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From: rb@cci632.UUCP (Rex Ballard)
Newsgroups: talk.politics.misc,net.legal,soc.singles
Subject: Grey Porn (Re: Re: Re: Commission on Pornography -- reply to GWSmith
Message-ID: <391@cci632.UUCP>
Date: Mon, 22-Sep-86 20:18:06 EDT
Article-I.D.: cci632.391
Posted: Mon Sep 22 20:18:06 1986
Date-Received: Tue, 23-Sep-86 03:47:32 EDT
References: <1487@mtx5a.UUCP> <15487@ucbvax.BERKELEY.EDU>
Reply-To: rb@ccird1.UUCP (Rex Ballard)
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Organization: CCI, Rochester Development, Rochester, NY
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Summary: Encouraging diversity.
Xref: mnetor talk.politics.misc:234 net.legal:3647 soc.singles:38

In article <1558@mtx5a.UUCP> mat@mtx5a.UUCP (m.terribile) writes:
>> 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 of ``ideas'', the dissemination of which are protected by the First
>Amendment, could (but did not have to be) subject to restriction by the
>States.

Under this law, a great deal of useful information was combined with
the "porn".

>The 1973 case of *Miller v. California* tightened this up just a little:

Actually the "Miller" case removed the "redeeming social value" aspect
and furthermore polarized the porn market.

>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 no violence to the
>principles underlying the First Amendment, we recognize that this cannot be the
>end of the First Amendment Analysis.

There is also material so overwhelmingly preoccupied with violence, and so
devoid of anything else, that it might merit regulation as well.
Unfortunately, only "sexual" material seems to merit censorship.

>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.

Worse, the possibility that because of restrictions, such as the current
"rating system" for films, the "milder" forms of "porn" might go the way
of films, either "all sex" or "nothing".  The guidelines in the film industry
have lead to complete absence of plot in "XXX" rated movies, and complete
absence of nearly all sex in "R" rated movies.  "R" rated movies have been
dominated by progressively more "anatomically accurate" violence.  There
is little "grey area" where sex (even simulated) or sexually arousing material
may be presented in the context of a well developed plot.

>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.

Worse, in there may be a tendency to further polarize the industries involved,
leaving "very dirty" and "kissing only", with no "normal" middle ground for
depiciton of normal sex and tame variations.

>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.

Such a mentality already exists in the film industry.  The polarization has
reached the point where many past "R" rated movies have gone up to "X" today.
Others have been suitable for television unedited "PG" based on todays
standards.

>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.

There is probably a concern that, because of legislation, restrictions, or
regulation, much of the "middle ground" will dissappear.  Cheesecake such
as "Vargas Girls", "Strip-Tease", and lingerie have virtually dissappeared
and been replaced by "raw sex", "full nudity", and "kink".

>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.

Ah, yes, remember the "Hayes Commission", they prevented the release of films
because married couples shared the same bed, because a man took his foot off
the floor before the cut, and other "obscene" acts.  But for 1 penny, you could
watch a "peep show" at an amusement park featuring full nudity (and little
else).

>We wish that
>many of these people or groups had been able to provide concrete examples to
>support their fears of excess censorship.

History is full of examples, not of hard censorship, but of the polarizing
effect of censorship.

> 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.

Unfortunately, local prosecutions served as a method of "harrassment" which
resulted in the loss of the "moderate" literature which could not be marketed
in general markets, but could not compete in "adult-only" bookstores.

>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 wish 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."

Unfortunately "Miller" implies that most material cannot be banned entirely,
while the "regulation" and "restriction" laws prevent "moderate" publications
from competing.

>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.

It is not only the fear of basic "banning" but also the possiblity of losing
marketing outlets, changing of regulatory acts, and other "scare tactics"
which result in the "black/white" market that have caused further polarization
and lack of moderation.  This does deterr creative people from either "adding
spice" to an otherwise "clean" production, or "developing characters" in
a pornographic production.

>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.

Ironically, a woman wearing a bikini might be suitable for children under
16, but the same woman wearing panties and a bra (fully opaque) is not.
The same woman covering more of her body with a corset, silk stockings,
and high heels, might be unsuitable for people under 18.  Since the biggest
market is the 13-18 market, economic factors are important.

>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.

Those people who are pleading the loudest are not the extremists, but those
who are moderate.  They are the ones who get stretched out of the market.

>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.

Many states have restrictions on what reading materials may be sold to minors,
in some cases, by definition, including the Sears Catalogue.

>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.

If "Lady Chatterly's Lover" were put in junior high schools, many students
might take a deeper interest in literature.  I read Lord Byron in 7th grade,
and Catcher in the Rye in 9th.  These sparked an interest in romance,
liturature and the "eros" of reading.

>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.

So long as it is the owner making that decision, this is perfectly reasonable.
When the state attempts to regulate where literature may be displayed, how
it should be packaged, and who may purchase it, there is a problem.

>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.

There are two extremes here, the author/screenwriter is forced to make that
choice.  There are markets for writers to support homosexuality, but they
will not be interested in his ability to express feelings poeticly.

>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.

>  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.

They might however be more inclined to conclude the climax of a romantic
plot with a sexual climax, or at least a sexual encounter, as well.

>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.

Indeed, there might be a wider market for a much wider range of choices.
Disney studios has chosen to remove much of the violence from it's older
films, but not because of regulations.  With regulations, it might have
chosen to cut minutes of "tender moments" instead.

>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.

It is difficult enough to make creative decisions without having to be
concerned about whether the result will be "legally restricted" or not.
This has no connection with whether it should be "legally prohibited".

Conversely, if a producer WANTS an "R rating", writers may go to extremes
in adding violence or sexually implicit scenes.  If the producer wants
an X rating, he may not even bother with a script, costumes, scenery, lighting,
plot, or mood.

>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.

There is a fine line between the vigilante who will not buy a magazine he
considers obscene and the attempts of a vigilante group to prevent others
from purchasing that magazine.

>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.

They also have the right to buy what they wish.  The issue comes when,
through whatever mechanism, one person is prevented from purchasing
liturature he wants to buy by someone who does not feel he should be
able to buy it.

>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

Although I oppose regulation of the distribution, I do agree with the
premise that those who film crimes should be accountable for those crimes.

If someone filmed the beheading of a hostage, I would hope that the
people who committed the crime would be convicted, including the
film itself as evidence.  This by the way, has happened in cases of
criminally negligent acts involving stunt men.