREW) points out, pornography:

offers an unusually high profit margin. ‘The 5 per cent or 10 per cent of revenue that the hotel chain gets, that’s pure profit to them because they have no cost… They didn’t put in the wiring system, they didn’t supply the programming’. Some analysts say these in-room sex movies generate more money for the hotel chains than revenue from the hotels’ mini-bars.68

All the leading satellite and cable television companies began to carry pornographic channels. Telephone companies increasingly depended upon the market for ‘adult’ calling services which have been said to generate between $750 million and $1 billion annually.69 Most importantly of (p.156) all, hardcore pornography became ubiquitous on the internet. By 2001, according to Frank Rich of the New York Times, the sex industry generated between $10 billion and $14 billion in annual sales. Although Forbes suggests that this was a gross overestimate and the total was instead between $2.6 billion to $3.9 billion, the size and scale of the market was still vast.70

Some observers have not only stress the commercial power of the contemporary sex industry but also emphasise the extent to which this has brought forth political influence. The size and scale of the industry, they suggest, precludes serious or sustained forms of regulation. Furthermore, the industry is, albeit indirectly, ‘buying’ into the political process. In March 2005, CREW – which is committed to targetting ‘government officials who sacrifice the common good to special interests’, published a report listing campaign contributions to some of the Christian right’s closest Congressional allies from corporations such as Holiday Inn, Marriott, AT&T, AOL, Time Warner and Comcast, all of which gain revenue from the provision of ‘adult’ entertainment, sometimes in its most ‘hardcore’ form. Their ranks included Tom DeLay of Texas, Values Action Team Chairman Joseph Pitts (Pennsylvania), Senator Sam Brownback (Kansas), and Democratic Senator Joe Lieberman of Connecticut.71

However, the supply process requires demand. Technological development, which progressed through VHS to DVD and the internet, was significant in another way. It allowed access from a hotel bedroom or home consumption through a PC ensuring impersonal anonymity and removing the risk of public gaze or uncertainties associated with visits to stores in particular inner-city neighbourhoods.72 These changes led to an exponential growth in the size and scale of the market. As CREW noted in its report on the links between familiar corporations offering ‘adult’ services and leading politicians, the ‘adult’ pay-per-view films provided by hotel chains are viewed ten times more frequently than ‘standard fare’ by business guests even though they are often more highly priced.73 As Nicholas Confessore recorded in a PBS commentary on the entire sex industry:

What investors and bigger corporations soon discovered … was a vast audience for pornography – once the privacy barrier was eliminated.74

Indecency and broadcasting

Obscenity and indecency are separate and distinct categories. While the 1927 Radio Act blurred them together by prohibiting the transmission (p.157) of ‘obscene, indecent, or profane language’ and established the Federal Radio Commission (which – as television began to develop – became the Federal Communications Commission) to regulate the airwaves, the legal and political framework for the contemporary definition and regulation of broadcast indecency on terrestrial radio and television was established by the 1978 Supreme Court ruling, FCC v. Pacifica Foundation.

Pacifica became known as ‘the seven dirty words case’ because it arose from the use in an afternoon show on WBAI, a Pacifica Foundation FM radio station in New York City of familiar sexual expletives. In a 5 to 4 judgment, the Court distinguished between ‘indecency’and ‘obscenity’ by defining indecency as ‘patently offensive sexual and excretory language’.75 It ruled that the WBAI broadcast was ‘indecent but not obscene’.76 The judgment was subsequently built upon by the FCC. For the Commission, indecency is ‘language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities’.77 It lacks the prurient appeal that was, following the Supreme Court’s Miller ruling, a defining feature of the ‘obscene’. As such, although it can be applied to actions as well as language, it is not to be regarded as seriously. Therefore, indecency, and for that matter profanity, are regulated by the FCC’s procedures rather than the criminal law and in contrast with obscenity, at least partially protected by the First Amendment’s guarantee of free speech. There are limits upon the degree to which it can be restricted. However, in contrast with books or periodicals which have far-reaching protection under the First Amendment, broadcasting had a ‘pervasive presence’ and, in the Court’s words, ‘the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder’.78 There was also a particular danger that indecent broadcasting might be heard by unattended children.

These considerations, as well as responsibilities arising from the federal government’s role in regulating the medium because of spectrum scarcity and the possibility of signal interference, permitted the imposition of limits and regulations on terrestrial broadcasters. The FCC had authority to prohibit such broadcasts during hours when children were likely to be among the audience. The seven dirty words could not therefore be used at such times. The Supreme Court emphasised that such a curtailment of free speech in broadcasting was permissible because indecent language was ‘at the periphery of First Amendment concern’, there were alternative outlets for those who wished to explore indecent themes or use particular forms of language, and those who transgressed did not face a criminal prosecution.79

