What happened in Staunton, part 1: Store owner convicted for selling legally produced porn to adults

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eye chart spells out censorship causes blindnessA couple years ago we had the Alabama Vibrator case. Now we have the Staunton Pornography case. According to NewsLeader.com, Rick Krial, owner of After Hours Video, a store whose express purpose was to sell "adult" material to adults, was indicted on 16 felony charges and 8 misdemeanor charges for obscenity because in his shop he sold pornography to ... wait for it ... adults. From August 12-15 he was tried on two of the misdemeanor charges. He was convicted on one. His store was convicted of the same charge. An employee was found not guilty of the same charges. My attempt to make sense of this is below the fold.

Marty Klein, writing on Alternet, puts it this way:

If the films said blacks were lazy, Jews were cheap or Catholics were disloyal Pope-lovers, they would be legal. If the films said our two-party system was corrupt, and that censorship laws were destroying democracy, they would be legal.

The indicted films didn't say any of these things. But the government said these films were so dangerous that adults must be prevented from buying them.

In the United States. In 2008. Films that simply showed adults having sex: no kids, no animals. Not even a pretend rape. Just a few hours of boobs, boners and butts, waxed vulvas and a few pints of ejaculate (much of it on women's faces or chests).

 

The question on the surface is one of obscenity versus indecency. Obscenity, unlike indecency, is not protected by the First Amendment. Selling obscene material is a crime. But there is no clear standard for what qualifies as obscene. In order to be obscene, according to the test the U. S. Supreme Court devised in the case Miller v. California back in the 1970s " '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."

Obviously words like 'average person,' 'community standards,' 'prurient interest' and 'patently offensive' are pretty subjective. So how did the prosecutor argue that these films were obscene? What standards should we assume this community holds such that its average people would find the films patently offensive? Marty Klein explains:

The government claimed the movies should be criminalized because:
  • They depict sick behavior.
  • They appeal to sick people.
  • Watching movies like this makes people masturbate and makes them watch more movies, rape women and molest children.
  • Criminalizing the movies is part of protecting American society from moral depravity.
According to Klein these were pretty mainstream porn films. Here is the description of Sugar Britches, the only one of the films that Klein mentions by name:
Sugar Britches is a classic study in experimental erotica as several vignettes are run together, creating a montage of sexual situations. We have everything from sexy schoolgirl lust to voyeurism to steamy wet shower masturbation sequences. Add in a very exotic lesbian encounter as well as a scintillating threesome-WOW!-one of the classic films for sure! (From Naughty.com, a porn retailer)

The Hook identifies the second film as "City Girls Extreme Gangbangs," a film that has scenes of double penetration and group sex, both things that Sugar Britches does not have. The jury in Staunton found City Girls obscene and found Sugar Britches not obscene, hence the split verdict.

But the real question is not about the technical difference between obscenity and indecency. The real question is about why sexual imagery that has as its purpose the generating of sexual arousal is considered either indecent or obscene in the first place. If each of us who enjoys some of the kinds of sex that is depicted in those films or who enjoys watching some of those kinds of sex stood up and publicly said so, it would be impossible to maintain the notion that only "sick people" do or watch such things. But we don't have to publicly say so, and in fact many of us would be too ashamed to publicly say so precisely because of the stigma we know would be heaped upon us.

The fact that the imagery is sexual does not make this case any less important a free speech case. We have a terrible tendency of devaluing sexual expression in this culture, but sexual expression is as inalienable a right as any other kind of expression. (Why is the phrase "life, liberty and the pursuit of happiness" ringing in my ears?) It is just a right that is so much easier to violate because of the stigma around sex and eroticism in the United States. As we've seen with the forcing of women to leave buildings because their clothes were "too provocative" or "offensive" tolerance of sexual expression is highly variable.

We need to speak up loudly whenever anyone's right to sexual expression is violated. We need to speak up when Lapriss Gilbert is forced to leave a federal building because her t-shirt says "lesbians.com" and when Sarah Palin tries to have books banned from the Wasilla public library or when people are arrested for exercising their right to assemble peaceably at political conventions. And we need to speak up when a porn purveyor is convicted of a crime because he sold legally produced material to adults who had a legal right to view it.

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"What happened in Staunton, part 1" deals with the more abstract legal and philosophical issues raised in this case. I intend to deal with the more frighteningly far reaching anti-sex strategy concerns in another post.

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"Does flickr need an eye test (freedom test)" is by Christian Guthier (net_efekt on Flickr) and used under a Creative Commons Attribution Noncommerical Share Alike license

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