Antonin Scalia

The Law: Obscene Debate


In 1973, after struggling with the issue for almost two decades, the Supreme Court hit on a formulation that seemed to come to grips with the subjective nature of obscenity. In Miller v. California, the Court ruled that a work is obscene if "the average person, applying contemporary community standards" would find that it appeals to the prurient interest; that it depicts or describes, in a patently offensive way, sexual conduct; and that it lacks "serious literary, artistic, political, or scientific value."

Superficially, at least, this scheme seemed to take into account all the arguments for and against regulating obscenity. Valuable works of art, such as Ulysses or even Carnal Knowledge, would be protected. Tolerant big cities could treat smut leniently, while small towns could ban it entirely. People who had problems with the prevailing standard in their community could move to a place more attuned to their values.

But things haven't worked out that way. Increasingly, small towns and ambitious prosecutors set the standards for the entire nation. In part, the problem is advancing technology. In part, it is incoherent law. And, in large part, it is the intractable conflict between those who would enforce "community" standards by law and those who would defy those standards in their own homes.

All of the contradictions and confusion in U.S. obscenity law were laid bare in February, when Montgomery County, Alabama, District Attorney Jimmy Evans filed obscenity charges against the American Exxxtasy Network, a satellite TV channel that showed unedited adult feature films. Evans, who has a history of prosecuting local adult bookstores, claimed he had taken another step in his long campaign to rid Montgomery of pornography. Some cynics suggested that he had kicked off his campaign for Alabama attorney general with a high-profile prosecution. Certainly the fact that Evans also included GTE and its corporate officers—the Exxxtasy Network was relayed by a GTE satellite—in his indictments seemed to confirm this conclusion.

Whatever his motivations, Evans accomplished both of these goals. GTE withdrew satellite access from both the Exxxtasy Network and its sister channel, the Tuxedo Channel, which showed edited adult films. Within two months, the Exxxtasy Network had shut down its operations. And Evans went on to win the Democratic nomination for attorney general and will likely be elected to that office.

In the Exxxtasy Network case, modern technology has shown that the Supreme Court's attempts to accommodate personal freedom and regulation of obscenity cannot stand close scrutiny. To see why, we have to consider the decisions that set the boundaries for the regulation of obscenity.

In the 1969 case Stanley v. Georgia, the Court found a right to possess obscene material in one's home. Speaking for the majority, Justice Thurgood Marshall argued that "the right to receive information and ideas, regardless of their social worth, is fundamental to our free society.…If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch."

Marshall's opinion seemed to sabotage earlier Court rulings that obscenity is outside the protection of the First Amendment. But Marshall himself denied that Stanley had any effect on those cases, arguing that they dealt with the "commercial distribution of obscene material," not possession. The other members of the Court agreed.

Two years later, United States v. Reidel upheld a statute prohibiting sending obscene material through the mail. Justice Byron White wrote, "To extrapolate from Stanley's right to have and peruse obscene material in the privacy of his own home a First Amendment right in Reidel to sell it to him would effectively scuttle Roth.…Roth has squarely placed obscenity and its distribution outside the reach of the First Amendment and they remain there today. Stanley did not overrule Roth and we decline to do so now."

The Roth to which White referred was the 1957 Roth v. United States case, in which the Court first ruled that obscenity is not protected by the First Amendment. Writing for the majority, Justice William Brennan argued, "All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion" are protected. But obscenity is "utterly without redeeming social importance."

Obscenity, reasoned Brennan, does not convey ideas. Therefore it is worthless. And because it is worthless, it is not constitutionally protected. But what is obscenity? For the next 16 years, much of the Court's time was spent defining and redefining obscenity.

The problem, as Justice William O. Douglas noted in one of his many dissents, is that "there are as many different definitions of obscenity as there are men; and they are as unique to the individual as his dreams."

Finally, in Miller, the Court thought that it had arrived at a perfect solution. But Miller is an intellectual mess. Take, for example, the question of value. A work of art has value only to an individual. For example, I like to listen to Merle Haggard; his songs have value to me. But plenty of people intensely dislike country music. Clearly, Haggard has no value to them.

