Essential Court Cases About Free Speech and the Regulation of Sexual Expression for Adult Webmasters and Content Producers






I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.


-Judge Learned Hand, May 1944, New York City, "I Am an American Day Speech"

Eagle in Chicago
Chicago

   Introduction to this Section: This selection of about eighty cases aims to include all of the most important, most widely read, and most interesting cases that touch on erotic expression. Of course it will include Roth and Miller and the other many other well-known, leading obscenity cases, but I also have reached out to present more obscure (but interesting and enlightening) cases not found or rarely found anywhere else on the Internet - not only to give you a good perspective of how the present body of law came together but also to give increased attention to cases and statutes that should be better known. You will meet remarkable characters: Lenny Bruce and John Stagliano and Max Hardcore and George Carlin and Henry Hill (through whose eyes the story of "Goodfellas" is told). The subject matter treated in these cases includes movies and comic books and books without pictures and drive-in movie screens. (Yes, there are dancing girls, too! The range of expressive human conduct - and consequently the reach of the First Amendment - is broad.) Attacks on the constitutionality of the entire scheme of obscenity laws are presented, all unsuccessful for the time being, including the pretty-recent Extreme Associates case, together with the newest recent cases tackling the issue of what comprises Miller's "local community standards" when content is published on the Internet. 

    The collection is rounded out with cases that are not directly about adult entertainment but whose holdings are used by the courts to determine and resolve the issues in obscenity cases. These are the cases I talk about most frequently with my clients, and part of my reason for this collection is to give my clients a handy way to read the cases we talk about. It's my hope that this selection, including the citations to other cases contained within these cases, will at least start any inquiring mind in the right direction for further research. 

    Approximately 27,000 words of my informal commentary (that works out to about 45 typed pages) accompany the cases. These comments are addressed to an expected audience of smart students, well-educated adults, and lawyers who do not often work with issues of erotic expression. By no means is this offered as a legal treatise. The organization/taxonomy of the listing in some cases is arbitrary; I've tried to restrict the "substantive" portion to cases that decide what is and what is not legally obscene.

    Obviously, the opinions expressed are no more than what my best lights have shown me and I freely admit that some are controversial. Controversy has never deterred me from telling what I believe to be true and it does not deter me here. I am sure that I wrote some words with the sure knowledge that people from Morality in Media and the American Family Association and others of that moralizing stripe are sure to read them, and that I intended some less than gentle nudges aimed at them and intended to affect their often smug attitudes about personal freedom versus social control. From the other side of the great cultural divide, there will be Leftist/Materialist/"Progressives" who will become agitated because my opinions come out of the oldest parts of the American political tradition about personal Liberty rather than from their rip-and-burn alienation from and opposition to traditional American values. What I believe about Liberty emerges from and is attached to those values. I make no apologies to either side of that chasm nor to anyone who prefers a myth about a case over the reality. Consider the source and judge for yourself, but judge according to the goals articulated here. JDO.

[This general "Cases" Area chiefly concerns cases about the law of Obscenity, the regulation of the time, place, and manner of sexually-oriented expression, and the laws for the protection of children enacted in connection with sexual expression. All of the leading cases concerning Section 2257 are set out on XXXLAW in our Section 2257 Area at its own "Cases" Page. Many of these are placed into context in our Primer on the Law of Section 2257, Fifth Edition and are linked from its footnotes. Cases involving other matters dealing with generally non-expressive conduct concerning sex will be found in our State Laws Area, and some particularly interesting state cases are linked from the Prostituion and the Making of Porngraphy and Illinois Prostitution Law Primer Pages. A selection of pleadings, motions, and the decision in Cook County Sheriff Tom Dart's unsuccessful lawsuit against Craigslist's Ertoic Services section, based on common law Nuisance but resolved on CDA Section 230 (c) grounds, are set out in our State Laws Area under "Prostitution". The pleadings and decision in our successful challenge to the DuPage County restrictive Adult Use Zoning challenge are linked also from the State Laws Area of this site under the heading of Local Zoning Laws. The winning decision in our defense of the Mike Jones Obscenity Case is linked from our News Page under "Final Victory in Mike Jones Criminal Obscenity Appeal". Additonally, Adobe Acrobat links to the original slip opinions of various court cases and significant pleadings and motions are also set out throughout this website both in its pages introducing the principal divisions of the site and in individual articles. All told, this website presents decisions and/or documents from about one hundred twenty cases of topical interest to the law of adult entertainment in the United States, many of which are available almost nowhere else online in a public website.]


Outline of Cases


I. Landmark Obscenity/Free Speech Cases. These are Substantive cases, about the government's power to ban indecent/obscene content - by proscribing obscenity as a crime - what constitutes the criminally obscene - and the limits of that power as circumscribed by the First Amendment to the United States Constitution (and as it may apply to the states through the Fourteenth Amendment). 

II. Procedural Obscenity Cases. Cases about laws that regulate the procedures that government may use in obscenity cases - the seizure of allegedly obscene materials and their forfeiture - as the First Amendment may require a status and protection for expressive materials above and beyond the rules that normally apply to evidence and forfeiture in ordinary cases to nonexpressive materials such as drugs, weapons, and other contraband. 

III. Time, Place, and Manner Cases. Chiefly concerning zoning and licensing of adult businesses and their operation.

IV. Child Protection Cases. Cases about laws that seek to proscribe or regulate nonobscene erotic expression which articulate their goal to be "protection of children" from viewing allegedly indecent material or the protection of children from exploitation or depiction in such content. (But cases dealing with "Section 2257" - Title 18 United States Code Section 2257 - are set out in this website's Section 2257 area.)

V. Important Non-Adult-Content or -Themed cases. A few important Free Speech Cases from outside the realm of sexual expression that touch on issues important to the protection of adult oriented expression.


Selected Cases 


I. Landmark Obscenity/Free Speech Cases - These are Substantive cases, about the government's power to ban indecent/obscene content - by proscribing obscenity as a crime - about what constitutes the criminally obscene - and  about the limits of that power as circumscribed by the First Amendment to the United States Constitution (and as it may apply to the states through the Fourteenth Amendment).

    Rosen v. U S, 161 U.S. 29 (1896)

    A very early case (cited 50 years later in Roth) concerning obscenity prosecution for the mailing of images depicting nude women (covered with lampblack so that the covering might easily be removed by the consumer) under the Comstock Act. Though the First Amendment was not squarely addressed by the Supreme Court in the obscenity context until Roth, here the court approves of jury instructions that demonstrate that the early concern of the law was the protection of innocent, sexually inexperienced persons from material that might make them look longingly at sexuality. The High Court approved of the following instruction defining obscenity: "[T]he test of obscenity is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influence, and into whose hands a publication of this sort may fall. Would it suggest or convey lewd thoughts and lascivious thoughts to the young and inexperienced?"  This early case also deals with a "sting" operation that the court considered valid. Finally, it deals with a case prosecuted before the courts required that a work be considered "as a whole" for obscenity; a central issue of the case is what parts of a publication were indicted and charged as obscene; the indictment did not identify the passages out of a sense of decorum or modesty; the accused asserted that he did not know the allegation against him as a result, and the Supreme Court found it enough that he could have asked for a bill of particulars. That was not a good enough answer for the two dissenters who found his fundamental due process rights to have been violated because he was not adequately informed of what, exactly, he was expected to defend against.

Robertson v. Baldwin, 165 U.S. 275 (1897)

    This old case, this antique, touches - barely -  the constitutional law of obscenity. The important issue in Baldwin was not the spoken word or images at all: this case is about whether special laws concerning merchant seamen, under contract for terms of long duration, improperly act to strip these sailors of their liberty in violation of the Thirteen Amendment, prohibiting slavery and involuntary servitude. In upholding those laws, the High Court observes (by an analogy it thought applicable to the Thirteenth Amendment) that no right extended under the Bill of Rights is absolute and that the framers intended each of them to be subject to limitations that already existed concerning them in English common law; The Court finds that the Bill of Rights created no new rights, but instead guaranteed that long-cherished rights, as they were understood to be limited at the time of adoption, and assured that they would be preserved and not be trampled upon by the new federal government. The Court provides examples concerning a variety of rights asserted in the Bill of Rights, and observes, 165 U.S. at 261: "[T]hus the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals. . . "  This proposition has obviously been profoundly affected by twentieth-century legal developments, most notably Roth, Miller, and Brockett and is included here to provide some perspective on the development of the constitutional protections afforded to erotic speech from where it started, at essentially the zero point. When lawyers representing pornographers defend them, they also fight at the forward edge of the battle area to preserve the rights of Americans to express their religious thoughts freely without fear of prosecution under a blasphemy statute. As this case demonstrates, the underpinnings of obscenity and blasphemy statutes are closely related: in the minds of their proponents, each is necessary to preserve public morality. If the modern-day Bible-thumping American Ayatollas were ever to prosper in a big way on these shores, the next call would be for the re-enactment and enforcement of the quietly nonenforcement of  blasphemy laws that remain on the books in some places, as sure as night follows day.

United States v. One Book Called "Ulysses", 5 F.Supp. 182 (S.D.N.Y., 1933) 

    This case was "set up" by the intended US publisher to determine that the book was not obscene; in fact, the customs agents at first refused to interdict the importation of James Joyce's Ulysses and had to be persuaded to do so; the US Attorney in New York sat on the case for more than six months before agreeing to bring this in rem action (against the book itself) to test its obscenity. Between this trial court decision - concluding that the work was nonobscene despite much frank, sexually oriented text - and the appellate decision affirming it, the heart of the Roth decision from the Supreme Court, twenty years later, was made out. Interestingly, the US Attorney argued that the work here was blasphemous as well as obscene because of its criticisms of the Catholic Church. The test applied by the court, from earlier cases, including one Supreme Court case, was whether the book "Tend[ed] to stir the sex impulses or to lead to sexually impure and lustful thoughts."  The court concluded that Ulysses did not do so. Under the new word injected into the test in Roth, "prurient", the same notion controlled the law of obscenity and juries were so instructed until Brockett (1985), below, which established that obscenity did not reach materials that appealed to a normal lust. Here, the wit or attempted wit of the judge concluded that the appeal of the work was to the emetic rather than the aphrodisiac.

United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705 (2d Cir., 1934)

    It is sometimes said by people who should know better that this opinion was written by renowned American Jurist Learned Hand; in fact, his cousin, Augustus Hand was on the three judge panel and wrote the opinion here. The Second Circuit affirmed the New York Southern District trial judge, holding Ulysses not to be obscene.  The test to be applied, as the court articulated it (with little firm precedent in the law), was whether "a publication taken as a whole has a libidinous effect." (This injected the phrase "taken as a whole" into the American law of obscenity - and was truly revolutionary in contrast with the bulk of earlier cases - but it preserved the concept that a work might be obscene if its appeal was to the normally lustful as the situation remained until Brockett was decided in 1985.) The court assessed what it called the "dominant effect" of the book and whether it had the "effect of producing lust", concluding that Ulysses did not do so. The court once uses the term "prurient" but does so as a synonym of "lustful". The court rejected earlier American precedent (United States v. Bennett, Fed. Cas. No. 14,571) which was offered to the court to suggest that isolated passages could render a work obscene, and whose language was also understood to say that the test of dominant appeal was its effect on anyone who might pick the book up, not on a person with an average or normal sexual appetite. The court found this far too inhibitory because it would preclude the publication of culturally significant literature; in fact, the court suggested that the ancient nature and reputation of old books and critical reviews (by "approved critics") of new works could importantly inform the court; the court would not consider that Congress had intended to ban what amounts to literature. From these words, seeds were planted that would blossom into the "serious value" prong of the obscenity definitions of Roth and Miller.

Roth v. United States, 354 U.S. 476 (1957)

    While affirming the Court's earlier assumption that the First Amendment does not protect the obscene, Roth draws a dichotomy between the obscene and other kinds of material that relate to sex, holding that nonprurient sexual material which is  not obscene enjoys constitutional protection with regard to its intended (adult) audience. It considers that, in determining what is obscene, the work must be judged as a whole, and that the standards of the community must be assessed in determining its "prurience" under the First Amendment. The lynchpin of the Roth test is how the work hits its reader - whether its predominant appeal is to a "prurient" interest. It rejects the earlier standard used in some states and in federal courts that obscenity might be defined by its effect on the young, inexperienced, or otherwise especially susceptible. This 1957 case marked the Supreme Court's first serious discussion of the constitutional limits of obscenity law and inspired what became a three-part test defining what might be criminally punished as obscene. The Court's noted - in passing, it seems to me - that an obscene work possessed no redeeming social merit. This observation eventually became part of the Court's jurisprudence as a test of what might be deemed obscene during the next sixteen years, a period during which the United States Supreme Court seldom were able to form a majority to determine any obscenity case with a single opinion adhered to by five of the nine justices. In the 1973 Miller case, also found below, the Supreme Court changed course and determined that a work might be illegally obscene if, though vested with some social merit, its content did not rise to the level of "serious" value.  My favorite part of Roth is the language with which Justice Douglas began his dissent, joined by Justice Black: "When we sustain these convictions, we make the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader. I do not think we can approve that standard and be faithful to the command of the First Amendment, which by its terms is a restraint on Congress and which by the Fourteenth is a restraint on the States."

 Jacobellis v. Ohio, 378 U.S. 184 (1964)

    This case is most remembered for the comment of Mr. Justice Stewart in his Concurrence, "I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." In the sometimes confusing sequence of cases between Roth and Miller, Jacobellis approaches a highpoint in the swing toward Liberty and against repression of sexually explicit content. At issue was a French film whose title translates as "The Lovers".  The Court reversed the convictions, which had been affirmed by the Ohio Supreme Court. It's one of a series of the cases in which the high court just reached down and determined on its own that the work simply was not obscene, thus treating it as an issue of fact. This is a most remarkable and infrequently-seen pattern in the world of appellate courts which usually give great deference to the facts as found and determined by trial courts. The various concurrences and the dissents define this case, because there was no majority opinion and no more than two justices joined in any particular statement of the issues and the law. The words of the justices travel to our age with remarkable clarity, because the issues have never gone away. 

