Obscenity vs. expression; morality vs. the First Amendment.  Sexual expression has always been at battle with more prurient interests.  Freedom of speech has managed to protect the porn industry thus far, but a recent court case may inflict lasting damage to a multi-billion dollar industry. The prosecutors in the two year battle against porn producer John Stagliano on federal obscenity violations in Alabama have recently moved the case to Washington D.C.

Understanding the place of obscenity within the protections of free speech requires knowing the precedents that led to today’s definition of “obscenity.”  For decades the standard was one set by Regina v. Hicklin.  This case came to the court as the result of a row over an anti-Catholic pamphlet.  The decision came to which was more important, intent or practice.  The case’s ruling stated that anything may be outlawed that “depraves and corrupts those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall,” clearly coming down on the side of practice.  This standard was so subjective that it was eventually used to ban works by such authors as James Joyce and D.H. Lawrence simply due to single passages and fears that they may offend women and children.

In 1957, Roth v. United States strengthened the standard.  Now the material in question had to have an offending “dominant theme,” which prevented the wholesale banning of works that may have included a love scene or a description of a woman’s body.  The banned works had to be considered to be “utterly without redeeming social importance.”  The justices involved in this decision had very different opinions on the case; two of the justices flatly dissented fearing for the future of the First Amendment, one disagreed with the broad language, and one felt that only the states had the authority to prosecute cases of obscenity, not the federal government.

The Roth standard was so broad that by the time the next major case came forward it had been abandoned in favor of including obscene material in the purview of protected speech.  (This interim period included the famous “I know it when I see it” phrase; praised for its realistic approach to applying the law but also derided for its legal vagueness.)  1973 brought about the case that is still the standard.  The decision in Miller v. California created the Miller test; this is a three-pronged approach to determine whether a sexually explicit work is obscene.  The standards include judging whether the work in question is obscene and also whether it has any sort of merit.  However, the most long-lasting and far-reaching part of this approach is the one that relies on community standards to determine the value of an individual work.  This differed from the national standard requirement of former cases.  Local communities could limit what offended them and more liberal areas were not required to ban works and creators they did not consider offensive.

The community standard issue set by Miller is what is raising all the fuss today.  The crux of the prosecution’s case against Stagliano is that because his production companies are using the internet to reach all corners of the country, they are susceptible to the standards of the most conservative communities in America.  Judge Richard Leon, a federal judge in Washington DC, refuses to dismiss the indictment claiming that obscene material is not protected by the First Amendment.  Throughout all the above mentioned cases, justices routinely argued in opinions that all material, even that considered obscene, should be protected to prevent a slippery slope to censorship.  The idea that the government has always favored a blanket prohibition of obscene material, as suggested by the wording in the judge’s decision, is ridiculous.  Despite requiring protections for the average person from being bombarded with lewd images, these decisions have always included protections for free speech, even the types of free speech that may offend some sensibilities.  Equally appalling is the idea of using a new technology, the internet in this case, to restrict American’s access to material they are searching for due to laws in another municipality.  An entire nation’s tastes could be directed by a small group with the right influence and sway.

Not many people think that protecting the interests and rights of smut purveyors to be very important.  However, if we want our rights to be protected, is it important to make sure that even the most extreme examples have their rights maintained — even if what they do with those rights makes us squirm?

Posted by Becky on May 19, 2010 at 4:47pm.