The Problem of Prurience
By J. D. Obenberger, Attorney at Law
This article was written for and appeared in XBIZ in 2004.
This article was written for and appeared in XBIZ in 2004.
“The line between protected expression and punishable obscenity must be drawn at the limits of a community's tolerance rather than in accordance with the dangerous standards of propriety and taste.”
Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1029 (5th Cir.1981), cert. denied sub nom, Theatres West Inc. v. Holmes, 455 U.S. 913, 102 S.Ct. 1264, 71 L.Ed.2d 453 (1982)
Our Constitution is a thing that
emerged from oppression, resistance, struggle, war, and the experience of a
generation of brave men and women in contending with the ever-expanding power
of colonial government. During the
period of time leading up to and including the American Revolution, our Patriot
ancestors were regarded by their British colonial overlords as criminal
terrorists. Ben Franklin’s often quoted
admonition, that the Patriots must hang together or they would surely hang
separately, was not a baseless jest but reflected a real fear of the
consequences should the Patriots have failed.
For their own part, the Patriots thought that they were acting by force
only to preserve the civil rights to which they – as Englishmen - were entitled
under the Magna Charta, the Common Law, and the unwritten Constitution of
England. The British government took
extreme measures to suppress the American Insurgency and the scope of these
extreme measures is described in much of the text of the Declaration of
Independence. As the resistance to
unjust laws became more focused, the British reacted with ever more draconian
measures to quell the Insurgency and to preserve their control and restore
public order in general. Those measures, in turn, incited more bold
resistance. It was obvious to the generation
of Patriots that founded the American Republic on these shores that the
authority and power of government must ever be mistrusted, challenged and
limited because, unless the scope of governmental power is held under control,
it will expand, eroding personal and social liberty until absolute government
is the result. The founders trusted
democratic governments no more than monarchies;
Their first attempt at national government failed because so little real
power was given to the United States.
When it became obvious that the Articles of Confederation had failed, a
Constitutional Convention was called to write and propose a model for a viable
but limited government. But before that
document would be ratified, anxious about the power of the new United States
government and affected by the lively dialogue in the Federalist Papers, the
people of this Nation demanded and obtained a charter of freedoms (that we now
know as the Bill of Rights) that went to the State ratification conventions
together with the Constitution itself.
The Bill of Rights – and in particular, the First Amendment, protecting
freedom of expression, association and religion and prohibiting a state
religion – is largely a counter-majoritarian
instrument – meaning that many of its provisions protect the liberty of individuals
from the power of majorities that
have seized control of government. It
seemed to the Founders to be a cornerstone-bedrock principle that individual
liberty was a natural right of persons, that a good measure of such liberty
promoted the success of a society, that the power of government was
antagonistic towards individual liberty, and that individual rights, including
expressive rights, must be enduringly protected from government for reasons
important both to individuals and society as well. The word “Liberty”, appearing on all U.S.
coins, represents the collective historical judgment of this society that the
freedoms of its members must be protected from
government, even from a democratic government whose officers are elected by
this society itself, and perhaps most especially from a government that claims
good intentions: “The road to Hell is paved with ‘good intentions’”.
But the protections of the Bill
of Rights – indeed the words of the First Amendment itself - are nothing more
than dried ink on parchment until or unless they are enforced in a court of
The confusing and thorny
patchwork of conflicting issues and principles and cynical rationalizations
which make up obscenity law has largely come about, in my opinion, because the
development of obscenity law is an aberration, a deviation from the traditional
foundations of American law regarding expression. Insofar as “community standards” work in part
to establish the boundary between that expression which is protected by the
Constitution and which works may be criminally proscribed, the First Amendment
and its countermajoritarian protections for individuals have become
significantly attenuated in the context of erotic speech.