    Miller decided the issue - at least for a long time until the Internet era - that the "communities" whose standards determine obscenity or not  are local community standards, not the nationwide community standard of Jacobellis (later derided in Miller as a myth), in line with the New Federalism of Richard Nixon; that New Federalism perceived - in the application of national standards - offending mainstream, small-town America at the hands of what it saw as perverted, left-wing, homosexual, Jew-infested bastions of immorality on both Coasts. (Woody Allen does a nice job of describing this point of view and effectively satirizing [satyrizing?] it in the context of Chippewa Falls, Wisconsin's supposed attitudes in the Thanksgiving Dinner scene of Annie Hall.) Establishing/preserving a right to make local decisions about obscenity, that is, about what messages and images that people might lawfully sell, transfer, publish, read and view, on a parochial basis, seemed to make much sense to many people in this pre-Internet, local-radio-station dominated, local-newspaper-informed era. (The winds of cultural unification of our country were just beginning to blow with the advent of network television and Top 40 format radio.) Killbride, below, tackles the same issue in our age and abandons local community standards in judging Internet porn, a decision in line with the attitudes of Brennan and Goldberg in Jabobellis. Why, these justices ask, should First Amendment freedom mean one thing in one county and something entirely different across County Line Road? Should the law of privacy, the law of Search and Seizure, the lawfulness of police action in arrests and seizures mean one thing in one state and another thing in another state, when the Fourteenth Amendment applies equally to both? 

    They also do a bit of legerdemain with the words "utterly without redeeming social importance", which was used descriptively about the value of the genre of obscenity in Roth, and here they apply it as a test absolutely necessary to deprive a work of constitutional protection. That's not a bad idea at all, but it is no longer the law since Miller, which permits the deprivation if, among other things, the work has no "serious" intent or value. Much of Jacobellis has erroded [sic!] since Miller, but we thankfully no longer have a formal balancing test that might be applied to castrate effective social commentary because it's associated with vulgarity that is called obscene. Now, in light of Miller, the "work as a whole" is assessed to determine whether it possesses "serious value", and that's more protective than a bald balancing of "elements". The Lenny Bruce case, below, shows what that kind of a balancing test did to him. That a work as a whole predominantly appeals to a prurient interest is now part of the first fork of the Miller Test - and the third fork, the question of serious value, is an additional and separate hurdle for the censor to overcome. Serious issues still remain about what a "work as whole" exactly is in the online world - in an era when John Stagliano and Max Hardcore were prosecuted for clips of thirty seconds and shorter duration, extracted from a much larger website. It is my opinion that the issue of whether the government has presented the finder of fact with a "work as a whole" or just an element is as much a question of fact as any other part of the obscenity test, and that a jury is entitled to acquit if it has not been proven beyond reasonable doubt that what the government has introduced is, indeed, a "work as a whole" and not merely a particle, fragment, or element of a greater work; I think it's an issue of fact. That issue has not been litigated in the Internet era regarding a website, and I'm eager to put that issue on the table for a client.

    People v. Lenny Bruce, 31 Ill.2d 459, 202 N.E.2d 497 (1964)

    On December 5, 1962, the late comedian, Lenny Bruce, was arrested after a week of performances at the then-trendy Gate of Horn, at the southeast corner of Chicago Avenue and Dearborn Street in Chicago. According to the Illinois Supreme Court, his 55-minute monolog treated of: "[S]ocially controversial subjects interspersed with such unrelated topics as the meeting of a psychotic rapist and a nymphomaniac who have both escaped from their respective institutions, defendant's intimacies with three married women, and a supposed conversation with a gas station attendant in a rest room which concludes with the suggestion that the defendant and attendant both put on contraceptives and take a picture. . [with] motions indicating masturbation and . .  vulgar comments."  On February 18, 1963, he began trial, representing himself before a jury. During a multiday recess, he was arrested in LA on February 23 on drug charges. While in California custody, the Chicago trial resumed during his absence; the jury convicted him after one hour of deliberation on February 28, 1963. On March 12, Lenny Bruce telegrammed Judge Dan Ryan (there is a freeway in Chicago named after this judge) accusing him of "illegal, unconstitutional, and most fascistic...behavior" in going forward with the trial during his absence in California.  On March 19, Judge Dan Ryan sentenced Mr. Bruce to the maximum punishment, including 364 days in the Cook County Jail. A fugitive warrant or extradition request was transmitted to California; Mr. Bruce turned himself in and was granted an appeal bond on April 3.  On June 18, 1964, apparently in an unpublished decision, the Illinois Supreme Court affirmed the conviction and sentence. Four days later, the United States Supreme Court decided Jacobellis, above, and thereafter the Illinois Supreme Court granted a petition for rehearing.  Prior to Jacobellis, Illinois had applied a balancing text to determine whether socially redeeming or socially valuable commentary predominated over unprotected, unvarnished obscenity when the two were mixed in one expression.  The Per Curiam decision of an obviously unhappy Illinois Supreme Court holds that the former test no longer had currency in Illinois in light of the decision in Jacobellisthe court seems to suggest that any element with any socially redeeming value will render the whole nonobscene; a concurrence of a solitary justice suggests that "fragments" with value cannot always "immunize the whole". This case is included here for historical value concerning the personality of Lenny Bruce and to provide a glimpse at the reaction of state courts to the confusion concerning obscenity law during the Memoirs era. It is clear after Miller, below, that "any" value is no longer part of the obscenity test, but that the absence of "serious value", when the work is taken as a whole, is necessary to strip a work of its constitutional protection and to punish its makers and publishers for obscenity.

Memoirs v. Massachusetts, 383 U.S. 413 (1966)

    This fractured decision of Supreme Court arose from a civil order secured by that state's Attorney General determining the antique book, Fannie Hill, to be legally obscene, and banning its distribution. I can't resist the pun: the book was hoary with age. Although five members of the Supreme Court voted to reverse, and resultingly, the obscenity determination of Massachusetts was reversed, in the era of Memoirs, and until Miller seven years later, the Supreme Court simply could not agree on an overall analysis of obscenity in relation to the First Amendment. In his Concurrence, Mr. Douglas mentioned the barrage of letters he had received from folks around the country urging him to vote to protect society from the onslaught of pernicious porn, and he responded: "The censor is always quick to justify his function in terms that are protective of society. But the First Amendment, written in terms that are absolute, deprives the States of any power to pass on the value, the propriety, or the morality of a particular expression." In Memoirs, the plurality held that no work could be judged obscene unless it possessed utterly no redeeming social value. That particular view was rejected in Miller, below, the case holding that a work appealing to a prurient interest and patently offending contemporary community values as to the graphic nature of the depiction or description, might be obscene unless it possessed serious social value.

Ginzburg v. United States, 383 U. S. 463 (1966)

    Decided the same day as Memoirs, the Supreme Court upheld the obscenity convictions of Ginzburg, who, mailing from the towns of Blue Balls and Intercourse, Pennsylvania, published and distributed Eros Magazine; in this case, he and his corporations were also charged with Liaison, a bi-weekly newsletter, a short autobiographical account of the author's sex life, and The Housewife's Handbook on Selective Promiscuity. All of these materials included narrative materials containing arguably valuable information; the trial judge found that only four of fifteen articles were predominantly prurient in their appeal and patently offended community standards, but that the remaining eleven were unremarkable. 

    The centerpiece of the majority opinion was that the publications were calculated to arouse, and were marketed - pandered - as titillating and arousing works, with only a pretextual social value; the Court observed: "[T]he circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality--whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes. Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity." According to the Concurrence of Justice Stevens, joined by Justice Souter, in Williams, below, Ginzburg is no longer good law because its central pandering holding is inconsistent with the cases that have extended First Amendment protection to commercial advertising. However, it is included here because it is illustrative of several matters of continuing interest. It demonstrates that, before Brockett was decided twenty years later, "prurience" really did mean nothing fancier than sexually arousing, and that in this era of the Sixties, it was not necessary to demonstrate a predominant appeal to an interest that was sick or twisted. It recounts how the trial judge performed an analysis of a magazine, piece by piece, to determine whether the work as a whole is obscene, and it finds such an adverse determination when only four of fifteen articles dissected had a prurient appeal; what turned the scales was that the work was prompted as being pornographic in nature, intended to arouse. 

    Finally, it assesses whether the unobjectionable and, perhaps socially valuable, material was included only for defensive litigation purposes; the Court apparently decides they were pretextually included, affording the composite work no protection in the end. All of this should be of the highest interest to webmasters and other authors of composite erotic works. The central holding of this case, that promoting a work as obscene can render it obscene, has not survived except in the thinking of one member of the Supreme Court, but that is not to say that all of the content of this case may be dismissed. 

 Mishkin v. New York, 383 U.S. 502 (1966)

   The Supreme Court here affirmed the conviction of Mr. Mishkin, holding that the New York obscenity statute was not fatally vague, and second, with respect to bondage and sadomasochistic material here in issue, which Mishkin contended would disgust and shock, rather than appeal to the prurient interest of the average person, that where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. Also decided at the same time as Memoirs and Ginzburg. The word, "mishkin" or "mishkan", means a tabernacle in Hebrew; however this Mishkin provides no constitutional sanctuary for taboo fetish material just because it possesses no prurient appeal to the broader elements of society. The question is still open whether a nonprurience defense can be effectively used in the appropriate case for hardcore material that is perhaps meant to predominantly appeal to a prurient interest, but which executes that goal so poorly, perhaps with uninspired and unattractive performers depicted in a boring manner, that it really has no appeal, prurient or otherwise. Such material exists in the world of swinger content; I've seen it, I've prepared to defend it, and I have seen the case resolve without trial. 

United States v. Reidel, 402 U.S. 351 (1971)

    Reidel was charged with distributing obscenity through the US mails. He successfully moved to dismiss in the trial court by asserting the rights of his prospective reading customers and asserting their right to read under Stanley, below. The Supreme Court majority holds that the trial judge took Stanley too far, that Stanley did not overrule Roth, and that it was within the power of the state to criminalize the distribution of obscenity.

Kois v. Wisconsin, 408 U.S. 229 (1972)

    The most popular counterculture free newspaper in Milwaukee during the late Sixties was Kaleidoscope. I grew up in Milwaukee during that time with Kaleidoscope and I remember its fairly outrageous behavior aimed at confronting comfortable values; in one memorable episode, it published the home addresses of every Milwaukee policeman; in another, it published "wanted" posters of persons suspected of being undercover narcs; in another, it published photos of the disguised, civilian-dressed members of Police Chief-for-Life Harold Breier's Red Squad who, in turn, were surreptitiously taking photographs of everyone involved in political protest during those tumultuous times. (No kidding: by special Wisconsin law, the Police Chief of Milwaukee served for life, supposedly to protect him and the public from political pressure on the Chief in enforcing the law. It was the common opinion of the young and restless in that era that he had become a tyrant and dictator, and eventually he was pressured to resign with threats of changes in state law.) 

    In this case, Kaleidoscope ran some photos depicting sexual union between a man and women next to some poems describing sexual intercourse. They ran on interior pages and were contextually related to the text they illustrated. The Supreme Court grasped that this was at least an attempt at art. Kois, the publisher, had been convicted of obscenity and his conviction had been upheld by the Wisconsin Supreme Court. Without funds, he applied for review, in forma pauperis (i.e. without enough funds to pay for the filing fee), in the US Supreme Court. The Supreme Court granted him pauper status, and in a per curiam decision - one from the court generally without any particular justice putting his name on it - the High Court reversed, holding that it's not exactly a completely unfettered decision left to trial judges and juries as to whether the "dominance" of a work's appeal is to the prurient under Roth or what emerged as the first fork of the Miller test. The court called dominance of a work's appeal a "constitutional fact", and, like in Jenkins below, dealing with the Hollywood film Carnal Knowledge, the Court asserted its power to reach down and reverse an obscenity conviction without a clearly articulated schema of why it had the power to do so. This case seems like an extreme application of the principle, inasmuch as the Court seems to have reversed summarily, apparently without so much as briefs on the merits. 

    This Per Curiam decision is the source of the famous observation (well, at least semi-famous among adult entertainment lawyers and law school constitutional law professors) that a quotation from Voltaire on the flyleaf of a work that is otherwise obscene will not redeem the obscenity. Here the Court judged that it was a quite different situation involving contextually related images that appeared on the inside amidst poems. This reasoning is about the idea that "pandering" material as titillating has something to do with the question of whether it is obscene.

