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HomeSpeech of Susan Buckley

Address of Susan Buckley, John Quinn Memorial Lecture, 2009

My thanks to the American Irish Historical Society for
sponsoring this event and inviting me to your absolutely
magnificent home. And to the Irish American
Bar Association of New York. And of course the
Consulate General of Ireland and Consul General
Burgess.

As we celebrate Bloomsday in proper fashion tonight
it is only right that we honor Ulysses for its unique
role in the development of First Amendment jurisprudence
in the United States and John Quinn, the lawyer
who first defended Ulysses.

A few years back at the dawn of the new century, we
were all devouring lists of the great achievements of
the last. Ulysses topped the Modern Library’s list of
the greatest novels written in the 20th century; Joyce’s
Portrait of the Artist as a Young Man came in third.
(To spare you the agony of wondering all night about
which book was #2, it was F. Scott Fitzgerald’s “The
Great Gatsby.”) But as we all know, that is not the reception
Ulysses received when it first appeared in print in the United
States.

On September 29, 1920, John S. Sumner, the second
Secretary of the New York Society for the Suppression
of Vice entered a small bookshop in Greenwich
Village. (The bookshop is long since gone. It’s now a
shoe store.) Mr. Sumner was there to purchase the July/
August issue of a literary magazine called “The Little
Review.” It cost 25 cents. That issue contained
one chapter of Joyce’s Ulysses. Sumner had been
tipped off by the Manhattan district attorney who had
received a complaint about Joyce’s contribution to that
issue. That contribution was the final part of the
Naussica episode in the book, including the beach
scene.

The Little Review was published by Margaret Anderson
and Jane Heap. They published chapters of Ulysses
as they received them from Ezra Pound, the magazine’s
“European editor” quite literally as Joyce was
writing them. On receiving the first, in 1918, Anderson
would later write that she was moved to exclaim:
“This is the most beautiful thing we will ever have.
We’ll print it if it’s the last effort of our lives.” 24
portions of Ulysses were published in The Little Review
between 1918 and 1920.

Until John Sumner made his purchase and charged
Anderson and Heap with the crime of publishing the
“indecent or obscene”. 

Enter John Quinn. A successful, Harvard-educated
NY lawyer. A great supporter and benefactor of the
arts and literature, especially Irish literature, and a personal
friend of Ezra Pound and James Joyce. Quinn
had urged Joyce not to allow The Little Review to
publish portions of Ulysses fearful that it would doom
the fate of the finished work in the United States. His
view was that our “puritanical country” was not ready
for Ulysses, at least not in serialized form. And he
was right.

Quinn’s case had three major problems. Or so it
seems to me. There was no First Amendment to help
him. To be sure the First Amendment was then firmly
entrenched in its spot of honor in the Constitution.
But no one would have thought then that it had anything to say
about the subject of obscenity (which was a crime in
most of the states before the First Amendment was
adopted), let alone that it was a defense to a state criminal
prosecution.

Quinn’s second problem was that he had a terrible legal
standard to work with. Regina v. Hicklin, imported
from the courts of England. A work was obscene if its tendency
was “to deprave and corrupt those whose minds
are open to such immoral influences.” Or, to put it
another way, a work was obscene if it would tend to
corrupt the corruptible. Paternalistic? Indeed. Elitist?
Most likely. 

Quinn’s third problem was the very work he had to
work with. Although the concept of judging a work as
a whole was just beginning to emerge in American
law at the time, Quinn had no whole. Ulysses wasn’t a
book yet. He was dealing with only a piece of it, and
a provocative piece at that.

Quinn mounted two defenses: His first? The work
might be “filthy” but it wasn’t obscene. That while it
might use foul language, it did not encourage impure
thoughts. The second defense, which any first time
reader to the book will appreciate, was that the work
was incomprehensible. Because no one could possibly
understand it, no one could be corrupted by it and
therefore it was not obscene.

As Quinn would later write to Joyce: “I took the only
tack that could be taken with the three stupid judges,
and that was that no one could understand what the
thing was about. I nearly got away with it.”
But “nearly” was not enough. Anderson and Heap
were convicted and fined $50 apiece. As Quinn had
feared, however, for the next 12 years no publisher in
the United States would touch Ulysses. It was first
published in English in Paris in 1922. Bootleg copies
could apparently be had in NY for $50, hardly chump
change in the early 1920s.

