What happened in Staunton, part 2: What happens in Staunton won't stay in Staunton

A week ago I wrote about the Staunton, VA obscenity trial of Rick Krial. Rick Krial, and his store, were each charged with a range of misdemeanor and felony obscenity counts and were tried along with a clerk on two of the misdemeanor counts. Krial and the store were each found guilty of one; the clerk was found not guilty of both. I wrote about the more philosophical issues of what obscenity means in my last post. This post is concerned with something different. Here I want to make clear why, whether or not you ever plan to travel to Staunton, VA you need to care about this case. The reason: Unlike Las Vegas, the place Staunton's prosecutor most fears, what happens in Staunton isn't so likely to stay in Staunton. Read why below the fold.

First, this case appears to be a federal government trial balloon. There is a federal prosecutor as co-prosecutor on the case. Why? My guess: Because if he can watch/shape prosecutions in conservative locations he can a) help them win and then b) figure out where the most restrictive community standards are so that it becomes easier to bring obscenity charges against Internet-based retailers. You may recall that in the case of Robert and Carleen Thomas in 1994 the standards of a conservative community in Alabama were used to convict and imprison the operators of an adult BBS in San Francisco. (John Stagliano, a pornographer, is facing a similarly Internet-based prosecution)

Second, the strategy used at the local level is one the federal government will no doubt use later: sixteen original felony charges and eight misdemeanor charges. They choose two films for misdemeanor charges, one relatively tame, one a bit wilder, and they see where the "community standards" fall. Then they use that info to home in on the films they can be much more sure will be judged obscene before they bring the felony charges.

Third, the prosecutors relied on assertions about causal relationship between porn and all manner of social ills without being able to prove any of them. (Critique their expert witness). Still, the repeating of these claims is persuasive to many and reinforces the moral panic around sex. This moral panic around sex can be used in other communities to make standards appear more conservative by making it harder for people to speak up in defense of pornography or sexually explicit content of any sort.

Fourth, the prosecutors relied on claims about the underage-appearance of the women in the film. Of course there are two big problems with these claims. First, the performers were not underage. In fact, the judge in the case nearly declared a mistrial because the prosecutors kept harping on that falsehood. Second, the idea that some women "look underage" must not be allowed to become the basis for banning images. While I recognize fully that the fetishizing of youth especially in images of women is a significant concern, banning such images would censor a whole lot of porn based on a standard of appearance that would pass muster in fashion magazines and movies. Banning porn because it presents troubling images is as bad as banning books because they deal with troubling ideas. We wouldn't accept the latter. We shouldn't accept the former. (There are some kinds of expression I would agree can be banned: threats and incitement to violence certainly come to mind. There is no evidence to support the claim that pornography represents an incitement of violence. It should not be banned because it is troubling.)

Community standards are too fluid and too hard to measure to be the basis of criminal law. They subject everyone in a community to the tyranny of the most vocal and most powerful; they can change from jury to jury in a single community and they can differ from town to town in a single state. They are even more frightening when applied to media that are not community-based (national broadcasts, the Internet). The presence of the federal government representative on this case seems to me an indicator that there is increasing interest in finding ways to do exactly that.

The injustice is simple to understand: A business owner operating a shop that is licensed and located in such a way as to legally sell porn should simply not be prosecuted for selling legally-produced porn. Yet with 'community standards' as the guiding principle it is inevitable that some of the porn he stocks is offensive to some of his neighbors, or, more likely, to a prosecutor who can then mobilize the shame his neighbors are likely to feel around certain kinds of sex so that they are willing to convict him. 

I thank Matthew Warner at Augusta Free Press for an insightful article that reminded me of the words of Justice Douglas in the Supreme Court decision in Roth v. U.S. -- the obscenity case that preceded the Miller case which remains the standard. In his dissent in Roth, Douglas wrote:

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. Under that test, juries can censor, suppress, and punish what they don't like, provided the matter relates to "sexual impurity" or has a tendency "to excite lustful thoughts." This is community censorship in one of its worst forms. It creates a regime where, in the battle between the literati and the Philistines, the Philistines are certain to win. If experience in this field teaches anything, it is that "censorship of obscenity has almost always been both irrational and indiscriminate." (Page 354 U. S. 512)

Douglas was right in 1957 and his words are not less correct today. Instead of community standards the focus regarding pornography needs to be on the legal conditions under which it is made. Are the performers of legal age? Is there any illegal activity filmed? Are all scenes consensual? Are the workers labor rights respected? If the porn is produced legally it should be legal to sell it in any place where selling porn is, itself, legal. Community members are free to protest. The public square is a place for debate, not a place for censorship.