Counsel Urges Compromise in Pornography Law

Los Angeles County Counsel DeWitt Clinton has proposed compromise language for a hotly debated anti-pornography ordinance that he says will make it “legally sustainable.” The ordinance is to be considered by the county Board of Supervisors today.

Clinton’s proposal, outlined last Friday in a memo to supervisors, drew fire Monday from feminist and civil liberties groups that have taken positions on the issue.

The proposal came several months after Clinton angered the county’s advisory Commission for Women by concluding that that panel’s plan to allow women to sue pornographers for sex discrimination was unconstitutional.

The county counsel said the commission’s proposal was overly broad because it granted the right to sue to any woman who claimed that such material was degrading to women as a group.

A similar ordinance adopted in Indianapolis was struck down by a federal district court and coincidentally will be argued today in the U.S. Circuit Court of Appeals in Chicago.

In the compromise language, Clinton suggested that the county instead allow people to seek civil damages from producers of pornography only if they can demonstrate that they were coerced into making or viewing materials depicting sexual violence or sexual abuse.

This provision would eliminate as possible plaintiffs those who only were offended by such material.

Another Approach

Clinton also suggested another approach to an anti-pornography law--one that would not permit alleged victims to sue pornographers for monetary damages but would make it easier for prosecutors to seek criminal penalties against them.

He suggested that the board adopt as law the U.S. Supreme Court’s suggested definition of obscenity as a way to make prosecution easier. Prosecutors say California’s current obscenity definition is difficult to use because it is too vague.

However, Clinton pointed out that county adoption of the court’s definition would have no practical effect unless the state followed suit and made the court’s language part of the Penal Code.

Clinton’s anti-coercion language is similar to that contained in an ordinance being considered by the Los Angeles City Council.

Referred to Commission

In March, Los Angeles County supervisors, after expressing concern over legal questions raised by Clinton, referred the sticky issue back to the commission for revision. But the panel refused to retreat from its original position that any woman offended by pornography should be able to sue those responsible for it.

“We have met with the commission and representatives of the commission on several occasions and made suggestions for revisions to the ordinance,” Clinton said. “However, the commission continues to recommend their original ordinance.”

The commission’s unyielding stance prompted Clinton’s suggested solutions. And the suggested solutions in turn prompted proponents of the original version to attack the new language.

“(The county counsel’s office) has subverted the use of this ordinance for women,” said Karen Davis, a member of a group called Women Against Pornography. “I wouldn’t call it compromise language; I would call it window dressing.”

‘Would Be a Start’

June Dunbar, a past commission president, however, said that while Clinton’s suggestion are “weak . . . it would be a start and we would come back time and time again with a (stronger) ordinance.”

On the other side of the issue, the American Civil Liberties Union, which praised Clinton’s earlier stand against the commission’s sex discrimination proposal, greeted Clinton’s latest memo with a promise to fight the compromise language in court if necessary.

Clinton’s language would allow people to sue anyone who forced them to act out sexual violence or sexual abuse or who forced them to view those types of acts. The proposed language also would allow people to collect damages from “the maker, distributor, seller or exhibitor” of materials depicting sexual violence or abuse if they could prove that they had been attacked as a result of the attacker having seen such material.

Clinton’s alternative suggestion calls for the county to embrace the 1973 U.S. Supreme Court definition of “obscene matter.” The high court defined it as that “which the average person, applying contemporary community standards, would find, taken as a whole, appeals to prurient interest and is material that depicts or describes in a patently offensive way, explicit sexual conduct of a specifically defined nature . . . and that the material, taken as a whole, lacks serious literary, artistic, political or scientific value.”

The Supreme Court authorized the states to adopt the narrower obscenity definition, but did not mandate it. Legislation is pending in Sacramento that, if adopted, would make the obscenity definition part of California law. The state Penal Code now defines obscene materials as those “utterly without redeeming social importance.”

ACLU attorney Joan Howarth said that the proposed ban against coercion is open to certain legal challenge because it would leave alleged pornographers with little defense in court even if a person signed an agreement to participate in a depiction of sexual violence.