Having perhaps scared the gigabytes out of you in Part I of this article, Part II offers an opportunity for reflection and perspective on all of this, and a look at where this all came from and where it might or should all be going - from Gutenberg's invention of the printing press to the Internet.
Understand that our legal system emanated from church law, if you go back far enough - pre-Gutenberg. What few disputes did arise in the sparsely populated, agrarian society which existed back then were resolved by the church and the king, which were inextricably intertwined. Often, unpopular speech faced a hail of stones, and that was that. Talking about sex was blasphemous, often resulting in the speaker's head being separated from his body. And for many years, most regulation of sexually oriented speech was done on simply an ad hoc basis by the local gendarmes. Remember, it was not until substantially after the Civil War that the First Amendment was applied to the states! Back then, the prevailing test for obscenity was "whether the tendency of the matter... is to deprave and corrupt those whose minds are open to such immoral influences." No more concise than Miller!
Since the adoption of the Constitution, one unequivocal power of Congress was found in creating and regulating the Post Office. And as postal and printing technology evolved during the 1800s, so too did the possibility of distribution of materials which offended Queen Victoria's pronouncements on morality. So, as you might expect, along came someone who pioneered the notion of improving one's political fortunes by talking about sex - the father of all of the likes of Senators Helms and Exon, Attorney General Meese and their ilk - one Anthony Comstock, the pioneer of talking about sex as a guarantee of getting press.
In 1873, Comstock convinced Congress that the mails were no place for salacious materials, resulting in the enactment of the Comstock Law, still on the books (18 USC � 1461), prohibiting using the mails for obscenity. Use of that statute perhaps reached its low point in 1889, when a man was convicted of sending a post card to the local newspaper saying, "you can take your paper and Democracy and go to hell with it." Veterans of the adult video industry would not be surprised to learn that this prosecution took place in Memphis.
In 1957, the First Amendment and the Comstock Law squared off for the first time in earnest before the Supreme Court, which was then in a somewhat politically perilous position, having just ruled that all of the schools in the South must be desegregated. The important holding of Roth was that obscenity was not protected by the First Amendment. A companion case (Alberts v. California) applied the same result to a California obscenity prosecution under state law.
For the next 16 years, the Court proceeded to wrestle with the definition of "obscene." So, "obscene" speech - whatever that was - did not enjoy protection by the First Amendment. It would be 1973 before a majority of the Supreme Court in Miller v. California would agree on a definition.
During the 16-year period between Roth and Miller, one of the issues which courts confronted was that of community-versus-national standards. Applying the First Amendment to the Comstock Law, some took the position that the First Amendment is a nationally applicable limitation on a federal law, and therefore constitutional protection of speech should be uniform throughout the country in enforcing a federal postal regulation. Others gleaned a local "community standards" approach from the language in Roth.
When the First Amendment and the censors again squared off in 1973 - the so-called Miller quintet of cases - the game went into overtime. Justice Brennan, who had penned the opinion in Roth, came to the conclusion that there was no way to define obscenity which would be acceptable under both the First Amendment's guarantee of free expression and the Fourteenth Amendment's prohibition of vagueness in criminal statutes. After 16 years of wrestling with it, he said, there was just no workable definition. According to many historical accounts, Justice Brennan, at least tentatively, had the votes. However, Chief Justice Berger reportedly took the case away from Justice Brennan and wrote an opinion which would be adopted by the majority - with which we all have lived for the ensuing 26 years. Justice Brennan's opinion became the dissent to the Chief Justice's narrow 5-4 victory.
This author's single-bullet-theory is that if Sirhan Sirhan had not gunned down Robert Kennedy, Richard Nixon would have lost the election; Kennedy would have appointed Supreme Court justices much more sympathetic to individual liberties; and Justice Brennan's version of things would have carried the day. History!
It cannot be overlooked that Miller was decided when the Supreme Court was again the focus of political turmoil, having just outlawed the death penalty, legalized abortion and concluded a decade-long run of affording rights to criminal defendants and suspects. Throwing out obscenity regulations would have been another tough pill for some factions of the country to swallow.
What Miller did about community standards was simply to say that people in Maine and Mississippi should not be subjected to what is tolerated in New York or Las Vegas, thus adopting the modern "community standards" approach. And "communities" could be whole states; they could be counties; or, at the federal level, federal judicial districts or divisions thereof. Or the jury could be left to define the community. But the "community" could not be the whole country.
The "community" approach, as it panned out, didn't make much sense. Consider very diverse states with unitary standards, such as Illinois and California: Downstate Illinois is hundreds of miles closer to Memphis than to Chicago; the City of San Francisco has profoundly different views on things in comparison with those prevailing in La Jolla. California is larger than the combination of a half-dozen Eastern states, and represents nearly 1/10th of the Nation's population! If you can have an Illinois standard or a California one, why not the whole country?
And, even at the time when Miller was decided, communities existed within communities. For example, there still are sections of Chicago where the predominant language is Polish; sections of Los Angeles and Miami where the predominant language is Spanish. Other examples abound.
When Miller was decided, there was already in place substantial national media, both print and electronic. The community standards notion perhaps in part came from the existence of local broadcast media, local movie theaters, and so on, although the entire country was then exposed to national distribution of most of the same media items.
In the 26 years since Miller, distances have shortened substantially. Many now have cable television, which is killing local network affiliates. The Gulf War brought CNN into prominence, now coupled with CNBC and others. The Internet now has connected the world together in an unprecedented way. The idea that - for purposes of determining what depictions are too offensive - artificial political and geographic boundaries should be used, is nonsense. People just don't hang around only with their neighbors anymore!
Every other regulation which is directed to the content of speech is based upon the effect of the speech. Expression to which the First Amendment affords no protection - deceptive advertising, yelling "fire" in a crowded theater, "fighting words", etc. - is regulated based upon the immediate danger created by the speech. Even child pornography regulations are, at least ostensibly, based upon the immediate effects of the speech - memorializing the participation in sexual activity by someone who legally is too young to effectively consent to doing so.
Constitutional protection of erotic speech should be no different than other types of speech. Thus, as to the offensiveness prong, it should be measured not by the standards of the community but, rather, by the standards of the audience to which it is targeted. In most states the law says that, where there is no commercial atmosphere, it is not illegal to actually engage in sexual activities in the presence of others, so long as nobody present might be offended. But it could nonetheless violate the obscenity laws if exhibiting a photograph of the same conduct offends the standards of the entire state.
This is all the more true as "communities" change. Most people interact with various "communities," most of which defy geographical definition. Someone might work for a clothing designer, belong to a gun club, play in a rock and roll band, take yoga classes, play amateur hockey, attend some particular church and coach Little League. All of those groups are "communities" of sorts, but all have differing orientations and standards. It is nonsense to claim that the measure of what is offensive in church is equal to the measure of what is offensive in the football team's locker room just before a game. It is comparable nonsense to contend that the measure of acceptability of erotic materials should be independent of the audience. You all know the bit about the tree falling in the woods and nobody hearing it.
Perhaps as the Internet's and other communications' advances further blur any geographic definition of "community," someone in the Supreme Court Building will come to his or her senses and jettison this effort to homogenize the country. We aren't all alike here.
(Clyde DeWitt is a partner in the Los Angeles, California 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 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.)
