Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Path: utzoo!mnetor!seismo!lll-crg!lll-lcc!qantel!ihnp4!houxm!mtuxo!mtune!mtunf!mtx5c!mtx5d!mtx5a!mat From: mat@mtx5a.UUCP (m.terribile) Newsgroups: talk.politics.misc,net.legal,soc.singles Subject: Re: Re: Re: Commission on Pornography -- reply to GWSmith Message-ID: <1558@mtx5a.UUCP> Date: Thu, 18-Sep-86 07:03:08 EDT Article-I.D.: mtx5a.1558 Posted: Thu Sep 18 07:03:08 1986 Date-Received: Sat, 20-Sep-86 20:52:18 EDT References: <1487@mtx5a.UUCP> <15487@ucbvax.BERKELEY.EDU> Distribution: net Organization: AT&T Information Systems, Middletown, NJ 07748-4801. Lines: 214 Xref: mnetor talk.politics.misc:200 net.legal:3623 soc.singles:14 > Not sure I caught that, could you also please include (briefly) how the > *Miller* standard differs from the unprosecutable *Roth* standard. Just > so we know what is being recommended. (If you said earlier, I forgot it). In the 1957 case of *Roth v. United States*, the Supreme Court declared that there *were* materials which, by nature of a combination of obscenity and lack if ``ideas'', the dissemination of which are protected by the First Amendment, could (but did not have to be) subject to restriction by the States. It was in that case that the phrase ``utterly without redeeming social importance'' crept into the constitutional law. All ideas, according to this decision, are protected, and material with ``even the slightest redeeming social importance'', no matter how overtly and explicitly sexual, could not be restricted. In simple words, a cheap moral would justify any story with any pictures, or any movie. The 1973 case of *Miller v. California* tightened this up just a little: Material may be obscene under law if all of these three tests are met. 1) The average person, applying contemporary community standards, would find the that the work, taken as a whole, appeals to the prurient interest [in sex]; and 2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state or federal law; and 3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. These words have been litigated and deliberated to death and decisions have been handed down clarifying nuances and conditions under which prosecution may take place (a book may be found to be obscene, but if it is one of only a few such books in a bookstore, and there is no reasonable expectation that the proprietors could have known that it would be found be obscene, the proprietors cannot be prosecuted, etc.) Also, this decision does not cover child pornography; that is considered to have the potential for such grave and immediate harm that it can be much more closely restricted. Note that item (1) requires a judgement of the sensibilities of the ``average'' individual within a community, item (2) requires that the laws be specific, and item (3) requires that the work's value be judged on an equal scale across the entire country (no ``community standards'' here ...) In the case of *Jenkins v. Georgia*, in 1974, a conviction was brought against the f;im ``Carnal Knowledge''. The Supreme Court overturned the ruling, saying that regardless of the standards of the community, the First Amendment prohibited any community from finding that a work such as that film appealed to the prurient interest or was patently offensive. With *Jenkins*, the Court effectively limited the range of community standards that could be accepted before the court. It is *still* possible that a work that would not be obscene under the community standards tests in lower Manhattan would be obscene in Salt Lake City, but the range is narrower than you might think. My source for the details of this (though not the basic facts) is the portion of the Commission's report that deals with history and constitutional issues; I think that even if you disagree with the conclusions of the Commissioners (and I'm sure that Phil does) you would find the treatment relatively even- handed. I'm not about to type the whole thing in, but there's one section that might be relevant to this discussion. It will generate, I am sure, a few flames, but there may be a surprise or two. I can also understand an ``absolutist'' being scared out of his breeches, but I think that most people (though perhaps not most people on these newsgroups) will see some of the issues addressed, and some questions that they had not thought to ask themselves asked and answered. 3.4 *The Risks of Abuse* Although we are satisfied that there is a category of material so overwhelmingly preoccupied with sexual explicitness, and so overwhelmingly devoid of anything else, that its regulation does not violence to the principles underlying the First Amendment, we recognize that this cannot be the end of the First Amendment Analysis. We must evaluate the possibility that in practice, materials other than these will be restricted, and that the effect therefore will be the restriction of materials that are substantially closer to the the First Amendment ought to protect than the items in fact aimed at by the *Miller* definition of obscenity. We must also evaluate what is commonly referred to as the "chilling effect," the possibility that, even absent actual restriction, creators of material that is not in fact legally obscene will refrain from those creative activities, or will steer further to the safe side of the line, for fear that their protected works will mistakenly be deemed obscene. And finally we must evaluate whether the fact of restriction of obscene material will act, symbolically, to foster a "censorship mentality" that will in less immediate ways encourage or lead to various restrictions, in other contexts, of material which ought not in a free society be restricted. We have heard in one form or another from numerous organizations of publishers, booksellers, actors, and librarians, as well as from a number of individual book and magazine publishers. Although most have urged general anti-censorship sentiments upon us, their oral and written submissions have failed to provide us with evidence to support claims of excess supression in the name of the obscenity laws, and indeed the evidence is to the contrary. The president of the Association of American Publishers testified that to his knowledge none of his members had even been threatened with enforcement of the criminal law agains obscenity, and the American Library Association could find no record of any prosecution of a librarian on obscenity charges. Other groups of people involved in publishing, bookselling, or theatrical organizations relied exclusively in examples of excess censorship from periods of time no more recent than the 1940s. And still others were less helpful, telling us, for example, that censorship was impermissible because "This is the united States, not the Soviet Union." We know that, but we know as well that difficult issues do not become easy by the use of inflammatory rhetoric. We which that many of these people or groups had been able to provide concrete examples to support their fears of excess censorship. Throughout