    Miller v. United States, 413 U.S. 15, (1973)

    This 1973 case, along with the other cases decided on the same day, remains the Supreme Court's last comprehensive discussion of obscenity law and contains the famous "Miller Test" which frames the jury instructions in all obscenity jury trials and defines the limits to which American governments, federal, state, and local, may go in proscribing sexual expression on the basis of its content without offense to the First Amendment. Advancing notions wrapped up in President Nixon's "New Federalism", it permitted governments to apply local community standards of prurience in defining what is and is not obscene and held also that a work meeting the prurience and patent offensiveness forks would be obscene unless it possessed a serious, not a trivial, social value.  It holds that the First Amendment is a limitation on all obscenity statutes in all American jurisdictions. No such statute may form the basis of a criminal prosecution unless the kinds of depictions or descriptions that are subject to the obscenity law are defined by legislation or construed by authoritative judicial construction, to put the public on reasonable notice as to what may be prosecuted. Three elements are set out which are constitutionally necessary to support a conviction under an obscenity statute, commonly called The Miller Test: a) Whether an average person, applying contemporary community standards, would find that the work, taken as a whole, predominantly appeals to a "prurient" interest in sex, nudity, or excretion; b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 

Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973)

    Decided on the same day as Miller in 1973, Chief Justice Burger here goes toe-to-toe with the idea that the Constitution protects the choice of consenting adults to access whatever they wish to read and view; his majority rejects such a constitutional right, and in so doing, it, explains Stanley v. Georgia, below, as a case limited to fleshing out the dimensions of the right of privacy we enjoy in our homes. The cynic will suggest that this reading of Stanley affords only a narrowly limited right to create obscene material in one's attic, to reproduce it in the basement, and view it in the living room. It should be known that there have been contemporary prosecutions under federal statutes prohibiting one from "receiving" obscene materials, putting millions of Internet surfers in the crosshairs of prosecution for receiving obscene materials. These laws are not better known - and not widely reviled - only because prosecutions based on these laws are so rarely commenced - often in cases where a prosecution related to child pornography cannot succeed for technical reasons.  See Whorely, below.  This case also articulates the doctrine that the government meets its burden of proof and survives a defense motion for a Directed Finding of Not Guilty in respect to evidence of community standards merely by introducing the work charged as obscene into evidence. Though that's enough to get the case to the jury, no presumption attaches, and a jury is still entitled to acquit because it cannot ascertain community standards beyond reasonable doubt or ascertain that a charged work violates them, particularly in the absence of evidence as to those standards.

United States v. Orito, 413 U.S. 139 (1973)

    Also decided with Miller and Paris Adult Theatre on the same day. Orito stands for the proposition that there is no privacy right under Stanley that will protect the possession and transportation of obscene materials carried by their owner on an airplane, reaffirming that the rights recognized in Stanley have a perimeter coextensive with those of the home.

Jenkins v. Georgia, 394 U.S. 57 (1974)

    A local theater manager was prosecuted and convicted under Georgia's criminal obscenity statute for showing "Carnal Knowledge", a serious Hollywood film that, according to the Supreme Court, made the top-fifty film lists for the year. This conviction was upheld by the Georgia Supreme Court, which itself took up the issue of whether the film was constitutionally obscene. The U.S. Supreme Court actually screened the film and determined that it simply was not obscene. In so doing, the Supreme Court, Justice Rhenquist - no liberal - writing, determined that the Miller test may only be applied to hard core material exploiting sex for its own sake. Local juries do not possess unfettered discretion in the determination of what amounts to prurience even under their local standards. This case amplifies the Court's view that it is proper for a State to permit a jury to apply local community standards, or to do its work without instruction as to just what "community" standards should be applied - in other words, it is acceptable to send the jury to deliberate without instructions as to which geographic community's standards should be applied. The High Court did not address the due process concerns this raises. It rejected the notion that States must apply statewide standards, though they are free to do so. Illinois, Wisconsin, California, Colorado, and many other states do apply statewide standards, some by statute and other by a determination by their own courts that their respective state constitutions require such a result under their due process and/or equal protection provisions tracking the XIVth Amendment in the US Constitution.

  Hamling v. United States, 418 U.S. 87 (1974)

    Hamling is a case that should profoundly disturb every person who loves personal privacy, liberty, individual autonomy and freedom of choice. It probably reflects the low-water mark of authoritarian repression of erotic speech in US legal history. Concerned with a mail distribution of allegedly obscene material - an advertisement for an illustrated version of the US Presidential Commission on Obscenity's Report - that was convicted under jury instructions at work before the Miller case was decided, it ripped apart good and cogent arguments dealing with basic fairness in order to uphold the conviction. Its dicta suggests that the local community standard of each and every hamlet through which items in the US Mails move could be applied to determine its obscenity without any regard to the substantiality of any connection to that locale; it again rejects the argument that the elements of criminal obscenity are so vague that they violate constitutional guarantees of Due Process of Law because no person can rationally know whether a jury will find a particular work to so violate the elusive contemporary community standards and render the work obscene, and find its distribution to be a crime; it does so rather capriciously in the context of a case demonstrating that the jury instructions themselves, dealing with the nature of which community's standards would apply - local or national - can change at the caprice of high judges without constitutional insult as those high judges perceive it; and it more or less says that it simply doesn't matter how the jury should be instructed as to what the applicable "community", whose standards are to be applied, actually is.  

  Penthouse International v. McAuliffe, 610 F.2d 1353 (5th Cir., 1980)

    A fascinating and complex case that tackles many issues, gets some of them right, some of them wrong, and dodges a great many. The Fifth Circuit agreed with the trial court that Playboy was not obscene, but disagreed regarding Penthouse and Oui, deeming them to be obscene. Though the grossly illegal seizure of huge amounts of expressive material without a warrant or even prompt judicial review immediately thereafter is enough to make this an important case, it is included here mainly for its analysis of whether a magazine such as "Playboy" is a "work as a whole" for purposes of obscenity, or simply a collection of articles that must be assessed separately. The analysis is complex and deserves reading, though some of the issues are dodged, as the court admits that these magazines are more thematically connected than most periodicals. It deals with sham, the wrapping of obscene materials into something with clear social value, in a manner calculated as a vehicle by which to distribute the obscene and avoid sanction. In many ways, this is the most important case one should read concerning the issue of what constitutes a "work as a whole" to be judged for obscenity in the Internet era.

 Brockett v. Spokane Arcades, 472 U.S. 491 (1985)

    Significant because it construes the Roth-Miller definition of obscenity to constitutionally protect material that appeals to a normal sexual lust. The dichotomy between a prurient appeal and a healthy appeal was highlighted by the unfortunate wording of a Washington State statute that defined obscenity to include, among other things, materials that incited "lust".  The Supreme Court protected sexual expression that appeals to a normal, healthy sexual lust. At the same time, it concluded that the Ninth Circuit erred in invalidating the entire Washington statute and held that the Ninth Circuit should have applied a construction to the statute that limited its application to the constitutionally permitted proscription of material with a prurient appeal, i.e. to a shameful or morbid interest in sex, nudity or excretion.

 Pope v. Illinois, 481 U.S. 497 (1987)

   Pope considered an Illinois obscenity conviction based on a jury instruction defining the third fork of the Miller test - the fork requiring the absence of serious scientific, literary, or artistic purpose as part of the constitutionally-permissible definition of obscenity - in an unconstitutional manner that misadvised/misinstructed the jury that it might consider contemporary community attitudes in determining whether the work possessed serious value. In fact, the Miller court made a choice to articulate that the third fork of the Miller test was an objective - and not subjective - test: The determination of whether work possessed serious value was to be made without recourse to the community's opinion about the underlying value. Why? The Pope court observes that First Amendment protection does not depend on the community's acceptance or approval of the message. This did little good for Pope. The Court did not reverse; it remanded the case to the Illinois Appellate Court to determine whether the result might have been any different with proper instructions.

 United States v. Robert Alan Thomas, 74 F.3d 701 (6th Cir. 1996)

    In the early years of the digital communication world, before the ascendancy of the Internet, Mr. Thomas connected his PC to the world through a telephone modem and created a BBS - a computer bulletin board enabling others to call his computer via telephone lines and download his collection of 14,000 (pre-.jpg) .gif images - pornography.  In order to do so, a subscriber would email Thomas, get an application form, and mail it to him with a membership fee. He might also order videotapes of the same kind. (It was alleged that the images were created when he "used an electronic device called a scanner" to grab images from men's magazines. As I told you, this was a long time ago.) The images included bestiality, urination, and BDSM. Sending $55 to Mr. Thomas from his location in Memphis, a US Postal Inspector received a password, viewed those images, sent some more money, and, in time, received sexually-explicit videotapes which he had ordered. This seems to be what people did before there was such a thing as broadband speeds that could handle video downloads in a reasonable period of time. The Inspector got a federal court search warrant in California, executed it, and had Mr. Thomas and his wife indicted in Memphis. In time, they were indicted and "transported" for trial to Memphis, where the jury applied the "Local Community Standards" in the US District covering Memphis; both were convicted on obscenity-related counts, obtaining acquittal only on the child pornography counts. He was sentenced to 37 months and his wife to 30 months in the US Bureau of Prisons for these obscenity crimes. There were a myriad of issues - Do the federal obscenity statutes even apply to intangible things such as digital files? - Did an offense take place in Memphis when an agent placed a phone call to California? - Should the venue have been transferred to California so that, in fairness, the California community standards might apply to conduct that actually took place in California?  (Obviously, a Memphis jury can't be presumed to know the community standards of California. Mr. Thomas was not pleased with any of the answers given to him on his appeal to the Sixth Circuit. Mr. Thomas was again indicted for obscenity in 2008 in San Jose, California and pled guilty.

City of Belleville  v. Family Video Movie Club, Inc., slip opinion, No. 5-99-0363 (Ill.App. 5th D., January 31, 2001)

        This Illinois case is presented to show how the courts deal with evidence of community standards in obscenity trials; when the government introduces the actual charged work in evidence, it has no further burden of proving to the finder of fact what the relevant community standards are or how the work in question offended those standards. Its failure to do so, however, does not preclude the defense from attempting, through evidence, to prove the limits of community tolerance/acceptance and the proposition that the charged work does not exceed them. Despite the high and mighty claim that every element of the offense in a criminal case must be proved by legal and competent evidence beyond reasonable doubt to overcome the presumption of innocence, in fact, in obscenity cases, the government discharges its duty by introducing the charged material with evidence of the Defendant's involvement, leaving the matter of community standards to the presumed knowledge of the finder of fact. The danger looming over the head of every defendant is that the jury may be uninformed and actually know little about the actual and real attitudes of the community concerning explicit materials and guess wrong, or worse, in the absence of evidence and knowledge of the community standards, apply their own personal standards. 

    In Family Video, the City produced no evidence of community standards and relied on the jury's own sense of its knowledge of the applicable statewide community standard under Illinois statue. (About 14 states employ a statewide standard, either by statute as in California and Illinois or by state court decision as in Colorado, other states use counties or judicial districts, and a few leave the jury uninstructed as to the limits of the community; federal courts use the District in which the court sits as the relevant community.) The Defense presented an expert witness concerning the materials, a psychologist who claimed that they had therapeutic value. The Defense attempted to introduce evidence of a relatively amateurish set of petitions kept behind the counter, but presented for customer signature if the issue came up: one petition endorsed rental of adult videos and opposed the obscenity ordinance and another opposed the rental of adult titles. The proffer showed that 97 persons signed in support of adult title rentals and 3 signed the opposing petition. The judge sustained an objection from the prosecutor and the jury heard none of it. The Defense also proffered the testimony of a law clerk, who, on an extended road trip, saw similar materials (containing depictions similar to the charged material) available throughout western and southern Illinois in nine stores (variously adult bookstores or general video stores), bought some, and was ready to testify to the jury concerning his observations, including evidence of the kinds of people he observed renting or buying the materials and the presence of women. The judge refused to admit the evidence and a conviction ensued. In the estimation of the Illinois Appellate Court, the trial court's refusal to admit the testimony of the law clerk and his exhibits denied the Defendants a fair trial because it was the best evidence the Defense could acquire as to statewide acceptance of the material. While mere availability of the explicit materials does not prove its acceptance/toleration, such availability throughout a region may be evidence of the community standards.

 United States v. Extreme Associates, 352 F.Supp.2d 578 (W.D.Pa., 2005)

    District Judge Gary Lancaster dismissed the obscenity indictments returned against Extreme Associates and the individuals operating it because he read Stanley to give rise to a right of personal privacy that implied an acquisitive right - a right to obtain explicit, even obscene material under the Due Process Clause of the Fourteenth Amendment. He also discovered in Lawrence the conclusion that the protection of public morality was not a compelling government interest that might justify criminal laws that interfere with fundamental freedoms under the Due Process Clause. On appeal, his Order was reversed (below) and the Supreme Court refused to consider the case. 

United States v. Extreme Associates, 431 F.3d 150 (3d Cir., 2005)

   The Third Circuit overrules the order of District Judge Gary Lancaster - who had dismissed the Indictment of the Extreme Associates defendants - rejecting arguments that the obscenity statutes were an unconstitutional violation of the right to personal privacy in the wake of Lawrence. In doing so, they  held that Judge Lancaster had disregarded precedent set by the United States Supreme Court, noting that neither Stanley nor Lawrence nor the cases that stemmed from them gave rise to the right to acquire obscene materials. The defendants had standing to assert these arguments on behalf of their customers. The United States Supreme Court denied certiorari, and thereafter, these defendants pled guilty, choosing not to defend the obscenity Indictment on the merits.

United States v. Whorley, 550 F.3d 326 (4th Cir., 2008), cert. den. 130 S.Ct. 1052.

    Mr. Whorely was sentenced to 20 years in prison, largely because of cartoons. Whorley was convicted of knowingly receiving on a computer 20 obscene Japanese anime cartoons in violation of 18 U.S.C. ¬ß 1462. They happened to depict minors engaging in sexually explicit conduct (that is, they contained drawings and text, but no pictures of these things). The fact that the cartoon featured drawings of minors is not very important to the statute which mentions nothing about children. It's just about receiving - including downloading - obscene matter. Yup. There is a little-known and seldom used statute on the books establishing a five-year felony for downloading obscene materials. Title 18 United State Code Section 1462, buried under subsection (c) where it's not exactly up front and obvious. No, it's not by any means limited to child pornography. Just old-fashioned, plain-Jane obscenity is what it covers.

    It says, "Whoever knowingly takes or receives, from such express company or other common carrier or interactive computer service (as defined in section 230(e)(2) [1] of the Communications Act of 1934) any matter or thing the carriage or importation of which is herein made unlawful‚€” Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter." In general, the DOJ keeps this statute quietly stored in the backroom annex of its arsenal, dusting it off once in awhile, and putting it into use only when somebody can't be charged or convicted of a real child pornography offense - and that's what happened to Mr. Whorley. 

