Are the Obscenity Laws Obsolete?by Steve Bergstein
OBSCENITY LAW is back in the news. The Supreme Court has rarely spoken on obscenity law in recent years. There was a time, from the 1950s through the early 1970s, when the Supreme Court routinely took up obscenity cases to decide whether some film or book was legal under the First Amendment. Then, as often happens, the Court turned away from the issue and allowed the lower courts to grapple with these questions. But obscenity could wind up again on the Supreme Court's docket. In a ruling handed down on January 21, 2005, a Federal judge dismissed an indictment against a pornography company, Extreme Associates, Inc. What made this ruling unique is that the judge interpreted a recent Supreme Court ruling to prohibit the government from regulating certain aspects of the pornography industry, even if the government is prosecuting a business for distributing obscenity. The Extreme Associates case cannot be understood without some background. As everyone knows, the First Amendment prevents the government from regulating speech. But everyone is wrong. As every lawyer knows, the Supreme Court has many times issued rulings allowing the government to regulate speech in a variety of circumstances. The Constitution is more like a set of general principles than hard and fast legal requirements. Every speech-related legal issue actually is resolved on the basis of a balancing test devised by the Court. What is the public interest in allowing the speech? What is the government's interest in regulating the speech. And which interest is stronger? Certain speech is almost immune from government regulation. The classic case is "prior restraint," which holds that the government cannot prevent you in advance from speaking. But public employees who blow the whistle on governmental corruption can be fired in retaliation if, for example, the speech sufficiently disrupts office efficiency or the speaker is a high-ranking policymaker who can be expected to be a team player. Ultimately, though, only a few categories of speech can be flatly restricted by the government without the use of any balancing tests, including child pornography, incitement to riot, defamation and obscenity. (The hideous effort by many politicians to amend the Constitution to outlaw flag desecration should be seen in this context. Flag burning -- clearly a form of political protest -- would under these proposals be as illegal as child pornography). At some point during the 1950s, the Supreme Court decided to clarify when the government can prosecute people on obscenity charges. During this time, the "Warren Court" -- named after Chief Justice Earl Warren -- was reshaping American society, issuing activist rulings on school segregation, police searches, religious freedom, free speech and other constitutional liberties. These rulings made the country more democratic and free, which is why so many conservatives cite the Warren Court with scorn. In 1957, the Supreme Court in Roth v. United States held that obscenity can be regulated consistent with the First Amendment when the materials have a "tendency to excite lustful thoughts" or create a "shameful and morbid interest in sex." How do we know if something is obscene? The Court said we know it when "the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." Prurient is defined as "material having a tendency to excite lustful thoughts." This test meant that sexual materials may be legal in some communities (Greenwich Village) but not others (middle America). By 1973, after several attempts to apply the Roth test, the Supreme Court in Miller v. California revised the legal standard, this time stating that something is obscene if (1) its primary theme is prurient according to the average person in the community; (2) it depicts sexuality in a patently offensive way and (3) it lacks serious artistic, political, literary or scientific value. This standard is still somewhat subjective. Who is the "average person," and what exactly constitutes serious artistic value? Or political value? In one of the greatest non-legal explanations of all time, Justice Potter Stewart once famously wrote, "I know it when I see it." This was a literal statement. In Bob Woodward's book, The Brethren, the Stewart and his fellow Justices -- many of them senior citizens -- are depicted sitting in a projector room watching obscene movies to determine how to rule in a criminal prosecution. Ultimately, as Earl Warren's successor, Warren Burger, put it, only the most outlandish depictions would qualify as obscene, for example, "patently offensive representations or descriptions of ultimate sex acts" and "lewd exhibitions of the genitals." Obscenity cases were big news in the 1960s and 1970s as provocative artists challenged the stuffy status quo with mixed results. In 1969, rock singer Jim Morrison was famously arrested for allegedly whipping it out during a concert in Florida, a prosecution which probably hastened his own self-destruction. When Beatle John Lennon that same year posed for an album cover in the buff with Yoko Ono, Federal agents seized the album from a New Jersey warehouse. This only enhanced Lennon's image as a burgeoning troublemaker. But 1960s values became mainstream in the 1970s. As the Supreme Court tackled other disputes in the sexual culture wars, like abortion, employment discrimination and sexual harassment, the legal community turned its focus away from obscenity jurisprudence. An exception was the case against obscure rap artists 2 Live Crew in Florida and a dust up over sexual artwork by Robert Mapplethorpe in Ohio. These cases became big news because obscenity cases were rare. But gay rights has slowly surfaced as the latest issue on the dividing line, and in 2003 the Court ruled for the first time in Lawrence v. Texas that the government has no right to prosecute gay lovers for performing sodomy in the bedroom. Overturning a much-reviled Supreme Court ruling from 1986, Lawrence shocked the legal and political world because it had logical