The Volokh Conspiracy - Obscene Snow Sculpture, or Frivolous Prosecution?

Eric Muller points to this story:

Two Laramie men are facing obscenity charges for allegedly building a snow sculpture of a phallus in their front yard.

Brandon Arp, 20, and Aric Davenport, 19, were arraigned Friday in Albany County Circuit Court on charges of promoting obscenity. . . . If convicted, they could each face up to one year in jail and a $1,000 fine.

According to police reports, the men made the sculpture in the 1200 block of Custer Street on April 21. Reports say the sculpture was "offensive to other residents in the area." . . .

If the news account is correct, then it sounds like the defendants are clearly not guilty. Under Wyoming obscenity law, which tracks the First Amendment requirements,

"Obscene" is material which the average person would find:

(A) Applying contemporary community standards, taken as a whole, appeals to the prurient interest;

(B) Applying contemporary community standards, depicts or describes sexual conduct [in this case, lewd exhibition of the genitals] in a patently offensive way; and

(C) Taken as a whole, lacks serious literary, artistic, political or scientific value.

I haven't seen any photographs, but I highly doubt that the penis sculpture "appeals to the prurient interest," which means "appeals to a 'shameful or morbid interest in sex.'" Few people, I think, would find sculptures of a penis to be sexually arousing or even sexually interesting. They may be offensive to many; they may appeal to an interest in vulgar humor; but they don't appeal to an interest in sex, whether or not shameful or morbid.

Likewise, while the sculpture is an "exhibition of the genitals," that's not enough for it to be obscene — to be obscene, it must be a lewd exhibition of the genitals, which again requires that it be aimed at sexual arousal. Maybe I'm shortchanging the potential of snow art, but I doubt that a simple snow sculpture of a penis can qualify as lewd.

Maybe I'm missing something; but if I'm right, then the prosecution's case isn't just a loser, but is borderline frivolous. In fact, if Arp and Davenport were arrested, they should have a good case against the police department, because it sounds like there wasn't really probable cause to believe that they had violated a crime — this makes their arrest an unreasonable seizure, in violation of the Fourth Amendment. (They can't sue the prosecutor based on the prosecution, because prosecutors have absolute immunity from lawsuit, even when the prosecution is unconstitutional.)

Finally, one could argue that it's constitutional for the government to bar public display of certain materials, even if they aren't obscene, in order to protect either unwilling viewers or children. I doubt that this can be done as to nonsexual nudity (see Erznoznik v. City of Jacksonville (1975). But in any event, even if such a statute were constitutional, our sculptors aren't being prosecuted under such a statute, and as best I can tell Wyoming has no such statute. According to the news report, they're being prosecuted for obscenity — and this just isn't obscenity.

UPDATE: Reader Ellen Dahlgren pointed me to this article about a possibly similar incident involving a tree in Santa Cruz, where as you might guess the police were mellower about the matter.

	[Eugene Volokh, May 3, 2005 at 7:55pm] Trackbacks Obscene Snow Sculpture, or Frivolous Prosecution? Eric Muller points to this story: Two Laramie men are facing obscenity charges for allegedly building a snow sculpture of a phallus in their front yard. Brandon Arp, 20, and Aric Davenport, 19, were arraigned Friday in Albany County Circuit Court on charges of promoting obscenity. . . . If convicted, they could each face up to one year in jail and a $1,000 fine. According to police reports, the men made the sculpture in the 1200 block of Custer Street on April 21. Reports say the sculpture was "offensive to other residents in the area." . . . If the news account is correct, then it sounds like the defendants are clearly not guilty. Under Wyoming obscenity law, which tracks the First Amendment requirements, "Obscene" is material which the average person would find: (A) Applying contemporary community standards, taken as a whole, appeals to the prurient interest; (B) Applying contemporary community standards, depicts or describes sexual conduct [in this case, lewd exhibition of the genitals] in a patently offensive way; and (C) Taken as a whole, lacks serious literary, artistic, political or scientific value. I haven't seen any photographs, but I highly doubt that the penis sculpture "appeals to the prurient interest," which means "appeals to a 'shameful or morbid interest in sex.'" Few people, I think, would find sculptures of a penis to be sexually arousing or even sexually interesting. They may be offensive to many; they may appeal to an interest in vulgar humor; but they don't appeal to an interest in sex, whether or not shameful or morbid. Likewise, while the sculpture is an "exhibition of the genitals," that's not enough for it to be obscene — to be obscene, it must be a lewd exhibition of the genitals, which again requires that it be aimed at sexual arousal. Maybe I'm shortchanging the potential of snow art, but I doubt that a simple snow sculpture of a penis can qualify as lewd. Maybe I'm missing something; but if I'm right, then the prosecution's case isn't just a loser, but is borderline frivolous. In fact, if Arp and Davenport were arrested, they should have a good case against the police department, because it sounds like there wasn't really probable cause to believe that they had violated a crime — this makes their arrest an unreasonable seizure, in violation of the Fourth Amendment. (They can't sue the prosecutor based on the prosecution, because prosecutors have absolute immunity from lawsuit, even when the prosecution is unconstitutional.) Finally, one could argue that it's constitutional for the government to bar public display of certain materials, even if they aren't obscene, in order to protect either unwilling viewers or children. I doubt that this can be done as to nonsexual nudity (see Erznoznik v. City of Jacksonville (1975). But in any event, even if such a statute were constitutional, our sculptors aren't being prosecuted under such a statute, and as best I can tell Wyoming has no such statute. According to the news report, they're being prosecuted for obscenity — and this just isn't obscenity. UPDATE: Reader Ellen Dahlgren pointed me to this article about a possibly similar incident involving a tree in Santa Cruz, where as you might guess the police were mellower about the matter.