Obscenity v. The First Amendment: Why the prosecution of X-rated films affects books
Story by Matthew Warner
What’s so horrible about porn other than the poor quality of most of it? And why should you care?
Watch out, you writers and purveyors of erotic horror and explicit romance.
The folks here in my Bible Belt city of Staunton, Virginia, care quite a bit. Last summer, when an adult video store applied for a sign permit to open a new shop, the city prosecutor, Ray Robertson, appeared on the newspaper’s front page looking like evil Baltar from the original Battlestar Galactica. As light shined up from below into his features, he declared, “We are not going to allow the dissemination of pornographic material in Staunton.” He threatened criminal charges under the state law against selling “obscene” items. He also wrote a column in which he linked pornography to our nation’s moral decline—responsible in his mind for drug abuse and the spread of AIDS. (You see, there was no drug problem in the 1950s, he said, when teens respected authority and obeyed parents who guided them along paths of Judeo-Christian morality.)
The tiny After Hours Video store opened in October anyway. So Robertson responded with sixteen felony and eight misdemeanor indictments against the video store and its owner. The charge? The sale of obscene motion pictures. Conviction on just one of these felonies could carry a $2,500 fine and a five-year prison sentence.
You should be concerned about this because the same arguments that have been used to justify censorship of written works are in action here. Indeed, federal courts have ruled that the same Constitutional protections afforded to literature are granted to movies—so it stands to reason that any precedents established with regard to movies will apply in the reverse. So watch out, you writers and purveyors of erotic horror and explicit romance.
Think I’m exaggerating? Here’s an excerpt from a U.S. Supreme Court dissenting opinion:
So-called “literary obscenity,” i.e., the use of erotic fantasies of the hard-core type clothed in an engaging literary style[,] has no constitutional protection. … There are obviously dynamic connections between art and sex—the emotional, intellectual, and physical—but where the former is used solely to promote prurient appeal, it cannot claim constitutional immunity.
The above was from the case A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts (1966). Thankfully, the court still overturned the obscenity conviction in that case on a technicality. But the quote illustrates a prevailing attitude in our country, even forty years later. Here in my town, the hastily formed Citizen’s Task Force Against Pornography in Staunton (CTFAPIS) just delivered a 3,000-signature-strong petition to the mayor. I would bet my left unmentionable that none of them are gonna put any Harlequin Spice novels under their Christmas trees.
“Literary obscenity” has a nice ring to it. Don’t ya think?
The legal definition of obscenity comes from two U.S. Supreme Court opinions. In the first, Roth v. United States (1957), the court ruled that obscenity is not protected speech under the First Amendment. Miller v. California (1973) expanded on Roth to say that when trying an obscenity case …
The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, … (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
It also made the absurd claim that “patently offensive ‘hard core’ materials” should be controlled for the same reason we regulate heroin.
State laws adopted the court’s definition. “Prurient interest” in Virginia means a “shameful or morbid interest” in sex as judged by the “customary limits of candor.” This of course raises the question of who decides what’s prurient based on customary limits, whatever those are. So the Virginia Supreme Court answered that question: customary limits are the “local community standards” as decided by a jury.
|After Hours Video (Staunton, VA)|
The upshot is that neighboring towns in effect can have different benchmarks concerning the same criminal law. An X-rated video that’s feloniously obscene in Staunton might be perfectly fine ten miles east in Waynesboro, depending on the whims of a jury applied after the fact. Indeed, even the same town can have differing thresholds of what’s obscene because each jury weighs each allegedly obscene item on a case-by-case basis. This is unfair and frankly a little bit nuts. It means that it’s impossible for someone to know, definitively, ahead of time whether something they wish to write, film, or sell would be against the very law that requires them to know the difference. After all, the criminal statute (18.2-374) does say that it’s unlawful to “knowingly” traffic in an obscene item, a legal doctrine called scienter.And a question certainly exists as to whether Rick Krial, the owner of the Staunton video store and many others throughout Virginia and Maryland, knew ahead of time that his products would be considered criminally obscene. On the one hand, he had the threatening press conferences and op/eds of our city Commonwealth’s attorney. He also had the CTFAPIS, which immediately started pushing for restrictive ordinances against adult businesses. Fair warning there. But on the other hand, the Commonwealth’s attorney and the Citizens Task Force were never elected the arbiters of Stauntonian “community standards.” Krial also possessed the X-rated videos that he purchased from the back rooms of stores in Staunton before opening his own store. Prima facie evidence, you might say, that people here like porn. So it seems quite possible that Krial, based on his own good-faith research, opened his store believing his wares were Constitutionally protected, notwithstanding the irrational crowing and posturing of a vocal minority.
