Obscenity charges against two rural Louisiana adult bookstore owners should be dismissed because the state’s obscenity statute violates the First Amendment, according to attorney J.D. Obenberger, who is representing one of the business owners.
Obenberger is trying to get the Louisiana law, which was written in the early 1970s, invalidated entirely because of what he calls overly broad and vague language that stifles constitutionally protected speech.
Charged in the case are Emmette Jacob Jr. of Le Video Store and Edward Burleigh Jr. of The Video Place. Jacob, who is represented by Obenberger, was charged under Luoisiana statute R.S. 14:106 for selling a copy of Hustler that featured double-penetration and watersports photos and two DVDs – one interracial title and an ATM title.
As Obenberger wrote in his memorandum, “R.S. 14:106 is facially invalid under the United States and Louisiana Constitutions because it extends the criminal application of its community standards in defining obscenity to the Internet and interstate commerce, and it extends criminal sanction to depictions which cannot be the object of criminal obscenity prosecution, and for these reasons is accordingly unconstitutionally infirm as impermissibly overbroad.”
The argument is that Louisiana has failed to define the term “community” in the statute as pertaining to community-defined prurient interest – the so-called Miller test that determines whether material can be deemed obscene. Meanwhile, in 20 other states the state itself has been defined as the community, three states have defined the county as the community, and seven have defined the district as the community. Louisiana has no clear definition of community, which Obenberger argues essentially makes the law applicable to all pornography being viewed in Louisiana, such as that on the Internet, and violates the right to free expression.
“Louisiana can’t control what everyone in the country gets to see and exert a heckler’s veto because someone in a community in your state may get offended by this. Everyone will get scared, and that will affect what goes on in L.A. and New York,” Obenberger said. “It’s going to chill free expression in Louisiana and that’s bad enough, but they’re going to chill free expression in areas of the country that maybe aren’t as conservative as this area of the country is.”
R.S. 14:106 makes special reference to “electronic communication,” an addendum that was added in 2003. Assistant District Attorney Chester Cedars argues that since the allegedly obscene materials involved are printed and recorded items, the Internet has no relevance in the case. Cedars even has asserted that the term could be stricken from the statute.
“An analysis of La.R.S. 14:106 may constitutionally prohibit the dissemination of materials via the Internet is unnecessary since the defendants’ challenged conduct does not encompass such transmissions, and the complained of language can be severed from the statute,” Cedars wrote in his response.
Obenberger is undeterred, “We’re saying you can’t prosecute Emmette Jacob under a statute that is constitutionally invalid. [Removing those words] is not good enough. It’s not just those words, ‘electronic communication,’ that are the problem. The whole statute would include the Internet without those words, just like it includes DVDs and videotapes even though those words aren’t expressly contained in the statute. The problem is the whole statute itself is too broad.”
In addition to challenging the vagueness and reach of the statute, Obenberger associate Reed Lee, who is acting as co-counsel, is challenging R.S. 14:106 on the basis that it infringes upon individual privacy rights.
“People do have the right to receive these materials in their homes, and a law such as this one, when it extends to consenting adults, goes beyond what’s constitutionally permissible,” Obenberger said.
If convicted on the obscenity charges, both Jacobs and Burleigh could face up to three years in prison. However, if Obenberger is successful, the decision would apply to both men.
Word from both camps is that regardless of what Judge Charles Porter decides, there will be an appeal and the case may eventually wind up in the Supreme Court of the United States, which could affect obscenity laws throughout the nation.
“This imperils the survivability of all the obscenity statutes in the 45 states that have them. All of them are really expansively written,” Obenberger said. “They tend to all date from the ‘70s and try to reach everything they can. There’s a problem with that because society and the world have changed – we have the Internet and satellite dishes. Now, in order to not exceed the scope of their powers, they’ve got to limit their statutes to things that directly occur within their state.”
The Louisiana obscenity statute has been upheld on previous court challenges; however, in 2000, the state supreme court eliminated a section of the law that banned the selling of sex toys as obscene devices.
Porter plans to issue a ruling by August 28.