(p.158) In the wake of the Pacifica ruling, FCC policy rested on the prohibition of the seven dirty words except during the ‘safe harbor’ hours between 10 p.m. and 6 a.m. In 1986, the FCC widened its definition of indecency to incorporate ‘patently offensive’ language describing sexual or excretory acts or organs. This was an effort to curb ‘shock jocks’, most notably Howard Stern, who had began to talk in explicit terms about sexual activities during his daytime shows without using the seven dirty words. A year later, the ‘safe harbor’ was narrowed to between midnight and 6 a.m. Then, in 1988, the Helms Amendment passed into law. The measure, initiated by veteran Republican Senator Jesse Helms of North Carolina, imposed a round-the-clock ban on indecent programming. However, following efforts by Congress through the 1992 Public Telecommunications Act to re-establish the midnight threshold and appeals court rulings, the 10 a.m. to 6 p.m. rule was restored.

Limits

Despite the attention that the FCC’s role has attracted, its powers and ability to take action against transgressions of the rules were limited. In part, this may have been because the mechanics by which the FCC investigated broadcasts deterred protests. It cannot initiate investigations itself, but instead acted only on the basis of complaints submitted by members of the public. There were often difficulties establishing the context within which particular words were used or pursuing a complaint unless a tape recording or transcript was supplied together with details of the station and the time of the broadcast. If a radio or television station was found to have transgressed, it faced FCC sanctions rather than criminal prosecution:

The Commission may revoke a station license, impose a monetary forfeiture, withhold or place conditions on the renewal of a broadcast license, or issue a warning, for the broadcast of obscene or indecent material.80

As Table 5.2 suggests, these monetary forfeitures were often minimal despite the proliferation of ‘shock jocks’ during the 1990s. Indeed, in 1995, a mere $4,000 was levied in fines. Furthermore, the FCC’s enforcement system was often slow, unwieldy and inconsistent. According to the Washington Post, it took the Commission an average of sixteen months to issue an indecency ruling following a broadcast.81

The clampdown and the Parents Television Council

In 2001, however, the picture changed dramatically. The FCC’s abrupt clampdown on indecency and its willingness to use its regulatory (p.159) powers were a response to both events and concerted lobbying by the organisations such as the American Family Association (AFA),the American Decency Association (ADA), and the Parents Television Council (PTC), an interest group that defines its primary mission as being to ‘promote and restore responsibility and decency to the entertainment industry in answer to America’s demand for positive, family-oriented television programming’.82

Table 5.2 Proposed fines for broaast indecency, 1995–2004

FCC ‘fines’

1995

$4,000

1996

$25,500

1997

$28,000

1998

$47,500

1999

$49,000

2000

$48,000

2001

$91,000

2002

$99,400

2003

$440,000

2004

$7,928,080*

Source: Adapted froJ. Dunbar, Indecency on the Air: Shock-radio jock Howard Stern Remains ‘King of All Fines’, Center for Public Integrity (2004), www.publicintegrity.org/telecom/report.aspx?aid=239&sid=200 and Federal Election Commission, Indecency Complaints and NALs: 1993–2004 (Washington DC: Federal Communications Commission, 2005), www.fcc.gov/eb/broadcast/ichart.pdf.

Note:

(*) The 24 figure records the fines that the FCC proposed to levy through the ‘notices of apparent liability’ that were issued.

At first sight, the path pursued by anti-indecency organisations, most notably the PTC, constitutes a model of applied pressure group success. In 1998, the PTC launched a membership drive that, according to its own figures, recruited half a million supporters. By 2005, it claimed a membership of a million.83 The Board of Directors included the legendary singer, Pat Boone and its founder and president was L. Brent Bozell III, whose father was, alongside William F. Buckley, a pioneer of the contemporary conservative movement until he began to embrace the more arcane forms of Roman Catholic traditionalism. Although L. Brent Bozell III did not consign himself to the outer edges of the movement in the same way as his father, he has also been distanced from mainstream Republicanism by, for example, serving as National Finance Chairman for Patrick J. Buchanan’s 1992 presidential bid.

(p.160) In its mission statement, the PTC offers a rationale for its commitment to change the character of broadcasting. The Council stresses that viewing and listening are not simply matters for individual choice or parental discretion. This was partly because parents did not have a proper choice. Although the V-chip, which was installed in newly manufactured televisions following the passage of the 1996 Telecommunications Act, allowed parents to block access to particular programmes, it was, the PTC argued, ineffective. The television networks did not supply ratings enabling parents to guide and control their children’s viewing. More significantly, the PTC claimed, rigorous regulation was required because the content and character of television programmes have a profound impact on society as a whole:

Television is the most public and powerful means of mass communication … Because of its pervasiveness and persuasiveness, opting out is an entirely inadequate response to the dramatic rise in the amount of televised graphic sex, obscene and profane language, and gratuitous violence found on television today. These depictions affect everyone, including our children’s classmates and friends. Vulgar television means a more vulgar society; sex-saturated television means sexualised children stripped of their innocence; violent television results in desensitization to violence.84