Wafting into this controversy is a breath of fresh air from the nation’s longest-serving U.S. Supreme Court justice, William O. Douglas. Douglas frequently ran afoul of the right-wing politics of his day. McCarthyists twice tried to remove him from the bench for allegedly having Communist sympathies. He later angered President Richard Nixon by protesting the government’s surveillance of civil rights and anti-war activists, and by ruling in favor of publication of the Pentagon Papers. He would surely be critical of the Bush administration if alive today.
“Any test that turns on what is offensive to the community’s standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment,” he wrote in his dissenting opinion to Roth. “Under that test, juries can censor, suppress, and punish what they don’t like… This is community censorship in one of its worst forms.”
In Roth and later in Miller, Douglas highlighted the absence of historical evidence that the First Amendment was ever meant to proscribe the nebulous concept of obscenity. The first reported court decision in our country involving obscene literature didn’t occur until 1821.
He also talked a great deal about the scienter requirement. “[H]ow under these vague tests can we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene?” The present regime allows courts to improvise the law ex post facto, he said. “Obscenity—which even we cannot define with precision—is a hodge-podge. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.”
Douglas concluded there are only two fair ways to give someone like Rick Krial a precise determination ahead of time that his videos are legally obscene. The first would be through an official government censor authorized by a Constitutional amendment, (which would be a “dark day for America if that were our destiny,” he said). The second would be through a civil declaratory procedure. Violation of the civil ruling would then give cause for a criminal prosecution.
Douglas further quoted the 1970 Commission on Obscenity and Pornography as follows:
[T]he criminal process should not ordinarily be invoked against persons who might have reasonably believed, in good faith, that the books or films they distributed were entitled to constitutional protection, for the threat of criminal sanctions might otherwise deter the free distribution of constitutionally protected material.
That describes Rick Krial’s situation exactly.
On November 8, 2007, my wife and I sat within a hurricane’s eye of narrowmindedness. We were in the chambers of the Staunton City Council, where the mayor and his councilmen were about to vote on two new ordinances. The first would institute a burdensome permit process upon anyone seeking to open an adult business, defined as everything from an “adult bookstore” to an “adult motel.” It called for an exorbitant $300 permit application fee and a background check by the Chief of Police. Existing businesses—read: Rick Krial’s After Hours Video—would have to comply within thirty days of enactment. The second ordinance would restrict future adult businesses to industrially-zoned areas at least 500 feet away from residences, schools, and churches. Similar laws were being cooked up in neighboring Augusta County.
|After Hours Video (Staunton, VA)|
Mayor Lacy King, Jr., set the tone by leading everyone in a Christian prayer and by reading a five-minute proclamation that November 18-24 is America’s Christian Heritage Week. He then directed our attention to the first proposed ordinance, which accused adult businesses of causing “adverse secondary effects” such as crime, decreased property values, and the transmission of disease.
The city’s planning director took the podium and summarized the contents of thirty-five reports of adverse secondary effects collected from other city governments. I later learned that nearly half of these documents were written in the 1980s and that they lumped together all forms of adult businesses—whether they be brothels or book stores—into their conclusions. And at least one of them made no bones about the intended purpose of ordinances such as Staunton’s. The 1978 study from Las Vegas contained this transcripted statement from the city attorney:
Our whole purpose here is to enact a regulation which will minimize the encouraging of these sex-oriented businesses into our City. I don’t want this to be interpreted as something we are doing on their behalf.
No, we certainly wouldn’t want investors to think we’re helping them in any way, not if they have anything to do with sex.
After that, the Council opened a public hearing. They heard eleven testimonials about the evils of pornography. We learned that Ted Bundy watched porn, that pornographers kill women, that porn turned someone’s husband into a pedophile, that porn “always” causes murder, that it objectifies people, and that it leads to prostitution and drugs. These speakers, all wearing their CTFAPIS buttons, then returned to their seats and resumed waving their stop sign posters and ten-foot vinyl banner.
