Screen Space and the Conviction of “Dick Smart”
On March 31 and again on April 7 of the year 2000, the Grand Rapids, Michigan, public access station known as GRTV (Grand Rapids Television) aired an episode of a show called Tim’s Area of Control in a half-hour time slot beginning at 10:30 p.m. The nonprofit Community Media Center of Grand Rapids operates GRTV on the local Comcast franchise’s channel 25, which then reached about 46,000 cable subscribers.1 The episode of Tim’s Area of Control that aired on those dates was the series’ sixty-eighth episode, and it included a three-minute skit that the show’s producer and primary performer, Timothy Bruce Huffman, called “Dick Smart.” For the skit, Huffman painted a face on his penis and set up a shot in which his penis and testicles would appear on screen in close-up while, with the rest of his body out of frame, he told jokes. The routine was crude, rambling and not particularly funny; in much of it, Huffman heckles an imaginary audience (“whats [sic] the matter with you lady, you never seen a dick before?”). But it is also largely beside the point. The skit would become the center of a prolonged legal contest, not because of its use of language but rather over the frontal nudity that comprised the visual component of the scene.
Predictably, Michigan v. Timothy Bruce Huffman raised First Amend
ment issues regarding the relative absence of regulation pertaining to the content of cable and satellite television programming vis-à-vis the limited protection afforded broadcast speech. As well, adjudication of the case rested on arguments holding that electronic media constitutes a kind of space equivalent to geographic spaces such as public parks or streets; that images, and representations generally, are substantially indistinct from material proximity to a subject or object. Accordingly, the case underscored endemic friction between notions of the media as a spatially networked kind of public sphere, and the presumptive privacy of the domestic sphere, the conventional site for television and other screens.2 As a consequence, this incident, and the ensuing legal actions, asks us to consider carefully the relationships between bodies and screens, selves and images, and the ebbing boundaries between public and private that remodulate these relations.
Nudity is grounds on which complainants have targeted broadcasters previously, and the Federal Communications Commission (FCC) has sometimes taken punitive action. When a pair of Australian comedians took their act “Puppetry of the Penis” to San Francisco in 2002, they appeared on KRON’s Morning News show, dressed only in capes. When one of the men stood up suddenly, a full but fleeting view below the waist went live to air. A viewer complained, and the FCC levied the maximum $27,500 fine on the station. That Notice of Apparent Liability came just a few days before the 2004 Super Bowl when, famously, a so-called costume reveal became a “wardrobe malfunction” during Justin Timberlake and Janet Jackson’s halftime performance, exposing her right breast for less than a second. The FCC claimed to have received over a half-million complaints and fined CBS-owned stations $550,000, sparking its own series of legal battles.3 But policies intended to deter “indecency” on broadcasting’s airwaves don’t apply to cable channels, neither its commercial channels nor its Public, Educational or Government (PEG) Channels, including GRTV.4 So, when a complaint was made against the “Dick Smart” skit, local law enforcement improvised.
According to the Michigan Court of Appeals, a viewer catching the show on April 7 “lodged a complaint with GRTV.” An investigation ensued, a search warrant was issued and police seized a videotape of the episode from Huffman’s home. (How the transmutation from internal matter for GRTV to criminal case for the Grand Rapids Police Department took place is murky in the published record. The Grand Rapids Press reported, alternatively, that the viewer also complained about the show “to a friend who is an assistant Kent County prosecutor,” who then launched the investigation.5)
In any case, on January 7, 2003, a jury convicted Huffman on charges of criminal indecent exposure, a misdemeanor that can lead to as much as a year in jail and a $500 fine. The conviction was unprecedented. The charge of indecent exposure had not previously, in any jurisdiction, been levied on a televised act. Reportedly, the presiding judge instructed the jury that television—specifically, cable television—constitutes “a public place.” Therefore, the telecast could be understood as “conduct, not speech, and thus not protected by the First Amendment.” Huffman was sentenced on February 19, 2003, to one day in jail, a year of probation, a $500 fine and court costs.6
Huffman appealed with the help of the Alliance for Communications Democracy and the American Civil Liberties Union. The Circuit Court in Grand Rapids upheld the conviction in November 2003, as did the Michigan Court of Appeals in May 2005, a decision affirmed by the Michigan Supreme Court in February 2006. In October 2006, the U.S. Supreme Court refused to hear the case, ending the string of unsuccessful appeals.
