Unlike the Adult Video News audience, this readership for the most part came up through the ranks of computer experts rather than having honed their skills as video entrepreneurs. And, face it, many of you jumped into this for the money rather than the message. But that's nothing to be ashamed of; even The New York Times needs to make a profit.
Given all of that – and after dozens of columns since 1998 when ia2000 became AVN Online – perhaps it is appropriate for the first time to talk about what most significantly protects what you do: the First Amendment.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Now, what is of particular concern to this audience would seem to be the freedom of speech and of the press, but the establishment of religion part is garnering considerable attention of late as well. Volumes have been written about every aspect of the First Amendment, but we need to confine ourselves here to the "free speech" and "press" parts of it, along with some mention of the "establishment clause." (The rest of it is very important, too, but we cannot consume the entire magazine with this.)
History teaches that the Bill of Rights – the first 10 amendments to the U.S. Constitution – was a side deal when the Constitution became effective in 1789. That part was added a couple of years later. And the fact that the Constitution has hung around that long is something that should engender amazement. Consider how much has changed. For example, the Constitution figured slavery into its body—slaves, euphemistically "all other Persons," were counted as three-fifths of a person for representation purposes, you may recall. Much has changed in more than 200 years, but the First Amendment hasn't—the text of it, anyway.
Also, recall that much of the tension at the time of the adoption of our Constitution was the balance of power between the federal government and the states. The First Amendment, you will note, at that time applied only to Congress, not the states.
The free-speech guarantees laid upon the governments of the states originally arose only from state constitutions, many of which to this day are recognized to offer more protection to speakers than does the First Amendment, most notably of late, New York, Pennsylvania, and California.
A more perfect union
After the Civil War, which some folks living south of the Mason-Dixon line still seem to be fighting, the so-called "Civil War Amendments" were adopted. The most intriguing, for this group, was the 14th Amendment, which included the point that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Since the "privileges" included the Bill of Rights, the Supreme Court concluded that its provisions that were essential to a "system of ordered liberty" became applicable to the states. Thus, no longer could a state deny anyone's right of "free speech," as interpreted by the federal courts.
The next relevant issue became what "speech" would be protected by the First Amendment; particularly what erotic speech. After all, the First Amendment says "no law," but the Supreme Court was not about to be as absolute about it as the language of the First Amendment would suggest. Congress and, after the Fourteenth Amendment, the states were constrained – according to the facial language of the First Amendment – in that they could enact "no law" restraining free speech. And, as Supreme Court Justice Hugo Black opined, "'No Law means no law." But that approach would not carry the day.
In 1957, three years after the Supreme Court handed down perhaps the most controversial decision in its history, desegregating American public schools, the Court confronted the issue of whether the First Amendment prevented the federal government and/or state governments from outlawing "obscene" media materials, whatever that might mean. The two consolidated cases, Roth v. United States, a federal obscenity case, and Alberts v. California, resulted in an opinion by Mr. Justice Brennan – one that he would disavow as unworkable some 13 years later in the celebrated Miller quintet – reluctantly approving the outlawing of some erotic speech on the theory that it really wasn't speech:
"All ideas having even the slightest redeeming social importance – unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion – have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956."
That would seem to protect almost all speech, since there is some value to almost everything. But the problem was how to draw the line, and the Court struggled with that for 13 years. Courts, including the Supreme Court, often found a sliver of social importance in even the most salacious of works. And the Roth decision was a plurality—meaning that no majority (five of the nine justices) agreed on how to draw the "dim and uncertain" line between speech protected by the First Amendment and that which could get you tossed into jail.
After 13 years of stumbling around in an effort to better define the line between protected erotic speech and criminal activity, the Court in 1973 for the first time agreed upon the celebrated Miller test for obscenity, over the objection of the author of the Roth decision, Justice Brennan. Commanded by President Nixon's "strict constructionist" justices, of which he appointed four, the court jettisoned the most important part of the test from Roth (which by that point had been dubbed the "Roth-Memoirs test," owing to several post-Roth decisions, including a case called A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Commonwealth of Massachusetts, (1966), a decision confronting the then seemingly unimportant issue of whether Massachusetts could ban the book identified in the title of the case, recounting the life of a prostitute.
Porn litmus test
In Miller, the court drew the line between the erotica that the First Amendment protected and that which could land you in jail:
"The basic guidelines for the trier of fact [i.e., usually the jury] must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
That's it! Miller v. California, (1973). With little alteration, that is the test that a jury in some small Southern town will use to decide whether your website will land you in jail. Justice Brennan, who wrote the Roth decision that started all of this, thought what you are probably thinking:
"[A]fter 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 while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and on the other the asserted state interest in regulating the dissemination of certain sexually oriented materials."
Justice Brennan rejected his own formula and all others. And, to be sure, he was right. Speech can objectively be measured by amplitude and duration, but not otherwise. But it is this convoluted interpretation of the First Amendment that Congress, and now Attorney General Gonzales, have grabbed with the stated purpose of putting you out of business.
Now, a last word is in order about another component of the First Amendment, the one that requires a separation of church and state. Our Godly president and his henchmen are on a transparent mission to install conservative Christianity as the de facto state religion in this country, graciously allowing other comparably conservative faiths to peacefully coexist. The announced obscenity crackdown is just one vehicle in this effort. And packing the federal courts with judges that will approve of such a scheme is an important part of all of it.
Watch your back!
(Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since the early 1980s. 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 anything reported in this column might impact them should contact their personal attorneys.)
