Fair enough. But then I think the question would be whether those laws pass strict scrutiny with regard to non-content-neutral restrictions on free speech. The issue here is that usually what you have is a bit of a tug of war on the issue. What standard do we use “without redeeming social importance?” The Roth/Miller test? What sorts of as-applied challenges are allowed?

What the court has done is delimit an area where strict scrutiny is not necessary for the legislature to regulate. While I disagree with that, your solution would mean more or less removing the obscenity exception anyway and I might favor it for that reason. However, if it meant just deferring to the legislature on sexually explicit material, I think that would mean gutting the First Amendment….

I would say three things. The first is that community standards under Miller should be whatever the community says they are. There are still the other elements of the miller test, such as serious political, social (etc. value).

the second is that in Roth v. United States, the Court used an originalist argument to justify holding that “the obscene” stands outside First Amendment protection. Its basis was that the First Congress passed an obscenity law at about the same time they sent the First Amendment out for ratification, so they couldn’t possibly have intended the First Amendment to cover it.

It seems to me that if one uses an originalist argument, one can’t help but noting that obscenity laws historically applied to a broad swath of sexually oriented or explicit material. The Court’s efforts to narrow the term were based on its own view of the proper balance between state interests and personal rights. But the originalist justification undercuts this view. The First Congress quite likely intended to remove a broader swath of material from the First Amendment. They didn’t think doing so undercut it.

The third is that it seems to me obscenity trials as conducted under Miller are something of a charade, and one can readily find experts willing to testify that Deep Throat or Hometown Amateurs is serious art. The absence of any genuine expertise in this area, and the fact that the boundaries the Court envisioned in the 1970s seem artificial and don’t seem to make any sense today, is certainly an argument for getting rid of the boundaries by doing away with the laws entirely. But it’s equally an argument for doing away with the boundaries in the other direction, by letting the people who want to get rid of the stuff do so without pretense or humbug.

The fact of the matter is, there’s a vast amount of hardcore pornography. Frankly, it’s not clear to me whether it really makes any real difference to the First Amendment whether we stop at showing four fingers or five. But given that we don’t permit five, it’s also not clear to me that it makes any difference to the First Amendment if a state decided not to permit one. Given that there are boundaries, why not make those boundary decisions legislative?

One can argue there shouldn’t be any obscenity laws at all. Roth was, after all, a 5-4 decision. But given that we have them, I think the courts have played too great a role in micromanaging what the standards should be.

Nonetheless, all laws against obscenity (except for child porn) are ridiculous, if not unconstitutional.

Roger the Shrubber: I confess ignorance on this issue, but it intrigues me. How do courts justify issuing unpublished opinions, and prohibiting citation to unpublished decisions?For the life of me, I can’t think of a good reason for that regime.

I agree. Wouldn’t it be better to require an “Unpublished” flag on the citation so that the courts can at least look at what the logic was last time? That would seem to allow common law processes to work better….

KJJ: Unfortunately that is not the case. On multiple occasions the government has prosecuted textual depictions for obscenity. Even poems have been charged.

Understood. However that was not my point.

Textual representations must still meet the standard that the work as a whole may not be of substantial artistic, political, scientific, etc. value. As long as the Miller test remains, the damage is minimized.

However, I was thinking much more of obscenity trials like Jacobellis v. Ohio, the Mapplethorpe case, etc. If we remove the Miller test and allow legislatures unfettered abilities to define community standards, then nothing stops them from saying “well you can put that film in theaters but cut out the sex scene first.”

Note that Jacobellis was prosecuted (pre Miller) for running a film in his theater which portrayed an adulterous relationship. The sex scene, which occurred near the end of the film, was a very small portion of the movie. This prosecution was what lead Potter Stewart to remark that he knew hard-core pornography when he saw it and the film in question wasn’t obscene.

I say, get rid of the obscenity exception entirely and certainly don’t give legislatures free rein in defining community standards.