In one of the most interesting documents resulting from the case, the Michigan Court of Appeals presented a series of questions pertinent to, and pressing on, our considerations of the role of electronic media in daily life. First, the Court asked, “Does the ‘Open or Indecent Exposure’ Statute Apply to Television Images?” To answer yes to this question, the Court had to extend the intent of the law beyond its stated pertinence to exposure of one’s sexual organs to an individual or group of individuals in open view, in close physical proximity.7 The statute does not explicitly address exposure via electronic media or media viewed in the privacy of one’s home. But the decision pointed out that the statute does not explicitly dis-include television and argued that, “while we agree that a televised exposure is qualitatively different than a physical exposure, we note that, in some ways, it can be more offensive and threatening. When a person might minimally suspect that some stranger might expose himself in a public form, to be subjected to a televised exposure in the privacy of a home is likely a more shocking event.”
The judges explain that the televised representation is “likely … more shocking” because the “defendant’s exposure, while televised, was presumably more of an immediate close-up than would occur if he had been physically present with those subject to his exposure … probably larger than actual size and the exposure continued for fully three minutes, much longer than would have likely been allowed … in some public square.” Obviously, this section of the ruling overlooks the fact that TV comes with remote control and real life does not (the complainant might’ve changed the channel or turned off the set rather than endure the image), that the potential for escalation to physical violence in an in-person encounter is lacking in encounters with the screen image.
The Court also had to consider, “Does the Conviction Violate Defendant’s First Amendment Right to Free Speech?” Since the conviction depended on convincing the jury that the program constituted conduct, despite habitual treatment of most forms of mediated representation as speech, the Court turned to prior cases involving entangled speech and non-speech acts. Following the 1968 draft-card burning case United States v. O’Brien, and cases involving nude dancing that reference O’Brien, the Court of Appeals reiterated that “a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.” Further, the Court of Appeals agreed with the Supreme Court’s decision in FCC v. Pacifica (1978) that broadcast media is subject to “the most limited First Amendment protection” because it is so “uniquely pervasive in the lives of all Americans” that it must be prevented from transmitting “patently offensive, indecent” material into the private sphere, the home. In Michigan v. Huffman, the Court of Appeals ignored precedent to hold that “the same reasoning applies to cable television.”
The Court’s answers to both questions—the applicability of the open or indecent exposure statute to televised images, and the constitutionality of any regulation of these images—jettisoned cable TV’s status as an “invited guest” and refigured it as a menacing penetration of the public into the private realm. Or, conversely, the verdict redefined the presumptively private home as irremediably looped into the public via screen culture, and therefore subject to the same paternalistic legal interventions as playgrounds and schoolyards.
Despite the uniqueness of the Huffman case, these rulings might come as little surprise in light of the frequent conflation of geographic and electronic space. We now refer comfortably to “mediascapes,” following Arjun Appadurai.8 And we agree, as Nick Couldry and Anna McCarthy wrote, that “it is ever more difficult to tell a story of social space without also telling one of media, and vice versa.”9 It has become commonplace to treat the media, especially electronic media, as a kind of space equivalent to other kinds of space—physical, geographic—that the body inhabits. That is, to treat sets of representations and the conduits, such as radio, television and the Internet, that transmit those representations as substitutive, perhaps even interchangeable. Consider, for example, Setha Low and Neil Smith, writing in The Politics of Public Space:
By public space we mean the range of social locations offered by the street, the park, the media, the Internet, the shopping mall, the United Nations, national governments, and local neighborhoods. Public space includes very recognizable geographies of daily movement, which may be local, regional or global, but they also include electronic and institutional “spaces” that are every bit as palpable, if experienced quite differently, in daily life.10
Thus, mediated and actual “spaces” need not be identical, but they are, according to Low and Smith, the equally “palpable” places in which and through which daily life takes place. Likewise, legal argument upholding the Huffman conviction relies on the theorized “palpability” of electronic networks, of the equivalence of virtuality and materiality, and a collapse of distinctions between the representational and the real.
Huffman reminds us of the stakes in such a claim, highlighting the deeply entangled concepts of media and space. The rulings ignored precedent to argue that cable television is a public forum. Will they set new precedent for treating televisual images—or representation in any medium—perceived as indecent as criminal acts?11 In truth, the Huffman case will likely prove more peculiar than influential. But I want to suggest that what the law encourages is as important as what the law discourages. That is, legal action is not only punitive but also, at times, a deterrent, a system of de facto censorship even where no a priori censorship mechanism exists.12 Huffman may be only part of a trend but one that bolsters an accruing chill alongside other means of intimidating or corralling unpopular speech, realigning an increasingly mediated and surveilled public with an increasingly unboundaried private. In Michigan v. Huffman, legal distinctions between public and private, conduct and speech, lived experience and representation, melt into air.13
1. My source for many of the basic facts of the case is People of the State of Michigan v. Timothy Bruce Huffman, Court of Appeals of Michigan, No. 252315. Submitted February 9, 2005; decided May 10, 2005; published July 26, 2005. All subsequent quotes from court documents derive from this decision.
