With Reverend Ashcroft at the helm of the Department of Justice and a platoon of new obscenity prosecutors (including veteran Bruce Taylor) hired on to spend your tax dollars on the non-problem of obscenity, it seems that people suddenly are thinking more seriously about whether there are some, or more, places where they shouldn't ship things.
Novelties are easy, because there are only a few states with those absurd laws against selling "obscene devices." An obscene device is "a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs." Of the states that have such laws on the books, not all of them have fared too well in court - Georgia (upheld), Texas (upheld), Louisiana (held unconstitutional), Mississippi (untested), Colorado (held unconstitutional), Kansas (held to some extent unconstitutional) and Alabama (appeal pending from judgment holding it unconstitutional). There also are a handful of cities around the country that have anti-dildo laws, but nobody has a list. However with Lawrence v. Texas (the Supreme Court case striking down the Texas sodomy law) in their briefcases, it would seem that lawyers now have a better shot than ever of upending these absurd statutes.
The trickier question, surprisingly, involves things protected by the First Amendment (which dildos are not): Videotapes, DVDs, magazines and so on.
There are three factors that enter into the judgment whether any particular example of erotic speech is protected by the First Amendment (and therefore not legally "obscene"):
First, if the work, taken as a whole, has serious literary, artistic, political or scientific value, it is protected by the First Amendment, no matter how offensive or prurient it might be. The test is whether a reasonable person would find such serious value in a work, and it has nothing to do with community standards - supposedly. More on that later.
Second, unless it contains a depiction or description of sexual activity that is "patently offensive," it is protected by the First Amendment no matter how worthless or prurient it might be. What is "offensive" is a function of whether the average adult person in the community, applying contemporary community standards, would find that the depiction or description is "too much," so to speak.
Third, unless the work taken as a whole does appeal to the "prurient interest" in sex according to the average adult person applying contemporary community standards, it is protected by the First Amendment. The definition of "prurient" is not exactly aligned with what Webster would think, and it has been the subject of much litigation; the prevailing view of the definition is a shameful or morbid interest in sex, but not a normal, healthy interest in sex.
That is the basic obscenity definition - "description" would be more accurate - the line between what is protected by the First Amendment and what can land you in the hoosegow. Did you understand it? And, in any event, do you think juries - which normally are composed of people who are not sufficiently resourceful to find a way to avoid jury service - understand that? Keep that in mind as you read on.
Now that you have learned that two-thirds of the obscenity test is a function of community standards, you might be wondering what defines a "community." Oddly enough, it depends upon where you are.
The Supreme Court has said that a "community" in this context is not the entire country. Former Chief Justice Burger opined in 1973 that it "is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City," rejecting the former prevailing belief that a national standard should apply. But, if you think about it, that is all backwards. The Court moved from national to local standards for evaluating media at a time when media was becoming progressively national - television, print media, motion pictures and almost everything else. Moreover, communities were exchanging residents with remarkably increasing regularity. In the recent Internet cases, Supreme Court justices began wondering whether local community standards make much sense, given that an Internet broadcast goes everywhere. (That question will figure heavily into Ashcroft v. ACLU, the case involving the Child Online Protection Act - COPA - which was reargued on March 2.)
Assuming the continuing viability of precedents, however, a community for obscenity purposes can be (1) a whole state, as is the case with California, Texas, Illinois and some others; (2) a county, as is the case in some states including Florida and Indiana; or (3) in the case of a federal prosecution, either the whole federal district or the division of the district from which the jury is drawn. This produces absurd results. For example, in Chicago, the "community" in federal court would probably be the Eastern Division of the Northern District of Illinois (i.e. , the ?Chicago area'), but in state court, it would be the entire State of Illinois. Maybe the best solution - which has been approved by the Supreme Court - is to not tell the jury what "community" means and let the jurors figure it out.
Now it is time to be realistic about the obscenity test: It is all about the 12 people (fewer in some jurisdictions) who are sitting in the jury box. Everyone, you see, thinks of him or herself as average, whether admitted or not. And as to moral values, everyone thinks that they are right and anyone who disagrees is wrong. Most people have formed their own opinions as to whether pornography is acceptable or not. Those who find it acceptable usually say, "Well, I find it distasteful, but I think other people should have a right to watch it if they want, as long as no children are involved." The others will tell you how immoral it is and that our whole society is going to hell in a handbasket because it is so "permissive" (which, they forget, is another word for "free").
With most people taking one of those two positions on pornography, one could easily conclude that almost nobody watches it. How, then, do you explain why every year there are over a half-billion rentals of XXX videos, 10,000-plus new titles, and billions upon billions of dollars generated from sexually explicit Internet sites?
Theoretically, the only way a determination of obscenity is ever made is by a judge or jury. Since most people would rather have their fates in an obscenity case decided by a jury than what likely is a 50+-year-old politician, the question is usually put to a jury.
