The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
American First Amendment law still recognizes an "obscenity" exception, which is basically limited to hard-core pornography, and is rarely applied: The government may ban the distribution and display of material that (1) appeals to a "prurient," meaning shameful or morbid, interest in sex, (2) depicts sexual or excretory behavior in a way that's seen as patently offensive under community standards, and (3) lacks serious literary, artistic, political, or scientific value. This is generally understood as limited to hard-core porn, and is rarely (though not never) enforced even as to that.
First Amendment law also recognizes a variant of that, the "obscene-as-to-minors" or "harmful-to-minors" exception, which has the same three prong but adds (more or less) "as to minors" to each one (so, e.g., material that is seen as having serious value for adults but not for minors can be obscene-as-to-minors but not obscene generally). The government may ban the distribution and display of such material to minors, but not the distribution of such material to adults. This is seen as also limited to what is traditionally understood to be porn, and is usually enforced when someone is seen as using such porn to groom minors for sex.
You may wonder just what these terms actually mean: What's a shameful or morbid interest in sex compared to a healthy interest, what is patently offensive and what isn't, how a court is to determine serious value, whether the obscene-as-to-minors test plays out different for an audience of 17-year-olds than 7-year-olds, and more. Generally speaking, there is no clear answer to these questions (which is one major critique of obscenity law). Precedents might offer some guidance, but not much, partly because the tests are so vague themselves, and partly because precedents are rare in recent years, given the relative lack of enforcement of these laws.
But I recently came across a 2016 Ohio appellate case, State v. Kearns, that seems to be the rare situation where a movie (ABC's of Death) that seems not to be "porn" as that term is normally used was found to be obscene. (For instance, it was reviewed in, among other places, the Hollywood Reporter, Salon, the Austin Chronicle, and the New York Post, publications that generally don't review pornography, and it was described by them as horror, albeit with some "perversity," and not porn.)
Moreover, it was found to be obscene outright, and thus not legally distributable even to adults, not just obscene-as-to-minors, since the defendant was convicted of felony display of obscene material to minors, and not just misdemeanor display of obscene-as-to-minors material, and thus "the jury in this case was required to find that the movie involved was not only harmful to juveniles, but also was obscene." Here's an excerpt from the opinions, though to see all the details, you should read all of Part VIII of the majority and all of the dissent:
The events giving rise to the indictment occurred on April 11, 2013 at East High School in Columbus, Ohio. While serving as a permanent substitute teacher, appellant showed the movie "The ABC's of Death" to five Spanish language classes. The movie opens with the following statement: "The following feature film was created by 26 directors from around the world. Each director was given a letter of the alphabet and asked to choose a word. They then created a short tale of death that related to their chosen word. They had complete artistic freedom regarding the content of their segments."
Following this statement were 26 short vignettes corresponding to each letter of the alphabet. The vignettes depicted, simulated, or implied very graphic violence; blood and gore; activities involving bodily functions of elimination; cruelty to animals; anal or vaginal sex or other penetration, masturbation, sadomasochism, prostitution, and, most disturbingly, child molestation and rape.
Immediately after one of the classes, students reporting to choir class appeared "excited, appalled [and in] disbelief about what they had seen." This prompted the teacher, Elizabeth Carle, to tell the assistant principal, Carl D. Chamberlain, that he should look into this because the movie being shown in Spanish class was "inappropriate."
Chamberlain went to check on appellant's eighth period class. When he entered the room, the movie was being projected on a screen. Chamberlain testified that he walked in and sat down. He observed a scene involving a surf board and implied drowning. Then, appellant fast-forwarded through several scenes. The fast-forwarding stopped and Chamberlain saw "[bare] female breasts show[ing] on the screen." At that point, Chamberlain directed appellant to stop the movie and remove it from the DVD player….
Appellant admitted to showing the movie to five of her classes, but stated that no one class saw the entire movie. Rather, she began the movie with each class where she left off with the previous class. Appellant reported to Chamberlain that the entire movie had been seen at least collectively by her five classes. Classes at East High School run approximately 47 minutes each. Chamberlain testified there were minor children in each class. The movie, in its entirety, without the credits was 1 hour, 58 minutes, and 14 seconds….