The PTC pursued a dual-track strategy. Firstly, although it rejected the use of consumer boycotts that some other organisations endorsed, it sought to influence corporations who sponsored offensive forms of programming:

The PTC aims to work with corporations and believes most of them have a sense of social responsibility. They need to advertise to sell their products, and we understand that. The PTC instead tries to appeal to that sense of social responsibility and corporations’ own standards by making a well-documented case that certain shows are unsuitable at certain times and in venues where children are presumed to have unrestricted access. Our members, however, are free to tell advertisers what their own response to sponsorship of offensive programs will be.85

Secondly the Council encouraged its supporters to lodge complaints and protests with the FCC. Its websites facilitate this through the provision of an on-line form. This has yielded significant political dividends. As Table 5.3 suggests, the number of indecency complaints lodged with the FCC grew dramatically over the course of just four years while the number of programmes subject to a complaint increased threefold.

There are, furthermore, suggestions that these figures are underestimates. The PTC asserts, for example, that 4,073 protests were lodged through their website alone following an episode of Married By America (p.161)

Table 5.3 Indecency complaints, 20–04

Number of complaints

Number of programmes involved

Number of radio programmes

Number of TV programmes

Number of cable programmes

2000

111

111

85

25

1

2001

346

152

113

33

6

2002

13,922

389

185

166

38

2003

202,032

375

122

217

36

2004

1,405,419

314

145

140

29

Source: Adapted from Federal Communications Commission, Indecency Complaints and NALs: 1993–2004 (Washington DC: Federal Communications Commission, 2005), www.fcc.gov/eb/broadcast/ichart.pdf.

broadcast by Fox Television in April 2003. According to FCC records, there were just 159 complaints alleging that the ‘episode contained indecent material’.86 Whatever the figures, both sides accept that the overwhelming majority were submitted through the PTC. Indeed, according to the FCC, 99.9 per cent of the complaints that were lodged between January and October 2004 were submitted to them through the PTC website.87

A ‘classless, crass and deplorable stunt’

The increasing volume of complaints is, however, only part of the picture. Two television incidents and several radio shows played a pivotal role in establishing an opportunity structure within which the PTC’s calls to curb indecency and profanity were not only heard but acted upon. Firstly, there was the use by Bono, the U2 musician, of an expletive during the January 2003 Golden Globe Awards ceremony which was being broadcast live. According the American Family Association, over 1,175,000 emails protesting about the incident were sent to FCC commissioners and members of Congress.88 The impact of the expletives was not only intensified by the volume of complaints and the lobbying activities of organizations that offered a channel for complaints such as the Parents Television Council and the American Family Association (as well as allied web-based organisations such as OneMillionMoms.com and OneMillionDads.com), but was also compounded by the FCC’s initial reaction. In its first ruling, issued in October 2003, the Commission found that the word was ‘fleeting’ and part of (p.162) an ‘isolated’ incident, It ‘did not describe sexual or excretory organs or activities’.89 However, following protests, this was reversed in March 2004 and the FCC concluded that NBC could have prevented the incident. However, no fines were imposed.

Secondly, Janet Jackson bared much of her breast (for, the Commission noted, 19/32 of a second) at the end of a risqué song-and-dance routine with Justin Timberlake during the intermission at the 2004 Super Bowl. It was, according to Michael Powell, Federal Communications Commission (FCC) Chairman and son of former Secretary of State, Colin Powell, ‘a classless, crass and deplorable stunt’.90 An Associated Press poll found that 54 per cent of the public thought the act was in bad taste. About three-quarters supported more rigorous rules on nudity and sexual content in programmes.91 Within thirty-six hours of the broadcast, the American Family Association website had alone recorded 30,000 protests. Over the next twenty-four hours, 250,000 emails were sent to the FCC and members of Congress.92 According to FCC figures, about 50 per cent of the complaints lodged in the period between January and late November 2004 were related to the Super Bowl incident.93 Alongside these television broadcasts, longstanding -albeit intermittent – disquiet about the Howard Stern radio show came to the fore again. In one his April 2003 show, which considered sex and flatulence, the ‘shock jock’ had allegedly committed eighteen violations of FCC regulations.94 Stern was not, however, alone in attracting complaints; protests were also lodged against other radio show hosts such as Bubba the Love Sponge and Opie and Anthony.