    The trial judge and the Fourth Circuit looked at Stanley and held that it did not establish a right to receive obscene materials, but only the right to possess them in the home. In doing so, they cited a long line of cases subsequent to Stanley in which mainly commercial pornographers caught moving obscene or allegedly obscene materials red-handed alleged that they had standing to argue the rights of their customers to acquire; they got no sympathy from the courts; the courts would have found it difficult to resolve the issue on grounds of their standing to assert the customers' rights, and so the right was narrowed. But in the context of an individual receiving material via the Internet in his home, there was no precedent whatsoever. As the dissent points out, the result dished out to Mr. Whorely requires an entire evisceration of huge chunks of Stanley that eloquently defend the right to "receive" ideas and absorb them in the home. En banc review was futile. The Supreme Court denied certiorari. 

    So long as this issue is limited to the case of people in the vicinity of pedophilia, there will be no sympathy and this law will remain in force and effect. And you can count on the fact that it will never be used outside that context, for were it to be applied to any other kind of pornography, the screams across the land would be so loud that, in short time, all of the obscenity laws would be repealed. Of course, that's what it would take to get the public agitated enough to drown out the feeble drones of the Bible-Thumpers and get the obscenity statutes repealed because of the outcry from normal American people when they see for the first time what the government is holding over the heads of red-blooded, normal Americans who access porn on the Internet. So long as it's only used against people with cartoons featuring drawings of Japanese children, the public won't be moved. But nobody wants their son or daughter to go to prison and to be afflicted with the lifelong stigma of a federal felony conviction because they were caught at their laptop downloading videos of grown-ups doing sexual things. This is a nearly secret law that would never survive the democratic process were the public to learn of its existence. As for Mr. Whorely, can you imagine spending time on the playground as a kid with that name in school? He gets my sympathy on that basis alone.

United States v. Killbride,  584 F.3d 1240 (9th Cir., 2009)

   The Ninth Circuit determines that the "contemporary community standards" - to be applied to alleged Internet distribution of  obscene materials under the Miller test - is to be a nationwide standard rather than a local standard, finding this conclusion to arise from its reading of the fractured opinion of the United States Supreme Court in Ashcroft v. ACLU, 535 U.S. 564 (2002). The Ninth Circuit's conclusion has been rejected by the two later courts which considered it, the 11th Circuit in Max Hardcore's appeal of his obscenity conviction, and the United States District Court for the District of Columbia in disposing of a pre-trial motion in the trial of John Stagliano (the "Evil Angel" case), which ended in a dismissal amounting to an acquittal. Both cases are set out here. This Opinion did no good for Mr. Killbride; the Ninth Circuit said that any objection to the erroneous jury instruction was waived by failure to object at the time.

United States v. Paul F. Little (The Max Hardcore Case),  2010 WL 357933 (11th Cir., 2010)

    The Ninth Circuit's determination in Killbride that when Internet distribution of the allegedly obscene is tried, "nationwide community" standards need be applied under the first and second forks of Miller, and Judge Lancaster's Extreme Associates view of an emerging right of sexual privacy under Stanley and Lawrence, each received a one-two punch during early and mid-February, 2010. The first came from the Eleventh Circuit in affirming Max Hardcore's obscenity convictions. In doing so, it expressly rejects the proposition that Lawrence has created a new right of sexual privacy, emphasizing that the conduct protected from criminal sanction in Lawrence was private, not public conduct; it considers, and rejects for the 11th Circuit, the holding in Killbride, that would apply a nationwide community standard in determining the elements of the obscenity offense as required in Miller; it finds that the central holding in Killbride depends on dicta, rather than a holding, of the Supreme Court. It casually dismissed the defense objection that small video clips were indicted and tried in isolation from the context of the website, alleged to be the "work as a whole" from which they came. [The Department of Justice engineered similar indictments in the Extreme Associates case, naming as obscene short videos in the neighborhood of twenty seconds duration.] In doing so, the court appeared to put a burden on the defense to demonstrate that the isolation from context would make a difference in how the video was perceived and thereby ignoring the apparent mandate of Roth and Miller that only entire works are the subject matter of obscenity. The superficiality of the assessment regarding this issue was made clear by the court's observation at footnote 11: "If an art critic were asked to judge the quality of the Mona Lisa he would not consider the Louvre part of the work." Indeed. But Michelangelo did not paint the entire Louvre, he did not create it, and would have had no idea that it would become part of the ensemble there displayed. In distinction, the defendant in this case created a website and several isolated elements were taken out of their context for consideration by a jury.

U.S. v. Stagliano,  693 F.Supp.2d 25 (D.D.C., 2010)

    The second one-two punch to Killbride and Judge Lancaster's Substantive Due Process protection of sexual privacy as articulated in his Order in Extreme Associates,  came from District Court judge Richard Leon sitting in the District of Columbia as he denied the Defense motions to dismiss. In Stagliano's case, an order of dismissal, tantamount to an acquittal, was entered in the end, and so there was no opportunity for an appeal of these discouraging determinations. District Judge Leon also makes a mishmash of Defense arguments concerning the Miller requirement that the obscenity of a work be judged "as a whole". Here, as in Max Hardcore's case and in Extreme Associates, the government indicted trailers and other very short videos, some of them under 30 seconds' running time, excerpted from websites. Judge Leon confused the difference between judging a work as an entire thing (as intended by its author to be published and/or marketed, and as also understood by the consuming public, which is what "work as whole" naturally means) and the environment in which it is displayed, which may not always be relevant to the intended and perceived dimensions of a work. He believed that it was enough to consider its "context" which is a matter quite different from its entirety. In both cases mentioned, the videos were elements of a bigger whole, a website, to which persons might subscribe and thereby be entitled to view all of the elements of that composite work. The videos charged were not for sale individually nor intended to be distributed to the public alone. Accordingly, they were elements of a greater work intended to be consumed, published, and distributed as a whole, a work which was not indicted or put on trial. On the other hand, the environment in which a work appears, for example a DVD adult title on sale at a swapmeet or flea market, may be entirely immaterial to a judgment about obscenity. "Context" and "work as a whole" are different things. (There is more about this case below, in the area concerning procedural issues in obscenity cases.)

II. Procedural Obscenity Cases. Cases about the procedures that government may use in obscenity cases - the seizure of allegedly obscene materials and their forfeiture - as the First Amendment may require a status and protection for expressive materials that is distinctively above and requiring rules more protective than the rules that normally apply to evidence and forfeiture in ordinary cases dealing with nonexpressive materials such as drugs, weapons, and other contraband. This topic includes cases where special protections for expressive materials were rejected.

     Marcus v. Search Warrant, 367 U.S. 717 (1961)

    In this early search warrant case, the Supreme Court reversed the Missouri Supreme Court. A fairly conclusory affidavit of a police officer who had made undercover "buys" of mens' magazines led to the issuance of a broad and unconstrained search warrant authorizing the seizure of all obscenity. Under the Missouri procedure then in effect, an adversary hearing about the obscene nature of the publications was to ensue not later than 20 days after seizure, the materials there determined to be obscene were to be destroyed and the remainder were to be returned. No provision in the law constrained the time which the judge might consume before rendering his opinion. In this case, about 11,000 copies of 280 publications, taken from six locations, were seized. In each case, all copies of a particular publication deemed obscene by the officers were taken away. A hearing was conducted thirteen days after seizure and the judge issued his order just longer than two months after the seizure, finding 100 of the publications obscene and the remainder nonobscene. 

    The majority considered the historical background of the Fourth Amendment, recounting the history of English law, and in particular the Star Chamber and the ecclesiastical authorities under the Protestant Tudors, highlighting that our Fourth Amendment was intended as a bulwark of Liberty intended to avert such censorious tactics here. The Court said of the procedures used here in Kansas City: "The warrants gave the broadest discretion to the executing officers; they merely repeated the language of the statute and the complaints, specified no publications, and left to the individual judgment of each of the many police officers involved the selection of such magazines as in his view constituted 'obscene . . . publications.' So far as appears from the record, none of the officers except Lieutenant Coughlin had previously examined any of the publications which were subsequently seized. It is plain that in many instances, if not in all, each officer actually made ad hoc decisions on the spot and, gauged by the number of publications seized and the time spent in executing the warrants, each decision was made with little opportunity for reflection and deliberation. . . They were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity." 

    This fact pattern was repeated in an essentially identical fashion in the Mike Jones Case in McHenry County, Illinois, successfully handled by this office, and the evidence was suppressed in that case for precisely the same reasons. No constitutional right is more than dried ink on what George Bush called a "goddamned piece of paper" until a trial lawyer makes it live and breathe in a court of law. 

    The Court noted that it had previously held in Smith v. California, 361 U.S. 147, that that a State may not impose absolute criminal liability on a bookseller for the possession of obscene material, in the absence of guilty knowledge or intent. Later cases made it clear that a "general knowledge" of the sexually explicit nature of the content is enough to make out a crime, not actual knowledge that material is obscene. 

 Stanley v. Georgia, 394 U.S. 579 (1969)

    In a police incursion into Mr. Stanley's home based on a search warrant, arising from allegations that he was a bookie, the police found "very little" evidence that he was a bookie as they rummaged through his desk and other private places; but they did find three reels of 8mm movie film containing sexually explicit material. He was charged with and convicted of knowing possession of obscene materials in his home. The Supreme Court reverses in an awesome opinion articulating freedom of conscience, freedom of privacy, and freedom to read. The court held: "Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. 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. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." Its apparent broad defense of personal liberty was substantially undermined by the Supreme Court's narrow reading of its holding and reasoning four years later in Paris Adult Theatre, above, and 12 200-Ft. Reels of Film, below. The court has also made it clear that no right exists to possess or view child pornography in one's home or anywhere else.

United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971)

    In the opinion of some of the justices, a retreat from Stanley. This concerned commercial importation of obscenity; a three-judge district court determined that the statute authorizing impoundment and forfeiture of obscene material discovered at the border was unconstitutional because it was unconstrained as to duration of the process and because of a claim that there was an implied right for commercial handlers to import obscene materials so that individuals might possess and use it, as is their right within their homes under Stanley. Reversed. Five justices agreed that a reasonable time constraint could be read into the statute, and they legislated - there is no other word that fairly describes what they did - that a forfeiture complaint must be brought within fourteen days of seizure and decided within 74 days unless the delay is attributable to the defense. This is an example of incredibly aggressive and patent judicial activism for a morally/socially conservative result. The best-known language from this case is the dissenting observation of Justice Black that the majority's refusal to find an acquisitive right to obtain obscene materials in the holding of Stanley reduces that case to mean that it applies "only when a man writes salacious books in his attic, prints them in his basement, and reads them in his living room."

United States v. 12 200-Ft. Reels of Film413 U.S. 123  (1973)

    Decided the same day as Miller. This case arose from a tourist's noncommercial importation of 12 sexually-explicit movies from Mexico which were detected upon arrival at Los Angeles International Airport; they were conceded to be legally obscene. The defense argued that Stanley, protecting the private noncommercial possession of obscene materials in the home, gave rise to a co-relative right to import or otherwise acquire obscene materials for private home use. The District Court invalidated the statute under which the films were seized by the Border Agents. The Supreme Court reversed, holding that Stanely's holding was a concession to personal liberty in the home alone and that it did not imply any right to import obscene material or to transport in interstate or international travel. 

    Roaden v. Kentucky, 413 U.S. 496 (1973)

    Roaden determined that, in the absence of "exigent circumstances" suggesting that the film would be destroyed or concealed so as to eliminate the ability of law enforcement to use it as evidence, it was absolutely necessary - in order to seize an allegedly obscene film - that a warrant be secured first, because the seizure of a film being played for an audience on a regular basis was a prior restraint on speech. All speech is presumptively protected until it is determined to be unprotected by judicial action, and the discontinuation of its expression, in the absence of judicial determination, violates the constitution. In this way, allegedly obscene material is quite unlike ordinary contraband, such as illegal drugs, which may be seized upon plain view by law enforcement. Citing its prior case of Stanford v. Texas, the Court called for "scrupulous exactitude" in construing whether the particularity requirement of the Fourth Amendment had been met in any warrant calling for the seizure of expressive materials, the essential point being that nothing should be left to the discretion of the officers executing the warrant. It was precisely on this issue that this office secured a suppression of all of the evidence in the obscenity prosecution of Mike Jones in Illinois, leading ultimately to the dismissal of all charges against him. The heart of Roaden is the reasonableness requirement of the Fourth Amendment - what is reasonable in one context may be unreasonable in another, in the law of search and seizure - and expressive materials are entitled to greater protection, at least when they are in the channels of distribution, when their seizure will terminate the expression, and when no exigent circumstances exist.

Heller v. New York, 413 U.S. 483 (1973)

    The Supreme Court here rejected an argument that no film, alleged to be obscene, might be seized by law enforcement, without a prior adversary hearing in which a judge might determine obscenity as a preliminary matter after hearing evidence and arguments both from the state and those who stood for the film. Instead, they determined that such a seizure, under a warrant issued by a judge in an ex parte proceeding, passed constitutional muster, provided that there was an opportunity for a prompt adversary hearing within a short time after the seizure as authorized by the warrant, and further provided that, on the request of those standing for the film, a copy might be made so that the presentation of the film would not be unreasonably interrupted pending final judicial determination of obscenity, a consideration to the doctrine that all expression is presumed to be protected expression, and that no prior restraint on expression should take place prior to a final determination that the matter is not protected (in this case, non-obscene) expression. 

    Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979)

    A unanimous decision written by Chief Justice Burger on some really peculiar facts. The undercover PornoNarc approached the magistrate with an affidavit for a warrant, which was signed in blank by the magistrate after the PornoNarc had the testicularity to suggest that the magistrate accompany him to the "adult" book store [quotation marks here belong to the Chief Justice, not me] and make an on-the-spot determination of what was and what was not obscene - what was fit for judicial confiscation. The Supreme Court understood why this tactic was employed - to "telescope" the procedure for determination of probable cause. But the tactic was based on profound misunderstanding. The court held that, whether or not the store was open to the public, the operation that took place in that store, beginning with the arrest of the clerk (who could not thereafter be said to voluntarily consent to the search) and ending six hours later was an unreasonable and constitutionally infirm general search prohibited by the Fourth Amendment - and that the magistrate had, in effect, become a law enforcement agent, surrendering his impartiality by becoming part of the hit squad. 

    Walter v. United States, 447 U.S. 649 (1980)

    Another fractured decision from the Supreme Court - in this case, reversing the Fifth Circuit on a search and seizure issue. An express parcel containing pornography had been delivered, by mistake, to someone who was not the intended recipient. That party opened it, discovering pornography, and called law enforcement, in this case, the FBI. In Walter, the material was movie film, which the recipient held up to the light - which he found to be male homosexual porn. Without projecting it, he did call the FBI. They projected it, deemed it obscene, and charges and a conviction ensued. The Supreme Court, using older cases about luggage, requiring a warrant before opening these closed or locked containers even when law enforcement possessed probable cause, analogized to hold that the projection of the film required a warrant, because it was a separate search by law enforcement, following, but not protected by the earlier civilian examination, which itself was not governed by search and seizure rules that apply to law enforcement action. Two members felt that a different - and adverse to the defendant - result would have obtained, had the wrong recipient actually projected it himself, because he was not a law enforcement agent - two members felt that would have made no difference - and a fifth justice merely concurred in the outcome. This case is of interest to those who litigate the privacy of portable computing devices and cell phones.

    Maryland v. Macon, 472 U.S. 463 (1985)

    Undercover porn narcs walked into this business establishment, purchased some allegedly obscene magazines, arrested the clerk, escorted the patrons out of the store, and effectively closed it down. Macon's motion to suppress was denied and he was convicted; on appeal, the intermediate appeals court reversed the conviction on search and seizure issues, deeming that evidence to be the fruits of an unlawful search. The Supreme Court granted certiorari in order to resolve a dispute among state courts as to the legitimacy of undercover police operations, "buy" operations in adult book stores. The Supreme Court found no Fourth Amendment problem when the police go undercover into a store open to the public and do precisely what the operator of the store seeks from the public, the purchase of his wares. The Supreme Court found this to be no seizure at all, as the Fourth Amendment means that term. This decision must be carefully read by anyone operating an adult website who plans to run a warning page which he or she intends to block the possibility of lawful entry into the site by investigators not armed with a warrant. The effectiveness of any such language, in conjunction with the law of computer trespass, will be closely assessed by recourse to the language of this case. If freedom means anything, it is the right to tell law enforcement officers, "No" when you have a legitimate right and reasonable expectation of privacy. The high court dodged the issue of the arrest - refusing to answer the still-open question as to whether the distributor of alleged obscenity may be arrested without a warrant. The dissenters had a great deal to say about that. 

    New York v. P.J. Video, 475 U.S. 868 (1986)

    This case seems to be a general retreat from the line of cases that reached its summit in Roaden, above. Involving some fairly popular, mainstream porn, including Debbie Does Dallas, the Supreme Court held that some fairly bare-bones affidavits describing some of the sexual conduct depicted in some of the films in law enforcement crosshairs were sufficient to give a magistrate probable cause to issue a warrant. The magistrate never saw the films and the court expressly held that he need not see them, but might rely on the sketchy affidavits; these affidavits did not even attempt to summarize the actual content of the films, their intended wit, plotline, characterization, or all of the rest of what they teach in film school. I've seen Debbie Does Dallas - twice - the second time at a Dollar Movie night while I was a student at the University of Wisconsin - and it was heads and shoulders above normal online pornography seen today in all of those respects. It was entertaining and funny. No hint of that exists in the affidavits, and the Dissent makes it clear that a simple inventory of sexual connections would most seriously mislead someone about the meaning of some serious, perhaps important, films. The court, despite some contradictory language (as I read it) in earlier cases, squarely holds that the notion of what probable cause is, for the purposes of expressive material, is no higher standard than what probable cause means in any other kind of case, including those that concern drugs or guns. Speaking a bit from both sides of its mouth, the majority still holds that the magistrate must "focus searchingly on the question of obscenity" and that the exigency exception to the warrant requirement may not be used if the seizure would substantially impair or restrain the publication of the expressive work. The court reaffirms that a conclusory affidavit - expressing the officer or agent's opinion that the work is nasty and indecent and obscene - is not enough, but that facts must be presented. All that's fine, but how's a magistrate to "focus searchingly" without a context from which to judge the work as a whole, relying only upon a catalog of plumbing connections?

     Arcara v. Cloud Books, 478 U.S. 697 (1986)

    The Erie County adult book store at issue here had been long identified as a locale in which prostitution and myriad other vices habitually took place and the County sought its closure as a public nuisance. It prevailed in the trial court and in the intermediate appellate court, but New York's highest court reversed on First Amendment grounds, finding that United States v. O'Brien, 391 U.S. 367 (1968) (a draft card burning case) applied and that the county had not employed the least restrictive means of protecting its substantial interest (as O'Brien was read to require) when the activity in question has both expressive and nonexpressive elements, without offense to the continuation of First Amendment-protected expression in this book store. The Supreme Court determined that O'Brien simply did not apply to this situation, and First Amendment analysis was inappropriate, because, though it arose out of a statute unconcerned with expression (as did the draft card burning case), the conduct deemed to be nuisance, and which the country sought to abate, just did not have any arguable expressive component. Well, everyone knows that the operation of a book store is expressive, and that its closure does have an effect on expression. So, in the high court's view, I think, what made the critical difference was the perception that the enforcement here was not intended at expressive conduct, and that the effect on expression was logically remote. To sidestep O'Brien, relied upon by the New York court it reversed, the Supreme Court necessarily engaged in a great deal of shuffling of its feet. The majority just wasn't impressed that this was the use of an indirect tactic to achieve the suppression of pornography, but rather the pornographer's assertion that its expressive activity insulated them from the same kinds of sanitation/public order rules that apply to everyone else. That's precisely the focus of the concurrence in this case written by O'Connor and joined by Stevens - who state, flat-out, that if they thought the action here was pretextual in order to suppress the expression of the book store, they would have come down the other way demanding First Amendment scrutiny. (So much for the language in other cases such as Renton that intentions don't count!) They state that the record below, from the trial court, has no evidence that this was a pretext to close down the book store based on its handling of indecent materials. I think that this case presents some serious impediments, by analogy, in the path of those who are working to invalidate 18 USC Section 2257.

     Alexander v. United States, 509 U.S. 544 (1993)

    This is a RICO obscenity forfeiture case in which the United States Supreme Court upheld, against a formidable First Amendment constitutional challenge, the validity of an order forfeiting all of the store inventory and assets of Ferris Alexander's adult bookstore, including many materials that had never been determined to be obscene by any judge or court at any time. The Court was urged to consider that this was a prior restraint of presumptively-protected speech, but the Court evaded that conclusion by stating that Mr. Alexander was free to acquire the same or similar materials and publish them, what I consider to be a fairly cynical evasion or diversion from the issue. It used Arcara, above, heavily in its justification.  It was remanded to Eighth Circuit on the issue of whether the forfeiture was excessive. 

     State v. Ciancanelli, 339 Or. 282, 121 P.3d 613 (2005)

    This is a very hard case to fit into the structure of this list because it concerns live sex shows performed for audiences which were proscribed under an Oregon statute addressing live performances rather than an obscenity statute. At issue was the meaning of the Free Speech provision of the Oregon Constitution and its 1857 ratification convention. The Opinion goes to basic principles about the meaning of the freedom of speech guaranteed in the United States Constitution, particularly whether it was intended to do no more than to prevent prior restraint of speech, allowing civil recovery and/or criminal punishment for such "abuses" of speech as sedition and blasphemy. That was the view of American legal scholar Blackstone, whose name is associated with a famous legal dictionary and a Commentary of historic importance. But it also tells the Nineteenth Century story of a different view of freedom of speech, coming from a Natural Rights point of view, and embraced by at least one court that dealt with the Alien and Sedition Acts and both the abolitionist movement and the settlers of the West, a perspective which understands the constitutional right of free speech to be part of the basic package of Liberty retained by citizens nothwithstanding any supposed social contract and which ensures that one may say whatever one wishes without penalty or redress unless there is harm to the fundamental rights of another person; the Oregon court examines the enactment of the Oregon Constitution and concludes that its intent is that speech may not be punished as speech itself to protect some amorphous general public policy of the state without a particular victim. It observes: "Although we tend to associate the notion of natural, inalienable rights with the founding of our nation, it is important to note that that idea continued as an important legal and political philosophy until the latter part of the nineteenth century." The Court allows that the framers of the Oregon free speech provision did not intend to affect speech crimes that were well-defined and historically excepted from the reach of the constitutional provision, such as solicitation of a crime or subornation of perjury, but it finds that the mere existence of a statutory crime at the time when the provision was adopted does not establish that the framers intended it to remain valid; the Oregon Supreme Court holds that the framers of the Oregon Constitution expected that some offenses were abolished by the adoption of that state's constitutional free speech provision. 

    This is an amazing case, not only because it reversed the relevant conviction for presenting the sex show in question, but because it tells the seldom-told story of the natural law perspective of Liberty, part and parcel of the foundation of American political tradition, which in most times and places has been jettisoned by the Do-Gooders in politics over the past ninety years or so, people who aim to achieve heaven on earth by reforming man's nature whether he likes it or not, at the expense of personal autonomy. It started with the Comstock Act dealing with the mailing of "indecent" items and ultimately developed to proscribe (or sharply regulate) gambling, narcotics, alcohol, marijuana, tobacco, prostitution, whether a restaurant may serve fois gras, how we may put our dogs down, whether we must wear a seatbelt or a helmet, whether we can arm ourselves against criminal muggers, and a seemingly endless list of more subtle invasions of personal choice. None of these things were illegal until the Do-Gooders came to power. If, during Prohibition, the government had the surveillance tools available to it now, there is little doubt that possession of alcohol would still be a crime. When any state tolerates a full-time legislature, it will create laws to control its people full-time. At least Congress still left the empty promise of Liberty on our coins. In the end, the Do-Gooders will succeed as little as Marx, Engels, and Lenin did in their attempts to reform human nature, but their non-stop efforts at protecting us from ourselves and bettering our nature rip down the fabric of our success through their every initiative, at the same time fertilizing the soil in which criminal empires thrive. We became a great and powerful nation not because we were the most well-behaved, best-regulated and most highly moral people on the planet, but the opposite, we became great as a nation because we enjoyed the most personal freedom. 

 United States v. Adams, 2009 WL 2196796 (4th Cir., July 24, 2009)

   Nonprecedential, per curiam decision of the Fourth Circuit coming out of West Virginia. The Court of Appeals affirmed the conviction of the defendant for the distribution of obscene materials involving animals. Two issues were presented on appeal. The first was whether, by failing to publish the videos - that is, by not playing them in their entirety to the jury - there was sufficient evidence to convict him when the Miller Test requires scrutiny of the "work as a whole". Apparently, the Public Defender representing Adams failed to ask they be played in their entirety and it was not asserted in the trial court or on appeal that the segments played were uncharacteristic of the whole from which they were excised. Second, the trial judge declined to admit evidence of "comparables", that is evidence that the same or similar materials were available in the District via the Internet. The per curiam decision employs some unfortunate language, at length, stating that mere availability does not equate to community acceptance, and chooses to employ a most unfortunate metaphor, saying that an absence to complain when complaining won't do any good does not evidence a community value: the court says, "The District of Columbia had over 350 murders in 1989, but to say that the citizens ‚€œtolerated‚€� this epidemic of homicides would misuse the word." Had the court thought the issue through, it might have realized that the residents of the District employ a full-time police department to investigate and prosecute every criminal homicide, and that's precisely why it cannot be said fairly that the District does not tolerate murder. Toleration is no element of murder; it is a critical component of two elements of the offense of obscenity. That the citizenry does not rail and protest and demand prosecution for materials known to be available in their jurisdiction goes precisely to the heart of two elements of the offense that was alleged against Adams.

United States v. Goldman, CR-08-98-BLG-RFC (D.Mont., March 30, 2009)

   The strange and disturbing tale of Barry Goldman, a pornographer who exhibited at the AVN AEE Show in Las Vegas in January, 2006, when he was visited by an undercover FBI Porn Narc to whom he gave a flier. In a monitored conversation seven months later, she ordered a series of the hard-hard BDSM content produced and sold by Goldman including "Punishment of Crista"; "Porn Store Girl"; "Bondage Model #1"; "Bondage Model #2"; "Breaking of Crista"; and "Defiant Crista" but these were never charged against him after their delivery to a Virginia post office box. Then, in the ensuing two months, another FBI Agent submitted two orders to Goldman with requests that the same three videos, "Defiant Crista Submits"; "Torture of a Porn Store Girl"; and "Pregnant and Willing" be sent to two addresses in Montana, one in Emmigrant and the other in Billings. It looks like only one shipment showed up in Montana; it was picked up by a local FBI Agent and sent back to Virginia where it was reviewed by the Obscenity Task Force personnel. They convinced a federal District of Montana grand jury to indict the material in Montana, a place where Barry Goldman had never so much as visited. In due time, he was arrested, a transportation hearing was conducted, and he was transported to face charges out in the Rockies from his New Jersey home. So, the crime was set up in what the Task Force took to be a conservative venue far removed from where Goldman's activities actually took place, entailing substantial expense and inconvenience. In fact, Goldman could not afford to defend himself and so it fell to the taxpayers to fly him back and forth and to provide him with legal defense. 

