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Dust-Up

Stuff so raunchy, it's illegal

Barry McDonald details the legal tests and reasoning behind the enforcement of obscenity laws. John Stagliano says no one should be sent to prison for distributing images others don’t like.

June 30, 2008

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Today's question: Should there be an obscenity law that outlaws a product that is made with informed adult consent with no laws being broken, and that is increasingly distributed and consumed in complete privacy? All week, Barry McDonald and John Stagliano debate obscenity and the 1st Amendment.

What we protect with obscenity laws
Point: Barry McDonald

John,

Today's question focuses on whether obscenity laws should continue to exist in modern American society. To put this question in its proper perspective, one must understand the relatively narrow scope of these laws. Under a 1st Amendment test established by the U.S. Supreme Court known as the Miller test (from the 1973 case Miller vs. California), only sexually explicit materials that are designed to appeal to a morbid interest in things sexual and are depicted in an extremely offensive way -- all as determined by an "average" person of a given community -- can be made illegal by obscenity laws. Moreover, even works that meet these criteria but also possess serious artistic or literary value cannot be deemed obscene (such as a sex magazine with articles). Finally, works that qualify for obscene treatment cannot be criminalized in the home (private possession is legal). It is mainly the public sale, distribution or exhibition of such materials that can be prohibited.

In short, obscenity laws generally target commercial distributors of extreme pornography. And even there, obscenity prosecutions are rare because of the difficulties prosecutors encounter in proving that materials meet the Miller standards. One study found that materials that have been deemed obscene by juries or judges usually contain explicit depictions of sex acts involving human excretion, sex with human corpses or live animals, acts of incest or violent, forced sex.

Because today's question asks us to assume that such extreme materials are made without violating any laws (an assumption that would probably falter in the real world), we must inquire whether even simulated depictions of such acts should qualify for illegal treatment when they are publicly distributed or exhibited. In other words, the standard way of putting the question usually asks: "If no one is harmed by this stuff and someone wants it, who is the government to say that he or she can't have it?"

Let's break this question down into its two main component parts. First, is no one truly harmed by obscene materials? Assuming compliance with laws in making them, this question would focus initially on their consumers. Recall that the definition of obscenity requires that the materials be designed to appeal to an unhealthy or morbid interest in sex-related activities. Can it really be maintained that a viewer of such materials is not harmed in some way? I'm not a psychologist or sociologist, but it seems to me that viewing them to obtain sexual pleasure cannot be the healthiest way of experiencing sex. Moreover, the viewer is not the only, if even the main, concern of obscenity laws. Such laws are also designed to protect minors and unwilling adult viewers from advertent or inadvertent exposure to obscene materials. Even putting adults aside, surely our society has a strong interest in protecting minors from the potential harm from being exposed to such materials -- however that harm may be defined.

Finally, even if these concerns did not exist, would our government really have no legitimate interest in preventing the dissemination of obscene materials via public channels of marketing, distribution or exhibition? Do communities across our country lack a sufficient interest in "drawing a line" in the sand and saying enough is enough? Shouldn't commercial porn distributors adhere to some minimal standards of public decency to avoid the proliferation of cable channels, movie houses, adult bookstores or websites hawking this stuff and its inevitable tainting (some may say further deterioration) of the public square and consciousness? To merely state these questions is, in my view, to ask and answer them.

Barry McDonald is an associate professor at Pepperdine University School of Law and teaches and writes on 1st Amendment law.
Facing prison without harming anyone
Counterpoint: John Stagliano

Barry,

It does not matter to you that pornography is now almost exclusively consumed in the privacy of one's own home. In fact, to me this is not the issue. The issue is about porn that is "extremely offensive." Some individuals do not take offense to extreme porn, and those individuals are protected by the Constitution. No one should be subject to the whims of a group or "community" that does not like what you look at. And what is wrong with being extreme? In today's culture, being extreme is revered. It is the people on the extreme who move the world forward, who experiment and find new ways of living. Technology has made extreme changes in our lives. If we are not open-minded to change, we stagnate and wallow in sanctimonious righteousness about the world.

From a legal standpoint, this comes down to your view of human nature and society. Is it right, ethical or moral for one group of people to control the thoughts of another group? Indeed, it is the thoughts that erotic images arouse in the viewer's mind that those who would assume the power to control others have a problem with. Just remember that if you would assume such power, Barry, you personally are responsible for arresting me because I sold images you didn't like. This is exactly what you allowed to happen when I was indicted on nine counts of obscenity by the Department of Justice last April.

Barry, your point is that people must be forced to not think things that you don't like, and for that you'd have me put in jail. Your comment that it "seems" to you that viewing images "to obtain sexual pleasure cannot be the healthiest way of experiencing sex" seems not a good enough reason to imprison me for 39 years. In fact, using a proper concept of morality based on individual rights, it is you and those who would put me in jail when I did not infringe on anyone's rights who are behaving immorally.

From a political point of view, this is just another extension of the nanny state trying to control an individual's life. Essentially, the government uses its power to stop people from smoking, eating trans fats, consuming drugs or gaining sexual gratification without hurting anyone else. No person can decide for himself; the feds know better.

There is also a problem with the word "obscenity." The question to be asked is not whether there should be an obscenity law but whether there can be an obscenity law that is just, given that the Supreme Court failed to define the term in 1973 when it had the chance. What an interesting decision Miller vs. California was. The court could have said that all speech was legal and upheld the Constitution, as the justices were all sworn to do. Or they could have said that no kind of obscenity is worthy of 1st Amendment protection, which would have of required them to define obscenity, which they realized that they couldn't do.

So the justices came up with an interesting solution: The justices left it up to any community that has chosen to live together in a geographical area to decide what is obscene to them. The operative word here is "community." The entity left out of the equation is the individual. So the Supreme Court bowed to the political pressure of "communities" and refused to defend the rights of individuals.

We don't need the 1st Amendment to protect the people who go along with the majority in a community. We need it to protect those who would question the accepted wisdom, which is what I am doing. I do not think like you, Barry. I believe that my sexuality should not be defined and judged by the words of the Miller decision. My concept of art and sex differs from others'. Am I to be condemned to jail for this? That is essentially what you are advocating. To a community, something may be "morbid," but to me, an individual in that community, it is not. To me, the pleasure I get from viewing such material is simply a wonderful expression of my biological nature.

John Stagliano is an adult entertainment director, producer and distributor.

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