2. Of course, the “public” itself deserves interrogation, which I must leave aside in this short essay. See Hannah Arendt, “The Public and the Private Realm,” in The Human Condition (Chicago: University of Chicago Press, 1958); Jurgen Habermas, The Structural Transformation of the Public Sphere, trans. Thomas Burger and Frederick Lawrence (Cambridge, MA: MIT Press, 1991); Michael Warner, Publics and Counterpublics (Brooklyn: Zone, 2002).
3. See CBS et al. v. FCC, U.S. Court of Appeals for the Third Circuit, No. 06-3575. Argued September 11, 2007; published July 21, 2008. In 2009 the Supreme Court remanded this decision back to the Third Circuit for reconsideration.
4. The FCC mandated cable systems in the top hundred markets to allocate three PEG channels (one each) in its Third Report and Order (1972). The Cable Act of 1984 prevented cable systems from interfering with content on PEG channels. The legal distinction between broadcasting and cable has historically recognized that the free-to-air broadcast signal is unavoidably ubiquitous (see Red Lion Broadcasting Co., Inc. v. FCC, 385 U.S. 367, 1969), while cable TV requires nontrivial monthly payments and hence constitutes an “invited guest” for which the subscriber—not the provider—is primarily responsible. In Quincy Cable TV, Inc. v. FCC (1985), the District of Columbia Circuit Court of Appeals ruled that, unlike broadcasting, cable TV is more like “traditional media,” such as print, and therefore entitled to First Amendment protection. Likewise, in Community Television of Utah, Inc. v. Wilkinson, 611 F. Supp. 1099 (D.C. Utah 1985), the U.S. District Court of Utah observed that “cable television is not an uninvited intruder.”
5. Doug Guthrie, “Defense Lawyer Calls Exposure Conviction ‘Rigged,’” The Grand Rapids Press (January 8, 2003): D1.
6. “Timothy Bruce Huffman Convicted of Exposing Himself,” Broadcasting & Cable (June 21, 2004). See also John Eggerton, “‘Indecent Exposure via Cable’ Appealed,” Broadcasting & Cable (March 7, 2005).
7. In Michigan, another statute prohibits billboards and other signs in public view from carrying images that would be considered indecent if viewed live. MCL 750.38, under which Huffman was not charged, prohibits billboards and other signs from containing “representation of the human form in an attitude or dress which would be indecent in the case of a living person.”
8. “Ethnoscapes, mediascapes, technoscapes, finanscapes, ideoscapes.” Arjun Appadurai, “Disjuncture and Difference in the Global Cultural Economy,” Public Culture 2, no. 2 (1990): 1–24.
9. Nick Couldrey and Anna McCarthy, eds., MediaSpace: Place, Scale and Culture in a Media Age (New York: Routledge, 2004), 1.
10. Setha Low and Neil Smith, eds., The Politics of Public Space (New York: Routledge, 2006), 3.
11. See John Eggerton, “Cable Speech in Jeopardy,” Broadcasting Cable (June 21, 2004).
12. Once the Huffman case resolved, GRTV lost some 20 percent of its 2007 funding due to new Michigan legislation that rewrote how cable system franchises contribute to public access funding. In 2006, the Seattle Community Access Network (SCAN) discontinued Mike Hunt TV, determining it was obscene; a new agreement negotiated between the city and Comcast soon after resulted in budget cuts of 25 percent at SCAN, which some observers linked to the controversy. See Kerry Murakami, “Public Access TV Tightens Obscenity Rules,” Seattle Post-Intelligencer (January 19, 2006); also Cydney Gillia, “Cable Axis: Challenging Times for SCAN TV under Proposed Franchise Agreement,” RealChangeNews.org (March 2, 2006).
13. “The bourgeoisie, wherever it has got the upper hand, has put an end to all feudal, patriarchal, idyllic relations. It ... has left remaining no other nexus between man and man than naked self-interest ... All that is solid melts into air, all that is holy is profaned, and man is at last compelled to face with sober senses, his real conditions of life, and his relations with his kind.” Karl Marx and Friedrich Engels, The Communist Manifesto (Oxford, UK: Oxford University Press, 1992), 5–6.