Every battle is won in stages, and in every stage are dates that stand out as seminal moments in the tide of victory or defeat.
Oct. 3, 2005, may become a date that will live in infamy in the obscenity wars, because on that date a Louisiana jurist is expected to render a decision about the constitutionality of the state’s obscenity statute.
Until recently, no one outside this small Louisiana community considered it a hotbed of political controversy. That changed when the local district attorney charged two video-store owners with promoting obscenity.
The case, in which defense attorneys are challenging the very core of Louisiana’s applicable law, could have profound effects on obscenity laws nationwide.
Because it specifically attempts to regulate electronic communication, “the law is … written so broadly that anything on the Net would be subject to Louisiana law, and Louisiana is not allowed to regulate interstate commerce,” says Chicago First Amendment attorney J.D. Obenberger, one of the representatives for the defense. “That’s a constitutional responsibility of the federal government. I’m using the improper effects of the statute on the Internet to get the whole statute thrown out.”
Judge Charles Porter is expected to announce his decision about the constitutional challenge Oct. 3. Whether he sides with the defense or the prosecution on the matter, all parties in the case, including the judge, agreed in advance that the case “will be certified as a constitutionally important question of first impression,” Obenberger says, and the decision will be appealed to the state Supreme Court or directly to the U.S. Supreme Court. Until a higher court has ruled on the constitutional issues, the obscenity prosecution will not proceed.
If the higher court sides with the defense, obscenity statutes in 45 other states will be in jeopardy due to similar construction. “If we win in Louisiana, I don’t think anyone else is going to try [pressing an obscenity case] anywhere again,” Obenberger says. “If the Louisiana law falls, then all the other state laws fall like a house of cards.”
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 Louisiana statute R.S. 14:106 for selling a copy of Hustler that featured double-penetration and water-sports photos and two DVDs: one an interracial title and the other featuring anilingus. R.S. 14:106 makes special reference to “electronic communication,” an addendum that was added in 2003.
Assistant District Attorney Chester Cedars has argued that since the allegedly obscene materials involved are printed and recorded items, the Internet has no relevance in the case. Cedars has asserted that the phrase to which Obenberger objects could be stricken from the statute.
In fact, 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. The rest of the law is not so easily amended, though, Obenberger says. “Removing [the phrase ‘electronic communication’] is not good enough,” he insists. “It’s not just those words 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 the law on the basis that it infringes 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 says.
That argument may prove to be extremely compelling in this case, Obenberger notes. Lee submitted the same position in an amicus curae brief to the appellate court in the Extreme Associates case, and has since received an inquiry from the court asking if he will be available to present oral arguments to support his point when the court considers the matter.
“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 [Los Angeles] and New York,” Obenberger says. “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.”
Senior editor MJ McMahon contributed to this report.
