Bench Memos

Hadley Arkes on “‘Indecency’ in the Arts and the Law”

On the new Right Reason website, Hadley Arkes has an interesting and insightful essay defending the enforcement of indecency standards generally and the FCC’s position in the pending Supreme Court case of FCC v. Fox Television in particular. Some excerpts:

[I]t has taken judges and lawyers the forty years since Cohen v. California to talk themselves out of the recognition that they do in fact have access to rational standards for judging the content of speech acts. What has been forgotten also is the understanding that the community may indeed have the most legitimate interest in the sensibilities that are cultivated among our own people. That sense of things has been so long woven into our laws and conventions that we may no longer even notice.…

As [Walter] Berns observed, a community cannot be indifferent to the ways in which its people find their pleasure. But it may be precisely because the matter has been so embedded in our lives that lawyers no longer recall the reasons we had these laws. And might that explain why even seasoned lawyers could still ask, “What right does the government have to tell us what is decent or indecent in our entertainments?” One of the most revealing things, then, in the oral argument before the Court was the point never expressed: None of the lawyers was moved to say that of course a democratic regime has the most legitimate concern for the moral sensibilities of its people, for it draws its rulers from those same people.

In addition to being a professor at Amherst, Arkes directs the Claremont Institute’s new Center for the Jurisprudence of Natural Law, which runs the Right Reason website. (Arkes is also affiliated with the Ethics and Public Policy Center, the think tank I head.) Thus, it’s not surprising that his essay largely engages in natural law reasoning. I’ll simply add that I’m confident that sound originalist analysis would yield the same broad judicial acceptance of indecency standards.


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