Girls Gone Wild Teaches Valuable Lesson

Withdrawal of a “social agenda” bill by legislators at the first sign of objection by big business should teach those of us who care about these issues that we must make sure our voice is heard.

Many of us have seen the brazen advertisements on cable television for Girls Gone Wild. The ads leave little to the imagination. In fact, applying the Supreme Court’s “community standards” test for what is illegal obscenity, some communities in Tennessee might find the actual video obscene. But what happened with legislation trying to keep illegal obscene materials out of our homes demonstrates the challenges of the legislative process and teaches all of us who care about social issues a lesson.

Current Tennessee law makes the distribution of obscene material a criminal offense, even as is the case in other states (probably all of them). Obscene material is also not protected by the First Amendment. But Sen. Doug Jackson (D-Dickson) learned three years ago that there was potentially a “loophole” in the law.

Trying to Closing a Legal Loophole

After receiving several calls from constituents who had been caught unawares of the shocking Girls Gone Wild advertisement, Sen. Jackson asked his local District Attorney if he would pursue criminal charges under the obscenity statute. Unfortunately, getting to the actual maker of obscene material is not legally possible unless the maker of the material has some more or less direct connection to Tennessee, meaning a successful prosecution of the maker of Girls Gone Wild is not likely. But when Sen. Jackson asked about going after the cable television companies in Tennessee that may show illegal obscene material or advertise the sale of illegal obscene material, the local District Attorney told him that Tennessee’s law needed to make clear that broadcasting or transmitting by cable or satellite illegal obscene material or advertising illegal obscene material was covered by Tennessee’s existing obscenity law.

So, in 2007, Sen. Jackson filed a bill on the subject. It made showing obscene adult material and advertising obscene material a Class A misdemeanor and limited showing advertisements that were obscene to minors (not as hard core as adult obscenity) until the late night hours.

That year, the bill passed the Senate, 31 to 0 with all 31 of the Senators voting affirmatively being added as sponsors. At Sen. Jackson’s request, in my lobbyist capacity, I tried to help his House sponsor get it through a House subcommittee in 2008, but it faced a procedural obstacle and ultimately failed.

So Sen. Jackson filed the bill again in this General Assembly and the decision was made to try a different sponsor in the House, so Rep. Debra Maggart (R- Hendersonville) was asked to sponsor the bill in the House, and she agreed. (Learn more about Senate Bill 257 and House Bill 624.)

Almost three weeks ago, the bill was passed by the Senate Commerce Committee, 8 votes to zero. Then the bill met its unfortunate demise.

A People without a Voice?

After the bill sailed through the Senate Committee without a single “no” vote, AT&T’s Tennessee cable company expressed concerns about the bill to the House sponsor, saying that it had little control over advertising and did not want to be criminally liable for something it could not control. Fair enough. But more information was needed about how the process of purchasing and placing advertisements worked within the cable industries and the relationship with the channels they carry. So there was a meeting to see if some language could be worked out to address the operational issues but also make sure cable companies were responsible for the programmatic elements of broadcasting over which they had some control.

In fact, it appeared that at least three other states had laws prohibiting the showing of illegal obscene materials and two seemed to deal with advertising for sale illegal obscene materials. And, in any event, it also appeared as if cable companies might already be criminally liable under federal law for showing obscene programming. (In case you’re wondering why a state law would even be needed, states often pass laws that mirror federal laws in order for the state to prosecute criminal activity when the federal government doesn’t care or won’t enforce its own laws.)

Without going into unnecessary details, the bottom line is that Rep. Maggart apparently decided she didn’t want to pursue any compromise language this session and, with the permission of the Majority Caucus Chairman, Glen Casada (R- College Grove), withdrew the bill from consideration without notice to anyone. When a bill is “withdrawn,” it is effectively killed since, technically, the bill no longer exists.

So, the issue is dead again until the next General Assembly. Certainly business concerns can be and are legitimate and no one should be faulted for raising them nor should a legislator be faulted for taking them into consideration and trying to address them. But when a bill on a social issue gets withdrawn at the first sign of opposition from big business, it can sure make you wonder if regular citizens who are concerned about what their children might be exposed to have equal standing on the Hill.

But one thing is for sure: If regular citizens want to have a voice, then they need someone to tell them what is going on, which we try to do, whether it be Democrats or Republicans involved. But citizens also need to have their email and phone ready for action. A silent voice will not be heard. That’s the lesson we need to learn.