Porn in the USA

Los Angeles–area Federal District Judge David V. Kenyon recently holed up with attorneys from the Justice Department to watch Kneel Before Me, Beyond DeSade, and a few other X-rated movies purchased at two local video stores. If the judge found these videos obscene, the Justice lawyers could seize the stores and their owner's personal and corporate bank accounts, his office furniture and equipment, and even his home. But Judge Kenyon decided that the movies, which contained scenes of group sex, beatings, bondage, and gang rape in a mental hospital, were not obscene under the Supreme Court's 1973 "community standards" test.

He wasn't intending to insult L.A.'s culture. "The great majority of people in this town would be incensed" by the videos, he admitted, but he concluded that the city is simply too diverse an area to decide beyond a reasonable doubt that community standards were violated.

This case illustrates the difficulty with the Court's efforts to fabricate an obscenity exception to the First Amendment. Perhaps the courts should approach the subject differently. The rare instances in which unwilling recipients are confronted with obscene material, as well as the claims that obscenity causes moral and social decay, can be resolved not by judicially legislating exceptions to the Constitution but by applying already existing legal principles designed to protect personal and property rights—namely, the tort law of nuisance.

The courts should allow anyone subjected to uninvited printed material or electronic images to seek the same relief now granted anyone subjected to uninvited fumes, noise, heat, or vibration. The law of nuisance has simple requirements. First, the offending material must invade someone's person or property. Second, the material must cause some harm—some provable harm.

There will be hard cases. Is it an invasion if a radio or TV station broadcasts a signal onto your property? Or have you invited it by switching on your TV or radio? Is it an invasion if porno literature is mailed to you, or have you invited it by erecting a mailbox?

Regardless of how these questions are resolved, the law will be the same or better than it is now. The law of nuisance has been part of the common law for hundreds of years and has evolved in a manner eminently consistent with common sense. Whether a porno shop is a nuisance to a neighborhood would depend on the same rules that govern factories belching smoke: the law does not alleviate minimal or hypothetical harms to surrounding property owners (the "live and let live" rule), and it considers whether the establishment is in the middle of a residential neighborhood or on the outskirts of town surrounded by similar businesses (the "locality" rule). But the nuisance approach, unlike the obscenity approach, will likely end the ridiculous effort to harass people who offer video tapes or magazines to willing adults in discreet and appropriately located stores.

Or, maybe not. Some people fear pornography for its adverse indirect effects on third parties. These are the people who believed Ted Bundy when he said in his death-chair that porn made him do it.

Fine. Prove it. The pornographer should be liable along with the rapist or murderer if pornography helped cause the crime. But scientifically, this link is far from proved.

Let the porn industry and its critics fight out their differences, but not in the legislature where pseudo-science and sensationalism are more important than proof. The right of free speech is important enough that the smut peddlers should answer only to specific, identifiable victims of porn, and only if these victims can establish harm under the rigors of proof required in the courtroom.

The Supreme Court should not waste time on the nature of obscenity any more than it should debate the eternal question of the tree falling in the forest when no one is around to hear it. The law should be concerned only if the tree falls on someone.