Be heard on the issues that matter most to you!
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.
...because public space really matters!
Elizabeth
"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."
Not only were they unable to prove that assertion, they weren't even asked to support it. It was just accepted as a given, as far as I can tell.
"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."
Allow me to posit a third. There is no possible objective standard by which to measure "looks old enough" or "looks underage". Any such assertion is merely opinion. Whose opinion holds sway? Should you be arrested because I, a complete stranger, walk into your store and decide your performers "look too young"? Last week my precalc teacher mentioned in passing that her college years and teaching career together added up to ten years. My response: "When did you start college? When you were 12?" My perception of her apparent age was quite obviously flawed, and yet classmates of mine had guessed incorrectly in the other direction. Who gets to decide if a performer "looks old enough"? What's the standard?
"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,..."
It seems salient that the offended neighbors upon whose opinion the ephemeral "community standards" are based have in all likelihood not seen the porn in question and are therefore incapable of offering an informed opinion on it. It seems rather tenuous to curtail the First Amendment rights of an individual on claims of offense by someone who could not possibly have been offended.
Feel free to read whatever's left of my own thoughts at Crowded Head, Cozy Bed
The Boy in JanieBelle's head
Often held is that the Constitution is a ‘Living’ document. The same is held for the Bible. It is the ‘Living’ Word.
Let us look at that. The claim, of course, is that these writings are living in a way that allows them to have the same relevance today as when they were written. That is certainly a reasonable and defensible position. The Bible holds that …‘and the second of these is as great; to treat your neighbor as you would have them treat you.’ Or, in the Declaration of Independence, ’…that all men are created equal…’
Then where is the problem, you might ask. The problem is that in defending a writing as a ‘Living’ document it allows the defender the latitude of interpretation of the words instead of the speech.
Let me explain. The First Amendment to the Constitution does not amend by change it amends by addition. The First Amendment precludes the government, and by extension the People, from abridging the right of speech of any other citizen (and by Supreme Court decision, any other person.)
Now, the Supreme Court has decided that there is something called ‘Community Standards’. Does that mean that if a community organizes in such a way that the rule of ‘Pater Familias’ holds as the penultimate rule of law, an action that would normally be proscribed is allowable because the act took place within the domain of the household? Does it mean that if the community has determined that meat is not to be consumed on a particular day, any household that consumes meat on that day is in violation of the standard and thus prosecutable?
Those may seem ludicrous on the surface. They are not in the sense that they speak of what freedom means. In the framework of whether a ‘community standard’ should be applied to what is pornography, obscenity, or indecency, freedom has a very specific meaning. These are all forms of speech. If a ‘community standard’ is to be applied, then the freedom lies in the speech and not in the words.
That is, writing, oration, visual depiction, and other expressions are speech that is allowed by the ‘community standard’. What is proscribed by that standard is the content. The content is the words used. A community allows the production, distribution, possession, and control of a DVD of a particular production because the content of the DVD is in alignment with what is decent and proper. I cannot imagine the Virginia community banning or criminalizing the movie ‘At Dawn We Slept’, the depiction of Japanese bombers destroying the Naval Base at Pearl Harbor is iconic and somehow ‘patriotic’ in nature. Of course, this movie inspires apathetic Americans to send their children off to destroy other children and accept the Bush Doctrine of preemptive war. That seems completely Holy and Righteous to America. This content is allowable because it meets the ‘community standard’. I cannot see the Virginia community banning or criminalizing ‘The Scarlett Letter’. This book is completely innocuous because it is written in such an anachronistic form of the language that few get beyond the prose actually to understand the author’s point.
I can understand the Virginia community banning the book ‘Johnny Got His Gun’. After all, this anti-war novel has been banned in America at least three times (Prior to and during both World Wars and the Korean Conflict.) I can even understand the Virginia community banning ‘Lolita’. This book is clearly about a proscribed act in the ‘national community’. Of course, the book is about the detrimental consequences of the act and the male figure is clearly made out to be anything but a role model. In this case, the Virginia comminity bans through ignorence, a seemingly allowable component of 'community statndard'. I can understand the Virginia community banning what it fears because that community refuses to take the time to understand what challenges what it believes.
I can understand the local prosecutor pressing this case with the power of the Supreme Court ‘Community Standard’ decision as a legal theory. I can understand the minions of the Executive, the US Attorney, riding along in the trial balloon. The shift from a Blackstonian theory of law and government to a Benthamite theory of law and government is much too deeply ingrained in American society for the average American to grasp the flaw in 'community standard' (a tyranny of the majority by virtue of 'moral pressure'.) This tyranny is well played by the People (read: The State). The People have lost their ability to express their Consittutional Rights because the 'People' begin with the least defensible exercise of freedom and then spread like mold in a wall, usurping freedoms that offend those who claim the moral high ground.
This is in no way meant to demean the religious of any faction or belief. Nevertheless, this interpretation of Freedom of Speech has become Freedom of Speaking what I want to hear by the strong and vocal Religious Right. The tactic is simple. Begin by ostracizing the most indefensible. Broaden the ‘label’ to include those who would not fit under the original label. Move from that success to imply a relationship between one thing and another that does not exist. Once the first label is expanded, irrational relationships do not require linkage with something as inconsequential as proof. The ‘community’ has learned to ignore fact and accept belief. If there is one thing that is true about American society it is; It is easier to accept an untruth and keep a belief than it is to understand a truth and have to change a belief. Americans epitomize ‘tell me what I want to hear, so I don’t have to leave my comfort zone’.
The point is if there is to be Freedom of Speech, the freedom must be in the words, not in the speech. The next time you catch yourself using a label, pornographer, sex offender, Christian, or American understand that you are using a label to identify a person who may not fit the label. Understand that the label is a mold in which you must jam the person/object without regard to fit. You are applying the Virginia community standard. I agree wholly with the point Elizabeth makes. If we do not speak out, the standard will have to be renamed from ‘community standard’ to Staunton Standard.
Everyman's death diminishes me because I am involved in mankind...
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