At roughly the same time the first battle over Ulysses
was being waged, the battle over indecency and obscenity
in fine art was faring much better in the states.
Apparently words were more threatening than painting
or sculpture in the early 20th century. A precursor,
perhaps, to the concept we shall see in American law
that each medium has a First Amendment law to itself.
Twelve years after Quinn’s loss, and some years after
his death, Ulysses (this time all of Ulysses) returned to
the US courts in a litigation highly orchestrated by the
young publisher of Random House, Bennett Cerf, and
his lawyer Morris Ernst. Cerf apparently didn’t want
to invest the money in publishing Ulysses here unless

he was assured the book would not be banned. So it
was arranged that a copy of the book would be sent
from Paris to be seized by US Customs in NY. Ernst
instructed the Paris publisher to paste reviews of the
book into its inside covers to assure they would be received
in evidence. Ernst chose his court—the
SDNY — his judge — Judge Woolsey — who had
written quite favorable opinions in the obscenity area
— and dispensed with a jury, all with the consent of
the government prosecutors.
Judge Woolsey spent the summer reading Ulysses.
And Ulysses was victorious.

Judge Woolsey squarely held that the work had to be
evaluated as a whole. Applying an objective, reasonable
man standard. In what is likely the most memorable
line from his opinion, he also considered context:
“it must always be remembered that [Joyce’s] locale
was Celtic and his season spring.” In a sense he also
considered “community standards”. His opinion recites
that he shared the book with two friends, both of
whom independently reported that they did not find
the work obscene. Talk about going outside the record
. . . . .
The government appealed to the Second Circuit. Over
the dissent of Judge Manton (who would later be convicted
of corruption himself) the brothers Learned and
Augustus Hand affirmed Judge Woolsey.

The author’s intent was irrelevant. The intended recipient
was irrelevant. Context was important, they
ruled. And in a strange aside, they also found it relevant
that the work had “an established reputation in
the estimation of approved critics.” Apparently the
pasting of the reviews on the inside cover had worked.
The First Amendment was not mentioned in either
opinion. But the standards that the federal courts articulated
in Ulysses II would eventually make their
way into the Supreme Court’s First Amendment jurisprudence.
It would take the Supreme Court 20 more years to
hold that the First Amendment had a role in defining
obscenity. And then it would take the Supreme Court 15 more
years to settle on the standard that still largely prevails
today in its opinion in Miller v. California.

And so by 1973, with considerable help from the opinions
in the Ulysses cases, it was fairly well-established
that works of literature and art and drama and music
would not likely fall under the censor’s sword. But
that very same year another debate over obscenity and
indecency would begin. This time in the context of
the relatively new medium of radio and television
broadcasting.

Radio and television were having a hard time in
American courts. Not long after Quinn had lost the
first Ulysses trial, Congress passed what could hardly
have been considered a revolutionary statute at the
time. Let’s take a look at 18 U.S.C. § 1464,  a criminal statute
passed as part of the Radio Act of 1927 before there even
was television and before there was much First Amendment
jurisprudence to speak of. You’ll see that it criminalizes not
only obscene speech, but also “indecent speech.”

The statute continues today as part of the US criminal
code and as part of the Communications Act of 1934,
a statute that also created the Federal Communications
Commission, the agency that regulates broadcasters.
How is it that broadcasters can have this special regulation
at all in light of the First Amendment? Newspapers
aren’t and can’t be regulated. Nor can magazines
or movies or books. But the Supreme Court had
told us in the Red Lion case (and others) that broadcasters
are different. The theory goes something like
this:

The broadcast spectrum is limited. There are just so
many airwaves that people can talk over. And if we
had everyone chatting away over the airwaves, you
wouldn’t be able to hear anyone at all. Licenses are
therefore necessary to keep people speaking over their
proper airwave. If licenses are necessary, the government
will have to issue them. If the government issues
them, it will have to have some standard to apply
to ensure that those issued licenses are using them
well. Therefore it is constitutional to have the FCC issue
broadcast licenses — to act as a traffic cop if you
will —and to determine that licensees are acting in
the public interest. This has become known as the
“spectrum scarcity rationale.” Because the broadcast
spectrum is scarce, someone has to regulate it. That
someone is the FCC.

Now, how did we get from the government ensuring
that licensees are “acting in the public interest” to the
conclusion that Congress can regulate “indecent
speech” on broadcast television and radio? After all,
the Communications Act itself says that the FCC can’t
censor broadcasters or otherwise interfere with broadcasters’
freedom of expression.
The answer begins with GEORGE DENIS PATRICK
CARLIN and his comedy routine “Seven Dirty
Words.” 