implications. This was a big victory for the right to privacy, a value which everyone thought the conservative Supreme Court was running away from. But if gay sex cannot be regulated, what about gay marriage? After proclaiming that "I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Justice Scalia screamed in a fairly hateful dissenting opinion that the ruling in Lawrence means one thing -- gay marriage cannot be made illegal. Lawrence spurred a nearly-instant same-sex marriage movement across the country in 2004, from San Francisco to New Paltz to Massachusetts to the presidential campaign where George W. Bush announced support for some desecration of his own -- actually amending the Constitution to outlaw gay marriage. Lurking under the post-Lawrence radar was the fate of obscenity prosecutions. Who could have imagined that Lawrence would make it difficult for the government to prosecute people for obscenity? Some lawyers in Pennsylvania, that's who. In 2003, the Justice Department prosecuted Extreme Associates for allegedly selling obscene sex videos. Although the recent court ruling does not describe the nature of the materials, according to the Pittsburgh Post-Gazette, "Extreme Associates . . . sells films of women being gang-raped, defecated on and having their throats slit." Putting aside the question of what kind of sickos are interested in these videos, the case forced the judge to reconcile the Supreme Court's prior cases on obscenity with the recent decision in Lawrence. Various federal statutes prohibit the distribution of obscene materials. These laws are sprinkled with adjectives like "lewd," "filthy" and "lascivious." Extreme Associates did not dispute that it sold obscene films over the Internet. But it urged the court to apply the principles set out in a 1969 Supreme Court ruling, Stanley v. Georgia, that the government has no right to prosecute the use of sexually-explicit obscenity in the privacy of your own home. Using language that you just don't see everyday from the current Supreme Court (packed with Republican appointees), the Court in Stanley reasoned that "if the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." Stanley highlights one of those paradoxes which the Supreme Court created but never quite corrected: the sale of obscene products are illegal but you can have them at home, having presumably bought them from the manufacturer of obscene materials who broke the law by selling it to you. But Stanley is still what lawyers call "good law," and Judge Lancaster of the United States District Court for Western Pennsylvania agreed with Extreme Associates, dismissing the indictment. The judge noted that Stanley creates a right of privacy which makes it impossible for the state "to make the mere private possession of obscene material in one's home a crime." The court further interpreted Lawrence to mean that "the government can no longer rely on the advancement of a moral code, i.e., preventing consenting adults from entertaining lewd or lascivious thoughts, as a legitimate, let a alone compelling, state interest" justifying a prosecution. This is what Justice Scalia's dissenting opinion in Lawrence suggested. Judge Lancaster also quoted legal scholars who have reached the same conclusion, including Professor Lawrence Tribe, perhaps the country's preeminent constitutional thinker. Taken together, Stanley and Lawrence make it extremely difficult to prosecute persons who possess and use patently obscene materials at home. Since Extreme Associates sold these things through a members-only website requiring use of a credit card, the government was unable to successfully argue that unwitting adults and children might stumble across the video clips by accident. Case dismissed. The Extreme Associates case points to the irony of constitutional law. This is supposed to be a democracy, where majority rules, but certain issues cannot be resolved by majority vote. These issues include freedom of speech, privacy and other matters covered in the Bill of Rights. While the public might be outraged that Extreme Associates sells vulgar videos, that same public surely adopts the view that "a man's home is his castle," one of those colloquial sayings which more or less sum up the state of the law in many instances unless, of course, you kill someone at home or use the basement to attempt a coup de etat. When President Reagan nominated Robert Bork for the Supreme Court in 1987, the public was horrified that Bork did not recognize the right to privacy which the Court has read into the Constitution. Yet, many voters likely voted for George W. Bush motivated by revulsion over same-sex marriages even though the Supreme Court held decades ago that the right to marry a consenting adult is one of the cornerstones of a free society. The beauty of our legal system is that lawyers have the opportunity to convince the courts that certain precedents lead to a logical result in another case. Cases "on the books" are used and abused everyday by lawyers fighting for their clients. The Extreme Associates case highlights this dynamic. Who would have thought that Lawrence might result in the dismissal of an obscenity indictment? And what does this say about the validity of obscenity laws in effect across the country? Judge Lancaster's ruling is not binding on other courts because he does not preside over an appellate court. Other judges in the same courthouse might interpret Lawrence and Stanley differently. Since the government will almost certainly appeal this ruling, the Court of Appeals in Philadelphia will have a chance to second-guess Judge Lancaster's reasoning. That appellate ruling will set a precedent governing lower courts within the appellate court's jurisdiction, including New Jersey and Pennsylvania. The Supreme Court could weigh in on the issue if it deems the issue important enough. If that happens, this issue could become a political wild-card like the same-sex marriage issue, one that flares up out of nowhere once a court decides to resolve the issue. Stay tuned. ++ |