Policy shift

Although there were claims that many of the complaints submitted to the FCC were orchestrated, they had public backing. According to a Pew survey conducted in March 2005, 75 per cent supported the principle of strict government enforcement of indecency regulations. Furthermore, sizeable majorities backed proposals for increased fines on broadcasters (69 per cent) and the extension of the rules governing terrestrial television to the cable networks (60 per cent).95

The protests, and the weight of public opinion, were sufficient to prompt a policy shift by Michael Powell and the FCC commissioners. For much of his time as both a commissioner and chairman, Powell’s instincts had appeared to have a libertarian edge. He was primarily known for his commitment to deregulation and the removal of restraints on media ownership. He stressed his opposition to government inter-ventionism.96 However, in the wake of the complaints, he increasingly (p.163) emphasised the need to curb indecency. The amounts levied in fines grew dramatically. (The FCC initially proposes fines by issuing a notice of apparent liability and then there is an often protracted process of adjudication so as to determine whether it is warranted. Some fines have in the past been cancelled because there is a statute of limitations.) CBS stations were fined a total of $550,000 for their coverage of Janet Jackson. By the time Michael Powell stepped down in January 2005, more than $8.5 million had been levied in fines, almost all of it in 2004. The FCC’s commitment to eliminate indecency seems to have been strengthened by the appointment of Kevin Martin, who took over from Powell as the Commission Chairman, and his selection of Penny Nance, a former activist from Concerned Women for America, as his special advisor. These moves were well received by campaigners. As Dan Isett of the Parents Television Council noted:

Kevin Martin is now the Chairman of the FCC and, as you know, he is deeply concerned about indecency issues across the board and is committed to a vigorous enforcement of indecency law. In so far as Penny is able to help him know what our concerns are and what we are working on, then all the better.97

Clampdown

The clampdown had four principal consequences. Firstly, at least initially, much of the opposition to the principle of an indecency clampdown appeared to have been subdued. There were some protests but these tended to have a fringe character. A few on the left, such as The Nation’s bloggers, condemned the FCC’s moves.98 The libertarian right spoke in similar terms. Adam D. Thierer, then serving as director of telecommunications studies at the Cato Institute, stressed parental responsibility in place of regulation. He was fiercely critical of cultural conservatives and the Christian right:

so many conservatives, who rightly preach the gospel of personal and parental responsibility about most economic issues, seemingly give up on this notion when it comes to cultural issues. Art, music, and speech are fair game for the Ministry of Culture down at the FCC, but don’t let them regulate our cable rates! Conservatives and religious groups decry government activism in terms of educating our children, for example, but with their next breath call in Uncle Sam to play the role of surrogate parent when it comes to TV content.99

Secondly there were moves within Congress. With the backing of FCC commissioners, both Republicans and Democrats on Capitol Hill argued (p.164) that the fines levied on broadcasters were too low. The proposed Broadcast Decency Enforcement Act (which had been first introduced a week before the Super Bowl incident) was amended so as to raise the maximum fine to as much as $500,000 per violation. If the bill had been enacted before the Super Bowl incident, this would, according to the Family Research Council, have led to the imposition of fines totalling $5,500,000.100 A station would face licence revocation if it was found to have carried indecent material three times. Furthermore, individual broadcaster guilty of indecency would be subject to fines of up to $500,000. In the past, performers faced a maximum fine of $11,000 though there are no records of it being imposed.101 The FCC would be required to respond to complaints within nine months.

The bill was passed in both the House of Representatives (by 391 to 22) and the Senate in 2004 but had to be abandoned following differences in the conference committee that reconciles the versions passed in the two chambers. The Act was put forward again in 2005 and this time around the ‘noes’ comprised thirty-six Democrats, one Independent (Bernie Sanders), and one Republican (Ron Paul). In both 2004 and 2005, the White House threw its weight behind the legislation and, in a statement issued in February 2005, asserted that the:

legislation will make broadcast television and radio more suitable for family viewing by giving the Federal Communications Commission (FCC) the authority to impose stiffer penalties on broadcasters that air obscene or indecent material over the public airwaves.102

Thirdly, although several series such as Sex and the City, The L. Word, and Desperate Housewives that had attracted the attention of campaigners continued seemingly unabated, both the terrestrial and cable channels began to rein in the content of some programmes. Their concerns about complaints and fines were compounded by an anxiety that transgressions might have an impact when the FCC adjudicated on proposed mergers and other regulatory issues. There was, therefore, growing ‘self-censorship’. In 2004, a number of stations withdrew a Veterans’ Day showing of Saving Private Ryan following complaints about the use of expletives in its opening scenes. As The Economist recorded, PBS edited a British docudrama to remove scenes of a woman in a shower being decontaminated after a nuclear attack and the Fox network decided to pixelate animated nudity in the cartoon series, Family Guy.103 At the same time, Clear Channel – which carried both Howard Stern and Bubba the Love Sponge – adopted a ‘Responsible Broadcasting Initiative’. Through this, decency-training initiatives were established and Bubba the Love Sponge was dismissed. Against this background, Howard Stern (p.165) defected to satellite radio. The PTC claimed credit for these developments and the changing climate:

It appears that the groundswell of opposition to raunchy programming really is starting to have an impact on program content. Although it is clear to even casual observers that on the margins, television has gotten much worse, but it is equally undeniable that there has been a real and perceptible improvement throughout much of the prime time schedule.104