Chris Travers: Allowing state legislatures unfettered discretion in this regard would be nothing more than censorship of sexually-related ideas which I do not believe our First Amendment allows

Unfortunately that is not the case. On multiple occasions the government has prosecuted textual depictions for obscenity. Even poems have been charged.

Just to give a few other issues:

If you ever watch a movie like “Silip” (a brilliant and artistic movie but one which depicts rape, lots of sex, etc. I am guessing that probably half the movie has at least one naked woman on screen at any point, or “Nine Songs” (which I have not yet watched, but is an artistic movie which includes, actual, hard core sex scenes), you can think of how deferring to the legislature would cause first amendment problems. “Nine Songs” was originally written to test a double-standard and ask whether it was possible for an art film to be an art film and yet still portray graphic and explicit sexual activity (in that case penetration in full view).

Remember that even implied sex scenes relating to adultery in movies have been prosecuted under obscenity laws pre-Miller (Jacobellis v. Ohio) leading Justice Steward to declare “I know it when I see it” and that this was not obscenity in his concurrance.

Allowing state legislatures unfettered discretion in this regard would be nothing more than censorship of sexually-related ideas which I do not believe our First Amendment allows.

Nonetheless some legislatures have acted in ways more restrained than Miller requires. In Washington State, I believe, obscenity only reaches excretory functions and S+M. Normal group or couple hard core porn is not obscene as a matter of statute. So even under Miller, the states can certainly set guidelines.

readery: If Congress or a state legislature chooses to supplement or replace the common-law approach with a set of statutory standards, the Supreme Court should accept those standards as being the community’s, just as it does (and I believe is required to do) on any other subject.

Fair enough. But then I think the question would be whether those laws pass strict scrutiny with regard to non-content-neutral restrictions on free speech. The issue here is that usually what you have is a bit of a tug of war on the issue. What standard do we use “without redeeming social importance?” The Roth/Miller test? What sorts of as-applied challenges are allowed?

What the court has done is delimit an area where strict scrutiny is not necessary for the legislature to regulate. While I disagree with that, your solution would mean more or less removing the obscenity exception anyway and I might favor it for that reason. However, if it meant just deferring to the legislature on sexually explicit material, I think that would mean gutting the First Amendment….

I think the Court should have limited itself to an up-or-down vote on whether obscenity laws are constitutional. I don’t believe it had authority to micromanage those laws, or to to set standards of its own devising.

Justices no more know obscenity when they see it then does any other citizen. Their opinion of what it is and isn’t simply is no more authoratative. They may have strong opinions based on strong feelings, but so does everybody else. When they impose their own opinions and feelings on others, they abuse their powers. And when they clam their own opinions and feelings are objectively correct and superior to others’, they not only abuse their powers, they act with hubris.

If Congress or a state legislature chooses to supplement or replace the common-law approach with a set of statutory standards, the Supreme Court should accept those standards as being the community’s, just as it does (and I believe is required to do) on any other subject.

I remember the project was called postporn. googling found this as first relevant hit: http://www.pbs.org/wgbh/pages/frontline/shows/porn/special/politics.html

The project was approved, as I recall, based on the community standard being different for each community, pick districts where the standard is favorable, and have a postal inspector order stuff from there.

The Supreme Court a few years ago rejected the notion that “community standards” were vague (see ACLU v. Mukasey). I personally think this is a travesty. If you release something onto the internet in New York, you shouldn’t have to know what folks in small town Utah will think.

However, it occurs to me that the basic issues may run quite deeper than exist. Currently the laws suggest community standards for artistic value as well, if I understand them correctly. In other words the judge and jury get to decide whether or not a given work is art. I can see a number of cases where this could essentially result in a question of prior restraint and due process.

For example, if I have a collection of prints of Dorian Cleavenger paintings, some of them might arguably meet the definition of obscene in some communities. If I move, do I have to conduct demographic research about my collection before I move? By conducting such research am I guilty of violating obscenity laws themselves? If I can’t know beforehand whether bringing in such prints will make me guilty of violating community standards, then “due notice” is just so many words, right?

