Too many Republican presidents appointing too many conservative Supreme Court justices has resulted in the withering away of an important foundation of the constitutional analysis of obscenity regulations: their chilling effect on speech. Obscenity laws, where there is a “dim and uncertain line” between speech that is fully protected by the First Amendment and that which can incur up to three years in the federal hoosegow, have been upheld with very little knowledge of what the materials contain and no knowledge of whether they are obscene—even an honest belief to the contrary.
If the Court were to rigorously apply a chilling-effect analysis to obscenity laws, those laws could never stand. After all, when evaluating how far to push the envelope in putting up particular content, the question asked by people in this industry is not whether it might lead to an obscenity conviction; they ask whether it might lead to an obscenity charge. The ordeal of defending a criminal prosecution is enough to deter anyone (see “Blow by Blow: Clyde DeWitt Details the Nightmare of Defending a Federal Obscenity Prosecution,” January 2006 AVN Online), as is the staggering expense.
When Miller v. California was decided in 1973, Justice William J. Brennan’s dissent (which, with one more vote, would have carried the day), acknowledged the vagueness problem with regulating obscenity, concluding that “after 16 years of experimentation and debate I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level...” Justice William O. Douglas – whose stated belief was that obscenity did not supply an exception to the First Amendment’s command that Congress could enact “no law” abridging the freedom of speech – offered that, at the very least, criminal prosecutions should be prohibited until such time as a specific item had been deemed obscene in a civil proceeding, agreeing with the “Report of the Commission on Obscenity and Pornography (1970),” which the so-called Meese Commission overruled in 1986.
The majority of the Supreme Court did acknowledge the chilling effect of a strict-liability obscenity law well before the Miller debacle, invalidating a Los Angeles city ordinance that held a bookseller liable regardless of any knowledge of its content (Smith v. People of the State of California, 361 U.S. 147, 1959). Noting the obvious, Brennan observed, “Doubtless any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene...” However, with respect to the Los Angeles ordinance, which required no “guilty knowledge” whatsoever, he concluded that it “has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution.”
Later, when the issue was squarely confronted by then-Associate Justice William Rehnquist in the course of the Court’s review of the obscenity conviction of industry pioneer Bill Hamling, it rejected the seemingly logical contention that nobody could be convicted of mailing obscene material without knowledge that it was illegal. Rather, the Court upheld an instruction to the jury that the defendant’s “belief as to the obscenity or non-obscenity of the material is irrelevant” but that “at the very least, proof both of knowledge of the contents of the material and awareness of the obscene character of the material” were required (Hamling v. United States, 418 U.S. 87, 1974). That remains the general standard today, although courts in some places have broadened it. For example, the Ohio Supreme Court upheld a statute reading, “An owner or manager, or his agent or employee, of a bookstore, newsstand, theater, or other commercial establishment engaged in selling materials or exhibiting performances who, in the course of business [disseminates obscene material]...is presumed to have knowledge of the character of the material or performance involved, if he has actual notice of the nature of such material or performance, whether or not he has precise knowledge of its contents” (State v. Burgun, 384 N.E.2d 255, Ohio, 1978). And one federal court went so far as to approve a “deliberate ignorance” instruction: The jury was instructed that it could “find that a defendant had knowledge of a fact if [it finds] that the defendant deliberately closed his or her eyes to what would otherwise have been obvious...” (United States v. Investment Enterprises, Inc., 10 F.3d 263, 5th Cir., 1993).
In general, courts – albeit not all of them – have allowed convictions so long as there is proof that the defendant knew the materials were sexy, rejecting the chilling effect of such laws, even where a defendant had every reason to believe that the materials were not obscene. However, perhaps the decision that most dramatically punctuates the abandonment of the chilling-effect doctrine in the context of sexually oriented speech is Ferris Alexander’s case, in which the Court allowed forfeiture of millions of dollars worth of his bookstores and inventory – an entire so-called “enterprise” – based solely upon a finding that four magazines and three videotapes were obscene, simply acknowledging “the practical reality that ‘any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene’” (Alexander v. Untied States, 509 U.S. 544, 1993). Ironically, the last quoted clause was from the majority opinion in Smith v. California—in which Brennan’s dissent in Miller would reject all obscenity regulations as intolerably vague.
Unfortunately, the grim reality is that sexually oriented speech has been given second-class treatment concerning chilling effect, which has not been the case in the areas of libel and slander, where, the Court has long held that a publisher cannot be held responsible for damaging falsities concerning public figures unless reckless disregard for the truth is established (New York Times Co. v. Sullivan, 376 U.S. 254, 1964).
Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online’s offices, or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe that anything reported in this column might impact them should contact their personal attorneys.