Lastly, the FCC’s actions fuelled the self-confidence of anti-indecency campaigners. This, in turn, strengthened the hand of those calling for consumer boycotts. Although the American Family Association called off its boycott of Disney (which it had begun in 1996) following the split between Disney and Miramax, whose film productions included Priest, Kids (both of which featured sexual activity) and the religious comedy Dogma, it called for a boycott of companies advertising on MTV.105 The firms included Procter & Gamble, McDonalds, Burger King, Colgate and Taco Bell.106

Conclusion: limits and constraints

At first sight, the campaign against indecency appears to have made significantly more political headway than the attempts to restrict obscenity. It is tempting to conclude that the vigour with which the indecency issue was pursued by the administration and many Congressional Republicans and the lack of action against obscenity are tied together. They have perhaps compensated for their inability to curb obscenity in any sustained way by concentrating their efforts upon more limited goals such as television and radio indecency. Certainly, while only limited steps have been taken to address the concerns of those campaigning against hardcore pornography, much more political capital has been spent on the reining in of broadcasters.

At the end of 2005, however, the efforts of anti-indecency campaigners to increase the fines payable by networks, along with other ‘family’ issues, seemed to have stalled in the Senate.107 Why did this happen? Although the Committee on Commerce, Science, and Transportation held hearings in November and December 2005 and January 2006, there were differences about the form of regulation that should be adopted. ‘Pro-family’ campaigners not only called for the imposition of ‘fines’ on companies and individual broadcasters and the revocation of the licences for stations that re-offended but sought to extend the FCC’s jurisdiction so as to encompass the cable and satellite channels.108 In an age when more than 85 per cent of households had access to cable (p.166) or satellite television services, it was irrational, campaigners asserted, to limit the regulatory process to the terrestrial networks. There were, however, questions about the constitutionality of such proposals. Echoing earlier legal reasoning, Adam D. Thierer stressed the private and voluntary character of a decision to use cable and satellite services. They do not have the ‘pervasive’ character of the terrestrial television and radio channels and, therefore, if the logic of the Pacifica ruling is pursued, there is no basis for regulation.109 The Supreme Court seemed to be leaning towards this form of argument in Turner Broadcasting System v. FCC (1994) and US v. Playboy Entertainment Group (2000) which established that cable channels had full First Amendment protection and restrictions on content would have to be subject, as they are in other forms of expression, to strict scrutiny.110 Others pursued more modest objectives. Senator John McCain urged the cable and satellite companies to end programme ‘tiers’ and offer all channels on an ‘a la carte’ so that viewers could make channel-by-channel decisions. His call was supported by the Parents Television Council which initiated the Cable Consumer Choice Campaign and won the backing of the Consumer’s Union, the American Family Association, the American Federation of Labor-Congress of Industrial Organizations, Morality in Media, and seventeen other organizations.111

Each option, however, met with opposition.112 The cable industry instead sought only limited reform. There should be, it was said, much more of a drive to promote the use of the ‘V-chip’ that allows parents to block violent or sexually oriented programmes. EchoStar Communications offered a family tier of 40 channels.113 For his part, Senator Ted Stevens, Chairman of the Commerce Science, and Transportation Committee seemed fearful of restrictive measures and threw his weight behind a voluntary scheme through which cable operators would adopt family ‘packages’, or tiers, as well as simplified TV ratings.114

In response, Concerned Women for America and 35 other ‘pro-family’ groups criticised Stevens and committed further resources to the ‘Cable Choice Campaign’ and made it more of a priority. The reasons for Senate inaction may however go beyond Stevens. Popular attitudes place constraints upon the actions of legislators and limit the chances of reform proposals being enacted. Although there was backing for the imposition of more severe penalties on broadcasters, public opinion had a far from straightforward character. A 2005 poll suggested that while there were significant differences between Democrats and Republicans, Christians and those who defined themselves as ‘secular’, and between the different age cohorts, rather greater numbers (48 per cent) believed that ‘undue’ government regulations (p.167) posed a ‘greater danger these days’ than the production of ‘material harmful to society’ (41 per cent).115 Furthermore, according to the poll, there were considerably more concerns about television depictions of drug use and violence than sexual activity.116 Senate Majority Leader Bill Frist, widely regarded as a 2008 presidential aspirant and who some held responsible for the lack of legislative progress, may have recognised the significance of findings such as these, and the potential difficulties posed by a close relationship with organizations such as the Family Research Council (see pages 239–40). There were suggestions that he soft-pedalled the imposition of restrictions on broadcast indecency and other measures associated with the Christian right during 2005 for this reason. It may be that as in other areas of policy-making, the ambiguities and uncertainties of public opinion tempered the character of Republican politics.

Notes:

(1) In some ways, the debates that followed in the wake of the ‘sexual revolution’ simply resurrected themes that have long haunted the American colonies and then the US. These are tracked in, for example, James A. Morone, Hellfire Nation: The Politics of Sin in American History (New Haven: Yale University Press, 2003).

(1) K. Phillips, American Dynasty: Aristocracy, Fortune, and the Politics of Deceit in the House of Bush (New York: Penguin Books, 2004), p. 213.