Kearns was sentenced to 90 days in jail, and 2 years and 9 months of probation after that. The majority upheld this, reasoning, in part:
Pursuant to Ohio statute, "sexual conduct" means "vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another…. " … "[A]ctual penetration need not be shown * * * before [this part of the Miller test] is satisfied." …
Having viewed the movie, in particular vignette L, as well as vignette Z, we find that the element of patently offensive sexual conduct was met. The sexual conduct depicted in the movie was hardcore. Therefore, the trial court did not err as to its finding that the movie contained patently offensive sexual conduct. The jury's finding of the same was likewise supported by sufficient evidence and was not against the manifest weight of the evidence….
[W]e must consider … not whether sexual conduct was the dominant theme of the movie but, rather, whether, taken as a whole, the movie appeals to the prurient interest.
In considering whether the movie appeals to the prurient interest, we consider not only vignettes L and Z, which clearly depicted, implied, or simulated hardcore sexual conduct, but also the fact that many scenes depicted, implied, or simulated sexual activity, masturbation, sexual excitement, nudity, extreme or bizarre violence, cruelty or brutality, sadomasochism, and bodily functions of elimination either by the visual on the screen or the sound accompanying the same, including vignettes B (anal sex), E (masturbation), F (bodily elimination), H (bizarre violence, cruelty, brutality), L (masturbation, penetration without privilege, child rape), O (sadomasochism), Y (bodily elimination, child molestation, bizarre violence, cruelty, brutality), and Z (nudity, vaginal penetration without privilege, ejaculation, sexual contact). We find the average person, applying contemporary community standards, would find that these vignettes meet the definition of obscene outlined at R.C. 2907.01(F)(5):
"It contains a series of displays or descriptions of sexual activity, masturbation, sexual excitement, nudity, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient or scatological interest, when the appeal to such an interest is primarily for its own sake or for commercial exploitation, rather than primarily for a genuine scientific, educational, sociological, moral, or artistic purpose." …
"Prurient" interest is not the same as a candid, normal, or healthy interest in sex, rather it is a "'shameful or morbid interest in nudity, sex, or excretion [which] goes substantially beyond customary limits of candor in description or representation of such matters.'" Furthermore, as noted previously, this court has accepted a definition of prurient as "an appeal to an unhealthy, abnormal, unwholesome, degrading, shameful, or morbid interest in sex." …
We find the average person applying contemporary community standards would find that the movie, taken as a whole, appeals to the prurient interest. Therefore, the trial court did not err as to its finding that the average person applying contemporary community standards would find the movie, taken as a whole, appeals to the prurient interest. The jury's finding of the same was likewise supported by sufficient evidence and was not against the manifest weight of the evidence….
Appellant does not argue that this movie has serious literary, political, or scientific value. However, in her reply brief, with one sentence, she argues that "[c]learly there was serious artistic value."
Appellant argues that this was a horror film, and that it appealed to horror and death. The only support appellant offered for this argument is that it was premiered at the Toronto Film Festival. Yet, there is nothing in the record outlining the criteria to premier at the Toronto Film Festival or supporting the notion that the Toronto Film Festival only premiers films with serious artistic value. With this in mind, we can not say this movie had serious artistic value.
Therefore, the trial court did not err as to its findings that a reasonable person would find that the movie, taken as a whole, lacks serious literary, artistic, political, or scientific value. The jury's finding on the same was likewise supported by sufficient evidence and was not against the manifest weight of the evidence….
The dissent disagreed:
Sheila Kearns was a substitute teacher for the Columbus City Schools. She was asked to teach several Spanish courses at East High School in Columbus despite the fact that she does not speak Spanish and the fact that she has no expertise in Spanish. In fact, she was asked to be a "permanent substitute teacher" in the Spanish classes at East High School, meaning that she was expected to teach Spanish for a sustained period of days.
In order to provide the students with at least a little instruction in Spanish, she went looking for audio-visual aids to show to her classes. She came across a movie entitled "The ABC's of Death." The movie has 26 vignettes, each centering around a letter of the English alphabet and tying that letter to death or dying (not sex or sex acts).
The first two vignettes are in Spanish as are some others of the 26. Several vignettes are in other languages, including Japanese, English, and French. It is highly doubtful that Kearns watched the whole movie before she began showing portions of it to her Spanish classes. The testimony at trial demonstrated that she was frequently reading or doing classroom chores while the movie was on the screen….
