Penile humor and the First Amendment

Well, at least Michigan is safe from televised jokes told by a human penis. The First Amendment doesn't protect that penis according to a decision (PDF file) by the Michigan Court of Appeals.

Seems Timothy Huffman produced a program called "Tim's Area of Control" on a public access cable channel in Grand Rapids, Mich. One episode, that aired between 10:30 and 11 p.m., included a three minute segment where "a flaccid penis and testicles marked with facial features" was the only thing on camera. A voice-over identified the "character" as "Dick Smart" and gave "purportedly humorous commentary" by the penis. (Purportedly may be a good description, as the commentary consisted of jokes like, "I was in the army ya know, yeah, yeah, yeah. I didn't do much, ya know what I mean? I just hung around.")

Huffman was charged with and convicted of violating a statute banning "open or indecent exposure." On appeal, he claimed that simply televising the image of a naked penis was not an exposure covered by the statute. Wrong, said the court:

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. While a person might minimally suspect that some stranger might expose himself in a public forum, to be subjected to a televised exposure in the privacy of a home is likely a more shocking event. Further, defendant's exposure, while televised, was likely more of an immediate close up than would occur if he had been physically present with those subject to his exposure. The Dick Smart character portrayed on TV screens was likely larger than life and it continued for fully three minutes, much longer than would have likely been allowed [in a public square].

Apparently, unwilling viewers are so enchanted by the image of a penis telling a joke that they cannot reach the remote to change channels or hit the off button, let alone get their arse off the couch to go the television itself. And if the size of the portrayal is important, does this not depend on the television owned by any particular person? Does this mean viewers who can afford big screen TVs are more likely to be victimized than those who can't? Likewise, if the length of the portrayal is a factor, let's hope a prosecutor never picks up an art magazine or book or even something like Vanity Fair. Did you know that printed images can be bigger than life and you can't turn the damn things off? All you can do is maybe turn the page or close the book or magazine. Still, that's as much, if not more, work than pushing a button or two on a remote.

Article Author: Tim Gebhart

Tim Gebhart lives in Sioux Falls, SD, where he practices law in order to provide shelter for his family, his dogs, and his books. He is a member of the National Book Critics Circle and his blog de guerre is A Progressive on the Prairie.

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