(2) R. Neville, Play Power (London: Paladin, 1971), p. 58.

(2) G. W. Bush, A Charge to Keep: My Journey to the White House (New York: William Morrow, 1999), pp. 222–3.

(3) S. Rowbotham, A Century of Women: The History of Women in Britain and the United States (London: Viking, 1997), pp. 378–80.

(3) P. Kengor, God and George W. Bush (New York: ReganBooks, 2004), p. 24.

(4) M. Lind, tMade in Texas: George W. Bush and the Southern Takeover of American Politics (New York: Basic Books, 2003), pp. 108–27.

(4) D. Allyn (2001), Make Love, Not War – The Sexual Revolution: An Unfettered History (New York: Routledge, 2001), p. 186.

(5) Allyn, Make Love, Not War, pp. 99–100.

(6) A. Sullivan (2005), ‘Dobson goes nuts’, The Daily Dish, Andrewsullivan.com (24 October 2005), www.andrewsullivan.com/index.php?dish_inc=archives/2004_10_24_dish_archive.html. The Christian right is said to have disproportionate influence among Congressional (p.10) Republicans as well as in the White House. The words of John Danforth, former Republican Senator for Missouri, an Episcopal minister and US ambassador to the UN during the latter half of 2004, have been widely cited. Writing in the New York Times while the fate of Terri Schiavo dominated the headlines, Danforth pointed to the GOP’s intervention in the case and the party’s strident opposition to both gay marriage and stem cell research. All of these, Danforth asserted, illustrated the Christian right’s stranglehold over the GOP and the disproportionate political weighting given to social issues: ‘By a series of initiatives, Republicans have transformed our party into the political arm of conservative Christians … As a senator, I worried every day about the size of the federal deficit. I did not spend a single minute worrying about the effect of gays on the institution of marriage. Today it seems to be the other way round’ (John C. Danforth (2005), ‘In the name of politics’, The New York Times, 30 March, www.nytimes.com).

(6) T. W. Smith, ‘A report: the sexual revolution?’, The Public Opinion Quarterly, 54:3 (1990), p. 419.

(6) In Charge to Keep, Bush himself suggests that many of the reports are only ‘rumormongering’, p. 133.

(8) J. K. White, The Values Divide: American Politics and Culture in Transition (New York: Chatham House, 2003), p. 170.

(8) W. J. Bennett (1999), The Index of Leading Cultural Indicators (New York: Broadway Books, 1999), p. 58.

(9) Bennett (1999), The Index, p. 65.

(9) Fineman (2003), ‘Bush and God’, p. 22.

(10) C. Forelle, D. Bank and S. Schaefer Munoz, ‘Gay agenda is seen as a rallying point; some Democrats suggest same-sex marriage issue cost Kerry the presidency’, The Wall Street Journal (5 November 2004), p. A5.

(10) During the twentieth century onwards, the courts began to think in terms of ‘substantive due process’ as well as formal legal procedures followed by the authorities. ‘Due process’, it was said, placed limits upon the powers of government and assured the citizen of the basic rights and protections that are ‘implicit in ordered liberty’ (U.S. Supreme Court, Palko v. State of Connecticut (1937), www.constitution.org/ussc/302-319.htm). The right to privacy is, at least in part, tied to this.

(10) Bill Minutaglio, First Son: George W. Bush and the Bush Family Dynasty (New York: Random House, 1999), pp. 212–13.

(11) Fineman, ‘Bush and God’, p. 22.

(12) Italic in original: D. Frum, The right man: The surprise presidency of George W. Bush (New York:Random House, 2003), pp. 3–4.

(12) J. Turley, ‘Of lust and the law’, The Washington Post (5 September 2004), p. B01, www.washingtonpost.com/wp-dyn/articles/A62581-2004Sep4.html. In January 2005, the Virginia Supreme Court struck down the state’s laws against fornication.

(12) J. K. White, The Values Divide: American Politics and Culture in Transition (New York: Chatham House Publishers, 2003), pp. 89–90.

(13) S. Mansfield, The Faith of George W. Bush (New York: Jeremy P. Tarcher, 2003), p. 119.

(14) J. D. Hunter, Culture Wars: The Struggle to Define America (New York: Basic Books, 1991), pp. 70–106.

(15) Congressional Quarterly Weekly Report, ‘Religious group sees role in election outcome’, Congressional Quarterly Weekly Report, 52:45 (19 November 1994), p. 3364.

(15) Pat Robertson had, however, won implicit backing at an early stage. During the 1996 Republican national convention, he told an interviewer: ‘Our people think he’s absolutely marvelous … He would make a super president. He really would. We’d be thrilled to see somebody like that hit the ticket one of these days’. (Quoted in W. Slater, ‘Hitting his stride: Texas governor’s high visibility makes impression in San Diego’, The Dallas Morning News (14 August 1996),p. 19A.)