Now, here's the deal about juries. The process starts with a couple of dozen people who couldn't find a way to be excused; then each side is allowed to strike a few of them (no reason need be given), and the jury is comprised of the first 12 that neither side has knocked out. This process varies from jurisdiction to jurisdiction, including some places where a jury has less than 12 members, often six for misdemeanors.
So now you have these 12 strangers brought into a cathedral-like building, and then into a courtroom which bears a remarkable resemblance to the inside of a church, greeted by some old person wearing a robe and asked to view a XXX movie - something they may never have done even in their private lives - together in open court. Then, they are given the obscenity "definition," much as it is outlined above, and asked to go back into a little room, sit at a conference table, and decide whether the movie violates community standards and has serious value. Do you really think they ever read, much less understand, the instructions?
There are several serious, and probably obvious, flaws to this process. First, adult motion pictures are not ordinarily viewed in public, which is the reason that the invention of the affordable home video player catapulted them from relative obscurity to hundreds of millions of rentals annually, and did so in less than 10 years. Second, not only is a courtroom public, but it is a very intimidating place, especially to someone who has rarely if ever been there. Third, in that environment, how can people who generally are not open and honest about their opinion about pornography in the first place, discuss the acceptability of a particular X-rated movie openly and honestly with 11 strangers? In short, the odds are stacked pretty heavily against the movie - and whoever's being prosecuted for selling it.
Notwithstanding its overwhelming flaws, however, the jury is the ultimate arbiter of obscenity and, accordingly, of community standards. But is that really the issue?
Assuming that an attorney could forecast how your line of tapes would stand up in various communities - and no lawyer can do that with 100% precision - would you really want to ship them to Community A, B or C if the lawyer said, "You are almost certain to be prosecuted, but don't worry, no jury there would convict you"? Not a chance, given the agony and huge expense associated with defending obscenity cases. Fortunately, there have been some crusaders - the Hugh Hefners, Larry Flynts, Hal Freemans and Phil Harveys of the world - who have with some regularity told the authorities that they can take their indictments and "stick ?em where the sun don't shine" - and prevailed! Hats off to all of them!
Nonetheless, prosecutors wield an incredible club of censorship because most people are not willing to endure what some of the aforementioned pioneers have experienced in their battles to rescue the First Amendment. (See Harvey's book, The Government Vs. Erotica. ) Rev. Ashcroft knows that.
Now, here is what we don't know: There really haven't been many obscenity trials in the last 10 years. The few that there have been for the most part have not yielded convictions, but there have been too few prosecutions overall to call that a trend. In those 10 years, the population has aged, which is important. Those who grew up before the sexual revolution of the '60s and '70s are a diminishing part of the jury pool. When obscenity trials were last going on in large numbers, during the '80s, attorneys (this author included) would ask jury panels how many of them had ever viewed a hardcore, X-rated motion picture. Very few hands went up. That certainly has changed dramatically since then; a far greater percentage of the population has viewed such materials and, of those who have, they are more likely to admit it in open court. Prosecutors will decreasingly be able to keep them all off the jury.
Now, "the list": Lists of places that various distributors decline to send adult product are many and varied. The author has seen many of them. Some amount to a list of places where there have been obscenity prosecutions in the past; others amount to places that are viewed to be a part of the "Bible Belt"; others are some combination of the two.
If you are going to make such a "list," you first must look at what you are shipping. Hardcore bondage movies are one thing; "couples" movies are another. And so on.
Next, the question is where. Theoretically, you need to know the community standards of all of the divisions of almost 100 federal judicial districts, along with the community standards of dozens of states and hundreds upon hundreds of counties. Yet community standards are not even internally consistent. During the '80s when there were many obscenity trials going on, there were instances that can be cited in which the same movie was found obscene by one jury and not obscene by another - during the same month and in the same courtroom.
Lawyers with experience in this area can help, because usually they are active members of the First Amendment Lawyers Association and therefore in touch with what is going on around the country. But, as you can see from the above, while a lawyer can tell you what the obscenity test is, no lawyer can predict with accuracy the bright line between obscenity and protected speech in any jurisdiction, much less in hundreds upon hundreds of them. Law generally is as much an art as a science, but here almost no science is available.
So what can you do? Read AVN, talk to your attorney and engage some common sense. But the only list that would eliminate any risk of an obscenity prosecution would include the entire country. This, as the Supreme Court has admitted, is a "dicey" business, with a "dim and uncertain" line between what is protected by one of our most cherished rights and what can land you in jail. It shouldn't be that way, but there you are.
Don't kill the messenger.
(Clyde DeWitt is a partner in the Los Angeles, California-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN's offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025 or over the Internet 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.)