The problem with the State of Ohio's case at trial was that the State never demonstrated what students actually saw…. [T]he movie runs far longer [2 hours] than a class period [47 minutes]. The chances are minimal that any students saw the last few vignettes which are among the most graphic and objectionable. Certainly, the State did not prove that any students saw these last vignettes, especially the two students who testified at trial. In fact, the State did not prove that any student saw any offensive vignette or group of vignettes.
Since several of the vignettes are harmless and are certainly not obscene, the State failed to prove its case. The State simply did not prove that any student saw a vignette which was harmful to juveniles or obscene.
Only two of the several students in the Spanish classes at East High School testified at the trial of Kearns. R.H. was in the second period Spanish class. R.H. was 18 years old at the time of the trial but had been 16 at the time parts of the movie was shown.
R.H. recalled the movie as a "scary movie" not a sexy movie or obscene movie. She recalled a vignette in which a man wrestled with a dog. She also recalled a vignette where a woman inhaled farts and a third vignette (a cartoon) in which a character had a bowel movement and the excrement jumped back into the cartoon character and killed her.
R.H. recalled seeing the first vignette of the movie in which a couple who wanted adult time with each other scared a young child in order to get the child to stay in bed. The child, afraid that a monster was going to get her, stayed in bed. An intruder entered the residence and killed the couple, but the child who was hiding and quiet survived.
The adult activity was minimally shown and nowhere near the level which could or would classify the vignette as obscene. R rated movies show a great deal more adult activity. Some PG movies show as much. This vignette was clearly not obscene or harmful to her.
In short, R.H. recalled seeing no vignette which was harmful or obscene. R.H. recalled Kearns sitting at her desk reading a magazine or newspaper during the showing.
The second student to testify was K.E. K.E. was in a sixth period Spanish class. K.E. had been 17 years old when parts of the movie were shown. K.E. recalled the movie as having "all kinds of weird stuff," "sexual stuff" and "fighting and violence." K.E. did not testify about any specific vignette, objectionable or otherwise. Her testimony did not support a finding that any harmful or obscene material was shown to her.
Again, because the State did not provide proofs of what parts of The ABC's of Death were actually shown to the juveniles and because several portions of the movie are neither harmful to juveniles nor obscene, the State failed to prove its case. A person cannot be convicted of disseminating matter harmful to juveniles if the person does not actually provide the juveniles with material which is harmful or obscene. The fact that other parts of the movie which were not shown to juveniles or not proved to have been shown to juveniles, were more objectionable does not change the actual proof required to prove violations of R.C. 2907.31. As noted earlier, only two students testified at trial and their testimony does not indicate that they saw any vignette which was harmful or obscene….
Based upon my own viewing of the film, I would find, at most, three vignettes to be objectionable. I am still relatively sure no student saw two of those vignettes because they are at the end of the film. The objectionable vignette toward the middle of the film may not have been seen or appreciated by Kearns given the lack of attention she was displaying when Chamberlain was in the classroom and at the times described by the students. Also the two students who testified did not seem to recall any of the three objectionable vignettes. The three objectionable vignettes would have been memorable….
I personally find fault with the extensive discussion of the movie "taken as a whole" in the majority decision. No student saw the whole movie. The majority excludes the credits, which for 26 vignettes are lengthy, and still has to acknowledge a movie length of almost two hours (1 hour, 58 minutes, 14 seconds). If the students watched the movie for every minute of the 47 minute period, the students saw, at most, 40 percent of the movie. The two students who testified watched the movie briefly and then started doing homework for other classes. They did not find the movie particularly memorable. They certainly were not harmed by what they saw.
I am also concerned that the majority decision gives a skewed vision of the contents of The ABC's of Death. My seeing of the movie leaves me with a view which is consistent with the view of the two students who saw a portion of the movie and then testified at trial. The movie is centered on violence and death, not sex. The majority opinion finds objectionable 10 vignettes of the 26. To reach 10, the majority lumps vignettes which it sees as involving violence, brutality and cruelty into the mix to justify its conclusion that the movie taken as a whole is obscene. I do not see 23 of the 26 vignettes as harmful or obscene. Some minimal sexual content does not make a vignette or the whole movie either one….