Now, I suppose one could write the DA’s office and ask for an opinion first. But is that prior restraint?

Certainly I could expect the books to be legal because there are enough brilliant conceptual art in them to meet the “work as a whole” standard. But individual prints?

The whole business of obscenity should be a layer-cake of vagueness problems – at least – even prior to or in addition to the jurisdiction problem. Actually I’ve thought of an even worse form of vagueness problems, bill-of-attainder problems and ex post facto problems, and I don’t see a reason why they don’t apply. I haven’t seen anything about it, so, here….

1. In an obscenity case, a guilty verdict is when a judge or a jury agree that something is patently offensive, that it is so patently offensive that it is criminal in nature. That precisely, and nothing else.

That is precisely what the framers and supporters of an obscenity statute in the legislature want courts to do.

Let us suppose that a group of legislators is considering a certain building. They know what the people inside the building are doing, and they don’t like it, or they do not like the people in the building. They would like to stop and punish everyone in the building, but they can’t; there are legal obstacles to doing this, other people wouldn’t let them or like it, etc. They can’t be seen making a sweeping and merciless law that does that; anyway, they can’t succeed.

So, what they do is, they get themselves an eagle, a big eagle, mean of eye and sharp of talon, and they go to the front door of the building, and release the eagle into the building. Ideally, now and then, the eagle will grab hold of and grievously rend someone.

Are the legislators doing that damage? Yes, because they put the crazed eagle in there to do it.

The reason why obscenity prosecutions are not like enforcement of law, and why they are like this eagle that has been dumped into the front foyer of an office building, is that there is not a law that the legislators wrote that the defendants are simply factually violating. The facts of the case are not sufficient for a conviction. The facts themselves are not at base being tried. A conviction for obscenity must – MUST – have the judge or the jury say, “THIS is ROTTEN and YOU are BAD!” The obscenity conviction consists of that alone. If they do not say that, then there is not only not a conviction, there is in fact no crime; the facts do not add up to one.

An obscenity conviction cannot be anything other than the judge and jury agreeing to do a bill of attainder by proxy.

Activity which occurs in service to, and which is specifically provided for by, a statute from the legislative branch.

2. Given that the crucial and essential thing that makes a defendant guilty of obscenity… never mind whether the activity/thing in question fits the specifications in the statute of explicit sexual content or whatever (like many things that are fine and aren’t on trial), and by the way also never mind the framing consideration of “community standards”; that just gives the prosecutor a line under which s/he can make hi/r appeal to the judge and jury…

and given that the crucial and essential thing that makes a person guilty of obscenity is simply that the court case happens and proceeds and then the verdict comes out and is spoken and it says that this is that disgusting and therefore this is a matter of obscenity…

… that crucial and essential thing happens long after the actual thing was produced or was done.

Under this arrangement, the verdict, which was not certain, when it suddenly becomes a fact, then travels back in time, into the past, to make the activity criminal in nature at a time when it wasn’t!

And it is the nature of an obscenity statute that makes that the nature of what happens in a conviction.

Surely this presents an ex post facto problem. And obscenity law is set up precisely in order that this retroactive illegality should happen.

These same questions paint forward onto the question of prosecutors looking for the most prosecutor-friendly jurisdictions, adding a special color: unlike with any other kind of charge, an obscenity conviction consists of a prosecution-friendly court.

I haven’t seen an explanation or an argument that says that the teeth of the vagueness objection, or the reasons for its cruciality, are in the prohibition of bills of attainder and ex post facto laws – right up top in Article I of the Constitution. What does anyone here think?

Roscoe: Why shouldn’t the rest of us be able to rely on that reasoning as the law of that circuit?

There’s something odd when you can cite a toilet paper wrapper in your brief but not an “unpublished” decision.