At about 2 o’clock in the afternoon on October 30,
1973, a man in NY City was riding along in his car
with his young son, when over the radio came George
Carlin’s now infamous Vietnam War-era monologue
satirizing the use of language in contemporary society.
For rebellious 20-somethings at the time, it was
viewed as the finest example of anti-establishment
comedy. Let’s listen.

The man in the car wrote a letter complaining to the
FCC — it was the only one they received —and the
FCC sanctioned the station. The case made its way to
the Supreme Court where the issue was whether
speech which is indecent but not obscene may be restricted
under the authority of section 1464 in light of
the First Amendment.

Most everyone in the know thought the FCC would
lose because the FCC had conceded that Carlin’s
monologue was not obscene under the test announced
in Miller v. California just a few months before Carlin’s
monologue aired.

But the Supreme Court sided with the FCC in Pacifica
on the theory, once again, that broadcasting is different
than other mediums. This time the Court articulated
two new rationales. The Court reasoned that broadcasting
is uniquely pervasive in the home and uniquely accessible to children.

In the course of its rather splintered opinion in Pacifica
and many times since, the Supreme Court emphasized
that its decision there was strictly limited to the
facts. That it was a narrow decision and that it should
not be interpreted, for example, to ban fleeting instances
of profanity or the like. It was the repetition of
Carlin’s words that made the difference in the mind of
the Court.

Nonetheless, the FCC was really in business now. After
years of litigation, the Commission ultimately
adopted regulations that ban all indecent programming
on broadcast television and radio between the hours of
6am and 10pm. These so-called “SAFE HARBOR” rules
have been upheld by the lower courts.
To assist worried broadcasters, the Commission also
published a lengthy guide to what is and what isn’t indecent.
But the one thing that was clear was that isolated
instances of indecency or profanity would not be
actionable.

Enter cable television. Cable of course is different
from broadcast television in several important ways.
You have to pay to get it. There is unlimited channel
capacity.  The same is true for satellite TV and radio.
There is no “spectrum scarcity.”

And virtually from the inception of cable, cable companies
provided “LOCK BOXES” to those who wanted
them. These are devices that permit parents to lock
out certain channels from the prying eyes of children.
Although some states and municipalities tried to ban
indecent programming on cable— Floyd and I had the
privilege of working on the first one. In Salt Lake
City. Not exactly a hospitable venue. —the efforts to
ban indecent speech on cable have not met with success
in the courts, largely on the theory that cable is a
medium of choice.

As cable grew more popular, Congress insisted that
cable companies carry the programming of all local
broadcasters sparing cable customers from literally
having to connect and disconnect their cables to see
local broadcasts.

So now if you’re a cable subscriber here in NY, when
you click on your programming guide, ] you can choose
to watch stations like channels
2, 4, 5, 7, 9, 11 and 13 which are broadcast stations
subject to the FCC indecency rules, or you can
watch any of the other channels which are not subject
to indecency regulation at all. Kind of crazy . . .

In the meantime, Congress passed legislation requiring
that all new televisions be equipped with a V-chip, a
device that acts just like a cable lock box, permitting
even those who don’t have cable to program their TVs
to prevent children from watching unsuitable programming
on broadcast television. All of a sudden,
broadcast television was beginning to look a lot like
cable.

But then came Bono, leaping to the podium to accept
his award for “Best Original Song” at the 2003 Golden
Globe awards. Let’s take a look. [

With the help of the internet, members of the Parents
TV Council pummeled the FCC with complaints. The
FCC’s enforcement division declined to sanction the
NBC stations that aired the Golden Globes saying that
Bono’s choice of phrase was not a description of a
sexual act; that he had used the F-word more like an
“expletive to emphasize an exclamation”.
The FCC was excoriated. From the right and from the
left. The moral of the story seemed to be that if you
use the F-word as an adjective, it’s OK, but if you use
it as a verb, YOU ARE TOAST.
A popular program on The Comedy Channel, a cable
channel of course, made the point.

In reality, what the enforcement division had done in
declining to fine the broadcasters who aired Bono’s
acceptance speech was what the FCC had done for
years. The FCC had made clear that fleeting instances
of profanity would not result in punishment. But
many politicians and other critics would have none of
it.
As the Bono debate was raging, the country turned to
more important matters. SuperBowl 38. Let’s take a
look. ]
It’s a bit ironic that the poor television director of that
SuperBowl Halftime show cut to a scene of fireworks
to escape his dilemma. Because the legal fireworks
that the now infamous wardrobe malfunction caused
were quite astounding. An uproar ensued. Our neighbors
around the world wondered what in heaven’s
name the fuss was all about. The United States of
America, a country with a constitutional guarantee
that speech will be free from governmental regulation,
was imploding over a glimpse of a breast. But implode
we did and the FCC was under fire again. Big
time.