Or take a real legal example: In Florida, Judge Jose A. Gonzalez has declared The 2 Live Crew's As Nasty as They Wanna Be obscene, without any serious value, even though millions of record buyers and several prominent music critics did find value in the album. (Gonzalez supported his claim of knowledge of community standards in that case by noting that he had "attended public functions and events" throughout the county.)

The Court didn't establish an objective standard of values; it merely allowed a judge or jury to legally enforce their own subjective value judgments. Indeed, three years ago, Justice Antonin Scalia admitted, "It is quite impossible to come to an objective assessment of (at least) literary or artistic value."

And far from ensuring diversity, the local standards test allows the most restrictive communities to determine what books and movies the rest of us can read and watch.

The movies shown on the Exxxtasy Network were almost certainly not obscene by the community standards of New York City, where the signal originated, or Los Angeles, where most of the movies were probably filmed. But they may well be obscene in Montgomery. And because a grand jury in one Southern city found the movies obscene, 30,000 people across the nation have been deprived of the channel.

And the Exxxtasy Network is not alone. Over the last four years, since the Meese Commission report refueled the antipornography movement, mail-order distributors of erotic material have found themselves indicted far from home in small Bible Belt towns for selling books and videos that do not violate the standards of the community in which the company is headquartered.

In effect, these prosecutions are leading to a national standard of obscenity—one defined by the tastes of the most restrictive areas of the country and by the whims of ambitious prosecutors. If one doubts this, ask the people who subscribed to the Exxxtasy Network. Or ask The 2 Live Crew. After the band's album was declared obscene in Florida, the group found it difficult to attract distributors for a national pay-per-view TV concert. Cable operators may have feared being busted on obscenity charges.

The situation is rendered even more absurd by Stanley's supposed protection of the right to view pornography in the home. After all, the Exxxtasy Network sent out a scrambled signal that could only be seen by people who paid $150 for a six-month subscription and a descrambler. The material went straight from the distributor to the customer—and only to the customer. The customer has a constitutional right to have obscene material in his home. But apparently the Exxxtasy Network has no constitutionally protected right to sell that scrambled signal.

Just after the Exxxtasy Network was indicted, the Alabama Journal, Montgomery's daily paper, editorialized that satellite transmission of adult films "is essentially no different from having a pornographic bookstore on the corner." In fact, it is nothing like that at all. For most of us, having a "pornographic bookstore on the corner" raises images of our neighborhood being overrun by perverts in search of illicit sex. And in turn, the perverts being followed by prostitutes, drug dealers, and muggers. But how would the Exxxtasy Network start this chain of events? Would perverts start wandering around trying to peek through windows at the television set?

Of course, this scenario isn't what the Journal had in mind with its porno bookstore metaphor. The Journal wasn't worried that neighborhoods would be overrun by criminals. It was afraid that more people would start watching adult films. That is the fear of almost all antiporn zealots. And that points to the central flaw in the Court's position on obscenity.

In Roth, the Court ruled that even unpopular ideas are protected by the First Amendment, but obscenity isn't protected because it doesn't deal in ideas. Most antiporn activists don't make that argument, however.

Quite the contrary. They argue that porn teaches that promiscuity is good, that women exist only to service men sexually, that hedonism is proper. They want to suppress these ideas. People who like adult films say that the movies have a positive message—that sex is good. Regardless, the fact that people have found ideas, even bad ones, in adult movies undermines the Court's logic. Ideas are protected by the First Amendment.

The Exxxtasy Network never had a chance to defend itself in court. But obscenity prosecutions are increasing, and undoubtedly some of these cases will make it to the Supreme Court. Justice Scalia has expressed concerns about Miller. Unfortunately, he seems only to want to redefine obscenity yet again. And no sitting justice wants to rethink Roth.

But unless the Court declares that obscenity is constitutionally protected, we will continue to have unresolvable arguments over what is and is not obscene. And small-minded prosecutors will continue to try to make a name for themselves by suing big out-of-state corporations.

Charles Oliver is assistant editor of REASON.