The centerpiece of this month’s issue of AVN Online brings with it a “specialty” legal issue, which is how obscenity law figures into all of this. As readers are painfully aware (no pun intended), obscenity convictions can bring with them lengthy federal prison sentences, forfeitures and all kinds of associated miseries. Of particular note in this milieu is the provision in the federal Sentencing Guidelines increasing the base offense level for commercial obscenity by 4 where “sadomasochistic activity” is involved, ratcheting the basic presumed sentencing range for a first offender by 67 percent to 30-37 months.
Accordingly, this month’s topic surveys how the obscenity laws function in the realm of nonstandard erotica. Unfortunately, the beginning of this is a little dry, as the law often tends to be. But, given the gravity of the problem, it is worth understanding. Be tolerant! It gets more interesting.
Since 1957, when the Supreme Court first decided that “obscene” speech is not protected by the First Amendment, two of the three elements that government has been required to prove to establish obscenity are “prurient appeal” and “patent offensiveness.” Roth v. United States, 354 U.S. 476 (1957); Memoirs v. Massachusetts, 383 U.S. 413 (1966); Miller v. California, 413 U.S. 15 (1973). Although in 1973 Miller changed the definition of “community” from a national one to a more localized one, and other cases have fine-tuned the prurient-appeal and patent-offensiveness components of the obscenity test, it has remained fundamentally the same over the last nearly half century. (Miller, most profoundly, reduced the prosecution’s burden with respect to value, from “utterly without redeeming social value” to “lacking serious literary, artistic, political or scientific value.”)
Thus, as it stands, government must prove three things about a book or movie to strip it of its protection under the First Amendment: (a) appeal to the prurient interest; (b) inclusion of patently offensive depictions; and (c) lack of serious value. The “c” prong is what it is, regardless of what type of material is involved, because the issue of whether a “reasonable person” would find serious value is resolved the same way irrespective of what genre of erotica is involved. Additionally, it is a rare obscenity case in which serious value is an issue (only the 2 Live Crew and Mapplethorpe cases come to mind).
The “a” prong, whether material has prurient appeal, and the “b” prong, whether material contains patently offensive depictions of sexual activity, are both resolved according to what the jury thinks the average person, applying contemporary community standards, would evaluate. Prurient appeal is judged by the work as a whole; patent offensiveness is judged on a scene-by-scene basis. The judge instructs the jury about all of this. Dizzy yet?
If at this juncture you are tempted to reach for your dictionary (or Dictionary.com) to look up “prurient,” don’t bother. It makes no difference what anyone thinks it means, because courts have been wrestling with it since 1957, and likely will continue to do so for the foreseeable future. In order to find that material engenders a prurient interest in sex, most judges will tell the jury that the appeal must be to a “shameful or morbid” interest in sex, nudity or excretion, as opposed to a “normal or healthy” one. This is where the so-called “specialty” materials create an odd twist in obscenity law.
It all started in about 1960 in New York City, when one Edward Mishkin was convicted on 141 counts of selling obscene books, in violation of New York State’s anti-obscenity statute. Having been sentenced to three years in the can, Mishkin took his appeal to the Supreme Court.
The aspect of Mishkin’s case that set it apart from most of the other obscenity cases that were floating around at the time (and in those days there were many) was that his books included the likes of “Dance with the Dominant Whip,” “Cult of the Spankers” and “Mrs. Tyrant’s Finishing School.” You get the idea.
Mishkin’s argument was an interesting one. To be obscene, remember, material must appeal, based upon the judgment of the average person, to a prurient interest in sex. Mishkin’s point was that the average person would not have any sexual interest in these books, prurient or otherwise:
“Indeed, appellant’s sole contention regarding the nature of the material is that some of the books involved in this prosecution, those depicting various deviant sexual practices, such as flagellation, fetishism, and lesbianism, do not satisfy the prurient-appeal requirement because they do not appeal to a prurient interest of the ‘average person’ in sex, that ‘instead of stimulating the erotic, they disgust and sicken.’”
Although his position was quite clever, the Supreme Court, in 1965 (as you might guess), was not about to buy the argument that a defendant could win an obscenity case by establishing that the materials were so disgusting that they turn people off. The Court avoided the problem:
“Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group.”
Accordingly, Mr. Mishkin’s convictions were upheld. Mishkin v. New York, 383 U.S. 502 (1965). The Court has since reaffirmed that principle. Ward v. Illinois, 431 U.S. 767 (1977) and Pinkus v. United States, 436 U.S. 293 (1978).
The one legal issue here that the Supreme Court has left unsettled is found in a footnote in the 1973 Miller quintet of cases. The question is whether expert testimony is required to establish prurient appeal. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 n.6 (1973). See also Pinkus, supra, 436 U.S. at 303. And if you think about it, this makes some sense. Supposing a jury finds that the material on trial does not appeal to sexual interest of any kind, at least according to the average person. It then is faced with the question of whether it appeals to the prurient interest of some “clearly defined deviant sexual group.” And with none of the jurors themselves being members of or acquainted with the relevant group (or willing to admit it), how can a jury know what kind of appeal the material has to the relevant deviant group? Accordingly, every time there is an obscenity trial involving nonstandard materials, the first skirmish is a legal one over whether the prosecutor is required to call an expert witness.
Once past the legal issues of the requirement (or not) of expert witnesses, then the fun really begins. The defense invariably will call a parade of members of the “clearly defined deviant sexual group,” which will be qualified as an expert group and will testify about how the materials involved are literary classics, and appeal to a perfectly normal and healthy, albeit deviant, interest in sex.
Now, a reality check: If you think that juries, particularly in obscenity cases, pay scrupulous attention to the intricacies of jury instructions, you have never participated in a jury trial and you certainly never have been on a jury. As a rule, an obscenity trial boils down to what the jury thinks is okay, really focusing on the “patently offensiveness” prong, which does not bode well for specialty materials that the jurors may consider fringe. But, as people who have never met, who are brought into a courtroom that looks like a church and is presided over by a judge who is dressed up like a preacher, jurors are not likely to go back into the jury room and start off the deliberations with a comment like, “That scene was great, the one where the two bikers tied up the teenager, took off her pants and whipped her bloody with a cat o’ nine tails.” Gay material, to which these same principles generally apply, is difficult enough, notwithstanding the enormous political strength of the gay community in America. The reality is that jurors are just not likely to admit to each other that they think being deviant is acceptable – it is at odds with the very definition of “deviant”!
Now, for the readers out there that are members of a gang of anti-pornography crusaders – itself arguably “a clearly defined deviant sexual group” – don’t start breathing too hard just yet. Unless you can exclude from the jury all educated and principled people, as prosecutors try so hard to do, you stand to have someone on each jury who understands that everyone in the world is not just like them and that people with nonstandard sexual orientation have rights too. Remember, a jury verdict must be unanimous, and one well-educated, principled juror can ruin all of your fun. Experience teaches that, if such a juror is a relatively mainstream woman, she often can turn the whole jury against the censors. A bucket of water on the censorship celebration!
This whole topic is just another example of how absurd obscenity prosecutions are. Unfortunately, everyone expects to see many more of them in the next four years, especially in this category.
Clyde DeWitt is a partner in the Los Angeles-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online’s offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025, or at [email protected]. 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.
