I had the pleasure of moderating a panel at Stanford Law School this week. The title was Obscenity and Free Speech, part of their weeklong Adult Entertainment Symposium.
One participant was Paul Cambria, former president of the First Amendment Lawyers Association. Among other things, he talked about being in the same room when physician Barnett Slepian was gunned down in cold blood by an anti-abortion fanatic. He also talked about defending Max Hardcore against federal obscenity charges, “even though,” Cambria said, “I don’t like Max and I don’t like his movies.”
The other speaker was Mark Huppin, an attorney and psychologist who researches and teaches at UCLA. Huppin talked about the Miller Test, the legal standard used to evaluate whether or not material is obscene, and therefore outside the protection of the First Amendment, which guarantees the right of expression regardless of content.
“Obscenity law is backwards,” said Huppin. “In almost all criminal trials, we know whether a crime was committed, and the question is who did it. In obscenity trials, however, we know who did it, but a jury is deciding whether or not a crime has been committed.” Indeed, it’s a hellish vision straight out of Communist East Germany: in America you can write a book or make a film, and if the subject is sex, you never know if one night the police will knock on your door and haul you off to jail.
The Miller Test says that for a film or book to be obscene (and therefore criminal to distribute), it has to lack any “redeeming value” in the community in which the trial takes place. “This is the expansion joint,” said Huppin. “Why should every community get to decide whether or not something is a crime? Do different communities get to decide whether or not to criminalize killing or stealing in their own locale?” Indeed, the very concept of a “local community standard” in the age of the internet is completely obsolete. And yet that’s our law.
Remember, our beautiful Constitution declares that films, books, dance, and other forms of expression can’t be criminalized merely because they are “offensive.” So measuring (via a jury) a particular community’s “acceptance” of a certain film or book should be irrelevant. Americans should understand, and challenge, this exception to our fundamental freedoms.
And for anyone who says that adult entertainment is dangerous (which neither science nor the nation's police departments have ever proven), consider this: manuals on how to use guns are legally available. Any 12-year-old can get a book on how to shoot, and any 12-year-old has access to movies depicting virtually unlimited violence. So the alleged dangers of adult entertainment are not what keeps it outside of the First Amendment's protection.
Cambria, Huppin, and I talked a bit about the Secondary Effects doctrine, in which government can simply assert that sexually oriented expression (such as strip clubs or private swing clubs) has “secondary effects” (like decreasing property values or increasing crime), without having to prove it. Indeed, police departments across the country have failed to prove that sexually oriented venues bring unwanted consequences. And yet the law is now typically allowed to punish or even banish such enterprises, just because some people don’t like the content of what a club offers.
“Imagine,” said Huppin, “If people wanted to banish some other, non-sexual endeavor from a location because they believed it would increase crime or drug use, and couldn’t prove it. Could that ever pass Constitutional muster?” Of course not. So if you sell ideas, experiences, or fantasies that do not involve sexuality, you can relax.
As in, say, Alabama, where selling guns is legal, but selling vibrators and other sex toys is illegal (yes, really). This is simply the logical result of giving local communities the right to decide what's "decent" for people to access.