So when the Bono decision went before the entire
Commission on appeal shortly after SuperBowl 38, the
FCC fought back and reversed its enforcement division.
In a decision it recognized was a clear break
with past precedent, the Commission ruled that each
of the NBC stations that had aired Bono’s joyful moment
had violated section 1464. Broadcasters were at
a loss. The FCC’s indecency guidelines were out the
window. If one use of the F-word was going to get
them FINED, the world had changed.
Fast forward to Veteran’s Day 2004.
The ABC television network was presenting a special
broadcast of the award winning film “Saving Private
Ryan” in honor of our war veterans. The Spielberg
movie contains surely the greatest dramatized depiction
of the Normandy invasion. And a serious look at
the personal horrors of war. Let’s take a look.

The film had been shown on broadcast television before;
the F-word was used no more than 20 times, 2 of
which you’ve just heard. But 66 of ABC’s affiliates
— some in the country’s largest television markets —
decided not to carry it that Veteran’s Day. If one use
of the F-word was a NO-NO, they weren’t about to
take a chance on this film. And they didn’t.

The SuperBowl case headed to the Commission. CBS
didn’t have a prayer. Even though it was agreed that
the network had no prior knowledge of Jackson’s and
Timberlake’s raunchy antics, the Commission imposed
the maximum allowable fine of $550,000. Apparently
that was not to Congress’ liking which shortly
thereafter passed legislation increasing the amount of
fines that could be imposed on broadcasters tenfold.
The case challenging the FCC’s change in position in
the Bono case landed here in the Second Circuit. The
SuperBowl case headed to the Third. Both courts
ruled that the FCC had violated the Administrative
Procedure Act in adopting its new ban on fleeting
words and images because the Commission had not articulated
a rational basis for the change. The broadcasters’
constitutional arguments were not reached.
And both cases headed to the Supreme Court.
The Supreme Court took the Bono case from the Second
Circuit and held the Superbowl case in abeyance
until their decision.
The Court issued its decision 6 weeks ago.

[Discuss bullets from Fox slide.]
So we now await the decisions of the Second and
Third Circuits on remand to see if the constitutional
arguments will be decided. And to see if the Supreme
Court will take the cases again.
Who should win? I will admit to being biased but my
money is on the broadcasters.
There’s simply no honest rationale that can any longer
justify a different treatment for broadcasters. Each of
the prior rationales has withered with new technology.
There is no spectrum scarcity anymore as cable has
proved and as last week’s change to digital broadcasting
only confirms.

The “uniquely pervasive in the home” rationale also
no longer holds water. Cable television is certainly
pervasive. The internet is certainly pervasive. The
courts have struck down all efforts to regulate indecency
on cable or the internet. The “lock box” (which
let cable off the hook to some degree) is now imbedded
in every television sold in the United States, in the
form of the V-chip. Just as Judge Woolsey ruled in
Ulysses and the Second Circuit confirmed in that case,
we should no longer be looking to the identity of vulnerable
recipients — namely children here —to define
what all can see when the technology is available
to parents to control what our children watch.

Did the Supreme Court give us any clues in the Fox
case as to how they are likely to go? Not many. The
clearest signal came from Justice Thomas saying that
while he agreed with the majority on the APA issue,
he thought it was time to reevaluate Pacifica and Red
Lion in light of changed technology. Justice Scalia,
the author of Fox, clearly disagrees. Justice Stevens,
one of the dissenters in Fox and the author of the
Pacifica opinion, let on that he sees no need to reexamine
Pacifica. He likely continues to believe it
should simply be limited to its facts as it had been before
the Bono case. Justice Ginsburg offered that the
First Amendment cast a long shadow on the proceedings
but said little more. Justice Kennedy, typically
the most vigilant protector of the First Amendment on
the Court, was in the majority in Fox, but that doesn’t
give us much of a clue where he comes out on the
First Amendment issue. Justice Souter, one of the dissenters
in Fox will soon retire. It is likely to be very
close.

So, as they say in television speak, Stay Tuned.
My thanks to James Joyce, to George Denis Patrick
Carlin, to Bono and to you. And a very happy
Bloomsday to each and all!