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From: mat@mtx5a.UUCP (m.terribile)
Newsgroups: talk.politics.misc,net.legal,soc.singles
Subject: Re: Grey Porn (Re: Re: Re: Commission on Pornography -- reply to GWSmith
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Date: Sat, 27-Sep-86 02:31:03 EDT
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Posted: Sat Sep 27 02:31:03 1986
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There's a lot here; I will skip a lot of the points made to answer the big ones.

> >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".

Curious; my understanding was that when a case made it to the Supreme Court,
under *Roth* it as almost inevitably thrown out.  Under previous laws, a lot
of abuses took place; *Roth* ended most of them, and was a first cut at
definin a standard that would be fair in the face of about 60 years of
unfairness.

> >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.

The *Miller* case requires that the work be viewed as a whole.  If there is
serious literary, etc, value, even to the extent of generating controversy
among ``experts'' in the field, it seems unlikely that a work could be
considered to be without merit.

> >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.

The government has no hand at all in the MPAA rating system.  It's true that
today's movies are audience targeted, as are many of today's books.  The stuff
that qualifies as real literature usually isn't.  (I don't consider 3/4 of
today's novels to qualify, but then I also believe in Sturgeon's Law.)

	... It is now necessary to warn the writer that his concern for
	the reader must be pure: he must sympathize with the reader's
	plight ... but never seek to know his wants.  The whole duty of
	a writer is to please and satisfy himself, and the true writer
	always plays to an audience of one.  Let him start sniffing the
	air or glancing at the Trend Machine, and he is as good as dead,
	although he may make a nice living.
						E.B.White, in the
						conclusion to Strunk and
						White, *The Elements of Style*

The curious problem that better informing people about ``literature'' (here
include films, sound recordings, etc) allows them to better exercise their
prejudices, and reduces the types of material available is hardly caused by
government regulation, although you may reasonably argue that we don't need to
add even one more possible source ...

Did *I Claudius* appeal to a prurient interest in sex?  Doubtful.  On the
other hand, I would have felt many of the explicit depictions in poor taste
were it not for the overall quality of the work.  There are many people who
would not even consider the latter.  And in no way could *I Claudius*, taken
as a whole, be considered legally obscene.  (In fact, even *Caligula*, when
it came before the Supreme Court, was declared to have serious value and
therefore protected from obscenity statutes.)  But the fact that many or
most people would not choose to view *I Claudius* because it either had too
much explicit sex or not enough reflects on commercial tastes and not on
either censorship questions or literary worth.

> 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".

Believe it or not, I agree that this is unfortunate; I don't think that the
older stuff is much likely to be harmful to anyone, even most adolsecents,
and I *do* happen to enjoy some of it.  I also admit to enjoying an occasional
nude, but I don't enjoy the cruder stuff.  Am I arguing for the legitimacy of
my own preferred vices?  It's possible, I suppose.

But the changes happened because of increased willingness of people to print
the cruder stuff, and of people to buy it, coupled with the fact that people
are allowed to distribute the raw stuff where postal censorship (ugh! one
area that ought *not* be subject to regulation except where there is clear
intent to distribute as an *enterprise*) once prohibited it.

If anything, requiring that specific acts or depictions be prohibited, and
making it clear that ``cheesecake'' (and ``beefcake'' as well ...) are not
among those that may be prohibited, seems likely to *increase* the amount of
enticing (rather than explicit) and non-obsessive material available.

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

True, because the censorship was broad and rarely included the balancing
third requirement of the *Miller* standard, nor the objective second
requirement.  I think that by making these a well-understood part of the
law the abuses of personal offensensitivity can be avoided, and evidently
the courst think so, too.

> 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.

I agree wholeheartedly that overzealous prosecution of people without the
resources to handle lengthy appeals has been a problem.  But the meanings
of the decisions are getting clarified and where once an appeal might have
been lengthy, such an appeal now would often result in the conviction being
thrown out summarily.  Where lower courts have respected this, and made it
clear to prosecutors that they will observe the judgement of the higher courts,
there is less margin for abuse.

The margin can never be eliminated in obscenity law, nor in zoning and public
nuisance law (witness one poster on another group who was served with an
order to patch up his house with a coat of paint rather than give it the
lengthy and temporarily unsightly restoration it requires ...).  Does this
mean that we should discard all law?  Or does it mean that we should attempt
to report abuses through the Press and to elect just and fairminded officials?

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

The court has also drastically limited the nature of these laws.  Essentially,
there is nothing to prohibit material (not legally obscene) from being sold in
convenience stores if it is displayed in ``blinder racks'' covering the lower
2/3 of the cover, or if a number of other remedies against accidental exposure
to minors is taken, unless zoning laws explicitly limit the area in which
such things may be sold.  I suspect that incidental sales of a few publications
that do not make the convenience store into an ``adult materials'' store would
not (and could not) make the convenience store subject to the same restrictions
as an ``adults only'' store.

The Court has also held that zoning regulations and display-limiting provisions
may not be used to limit the rights of people to do business: you cannot limit
distribution to ``selected downtown areas'' and then only select 1 downtown
block in 15 square miles of city!  You can limit the area somewhat, though,
just as you can limit where large department stores may be built, and you
can also prevent clustering by requiring a minimum distance between such
establishments.

> >			.  .  .  .  .  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.

I also read CitR in ... 10th, I think.  What the heck.  But there is a
world of difference between that and LCL.  As to a deeper interest in
reading ... well, I found LCL a boring and unrewarding book a few years
ago, and I had a lot more stamina then than I did in HS.  I also think that
there is a big difference between the maturity of most JHS students and most
HS students, no?  It's unfortunate that we can't better ``track'' students as
to maturity, but even tracking them academically causes an uproar in many
circles.

Do you think that it would be appropriate for HS libraries to have copies of
Playboy?  Hustler?  I'm not referring to the case of one issue that some
teacher requested be shelved for a feature it carried, but rather of carrying
them on the same basis that such a library might carry Time or USNews&WR.

> 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.

Neither the R nor the X ratings carry any force of law whatsoever; they are
private ratings.  As far as making creative decisions, see the remark by
E.B.White above.  As far as the ``chilling effect'', the limits of the *Miller*
decision upon laws and prosecution *do* need to be publicized, and we do need
to educate people that the notion of legal obscenity is designed to reflect
the minimum decency standards of the people as a whole, and not anyone's idea
of morality, and that those standards can only be justified in the *absence* of
real scientific, literary, political, etc, reasons to the contrary.

There is a difference between decency and morality.  If my neighbor wanted to
walk out of her house naked to get the paper in the morning, it would probably
not be very immoral (except insofar as it was a affront upon the tastes of
her neighbors) but is would undoubtedly be indecent if her walk carried her
into clear view of a large part of the street.

> 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.

The first is not a vigilante.  Neither is the second if he uses such legal
methods as legal and peaceful picketting and boycotting.  It is only where
the law is ignored or abused that the term ``vigilante'' is appropriate.
-- 

	from Mole End			Mark Terribile
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