The 1956 holding in Roth v. United States determined that some speech was simply outside the protection of the First Amendment - including obscene matter. In taking this position, the Supreme Court looked at history a bit and noted the existence of colonial and early state criminal laws concerning libel and blasphemy and profanity, including those utterances which mocked or satirized sermons. (It is my opinion that such ancient ordinances justify the existence of contemporary obscenity laws about as much as they would justify contemporary blasphemy laws.) In establishing the law of punishable obscenity under the First Amendment, the Supreme Court permitted the jury to determine whether a work, taken as whole, offended “the common conscience of the community”. With respect to “prurience”, the jury instructions at issue and approved in Roth permitted the jury to convict if the jury concluded that the matter tended to “excite lustful thoughts” or corrupted the audience by “arousing lustful desires” in an average person. (The Roth Court necessarily thought that these words did not significantly vary in their meaning from the Model Penal Code provisions which based obscenity on a “shameful or morbid” interest in sex. It would seem that the Roth court felt that lust itself was shameful or morbid.). The court also justified the punishment of the obscene by noting that it was approving the proscription of only valueless speech: “All ideas having even the slightest redeeming social importance - unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion - have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.” This sentiment was amplified in 1966 in Memoirs v. Massachusetts which limited the criminal obscenity sanction to works “utterly without redeeming social value”.
More substantial and enduring
harm was done to our personal liberty by the Supreme Court in Miller v. California in 1973. We still
live with the principle laid down in that case which permits obscenity
conviction when the trier of fact determines (a) that
the average person applying contemporary community standards would find
the work, taken as a whole, appeals to the prurient interest, (b) depicts or
describes in a patently offensive way, hard core sexual conduct specifically
defined in a statute, and (c) the work or thing taken as a whole lacks serious literary, artistic, political,
or scientific value. (Miller approved the exclusion of a work from the
protections of the Bill of Rights even if the work had some value less than “serious”. But didn’t Roth and Memoirs tell us
that the justification for excluding obscenity from First Amendment protection
was that it had no value, anyway?
What now is the basis for excluding
matter of some, but little value from
some courts have found serious value in nudist publications because they
sincerely aim to affect social change, and while there is some considerable
hope that erotica emerging from the gay and swinger movements will also enjoy
protection for the same reason, the serious value” fork in the Miller Test may
provide little cover or protection to run of the mill pornography presented for
entertainment. The heightened barrier to taking refuge in the Value Fork of
Miller propels the Prurience and Patent-Offensiveness forks to the main stage
in the trial defense of such matter, and take with them to the forefront the
“contemporary community standards” that define them.
late as 1980, the Fifth Circuit in Penthouse
International v. McCauliffe determined that issues of Penthouse and Oui
magazines appealed dominantly to a prurient interest in sex – though they
showed little more than attractive young women, sometimes in posses that
suggested or simulated masturbation or gay sex – and that, despite the
articles, cartoons, satire, and letters, “possessing some literary merit”, the
magazines did not possess serious value and were accordingly obscene.
1987, the Supreme Court in Brockett v.
Spokane Arcade revisited the core of obscenity law and nudged it in a
positive direction by distancing the law from the criminalization of
representations inducing ordinary sexual lust. The court held that “prurience”
should not be “read to include ... those materials that appeal to only normal
sexual appetites”. This markedly changed
the landscape of obscenity law; As a
consequence of Brocket, in Goldstein v. Allain the Mississippi
obscenity statute was invalidated as unconstitutionally overbroad because it
permitted a finding of guilt if the material appealed to a “lustful” interest
in sex; The Louisiana Court of Appeal
reversed a conviction in which the jury instructions mentioned “lust” in
defining prurience in State v. LeBlang. By 2000, the Third Circuit in United States v. Loy was affirming the
right of a parolee to view nonobscene adult pornography that was not narrowly
related to his rehabilitation, a result that would have been impossible under
the former understanding of “prurience”.
decision in Brocket provides a
realistic defense for porn materials that appeal to mainstream sexual practices
and interests, but it is questionable whether extreme content will benefit much
from the contemporary understanding of prurience. It may not be easy to defend much extreme
content under a test that relies on communitarian notions of prurience and
patent offensiveness, leaving the Value Fork as its best hope: It is difficult or impossible to
categorically judge the social value of extreme content, though websites and
other materials can frequently be designed in a manner that enhances their
social importance and ultimately, their defensibility.
In the end, though, American society must come to terms with a body of law that predicates the lawfulness of expression on the tolerance or acceptance of others – and abandon it. It is my view that the right to publish should never depend on the reaction of society in opposition or acceptance of the publication.
Copyright 2004-2011 J. D. Obenberger. All rights reserved.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is firstname.lastname@example.org.
J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.