(16) Quoted in S. Mansfield, The Faith of George W. Bush (New York: Jeremy P. Tarcher, 2003), p. 112.

(17) P. DiMaggio, J. Evans and B. Bryson, ‘Have Americans’ social attitudes become more polarised?’, The American Journal of Sociology, 102:3 (1996), pp. 734–6.

(17) I am indebted to Martin Durham (University of Wolverhampton) for the distinction between ‘insider’ and ‘outsider’ organisations within the Christian right.

(17) Quoted in P. Kengor, God and George W. Bush (New York: ReganBooks, 2004), p. 36.

(18) C. Wilcox, Onward Christian Soldiers? The Religious Right in American Politics (Boulder: Westview Press, 1996), pp. 63–4.

(19) G. C. Jacobson, The Bush Presidency and the American Electorate (prepared for delivery at the conference on ‘The George W. Bush Presidency: An Early Assessment’ at the Woodrow Wilson School, Princeton University, 25–6 April 2003 (2003), p. 3.

(19) Quoted in Waldman, ‘Heaven sent’.

(20) CNN.com, ‘GOP builds on House majority: Republicans consolidate control they won in 1994’, CNN.com (3 November 2004), http://us.cnn.com/2004/ALLPOLITICS/11/03/house.main/index.html. Some states, including Iowa and New Jersey have delegated the task to drawing up electoral districts to special commissions so as to avoid charges of ‘gerrymandering’. (P. S. Nivola, ‘Thinking about political polarization’, The Brookings Institution Policy Brief, 139 (January 2005), p. 7.)

(21) DiMaggio et al., ‘Have Americans’ social attitudes’ (pp. 738–9). The authors suggest that there was polarisation around the abortion issue but they stress that it would be wrong to draw generalised conclusions from this.

(21) K. H. Conger and J. C. Green, ‘Spreading out and digging in: Christian conservatives and state Republican parties’, Campaigns and Elections (February 2002), p. 59.

(21) Quoted in Kengor, God and George W. Bush, p. 107.

(23) National Election Studies, The ANES Guide to Public Opinion and Electoral Behavior – Strength of Partisanship 1952–2004 (2005), www.umich.edu/∼nes/nesguide/toptable/tab2a_3.htm. In an influential study, The Myth of the Independent Voter, which considered elections between 1952 and 1988, Bruce E. Keith and his colleagues argued that although ‘pure’ independents were electorally volatile, ‘leaners’ and ‘weak’ identifiers were, in practice, reliable voters for their party. (B. E. Keith et al., The Myth of the Independent Voter (Berkeley: University of California Press, 1992), pp. 65–6). Nonetheless, in mid-October 2004, two weeks before election day, 15 per cent of likely voters remained uncertain who they would support. (The Pew Research Center for the People and the Press, Swing Voters Slow to Decide, Still Cross-Pressured: Follow-up Interviews Find (27 October 2004), http://people-press.org/reports/display.php3?ReportID=231.)

(23) Kengor, God and George W. Bush, p. 63.

(25) M. J. Penn, ‘Myth of the vanishing swing vote’, The Washington Post (5 October 2004), p. A25, www.washingtonpost.com/wp-dyn/articles/A7256-2004Oct4.html. (p.12) Even if, as The Myth of the Independent Voter suggests, the figure for the proportion of ‘genuinely’ uncommitted voters is smaller than Penn suggests, they are still of pivotal significance when support for the parties is finely balanced.

(25) His son, Franklin Graham, has however had rather closer ties although he too has maintained a degree of autonomy.

(26) The Pew Research Center for the People and the Press, Kerry Wins Debate.

(27) A. Wolfe, One Nation, After All: What Americans Really Think About God, Country, Family, Racism, Welfare, Immigration, Homosexuality, Work, The Right, The Left and Each Other (New York: Penguin, 1998).

(27) The New York Times (13 November 1994).

(28) Administration policy towards federal government funding for embryonic stem-cell research was an exception to the overall trend during Bush’s first term of office. It ran counter to opinion poll trends. The focus of the book is, however, on sexual morality. Therefore, funding for embryonic stem cell research, ‘end-of-life’ issues such as the dilemmas raised by Terri Schiavo’s death and Oregon’s Death with Dignity Act, and the ‘intelligent design’ debate are not directly considered.

(28) T. G. Jelen, ‘Religion and public opinion in the 1990s: an empirical overview’, in B. Norrander and C. Wilcox (eds), Understanding Public Opinion (Washington DC: CQ Press, 1997), p. 68n.

(28) J. Owens, ‘Congress after the “Revolution”: The Continuing Problems of Governance in a Partisan Era’, in A. Grant (ed.), American Politics: 2000 and Beyond (Aldershot: Ashgate, 2000), p. 51.

(29) M. P. Fiorina, Culture War? The Myth of a Polarised America (New York: Pearson Longman, 2005), pp. 138–9.

(29) Jelen, ‘Religion and public opinion’, p. 67.

