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Unhappy Birthday: Roth At 50

Unhappy Birthday: <i>Roth</i> At 50

HARRISBURG, Pa. – Much of modern obscenity law stems from the U.S. Supreme Court's decision in Roth v. United States, a 1957 case which pitted publisher Samuel Roth and, in a concurrent matter, mail-order retailer David Alberts against the morality of mid-1950s America as embodied in the nine justices then serving on the U.S. Supreme Court.

"The dispositive question is whether obscenity is utterance within the area of protected speech and press," wrote Associate Justice William Brennan for the 6-3 majority. "Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press." The opinion then went on to cite cases from as far back as the early 1900s to bolster its claim that the books and advertisements at issue in the Roth and Alberts cases were indeed outside the Founders' intent as set forth in the Bill of Rights.

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(Of course, not all of the Justices agreed. "Unlike the law of libel, wrongfully relied on in Beauharnais, there is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment," wrote Justice William O. Douglas, joined by Justice John Marshall Harlan, in dissent, adding later, "The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence.")

But that was just over 50 years ago, and if the Supreme Court can decide that private homosexual conduct, ruled constitutionally unprotected 20 years ago in Bowers v. Hardwick, does indeed implicate a substantive liberty interest, as reflected in 2003's Lawrence v. Texas decision, there's little reason why obscenity, which bears no asterisk exception to the Constitution's speech protections, should not receive the same judicial rehabilitation.

But the mere fact that the Supreme Court's entire obscenity jurisprudence runs counter to the clear wording of the First Amendment is apparently not sufficient for law professors Clay Calvert and Robert D. Richards; they've now penned an article for the Texas Review of Entertainment & Sports Law's Fall issue titled "Stopping the Obscenity Madness 50 Years After Roth V. United States," containing an additional 10 reasons why the high court should "jettison[] and abandon[] obscenity jurisprudence as we know it and, instead, afford[] speech that would currently be obscene with First Amendment protection."

Calvert and Richards make it clear early on where modern-day obscenity prosecutions find favor: "Those prosecutions pander to the censorial proclivities of religious conservatives and anti-pornography feminists while simultaneously serving the political aspirations of federal and local prosecutors." And they suggest where "obscenity" money could be put to better use: Targeting the makers and distributors of child porn, as well as sexual predators on the Internet.

The authors divide their objections to obscenity law into three parts.

"Section A covers what might be considered the 'Three Ps' of why obscenity law should be abandoned — popularity, privacy, and permanence — and why sexually explicit content involving consenting adults should be protected from production to distribution to dissemination to possession," they state. "Section B then turns to three major problems that plague the test for obscenity articulated in Miller v. California and that militate against laws that prohibit obscenity. Finally, Section C examines a potpourri of reasons for abolishing laws against obscenity. These reasons range from self-regulation and self-censorship in the adult industry in the United States to the economic benefits of protecting sexually explicit content to better spending of taxpayer dollars on issues more important than sexual content involving consenting adults."

Some of the Calvert/Richards arguments have long been known to porn aficionados: That adult material is immensely popular, and has been for centuries, and that it is mostly viewed in the privacy of one's home – moreso since the virtual death of adult movie theaters, the growing use of doors-off ordinances for adult arcades, and the ubiquity of VCRs, DVD players and Internet access.

The authors also make the point that in the age of Internet, the "Miller test" for obscenity is outmoded because A) it relies on "community standards" in a world where the "information superhighway" has erased the distance between, say, a producer of adult material in California and the viewer of same in New York City (or Wichita, Kan., Staunton, Va. and Phoenix, Ariz., to mention a few recent sites of obscenity prosecutions), and B) the test doesn't define "obscenity" in any case; merely lists certain criteria without which any given work could be found to be "obscene."

One little-seen objection the authors make under the Miller section is that no matter how offensive the material may be claimed to be, it is inevitably educational, since in most instances, those who are sufficiently offended by the material to seek its prosecution are also those who are unlikely to be familiar with – indeed, may never have even seen – the sexual acts depicted in the material, while even fans of the material may discover new sexual positions or modes of expression, even if, after having seen them, they reject trying them themselves.

Finally, the authors cite the existence of such things as zoning codes, anti-porn propaganda and even the relatively high cost of XXX material as factors that limit public dissemination of material that might be charged as obscene. They also argue that the adult industry is a legitimate business form which provides employment and pays taxes, and that in any case, there are much more pressing and important public issues that obscenity prosecution funds could be spent on.

Finally, Calvert and Richards make some recommendations as to how society might better deal with the existence – indeed, the proliferation – of adult material. The easiest of these would be the establishment of a .kids top-level domain, where webmasters whose material is completely non-sexual could locate their sites.

Another good idea, and one which is generally forgotten when considering the overall concept of "obscenity," is that the courts should treat words differently than images. The authors recall that comedian Lenny Bruce was busted for obscenity at least three times before his death in 1966 for performing "blue" material to like-minded adults, and they also note the recent film The Aristocrats, which consists of one "dirty" joke told many times in many different forms by several actors and comedians. Both of these verbal adult scenarios, they argue, would fall under Justice Anthony Kennedy's dictum in Lawrence v. Texas that "liberty presumes an autonomy of self that includes freedom of thought," and should be immune from obscenity prosecution – as long as the repartee is confined to private venues, away from minors' ears.

The authors' third suggestion is one with which adult content producers are already all too familiar: Having failed, by and large, to drive the industry out of business through prosecution, Calvert and Richards urge the government to abandon attempts to regulate the industry to death by means of, for instance, excessive recordkeeping requirements under 18 U.S.C. §2257, and with the Adam Walsh Act, to target even softcore sex by extending the recordkeeping requirements to Hollywood productions.

"This Article has identified ten different reasons why obscenity laws should be abolished in the United States," Calvert and Roberts conclude. "While none of those reasons standing alone may provide sufficient justification for relegating Roth and Miller to the ash heap of failed First Amendment jurisprudence, the reasons, when viewed collectively, provide what the authors consider to be a strong argument for their termination."

Interestingly, given the Roth opinion's reliance on the idea that "obscenity" has never been protected by the First Amendment, Calvert and Roberts fail to mention the 2005 Oregon Appeals Court case of State v. Ciancanelli, where Judge W. Michael Gillette (now on Oregon's Supreme Court) and his fellow jurists undertook an investigation into the commonly-accepted notion, set forth by the British scholar Sir William Blackstone in his Commentaries on the Laws of England, that "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. ... So true will it be found, that to censure the licentiousness, is to maintain the liberty of the press."

"Interestingly, the foregoing view of the right of free speech was contrary, in many respects, to the philosophy that had animated the American Revolution," wrote Judge Gillette. "Many of the leading lights of the American revolutionary period were greatly influenced by the 'natural rights' philosophy that was advanced in the works of John Locke and that later was popularized, and fused with the republican political tradition, by John Trenchard and Thomas Gordon under the nom de plume 'Cato.' ... On the issue of freedom of speech, Cato wrote: 'Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; Which is the Right of every Man, as far as by it does not hurt and controul the Right of another; and this is the only Check which it ought to suffer, the only Bounds which it ought to know.'"

Perhaps Calvert and Roberts will include the Ciancanelli decision in some future article on this subject.






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Mark Kernes

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