The dissenting speakers included myself and a small-business owner who said he was afraid of opening a comic book shop in Staunton because he might run afoul of the new regulations. (It’s likely that CTFAPIS members have never read a manga comic.) My own comments ran along the lines of asking the Council to table this for a while and allow tempers to cool before passing any knee-jerk laws.
The ordinances passed unanimously to standing ovations.
That same night, forty-five miles north in Timberville—where no adult video stores have opened—a similar law passed that requires adult businesses to locate at least 750 feet away from schools, homes, public parks, and of course, churches.
A couple weeks later, on November 20, I sat in the front pew of Staunton Circuit Court and listened to arguments in the case against After Hours Video. Prosecutor Ray Robertson was by now being lampooned in the newspaper as a spandex-wearing superhero called “Porn Man.” He asked Judge Humes Franklin, Jr., to disqualify a well-known attorney from the defense team. Krial had wisely retained Buffalo lawyer Paul Cambria, Jr., to be a co-counsel with Staunton attorney Tate Love. Cambria has defended obscenity cases for publisher Larry Flynt (Hustler magazine) and musicians DMX and Marilyn Manson. The fact that the local attorney in this case is named “Love” is certainly a coincidence.
Cambria dressed as impeccably as one would expect, but his client wore a black leather jacket, which I found to be a touch sleazy under the circumstances. Hopefully his lawyers will advise him to dress better next time.
It came out that Robertson planned to prosecute pornography in the same way he goes after drugs: offer a plea deal to the local pusher, Krial, in exchange for testimony against his suppliers—such as the Hustler video franchise. Therein lay the thrust, so to speak, of his argument that attorney Paul Cambria had a conflict of interest.
Judge Franklin asked Robertson at least four times for evidence that other parties were actually involved, but the prosecutor had nothing. Maybe in the future they would be, Robertson said.
Franklin dismissed the challenge. “I can’t deal in speculation.”
The next court hearing is scheduled, appropriately, for Valentine’s Day.
|“Whoever knowingly transports or travels in, or uses … an interactive computer service … in or affecting such commerce for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both.
—U.S. Code, Title 18, Section 1465 (emphasis added)
After making his inaccurate statement about the 1950s drug culture, the city prosecutor in his October 21st column went on to suggest that failure to “stop obscenity in its tracks” will end with people running naked down the street.
Just a month earlier, Playboy magazine reported on a slippery slope that runs in the opposite direction—toward totalitarianism. Under a new law in Iran, passed by overwhelming majority, the production of pornography—which means being a producer, director, cameraman, or actor in the same—could result in the death penalty.
Surely you’re scoffing at what I’m suggesting here. This is the good ol’ U-S-of-A. We would never execute people for making porn. And yet here we are, already, confining the purveyors of “filth” to ever smaller and more expensive boxes—500 feet, 750 feet away from churches at $300 a pop—and we’re indicting people for violating obscure criminal standards that change with each case and court system.
It’s telling that the author of the Roth majority opinion, Justice William J. Brennan, later recanted his position on obscenity. In a dissenting opinion to Paris Adult Theater v. Slaton, District Attorney (1973), he conceded that no definition of obscenity provides adequate notice of what exactly is prohibited. Absent distribution to juveniles or exposure to unconsenting adults, he said, the Constitution prohibits the government from suppressing sexually oriented materials on the basis of allegedly “obscene” contents.
Too bad he didn’t think of that earlier.
As for now, federal and state obscenity laws are on the books, and they are actively being enforced. Counterarguments about victimless crime, as convincing as they might be, are legally worthless. The U.S. Supreme Court has ruled that the “clear and present danger” doctrine need not apply.
You may not care whether an X-rated film ever sees the light of day, and you might even applaud efforts to keep it out of your neighborhood. But let any prosecution of an X-rated film seller go unchecked, and you permit a dangerous precedent to be upheld—and another “literary obscenity” witch hunt might be in our future.
Matthew Warner is the author of Eyes Everywhere, Death Sentences: Tales of Punishment & Revenge and The Organ Donor. He frequently gives presentations on horror literature and writing to public schools and libraries. He lives in Virginia with illustrator and web designer Deena Warner. Stop by his website and say hi.