    Goldman moved for a transfer to New Jersey under Federal Rule of Criminal Procedure 18; the court granted it, saying:  "[T]his Court is concerned with taking up Montana Court time with out-of-state defendants, who could potentially be prosecuted elsewhere. Defendant has never had any contact with Montana." The Task Force took this as an outrage and filed an appeal; a short time later, without fanfare, the Obscenity Task Force withdrew its appeal, citing provisions in the US Attorney's Manual that it had apparently not earlier considered, suggesting that the case should never have been set up and indicted in Montana in the first place. It's my conclusion that the DOJ personnel who wrote the US Attorney's Manual had a better understanding of simple and plain justice than the Task Force. At last word, Goldman intends to plead and the Task Force has been disbanded.

United States v. Stagliano, 2010 WL 3119385 (D.D.C., Aug. 4, 2010)

    This is Judge Leon's Order refusing to require the prosecution to publish the charged videos to the jury. He holds that it is not necessary to view a video from beginning to end in order to judge it as a whole. The conclusion that cannot be escaped from a close reading of all of his rulings in this case is that he is a blazingly brilliant individual who sometimes suffers from a catastrophic failure of common sense; a judge who loses track of the forest because some trees block his view: there is utterly no basis by which any long work can be judged by isolated fragments of it (and particularly not when the selection is made by a party wishing to convey its bias); nor is the ability of an opposing party to add more fragments any substitute for an entire playing of a video work in the manner it which it was intended to be viewed, as a whole. He said, "The juror's task, therefore, is to view the potentially obscene parts of the work in their proper context and, in so doing, to judge whether the work appeals to the prurient interest and whether it lacks serious literary, artistic, political, or scientific value." Nope, not a word of that is true and no cases so hold: the task of jury is not to view parts but to render judgment on a whole, a task impossible without scrutiny of that whole. 

    He goes on, "Thus, it was no surprise that the defendants could not cite a single case from the Supreme Court or from our Circuit that requires the jury to watch every frame of a movie or read every word of a book or view every page or picture in a magazine to satisfy the 'as a whole' element of the Miller test." To the contrary, it appears that Judge Leon may be one of very few judges in U.S. history audacious enough to so mangle the right to a fair trial in an obscenity case as to refuse a defense request that the entire work at the heart of the indictment be presented in open court. That's why the issue has not been adjudicated sufficiently to appear in the case law. In fact, a conviction was reversed in Chicago because a part of the closing credits was unaccountably missing and could not be played to the jury. The only other judge to do what Judge Leon did here, to my knowledge, was the District Judge in the Max Hardcore case. I would commend to their reading the preface of Author Stephen King to the unexpurgated version of The Stand; Judge Leon will there find a simple explanation of storytelling that explains what riches lie in the details of any story. 

    I don't know what Judge Leon expected to be contained in these videos, but he engaged in downright silly behavior concerning the playing of these fragments. I was personally present in the courtroom and watched from the bleachers. Though the screen displaying the video fragments to the jury was visible to the spectators, he made elaborate precautions concerning the audio, which was not played aloud in the courtroom. The principals of the trial and their attorneys had headphones, and one set of headphones was made available to a representative of the press, who was kind enough to pass it around to the dozen-odd reporters covering the trial. The general public was deprived of knowing what was said and what sounds were heard in this purportedly-public trial. And, of course, all of this strange behavior with respect to the isolation of the videos in the context of a public trial would have undoubtedly have suggested things about those videos to the jury in a manner prejudicial to a fair trial; treating the videos as though they were bodily fluids containing pathogenic organisms cannot help but affect a jury's consideration of those videos - in a manner prejudicial to the defense. Excusing children under the age of eighteen from the courtroom would have been enough. When decorum interfaces with the right to a fair and public trial and where those two values stand in dynamic tension, decorum must always yield to fundamental fairness and the public's right to know what manner of justice is administered in its name. 

    The illogic of the Order set out here evidences the bizarre thinking and conduct of a judge who is otherwise quite dazzlingly smart. I don't know what he was afraid of, but he learned at trial, if he did not know before then, that these videos, though explicit, were hardly very extreme. Perhaps he was recoiling from how the court was set up - by the prosecutors - to believe that something truly obscene was involved in this case when, a few days later, he took this matter from the jury and effectively acquitted the defendants. Just maybe, perhaps, this very smart judge was expecting the videos to contain depictions far more grossly offensive than they turned out to present, and perhaps the government, which may have led him to so believe by its purple prose, may have paid a price for that in his dispositions dismissing the whole prosecution case. 

    The Task Force prosecutors may also have paid a price for the suggestion of an improper out-of-court comment by the judge before trial - from which they backed down when it became an issue, and the inept recording of the online videos of the website, which their FBI Agent witness could not get to play in open court. All of this may have contributed to how Judge Leon decided some difficult issues on the defense motions to dismiss at the conclusion of the Government case, when he really might have gone either way with respect to at least some of the defendants. 

    Little (perhaps nothing) of what mainstream society would judge to be frankly perverted appeared in the selections played in court. The most memorable selection depicted large glass bottles of milk being poured over the frolicking performers.  One other bit of dialog sticks in the mind, and that was the use of the "N-Word" by a busty, blonde female performer, looking at male Black performers with on-camera lust and with laughter in her voice. We will never know whether that line alone determined why the Government chose to bring this case to trial in the District of Columbia (among the hundreds of other venues where it might have been prosecuted) and to play that segment before a nearly-all-Black jury, and we will never know what opinion Judge Leon might have formed about the Task Force's motivation in bringing its case into his DC courtroom; we can only speculate as to what extent his final decision was shaped by a prosecution effort that misfired so badly that it could not get its evidence from the Internet to play in court or establish any connection between John Stagliano and the materials distributed in his name. 

United States v. John Stagliano, 729 F.Supp.2d 222 (D.D.C., 2010)

    This is Judge Leon's Order ruling that the testimony of the Defendant's two expert witnesses to be inadmissible. The first was a clinical psychologist who, from his clinical practice in Washington, DC, and from discussions with his patients about the consumption of sexually explicit materials, a matter often not discussed in public or among strangers, could testify that he had a knowledge of contemporary community values in respect to explicit videos better than the average juror, and who was ready to testify that the videos in question did not exceed the tolerance/acceptance of the DC community. Judge Leon pointed to the mainly upper middle class economic nature of his patient base and its aggregate level of education and determined that this expert was as likely to mislead the jury as to the true state of affairs concerning community values as to give helpful evidence. He was also offered to testify as to the useful value of these kinds of materials in overcoming pathological over-sensitivity about sex among his patients. Judge Leon found no generally-accepted science behind this proposition and refused to permit him to testify.  The defense also offered Professor Constance Penley, an art professor at UC Santa Barbara, to testify that the charged works possessed artistic value for the purposes of the third fork of the Miller Test. It appears that Judge Leon found her testimony to be evasive and inconsistent and lacking enough of a foundation in some comprehensive view or what art is or is not, that he thought that her testimony would be more confusing than helpful.  

    My own thought, coming from statements in the various orders issued by Judge Leon and his statements on the bench, is that, for a long time, he considered this case overlitigated and made overly complex by the defense team. (In doing so, he betrayed a huge underestimation of the real complexity of the issues - and the critical principles of Liberty that they concern.) He displayed an attitude that reflected a belief that the case was cut-and-dried; his various written opinions drip with cynicism and sarcasm aimed at defense counsel, writing footnotes contrasting their actual conduct in regard to evidence with statements they made about that evidence in motions. In denying this motion, he probably thought that he was blowing away a confusing smokescreen that the defense had engineered to camouflage some run of the mill disgusting porn that was obscene as charged. In point of fact, he was denying the defense a fair trial by denying its ability to use the best evidence available to it to refute the charges. 

    In any event, after he saw the fragments played by the Government, and endured its technical inability to play other fragments to the jury, and after the prosecutors almost mixed him up in statements made out of court, he got to the point, somehow, where he cured all of his many mistakes and tossed the case out of the courthouse door and kicked it down the courthouse steps. I guess that what's important is that he got it right in the end.


III. Time, Place, and Manner Cases. Chiefly concerning zoning and licensing of adult businesses and their operation.

     

Doran v. Salem Inn, 422 U.S. 922 (1975)

    This fairly complex case is about frankly technical matters and will more interest lawyers than the general reader. The basic concept, however, is a situation that can be a surprise trapdoor for adult operators. If club owners decide to violate a law enacted under state authority, such as topless dancing in this case, which they feel is violative of their rights under the federal constitution, they may - and are likely - to lose their opportunity to litigate their right in federal court - for, if they get a ticket or an arrest, because they may lawfully inject the issue of the law's constitutionality into their defense in state court -  the federal courts will defer and abstain from adjudicating those federal rights pending proceedings in state court. This principle, called the Younger Abstention Doctrine, is predicated on the assumption that state courts are just as able to determine rights under the Constitution and under federal law as federal courts are. (You'll remember that state court judges must also swear to uphold the Constitution and laws of the Untied States.) The complexity involved here is that three strip clubs began litigation in federal court to challenge the local law; a temporary restraining order was denied, and while all three parties were awaiting a preliminary injunction hearing, one of the defendants put on topless dancing and got a ticket. The prosecutor took the position that this stripped the federal court of jurisdiction over the entire matter. The federal trial court took the opposite position and held that none of the three lost federal jurisdiction. The Supreme Court held that, while the two parties who had avoided violating the law were entitled to litigate the constitutionality of the law in federal court, the operator who got a ticket could only litigate his issues as part of his defense in state court.  So, the smart answer is to avoid violating the state or local law that you, as an adult operator, feel is unconstitutional, at least until  you can get an injunction against its enforcement if you value the choice to proceed in front of a federal judge. 

     Young v. American Mini Theatres, 427 U.S. 50 (1976)

    This nasty little case emerged out of Detroit's largely futile efforts to prevent the erosion and destruction and decay of Detroit. That decay may never be completely understood, but porn had nothing to do with it. When elected leaders saw porn stores and movie houses in ghettoized neighborhoods, they supposed that the former prosperity of these neighborhoods had been destroyed by porn, at least in part. They put the carriage before the horse, mistaking effect for cause. The porn stores moved in because it's hard for landlords to find any tenants in rapidly deteriorating neighborhoods and landlords in prosperous neighborhoods don't want the controversy associated with adult stores if they can get more mainstream tenants. 

    They amended a prior existing slum abatement ordinance (which dealt with shoe shine parlors, motels, pool halls, and the like) and added the adult establishments into the list of the specially restricted businesses. Before this case was decided, it would largely have been regarded as unthinkable that any theater or bookstore in this free country, priding itself particularly on freedom of expression, could be treated differently in the law on the basis of the kind of books it sold, the kinds of movies it exhibited, or the content of either. 

    Five justices of the Supreme Court held not only that it was thinkable, but that it was valid. While referring to "government's paramount obligation of neutrality in its regulation of protected communication" it trotted out a litany of cases in which the content of expressive matter made the difference between its protection and its regulation in refusing an equal protection/due process attack on the ordinance. It added the regulation of regularly conducted adult businesses to the list, provided that the regulation did not extinguish this kind of expression. The plurality covers some fairly speculative turf when it says: "Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen's right to see "Specified Sexual Activities" exhibited in the theaters of our choice." Indeed. The four justices didn't see the same documentary about the military-administered brothels of Honolulu that I did on the History Channel, nor, apparently, did they know much about rest and recreation in Bangkok or Saigon during our war in Southeast Asia, and it's rank speculation as to what sexual freedoms have been on the mind of our fighting men throughout history. What a schoolchild understands about freedom is a poor test of what liberty for adults should mean in a free society. I do believe that a survey of fighting men, immediately before combat, as to whether it was worth their lives to preserve the right of government to discriminate against bookstores based on the books they sell would get few affirmative votes. Some of the language contained in the plurality opinion, addressed to the First Amendment issues, approaches the nadir of protection given to erotic speech: "[T]here is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression".

    The Court denied the plaintiffs the right to assert a vagueness challenge under the holding of Broadrick (though that case is normally applied in an overbreadth rather than in a vagueness context) and casually denies the First Amendment arguments. The Court's emphasis in this seminal case is that there is no evidence that the zoning scheme will affect the availability of adult materials.  When evidence of actual diminishment came before it later in Renton, below, it didn't matter much.

    This case, with language deprecating adult entertainment, later morphed in Renton to a full-blown analysis articulating that these discriminatory laws functioned in a manner neutral to the content of the books and movies and performances which supposedly justified the repression of the businesses that featured them, those laws supposedly addressing themselves only to the supposed adverse secondary effects that come from such adult businesses. This legal fiction, largely the product of cynical Republicans winking their eyes to the erosion of constitutional liberty, has been used nearly everywhere to keep adult businesses from opening and to close those that try. So much for another fiction I ardently believed in my youth - that the Republicans were the party trying to get big government out of the lives of people, to stop it from telling people what to do, and to stop it from destroying small business. The kind of "time, place, and manner" restrictions approved in American Mini Theatres are used cynically by groups antipathetic to honest and explicit sexual expression and their real aim is simply, like the Ayatollahs, to censor what adults can read and view. Their aim is to burden, afflict, and unreasonably control as much about adult businesses as they can get away with from sympathetic judges or judges too afraid of the supposed political clout of the Bible Thumpers to defend freedom. 

    Oh yes, they claim to be acting for the  alleged "protection of children", as they actually engineer schemes calculated to prevent any adults from seeing the material, too, and that is the first of two principal prongs of their tactics in this era. Then they trot out the junk-science of "porn addiction" and the shrill, anecdotal accounts of frustrated women who claim that porn destroyed their marriages; it's a lot easier for them to make such claims than to do the hard introspection about why and how a marriage became so dysfunctional that an image on a screen became more comfortable than intimate time with a spouse. As for the Bible-Thumpers, no, I'm not antagonistic toward religion at all. But they are delusional if they think that they find support for their antiporn Puritanism in the gospel: Jesus never uttered a word against pornography - though it abounded throughout the Roman world in his time. He did talk about looking at a woman with lust and about committing adultery with her in one's heart, but it's quite a jump from a picture (and what it sometimes induces) to a flesh and blood female human being and what she can invite. Jesus talked only about the latter. I find it difficult to believe that the Lord God wastes any time, out of his infinite store of time, with concern about whether his people watch porn and what they do with it. 