Jay: I never heard of this as an option in the circuit where I clerked, and have never noticed it anywhere else. I guess the idea is that a panel doesn’t have to worry about saying something in the “routine” part of the opinion that could be taken to establish precedent where none was intended.

Arizona appellate courts somewhat commonly issue a published decision and an unpublished decision in the same case.

zuch: Worse with the Internet. You don’t need to know just a specific locations’s standards, you have to know every d*mn one in the whole country….Cheers,

Several years ago, a First Amendment attorney (Jeffrey Douglas) conducted a research project to determine how many different community standards existed under the Miller test. Between various state, local and federal jurisdictions there were over 5000.

Presumably before posting sexually explicit material online, one must first evaluate each of those 5000 communities to determine its “contemporary community standards”. Then offending material must somehow be excluded from being delivered over the internet into any inappropriate communities. Each mistake could result in a 5 years prison sentence.

The level of absurdity in the obscenity doctrine is simply staggering.

Dilan Esper: The comments are right, however, don’t hold your breath waiting for max hardcore to win in the supreme court.

We could always apply Potter Stewart’s obscenity standard (from Jacobellis v. Ohio)…..

CMH: Internet notwithstanding, this issue has to have come up before, right? All kinds of media have been distributed nationwide for decades, so has no court really ever confronted this?

Typically they would go after people who bought obscene material or stores that sold it. I suppose mail order places may have posed a similar issue in the past (as in Miller) but more likely these would have been rather limited. With the internet and AUTOMATED sales we are in a different era.

CMH: I had a similar thought to yours. If the actual community for a publication (let alone what the standards of that community are) can’t be ascertained by an ordinary person, aren’t far flung prosecutions open to void for vagueness challenges?

Worse with the Internet. You don’t need to know just a specific locations’s standards, you have to know every d*mn one in the whole country….

Cheers,

Dilan Esper: The comments are right, however, don’t hold your breath waiting for max hardcore to win in the supreme court.

At least not until Justice Kozinski is on the case. ;)

happycynic: Obscenity laws are absurd in the era of the internet anyways.

…close…

Another absurdity is distinguishing between “published” and “unpublished” opinions. The government should not be permitted to do this.

1) On one hand a return to the Roth framework and
2) On the other hand, a rejection of the national standard under Roth.

It seems to my mind that Miller seems to be fundamentally problematic in an internet age. At a bare minimum it might be worth retreating to Roth (national standard, not state standard) as regards internet communications. Better, I think the obscenity exception should just be eliminated.

Otherwise it seems to my mind that due notice is just so many words.

Isn’t there a need of some ‘fair notice’ of illegality that doesn’t restrict lawful First Amendment activities?

I had a similar thought to yours. If the actual community for a publication (let alone what the standards of that community are) can’t be ascertained by an ordinary person, aren’t far flung prosecutions open to void for vagueness challenges?

Internet notwithstanding, this issue has to have come up before, right? All kinds of media have been distributed nationwide for decades, so has no court really ever confronted this?

Incidentally, I hate unpublished or non-precedental rulings for the simple fact that those are inevitably the ones that best support my case.

But in the internet example the material is all but meaningless until the user’s computer re-assembles it. And if secure protocols are being used even intercepting the packets and re-assembling (which can’t happen accidentally) isn’t really feasible.

Moreover, the Eleventh Circuit was convinced that its reasoning was sufficiently sound to justify this Little guy being thrown into the slammer. Why shouldn’t the rest of us be able to rely on that reasoning as the law of that circuit?

Will we have to have each community set up boards to review all new publications and give a Caesarian “thumbs up”/”thumbs down” based on their local criteria? I’m wondering who would run for such a board. “C Streeters”?

Or are the producers of materials arguably legal in some communities just required to guess as to how people in other communities will judge them? Isn’t there a need of some ‘fair notice’ of illegality that doesn’t restrict lawful First Amendment activities?

Cheers,

krs–I’m not disputing that there are differences between circuits, but I doubt there are any where the “default” is not an unpublished opinion.