recent and not so recent history, excess censorship, although not necessarily prevalent, can hardly be said not to have occurred. As a result, we have not been content to rest on the hollowness of the assertions of many of those who have reminded us of this theme. If there is a problem, we have our own obligations to identify it and remedy it, even if witnesseses before us have been unable to do so. Yet when we do our own researches, we discover that, with strikingly few exceptions, the period from 1974 [42] to the present [ 42: 1974 seems the most relevant date because that was the year in which the Supreme Court, in *Jenkins v. Georgia*, 418 US 152 (1974), made it clear that the determinations of obscenity were not primarily a matter of local discretion. ] is marked by strikingly few actual or threatened prosecutions of material that is plainly not legally obscene. We do not say that there have been none. Attempted and unsuccessful actions against the film *Caligula* by the United States Customs Service, against *Playboy* magazine in Atlanta, and several other places, and against some other plainly non-obscene publications indicate that mistakes *can* be made. But since 1974 such mistakes have been extremely rare, and the mistakes have all been remedied at some point in the process. While we with there would be no mistakes, we are confident that the application of *Miller* has been overwhelmingly limited to materials that would satisfy anyone's definition of "hard core." Even absent successful or seriously threatened prosecutions, it still may be the case that the very possibility of such action deters filmmakers, photographers, and writers from exercising their creative abilities to the fullest. Once it appears that the likelyhood of actual or seriously threatened prosecutions is almost completely illusory, however, we are in a quandary about how to respond to these claims of "chilling." We are in no position to deny the reality of someone's fears, but in almost every case those fears are unfounded. Where, as here, the fears seem to be fears of phantom dangers, we are hard pressed to say that the law is mistaken. It is those who are afraid who are mistaken. At least for the past ten years, no serious author, photographer, or filmmaker has had anything real to fear from the obscenity laws. The line between what is legally obscene and what is not is now so far away from their work that even substantially mistaken applications of current law would leave these individuals untouched. In light of that, we do not see their fears, however real to them, as a sufficient reason now to reconsider our views about the extent of First Amendment protection. Much more serious, much more real, and much less in our control, is the extent to which non-governmental actions or governmental but non-prohibitory actions may substantially influence what is published and what is not. What television scriptwriters write is in reality controlled by what television producers will buy, which is in turn controlled by what sponsors will sponsor and what viewers will view. Screenwriters may be effectively censored by the extent to which producers or studios desire to gain an "R" rating rather than an "X", or a "PG" rather than an "R", or an "R" rather than a "PG." Book and magazine writers and publishers are restricted by what stores are willing to sell, and stores are restricted by what people are willing to buy. Writers of textbooks are in a sense censored by what school districts are willing to buy, authors are censored by what both bookstores and librarians are willing to offer, and librarians are censored by what boards of trustees are willing to tolerate. In all of these there have been excesses. But every one of these involves some inevitable choice based on content. We think it unfortunate when *Catcher in the Rye* is unavailable in a high school library, but none of us would criticize the decision to keep *Lady Chatterly's Lover*, plainly protected by the First Amendment, out of junior high schools. We regret that legitimate bookstores have been pressured to remove from their shelves legitimate and serious discussions of sexuality, but none of us would presume to tell a Catholic bookseller that in choosing books he should not discriminate against books favoring abortion. Motion picture studios are unable to support an infinite number of screenwriters, and their choice to support those who write about families rather than about homosexuality, for example, is not only permissible, but is indeed itself protected by the First Amendment. Where there have been excesses, and we do not ignore the extent to which the number of those excesses seems to be increasing, they seem often attributable to the notion that the idea of "community standards" is a carte blanche to communities to determine entirely for themselves what is obscene. As we have tried once again to make clear in this report, nothing could be further from the truth. Apart from this, however, the excesses that have been reported to us are excesses that can only remotely be attributed to the obscenity laws. In a world of choice and scarce resources, every one of these excesses could have taken place even were there no obscenity laws at all. In a world without obscenity law, television producers, motion picture studios, public library trustees, boards of education, convenience stores, and bookstores could still all choose to avoid any mention or discussion of sex entirely. And in a world without obscenity laws, all of these institutions could and would still make censorious choices based on their own views about politics, morals, religion, or science. Thus the link between obscenity law and the excess narrowness, at times, of the choices made by private industry as well as government is far from direct. Although the link is not direct, we are in no position to deny that there may be some psychological connection between obscenity laws and their enforcement and a general perception that non-governmental restriction of anything dealing with sex is justifiable. We find the connection unjustifiable, but that is not to say that it may not exist in the world. But just as vigorous and vocal enforcement of robbery laws may create the environment in which vigilantes feel justified in punishing offenders outside of legal processes, so too may obscenity law create an environment in which discussions of sexuality are effectively stifled. But we cannot ignore the extent to which much of this stifling, to the extent that it exists, is no more than the exercise by citizens of their First Amendment rights to sell or make what they wish. Choices are not always exercised wisely, but the leap from some unwise choices to the unconstitutionality of criminal laws only remotely related to those unwise choices is too big a leap for us to take. -- from Mole End Mark Terribile (scrape .. dig ) mtx5b!mat (Please mail to mtx5b!mat, NOT mtx5a! mat, or to mtx5a!mtx5b!mat) (mtx5b!mole-end!mat will also reach me) ,.. .,, ,,, ..,***_*.