    These "time, place, manner" restrictions are aimed at cutting the heart out of the adult operations financially - like that in Lake County, Illinois, which was used to drive out the only two erotic dance clubs. The ordinance in Lake County, typical of many enacted in so-called conservative locales, requires that such a business close earlier than bars, that performers receive no tips directly, that the businesses remain closed on Pulaski Day and other local and political holidays, and never open on Election Day. It goes on to provide that no adult cabaret may function without four bathrooms; two for male and female performers and two for male and female customers. While the bars continue to serve liquor to people who will drive the rural and urban roads of that county, while some of those people will drive impaired and kill other people, at least the County will be free of the kind of moral plague reflected by topless dancing. Go figure. As mentioned above, his case also touches on the doctrine entitling litigants to express the unconstitutional application of a law against people not actually before the court, the exalted standing doctrine of Broadrick v. Oklahoma. The doctrine did nothing to help these litigants. This is a plurality decision with an Opinion joined in by four justices in toto and one justice in part. That left some mystery about the rationale until Renton, also presented here. The only good thing that can be said about Young is that only four justices joined in the plurality opinion.

Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) 

    This very important case stands for the proposition that a local municipality may not use its zoning code to wholly exclude from its jurisdiction uses of property that include live entertainment, particularly that they may not use these land use planning laws to exclude live adult entertainment, at least where any commercial enterprises are permitted. The Borough of Mt. Ephraim asked the high court to take pity on it as a small bedroom suburb, arguing that somewhere down the highway, a more suitable place could be found for a strip bar. The problem, however, with that kind of approach, is that every town would do the same thing, pointing the aspiring adult operator down the road as a consequence of the unpopularity of this kind of business with elected officials, assuring that virtually no strip joint would get to operate anywhere: this would render the First Amendment a sham. No municipality can say, "somewhere else, not here." They must all make allowances for it when they chose to zone. 

   Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)

   Another nasty "time, place, and manner" case in which an actual majority of the Supreme Court overturned the Ninth Circuit and upheld the adult use zoning restrictions imposed by Renton, Washington. This ordinance singled out movie theaters and ignored adult bookstores, massage parlors, and other kinds of adult business, and was thus attacked as "underinclusive". (It also ignored bars, shoe shine parlors, blood plasma sales points, pawn shops and numerous other kinds of business associated with decline in the urban quality of life, and the Court had nothing to say about that.) Though it left 420 acres "in all stages of development" available for adult theaters, as the Dissent notes, very little of that land was practically available for a theater; the dissenters thought it obvious from the record, inescapably, that this ordinance was directly aimed at the content which such theaters intended to show, that the recital of expected adverse secondary effects was spurious, and they found the conclusion just as obvious that allegations of the claimed harmful effects of the adult material was a pretext to censor. The Dissenters found it unfounded to apply a standard, used to judge laws that are not aimed at the nature and character of expression, to determine the validity of laws squarely aimed at a particular kind of expression.  

 FW/PBS v. City of Dallas, 493 U.S. 215 (1990)

    This fractured decision of the Supreme Court visits many issues in the regulation of adult-oriented businesses, but most importantly determines that the Dallas ordinance requiring licenses for adult operators was fatally flawed procedurally; both old, existing adult businesses and new business needed to obtain a special adult license to operate; though it required the chief of police to decide within thirty days whether the license should be granted or denied, it left the other departments, including health and fire, without any time limit; at oral argument, the city's best answer to a question about this unconstrained time limit was that applicants were given the phone numbers of these various departments when they submitted their applications; obviously, this imposes no time limit and this answer did not satisfy the court. The power to put the application on the back burner and to make no decision is the power to deny, and in the case of an expressive business, such as a theater or book store, that amounts to impermissible censorship, with the power of censorship vested in the hands of government bureaucrats. Justice Scalia wrote at great length, also, to expose his theory of pandering, under which a merchant who is proven to have distributed no obscene work at all, might permissibly be shut down, consistent with the First Amendment, just because he devotes a substantial portion of his stock in trade to sexually explicit, but nonobscene works. He was joined by no other member of the court.

    Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) 

    Indiana state law prohibited nude dancing in public, as it still does, because of this decision of the United States Supreme Court which upheld the statute even though expressive dancing was implicated because it was based on the "clear" authority of the state to regulate and protect public morals and order and because the "scant" requirements of the statute burdened the expression no more than was necessary to achieve the goal. The Court held that expressive erotic dance is protected by the First Amendment, though perhaps only marginally so, citing to Doran v. Salem Inn, 422 U.S. 922, 932; In deciding the issue, it applied the four-part test articulated in the draft-card burning case, United States v. O'Brien, 391 U.S. 367, 376-377, which rejected the proposition that symbolic speech was entitled to full protection under the First Amendment. The plurality opinion of the Court from Chief Justice Rhenquist held that the state, however, could do no more than require a covering of the privates, as in a T-Back or G-String, and pasties to cover the areolae on top. It could not require that more be covered. The Court found that the law was not aimed at the prohibition of an erotic message and that the requirement of some clothing did not importantly preclude the erotic message.  And so now, in venues such as Industrial Strip in Hammond, those areas are covered on stage, but maybe not in more private dance areas. 

     Baltimore v. Prince George's County, 58 F.3d 988 (4th Cir., 1995) 

    This Fourth Circuit case was decided by an en banc panel in the wake of FW/PBS v. City of Dallas, 493 U.S. 215 (1990) and necessitated reversal of its prior decision. After this case was first decided by the Fourth Circuit adversely to the plaintiffs, they applied to the US Supreme Court for certiorari; the Supreme Court vacated the earlier decision and remanded the case for reconsideration in light of its decision in the Texas case. On remand, the en banc panel reversed the earlier decision and gave the bookstore operator its victory. This case centers on the particular topic of time delay in obtaining official permission, a license, to operate an adult business. While the first decision of the Fourth Circuit treated the licensing scheme as a reasonable regulation of time-manner-and-place, the Supreme Court decision in FW/PBS made it clear that the delay entailed by the license application process was an animal to be judged under a different standard - in fact, to be judged as a frank prior restraint on speech. The power to delay such an application is, baldly, the power to censor, because, if the municipal officials never decide the issue, the expression can never lawfully take place. To cure this constitutional infirmity, the First Amendment requires that the time consumed in the application process be temporally constrained, that is, limited to a certain duration, and that the duration be relatively brief. In this case, eight months delay for the process - 140 days given to the city to decide or fail to decide whether to issue the license and the remaining time for judicial administrative review - was impermissibly long, not relatively brief. In cases of an unconstrained time limit or a duration that is not constitutionally brief enough, the entire licensing scheme is invalid, and the adult operator, if he is right, can simply crank up his business by ignoring the invalid licensing scheme and he will face no penalty for his failure to attempt permission under the invalid law. Of course, if he is wrong in his opinion and the licensing ordinance is actually valid, he is likely to be closed down and to face some serious fines.

DiMa v. Town of Hallie, 185 F.3d 823 (7th Cir., 1999)

    An ugly and cynical case from the Seventh Circuit that upholds a local law requiring that the town's sole adult business, an adult bookstore, remain closed during the same hours that liquor establishments are required to close. The litigation was commenced in the US District Court for the Western District of Wisconsin at a time before the Town of Hallie had, as it is required to do in these time-place-manner laws, established a factual predicate for the law by informing itself of and relying upon reliable information showing a problem related to the secondary effects an adult business on such things as property value and crime which might be appropriately addressed by such a regulation; Hallie later took action after-the-fact to consider and adopt the experiences of West Allis, an industrial/residential suburb adjacent to Milwaukee, hundreds of miles away. The record of enactment was also infected with comments of town board members overtly prejudicial to explicit adult expression and manifesting an intent against the bookstore that could only be called "hostile". None of this mattered to Judges Manion, Coffey, or Cudahy. Despite strong Supreme Court language suggesting that the use of content-neutral laws as a pretext to attack adult businesses because of their content is a serious problem that goes to the validity of government action, the Seventh Circuit instead relied on statements in Renton and O'Brien, ripped out of their context, to suggest that intentions just don't matter when it comes to the suppression and repression of adult businesses.  Because all the was at stake was the regulation of hours, and because the hours tracked those for bars, it was not hard for this holding to creep into the case law - and for the seemingly reasonable restriction in DiMa to be used later in Shultz, below, to pass as constitutional an ordinance that limited adult businesses to hours far more restrictive than those permitted liquor establishment. The Seventh Circuit went along with Hallie's late and remote factual predicate, even though it noted the West Allis experience to be pretty thin and only marginally related  - and it did so rejecting the adult operator's evidence showing no correlation at all between hours of operation and the alleged secondary effects. 

    Cynically, I think, the Seventh Circuit said that it wasn't for a court to judge what's true, but only to pass on the issue of whether there was any factual basis upon which the town council might have based a belief. To do this in the face of a town council that admitted that it would like to close this kind of business, but was regulating because that was the limit of its power to hurt the business, and which passed this law at a time when it had no evidence whatsoever in its possession that this could cure or ameliorate any problem at all is, for me, the nadir of judicial abdication of its duty to enforce the Constitution and its First Amendment. O'Brien analysis depends on the existence of a substantial governmental interest not related to expression and an assessment of how the law in question serves that purpose; it seems to me that intentions must count when the articulated purpose of the law is sham or pretext, and that this should be judged not only by unnecessary harshness of the regulatory scheme in relation to the articulated harm, but when the regulation works with vindictive harshness in comparison with the alleged problem, by listening to what the town fathers had to say about their purpose.

Lovers Lane v. Libertyville, Case No. 00 C 6109 (N.D. Ill., Dec. 4, 2000, slip opinion)

   This case is offered merely to demonstrate how "percentage stores" fit into the regulation of adult businesses. In general, the special rules that permit restrictive zoning and time-place-manner restrictions depend on the regularly conducted adult nature of the business. It is unlikely that zoning regulations requiring the disparate treatment of a business if it "ever" featured topless dancing would ever stand; the secondary effects analysis that justifies such special restrictions does not exist in the absence of ongoing activity that arguably affects the community in an ongoing pattern of activity. Depending on how regulating ordinances are drafted, the special requirements pertaining to adult uses depend on the substantiality of the adult-oriented materials or activities. So, some businesses have shoe-horned themselves into regular commercial zones by limiting the amount of adult material they handle. This is how lingerie stores that are frankly sexual in their advertising and promotions can still handle some sexually explicit tapes, condoms, vibrators, and the like and maintain a storefront on Main Street instead of a remote location in a desolate industrial or warehouse district. Some local ordinances define the threshold for adult regulation as a percentage of floor space, others as a percentage of stock, some linear feet of display, others on the basis of total sales, and some are just, plain vague about the line that divides adult-regulated sexually oriented businesses from other kinds of businesses. In this case, the village of Libertyville, Illinois kinda tried to deny a license merely on the basis that the Lovers Lane store intended to handle some adult material. That wasn't enough under their ordinance. This is not a constitutional case, but rather a case of the construction of what an ordinance means, in the sense of how it is to be construed or interpreted by a court.

City of Erie vs. Pap's A.M., 529 U.S. 277 (2000)

    In this plurality decision of the US Supreme Court (no majority of five justices joined any opinion explaining the holding), a local ordinance of Erie, Pennsylvania, completing banning full-nude erotic entertainment dancing was challenged; by the time the matter reached the Supreme Court, the operator was already out of business. Two justices of the Pennsylvania Supreme Court had dissented from that court's determination that nude dancing was protected by the First Amendment, those dissenters taking the position that the US Supreme Court's holding in Barnes v. Glenn Theatre foreclosed the issue that nude dancing was protected, but reaching the same result by holding that nude dance was protected under the parallel provision of the Pennsylvania Constitution protecting free speech. This is really a case about the dynamic interface between speech and conduct; in most such cases that involve mixed speech/conduct, the federal courts turn for guidance to the analysis of the draft-card burning case, O'Brien, which assesses the use of the statute under four tests, including whether the statute was enacted in order to reach and control expression. Fatal to Mr. O'Brien, and most important among the factors in his case, the federal legislation involving draft card issuance and possession by draft-age men was not enacted with protest in mind. (My own unsinged draft card sits in a dresser drawer next to old library cards and the like; during the days of the Vietnam War, we really were all required to carry them and to show them upon request of law enforcement officers. I got a low number in the lottery in terms of risk, but bypassed the system by enlisting during the Vietnam War and I later was commissioned as an officer in the Army.) Justice O'Connor's plurality decision here thinks that the difference between a dancer clad in pasties and a g-string is "de minimis" or inconsequential to the erotic expression, and of course, she is utterly dead wrong as any patron of gentlemen's clubs would know, and the gross receipts of comparable clubs with formats differing only by the degree of nudity are also likely to inform her that the conclusion is dead wrong. Behind this decision is a mythology - plainly identified as myth in the dissent here and in the decision of lower courts including the Seventh Circuit sitting in Chicago - that such laws are not directed to the expressive content of communication. It goes to the core of erotic dance and cuts out its heart, giving the audience vegiburgers when it is hungry for steak.  

