White House Witch Hunters Watch While We Wank

Lou FCD's picture

What turns a person on? Is what arouses one person the same as what arouses every other person? Should it be? According to the current wave of successful obscenity prosecutions by both federal and state governments, the answer is not only a resounding “yes,” but exactly what is permissible under the law is subject to the whim of the FBI, the local and state governments, and a person's neighbor down the street. Video store owner Rick Krial was recently convicted in Staunton, Virginia, on one of two misdemeanor charges of obscenity and his store was likewise found guilty on one of two similar charges. He and his store still face trial on sixteen obscenity-related felony charges for selling pornographic DVDs to consenting adults for private viewing in their homes. Mr. Krial applied for and received all the proper business licenses and permits required of him, and the videos were made by legally documented consenting adults.

At the heart of this case and others like it is the legal definition of the word “obscene.” What is truly problematic here is that the definition of the word is as malleable as the sixteenth century definition of the word “blasphemy.” Current obscenity laws are based on a 1973 ruling by the Supreme Court in the case of Miller v. California. From that precedent comes the Miller test, whereby an item is deemed legally obscene (and thus unprotected by the First Amendment) if it meets all three of the following criteria: “a) 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Each of these three standards is so subjective as to allow them to be brandished like Sixtus IV's pernicious bull of 1477.

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The first prong of the Miller test is irredeemably flawed from start to finish. The court completely omitted any definition of “the average person,” gave no mechanism for a just decision on who gets to fill that role, and offered no means of objectively measuring the “contemporary community standard.” Worse still is the underlying assumption that what is prurient is either deleterious or judicable, as well as the lack of any standard for what legally constitutes “prurient.” The vast biological and cultural diversity of Homo sapiens accordingly imparts an individualized assortment of sexual penchants, so what one person finds to be a prurient and arousing display, another may find rather domestic and uninteresting. Neither opinion can be properly construed as normal, average, or correct in any objective way. The Krial case is broadly representative of this bias in obscenity trials. There was no survey of the citizens of Staunton to determine who “the average person” might be, or what “the contemporary community standard” is for “prurient.” Mr. Krial's rights to free speech and to privacy, as well as those of his customers, were placed in the hands of a statistically insignificant sample of the population of Staunton. Jurors who may not even have been representative of the citizenry of the city were forced to sit in a public courtroom and watch pornographic movies where their vote would be a de facto disclosure of their private sexual predilections to their families, their neighbors, and the local justice system. Such a situation creates a condition of duress not unlike the Castillian tribunals, where members of the jury are unduly pressured to convict for fear of winding up behind the defense table themselves. These obscenity trials smack more of the Spanish Inquisition under Ferdinand and Isabella than an exercise in due process under the Fourteenth Amendment.

Like the first prong, the third prong rests on arbitrary decisions being rendered on “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The literary, artistic, and political values of a given individual or small group of individuals cannot be measured in any standardized way as average, normal, or even representative of the community. The determination of scientific value ought logically to be judged by scientists, and though the Miller test demands just that, scientists in relevant fields are not brought in to make such judgments in obscenity trials. They were not queried in Miller v. California, and they were not queried in Staunton.

As with the plastic verbiage in the other prongs, the term “patently offensive” is left vague and undefined in the second prong. With this prong however, the court granted the state in which a person resides the authority to judge that person's sexual tastes as “patently offensive.” Since the 1932 United States v. Carolene Products Co. decision, the standard of Strict Scrutiny is routinely applied for any law that appears on its face to violate Constitutional rights. Under this doctrine, such a law must be presumed unconstitutional until justified by a compelling state interest, must be narrowly tailored to achieve that state interest, and must be the least restrictive means for achieving that state interest. Strict Scrutiny protects rights specifically enumerated in the Constitution (such as the right to free speech) as well as unenumerated rights protected by the Ninth and Fourteenth Amendments (such as the right to privacy). Yet no government at any level has ever been required to demonstrate the compelling interest in a person's choice of sexual expression. Nevertheless, Attorney General Alberto Gonzales bedraped himself in the cassock of Alonso de Hojeda and formed an anti-obscenity squad within the FBI in 2005. In his stated opinion, prosecution of obscenity is “one of the top priorities” of the Bureau. Like the Grand Inquisitor ferreting out blasphemers, Gonzales determined that regulating the sex lives of Americans is as compelling an interest for the state as fighting terrorism, combating organized crime, and arresting bank robbers.

The arbitrary and capricious nature of obscenity standards is a direct result of the ambiguous standards bequeathed to the judicial system by the Miller decision. This state of affairs could hardly be otherwise in any attempt to legislate morality. The inherent nature of humanity consists of a diversity of sexuality so individual and nuanced at to render any attempt at defining an average or norm meaningless and inconsistent in any practical sense. The real wisdom of Miller v. California lies not in the court's decision, but rather in the dissenting opinions. There, Justice Potter Stewart wisely recanted his famous quip regarding hard-core pornography, “I'll know it when I see it” (Jacobellis v. Ohio, 1964), realizing the arbitrary nature of such a standard is legally unenforceable. Writing his separate dissenting opinion, Justice William O. Douglas wrote, “The idea that the First Amendment permits government to ban publications that are 'offensive' to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place.” Restated, if the Inquisition can decide what Americans may watch, it can also decide what they may read.

(Cross Posted from Crowded Head )