LOS ANGELES - One might think that director/producer/distributor John Stagliano would be outclassed in debating obscenity law with Pepperdine Law School associate professor Barry McDonald, but as today's installment of the Los Angeles Times' "Dust-Up" column reveals, Stagliano can more than hold his own.
The format of the column is that a question is posed, and one side – in this case, McDonald – gets to take "point" – that is, make the first comment – while the other gets "counterpoint," rebutting what the other person said.
Today's question is, "Should there be an obscenity law that outlaws a product that is made with informed adult consent with no laws being broken, and that is increasingly distributed and consumed in complete privacy?" Interestingly, the question tracks closely the argument First Amendment attorney H. Louis Sirkin made before Judge Gary Lancaster (and, for a while, won) in the case of U.S. v. Extreme Associates, where Sirkin contended that the effect of the Supreme Court's Lawrence v. Texas decision meant that as long as children and non-consenting adults didn't have to see the material, the Constitution's substantive due process clause meant that consenting adults had every right to buy whatever sexually explicit material they wanted.
McDonald, however, held to the idea that the Supreme Court's 1973 Miller v. California decision created a legitimate exception to the First Amendment's "freedom of speech" clause to exempt "sexually explicit materials that are designed to appeal to a morbid interest in things sexual and are depicted in an extremely offensive way – all as determined by an 'average' person of a given community" from constitutional protection, at least when it comes to selling the stuff. (The high court's Stanley v. Georgia decision recognizes that owning the material is legal.)
McDonald claims that "obscenity prosecutions are rare because of the difficulties prosecutors encounter in proving that materials meet the Miller standards," but he seems to be basing his statement on the fact that there were no federal obscenity prosecutions during Attorney General Janet Reno's term, even though the number under Ashcroft/Gonzales/Mukasey is rising quickly.
But in stating that "today's question asks us to assume that such extreme materials are made without violating any laws (an assumption that would probably falter in the real world), we must inquire whether even simulated depictions of such acts should qualify for illegal treatment when they are publicly distributed or exhibited," [Emphasis added] McDonald evades the basic question which, framed in terms of "obscenity law," deals with actual sexually explicit materials – and he provides no evidence that laws are violated when the material under discussion is created. (In fact, no one can tell if a particular work is "obscene" until a jury returns a verdict on it – something a law professor should very well know!)
Admitting that he's not a psychologist or sociologist, McDonald asks, "Can it really be maintained that a viewer of such materials is not harmed in some way?" The answer, from many peer-reviewed studies, is, "Yes, the material harms no one who doesn't already suffer from grave psychological problems."
But that's a straw-man argument in itself, since McDonald goes on to posit, "the viewer is not the only, if even the main, concern of obscenity laws... Even putting adults aside, surely our society has a strong interest in protecting minors from the potential harm from being exposed to such materials -- however that harm may be defined." But there's no evidence that children are harmed in any way by seeing sexually explicit material; if any harm is caused, it's usually by hysterical adults attempting to smother (figuratively and sometimes literally) the children who've seen it.
Finally, McDonald writes, "Do communities across our country lack a sufficient interest in 'drawing a line' in the sand and saying enough is enough? Shouldn't commercial porn distributors adhere to some minimal standards of public decency... To merely state these questions is, in my view, to ask and answer them."
Stagliano, of course, has several answers to McDonald's point, at least one of them very personal: "Your comment that it 'seems' to you that viewing images 'to obtain sexual pleasure cannot be the healthiest way of experiencing sex' seems not a good enough reason to imprison me for 39 years." After all, that's the total prison time Stagliano is facing if convicted of the eight federal counts of transporting obscenity with which he's been charged.
But that's hardly all Stagliano has in his free speech repertoire. Dealing with the concept of "extreme porn," Stagliano argues, "Some individuals do not take offense to extreme porn, and those individuals are protected by the Constitution. No one should be subject to the whims of a group or 'community' that does not like what you look at. And what is wrong with being extreme? In today's culture, being extreme is revered. It is the people on the extreme who move the world forward, who experiment and find new ways of living."
A long-time libertarian, Stagliano comes from a background which supports the fervent protection of individual rights. In that context, he asks, "Is it right, ethical or moral for one group of people to control the thoughts of another group?", noting that, "Indeed, it is the thoughts that erotic images arouse in the viewer's mind that those who would assume the power to control others have a problem with... In fact, using a proper concept of morality based on individual rights, it is you and those who would put me in jail when I did not infringe on anyone's rights who are behaving immorally."
Stagliano rightly points out that the very concept of obscenity violates the Constitution.
"The question to be asked is not whether there should be an obscenity law," Stagliano writes, "but whether there can be an obscenity law that is just, given that the Supreme Court failed to define the term in 1973 when it had the chance." [Emphasis added] Certainly, all manner of other laws have been held unconstitutional for "vagueness," and the three-part Miller test is hardly a prescription adult moviemakers can follow to avoid possible obscenity prosecution. If anything, it does just what Justice Anthony Kennedy said is constitutionally suspect in his opinion in Ashcroft v. Free Speech Coalition: "The Government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech is not unlawful."
Or as Stagliano put it, "they [the Supreme Court] could have said that no kind of obscenity is worthy of 1st Amendment protection, which would have required them to define obscenity, which they realized that they couldn't do."
Stagliano rightly recognizes that the thing that's lost in the concept of "community standards" is the individual – the entity who has rights under the Constitution over and above what even a majority of "the community" may feel or want.
"We don't need the 1st Amendment to protect the people who go along with the majority in a community," Stagliano writes, channeling philosopher John Stuart Mill, who said, "If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind."
"We need it to protect those who would question the accepted wisdom, which is what I am doing," Stagliano concludes. "Am I to be condemned to jail for this?"
Certainly, the adult entertainment community would answer with a resounding, "NO!"
To view the debate online, visit latimes.com/dustup.