(30) G. C. Layman, ‘“Culture wars” in the American party system’, American Politics Quarterly, 27:1 (1999), p. 110.

(32) Barbara Norrander argues that there are relatively few differences between those who vote in primaries and those who – later in the year -cast a ballot in the general election (B. Norrander, ‘Ideological representativeness of presidential primary voters’, American Journal of Political Science, 33:3 (1989), p. 570). The primary electorate should not be regarded as ‘extremist’: ‘Republican primary voters may be slightly more ideologically sophisticated (e.g. more ideologues) and have somewhat stronger symbolic ideological identifications … but they are not more ideologically extreme … Primary voters are not the extremist minority; they are the slightly better informed minority’. (B. Norrander, ‘Presidential nomination politics in the post-reform era’, Political Research Quarterly, 49:4 (1996), p. 888.)

(33) Quoted in M. J. Rozell and C. Wilcox, ‘Virginia: birthplace of the Christian right’, in J. C. Green, M. J. Rozell and C. Wilcox, The Christian Right in American Politics: Marching to the Millennium (Washington DC: Georgetown University Press, 2003), p. 42.

(34) J. W Lamare, J. L. Polinard and R. D. Wrinkle, ‘Texas: religion and politics in God’s country’, in Green et al., The Christian Right in American Politics, p. 69.

(35) R. J. McKeever, Raw Judicial Power? The Supreme Court and American Society (Manchester: Manchester University Press, 1995) p. 98.

(36) J. P. Pfiffner, ‘President and Congress at the turn of the century: structural sources of conflict’, in J. A. Thurber (ed.), Rivals for Power (Lanham: Rowman and Littlefield, 2002), pp. 27–47.

(37) B. Sinclair, ‘Congressional parties and the policy process’, in L. S. Maisel (ed.), The Parties Respond: Changes in American Parties and Campaigns (Boulder: Westview Press, 2002), p. 212.

(38) M. Foley and J. E. Owens, Congress and the Presidency: Institutional Politics in a Separated System (Manchester: Manchester University Press, 1996), p. 46.

(39) D. Brady and M. Fiorina quoted in J. P. Pfiffner, ‘President and Congress at the turn of the century: structural sources of conflict’, in J. A. Thurber (ed.), Rivals for Power (Lanham: Rowman and Littlefield, 2002), pp. 27–47.

(40) D. R. Jones, ‘Party polarization and legislative gridlock’, Political Research Quarterly, 54:1 (2001), p. 125.

(41) E. A. Oldmixen, Uncompromising Positions: God, Sex, and the House of Representatives (Washington DC: Georgetown University Press, 2005), p. 166.

(43) Oldmixen, Uncompromising Positions, p. 170.

(47) T. G. Jelen and C. Wilcox, ‘Causes and consequences of public attitudes towards abortion: a review and research agenda’, Political Research Quarterly, 56:4 (2003), p. 490.

(48) Jelen and Wilcox, ‘Causes and consequences’, p. 494. Note: Some polls suggest that if opinion towards abortion is considered in its most inflexible form – that it should be legal under circumstances – there was a small shift towards the ‘pro-choice’ camp during the latter half of the 1990s. See, for example, E. C. Ladd and K. H. Bowman, Public Opinion about Abortion (Washington DC: The AEI Press, 1999), pp. 36–7.

(49) Greenberg, ‘The marriage gap’.

(51) There is a need for some caution. Surveys findings inevitably depend in large part upon the way in which questions are posed. Gallup polling tied ‘moral’ concerns to ‘ethics’, thereby fusing two rather different issues. This could, particularly in years when Congressional scandals were in the public eye, have had a significant impact on results and trends. Furthermore, the term ‘moral’ has a loose character. Although it is, for many, associated with issues such as abortion and homosexuality, it can also rest upon obligations to others, foreign policy questions or the probity of government. There are other difficulties. Respondents answer differently in those election surveys where they are allowed to list unlimited issues as priorities or important and in those where they are asked to choose between a limited range of options. If choices are unlimited, significant numbers emphasise the importance of moral issues such as abortion. If, however, survey respondents are asked to select from a list and thereby make a choice between moral issues and other concerns – as in the Gallup polls – relatively small numbers point to moral issues. However, while polls based upon a limited choice seem to offer a more helpful and legitimate picture of popular opinion, a further caveat should be entered. A rise or fall in the proportion of respondents identifying moral concerns as the ‘most important problem’ may simply reflect a change in the relative weight of another issue. A fall in the numbers or a low figure may mask considerable residual anxiety about moral and cultural questions.

(52) Abortion may, however, have greater weight as an issue than these figures suggest. See page 000.

(53) J. K. White, ‘Solving the values dilemma’, in M. R. Kerbel, Get This Party Started: How Progressives Can Fight Back and Win (Lanham: Rowman and Littlefield, 2006), pp. 51–2.

(54) Galston and Kamarck, The Politics of Polarization, pp. 21–2.