Schultz v. City of Cumberland, 228 F.3d 831 (7th Cir. 2000)

    This 7th Circuit case comes out of the tiny hamlet of Island Lake, Wisconsin. The local town fathers were apparently livid about the town's sole adult business, a tiny strip joint (with a claimed but unverified history of prostitution-related convictions), and they enlisted outside help to regulate the strip joint (part of what is termed "incredibly powerful and profitable sex club industry") into oblivion with a particularly nasty ordinance that required dancers to register and provide home address and fingerprints, prohibited ex-cons from working there, and prohibited dancers from touching their breasts. One pernicious provision required that the club close at midnight and remain closed on Sunday, while bars could stay open far later and open on Sundays. Another permitted Cumberland to deny a license because of overdue City fines, taxes, or fees or because the license applicant lived with a person convicted of certain sex offenses. Most of the nasty stuff survived; the Seventh Circuit reversed District Judge Barbara Crabb's summary judgment against the municipality and held much of the spiteful overregulation to be constitutionally permissible. But the Court of Appeals determined the following to be unconstitutional: the ban on sexually explicit movements within sexually oriented dances; the fingerprinting requirement and the requirement to provide a social security number and a copy of a driver's license; certain disqualification provisions including cohabiting with certain offenders; and ineligibility for license renewal on the basis of specified criminal activity. This Ordinance, like that in Lake County, Illinois, prohibits dancers from getting tips from the audience. The limitation of hours of operation to times more restrictive than liquor establishments survived here and still works to keep adult cabarets out of Lake County, Illinois in a similar ordinance, which should be a matter of shame arising from the repression of normal and healthy expressive entertainment rather than pride.

Palmetto Properties v. County of DuPage, 160 F.Supp.2d 876 (N.D. Ill., 2001)

     In Palmetto, the most important issue was whether the County of DuPage, exercising zoning jurisdiction over land outside incorporated municipalities could, constitutionally, consistent with the First Amendment, preclude strip joints from operating within 1,000 feet of forest preserves - in a context where 90% of the forest preserve land was held exclusively in a conservancy status and not open to public enjoyment. Two other facts were important: first, no part of the forest preserve open to free public use was remotely within 1,000 feet of the lot intended for adult use and second, that there was no land available for the lawful establishment of an adult use anywhere within the County's zoning jurisdiction. It boiled down to whether the little animals scampering about the pasture and woods and perhaps the plants and trees themselves might be adversely affected by the dancing girls within the windowless gentlemen's club. There was certainly no evidence considered by the County Board that they might be harmed by the bare breasts and otherwise abbreviated costumes. The County also articulated that passing school busses full of children on their way to the far more distant parts of the forest preserve just might pass the offending institution and become aware thereby that adults sometimes enjoyed this kind of entertainment, something the County thought it injurious for them to know about. Judge Coar found no important public interest served by these laws with respect to forest preserve land in a conservancy status. He found that the ordinance was not based on studies and was supported only by the conjecture of lawyers for the County. He found that it was not narrowly tailored to protect a substantial, legitimate, public purpose. Finally, he found that there were no reasonably-available alternative channels for this kind of adult expression. This case was handled by Reed Lee and this firm.           

City of Los Angles v. Alameda Books, Inc., 535 U.S. 425 (2002)

    Alameda Books concerns a Los Angeles zoning ordinance that prohibited multi-use adult entertainment facilities, the most common example of which is a combination bookstore and private viewing arcade. The Ninth Circuit had affirmed a determination that the ordinance violated the First Amendment because, applying the intermediate-scrutiny test as the Supreme Court previously applied in Renton, the Ninth Circuit found that Los Angeles did not reasonably rely on information, evidence, or studies that demonstrated a connection/association between the city's substantial interest in abating crime and the presence of two adult businesses under one roof. In skipping to the third test in Renton, they jumped over - and reached no determination about - whether the L.A. zoning ordinance was content-oriented or content-neutral.  The Supreme Court, in a plurality decision, reversed their determination of invalidity - holding the L.A. had demonstrated the fairly minimal factual predicate required of it under Renton, and remanded the case to the Ninth Circuit for a determination of whether the ordinance was content-oriented or content-neutral.    

        

IV. Child Protection Cases. Cases about laws that seek to proscribe or regulate nonobscene erotic expression which articulate their goal to be "protection of children" from viewing allegedly indecent material or the protection of children from exploitation or depiction in such content. [But cases dealing with "Section 2257" - Title 18 United States Code Section 2257 - are set out in this website's Section 2257 area.]

Butler v. Michigan, 352 U.S. 380 (1957)

    Those who would suppress everyone's access to sexual expression inevitably claim that they are justified in doing so in order to "protect the children". This is always the last refuge of the censoriously inclined. Chief Justice Frankfurter made hamburger out of Michigan's argument about the protection of children in banning "indecent" books for everyone in this early case from 1957. Michigan goes too far in its efforts to protect children by banning the sale of indecent books, which might corrupt children, to adults. Justice Frankfurter said that this was tantamount to burning down the barn to roast the pig.

Bantam Books, Inc. v. Sullivan 372 U.S. 58 (1963)

    In the early 1960's, Rhode Island's laws provided for an informal system of censorship by means of informal coercion. A State board might determine a work to be dangerous for children, and if it did so, very strong letters threatening sanctions, including obscenity prosecutions, would be transmitted to book retailers. Like the Star Chamber, this body did not provide for any adversary hearing in which the books or other works might be defended. It mattered not whether the books were legally obscene, only whether they might be harmful to children, and the effect of these letters was to intimidate booksellers to take the books down and return them to the publisher so no one would be able to read them. (Try to imagine intellectual life in small town America before the Internet, before network television was even firmly established. Small bookstores and mail-order was all that existed outside the local public library to stimulate the mind with new ideas and fresh insights.) The trial court declared the procedure unconstitutional and granted an injunction against its enforcement, but the State Supreme Court reversed the injunction. On Appeal, the United States Supreme Court reversed and remanded so that the injunction might be reinstated. As parents and as a society, we aim to protect children, and as humans, it seems to be fundamentally brain-wired into us to protect children, our own first and foremost, but all children we can protect; it is instinctive within us.  The real trouble comes when, with that instinct, we aim to "protect children" in an unnecessarily severe manner that does substantial harm to adults.  That's the best case of this thorny problem. In the worst case, "protection of the children" is cynically used by the modern-day Ayatollas of our American society in order to flat-out censor and eliminate the freedom of adults to obtain access to sexually-explicit materials, to enforce their personal moralities on their neighbors. The problem comes when "protection of the children" becomes a pretext for engineering new ways to control what adults can read and view. Protecting children is not very controversial and so it's easy to get people to nod along with programs packaged as child-protective - oblivious to the freedoms they are destroying. This is the same issue dealt with in Butler, above, with a sugar-coating and the Supreme Court saw right through it. Perhaps the most memorable line of the Opinion in Bantam Books is this: "Thus, the Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. It is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging yet barely visible encroachments." [Emphasis added.] Our society generally concludes that ballroom dancing, lipstick, drinking coffee, and smoking cigarettes are all unsuitable for children, but few activists against them in our society would get far by proposing to ban them for everyone with the argument that only by taking them from adults may we assure that no child gets access to them. When underage kids use fake ID to get served in a bar, since the repeal of Prohibition, not many have gotten far with the argument that these children should be protected only by closing all the bars. 

Ginsberg  v. New York, 390 U.S. 629 (1968)

    This is the seminal case determining that a state may, without offense to the First and Fourteenth Amendments, criminalize the sale of nonobscene but erotic matter to young persons. The items at issue in this case were "Girlie Magazines" and the youth in question was sixteen years of age. Justice Douglas attached an excerpt from the writings of Anthony Comstock to his Dissent.

Erznoznik v. Jacksonville, 422 U.S. 205 (1975)

    Jacksonville was concerned enough about the nude scenes appearing on the large screens of drive-in movies that it outlawed the projection of such movies that were visible from the streets or public places. Evidence showed that the nude scenes were visible not only from public streets but also from church parking lots and that people were found, parked on the grass, watching the movies. The city argued that the law was reasonable in order to deal with driver's distracted from what they should be looking at by nude scenes. Well enough, but if the purpose was traffic control, why then did the ordinance also apply to all "public places"? It was also argued that the law protected children from the indecent, but even here, the statute was overbroad insofar as it outlawed public displays of all kinds of nudity from a depiction of a baby's bare buttocks to scenes of the wounded victims of war in a documentary, and, as the court here said, "Clearly all nudity cannot be deemed obscene even as to minors." The high court went on to say, "In most circumstances, the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors." That is not to say that the standards of what may be obscene for adults is congruent with that which may be deemed obscene as to children, and the court said so. The particular problem with this formulation is that "children" are not the same, and that what may be suitable for seventeen or sixteen year-old may really be unsuitable for an eleven year old. TV and the movies know that and at least begin to grapple with the distinctions in rating systems and program advisories. It seems exceedingly difficult to ascertain what is "obscene as to children" not only because so many ages and stages of development come under the identity of "childhood", and not only because maturity differs so wildly between particular adolescents, but because parents diverge so widely in their attitudes toward what is suitable. Perhaps, maybe in the Fifties and part of the Sixties, this country had a fairly cohesive and generally accepted moral scheme for the conduct and upbringing of children, but it seems to me that, in an age when mothers put their young daughters on the pill, when gay adoption is permitted in some jurisdictions, when some parents accept sexual relations between their children and boyfriends/girlfriends under the parental roof at home, when the featured kids in "Teen Mom" have become semi-celebrities, while on the other side girls are being asked to pledge their virginity until marriage in a ceremony with their father and the acceptance of a ring to symbolize the vow, it is hard to fathom where the center really is, and any consensus about teen sexuality in our culture seems to be inescapably elusive.

     FCC v. Pacifica Foundation, 438 U.S. 726 (1978)   

    Pacifica centers on the radio broadcast of George Carlin's famous Seven Dirty Words monolog, upholding a complaint  against the broadcaster and placing it in a permanent file for consideration when the license came up for renewal.  In fact a disclaimer had been read on the air before this broadcast warning listeners of its content. Nevertheless, a listener traveling in a car with his young son heard the dialog, offensive to him under those circumstances and filed his complaint with the FCC. At issue was the meaning of Section 326 of the Communications Act, (18 USC Section 1444 since recodification of the criminal code in 1947)  which articulates that censorship is forbidden - but immediately goes on to proscribe indecent material. The majority in Pacifica significantly determined that the word "indecent" (contained in the Communications Act provision) would not be construed to mean "obscene" as that term is construed when otherwise found in the federal  obscenity statutes - thereby permitting the statute to authorize the regulation of material that cannot meet the high standard of legal obscenity under the Miller Test. No one suggested that the monolog appealed to the "prurient interest" (mandated in Miller for a determination of obscenity) and the nonprurience of the routine was advanced as a defense by the Pacifica Foundation. Prurience or nonprurience did not matter to the Supreme Court majority here, in judging a radio broadcast made at 2pm to an audience that predictably included children. The court felt that the obscenity statutes went to the very availability of materials, but that Section 326 really went to the manner in which materials were made available, implicating a different set of values from those underlying obscenity law. In doing so, it seems to hold that notions of morality lay behind Section 326. The majority wraps its conclusion up in notions of privacy and protection of children. The Dissent suggests the obvious: those who find the material offensive may simply switch off the radio. The majority responds by saying that the appropriate defense to an unprovoked assault is to run away after the first blow. The best part of this case is found in the concurrence and the dissent.

New York v. Ferber, 458 U.S. 747 (1982)

    In Ferber, the Supreme Court upheld the validity of a New York state statute criminalizing the promotion of sexually explicit performances depicting performers under the age of sixteen - child pornography. The material in issue was motion picture films of boys younger than that age masturbating. The lawyers representing the child pornographer argued that the Miller Test was sufficient protection of any public interest. The Court rejected that proposition, stating that both conduct and expression were implicated, but that the child pornography statute at issue was justifiable because it addressed conduct and behavior that was, itself, illegal. The High Court cited several important factors that impelled its result; the court found that child pornography was big business at the time and that it relied on actual abuse and exploitation of children, also creating a permanent record of that abuse. The Court held that child pornography was not entitled to any First Amendment protection and that it was immaterial that might possess any socially redeeming value and rejected the suggestion that it should be considered "as a whole". The Court suggested that there was never an artistic necessity for the actual use of an underage person. Artistic pretensions - and, for that matter, any possible actual artistic value, will not save the child pornographer from conviction.  All of this is based on the Supreme Court's determination that child pornography is invariably the result of the abuse of children. But is that true? Whatever commercial child pornography industry may once have existed in small dimensions to serve its small market decades ago, has long since become extinct. It is without doubt that Ferber's holding will remain law indefinitely into the future and will be used to justify the conviction of any and all persons caught in the possession of child pornography; but we now live in an age when underage performers, using their laptops and built-in cameras, create illegal videos of themselves and stream them onto the internet to others - not because an adult is cowering over them, abusing them, exploiting them or forcing them, but because they stupidly want some kind of attention or affection. American teenagers may be, by far, the largest source for the creation of these illegal images in the world today. It's impossible to know, because even to look at the images is illegal for anyone but law enforcement. People who have seen the phenomenon of the chat roulette site will come to their own conclusions. In the present age, even children themselves are prosecuted for the creation of images which they alone created depicting only themselves, and some states have modified their laws to ease the life-destroying effects of convictions for teenagers who created of pictures of themselves that amount to child pornography. An overview of the published news accounts (that feature details) leaves an impression that these statutes are now only seldom used to actually protect children by punishing adult predators, but that they are used most frequently, by a big margin, to simply terminate the meaningful life of adults who look at the photos - made by teenagers themselves - persons who have no history of actual sexual abuse of anyone. A number of federal judges have concluded that the sentencing guidelines (and perhaps the statutes) just go too far.

Sable Communications v. FCC, 492 U.S. 115 (1989)

   In the context of "dial-a-porn" phone sex, the Supreme Court upheld the validity of Section 223(b) of the Communications Act of 1934 criminalizing the transmission of obscenity via the telephone. It reaffirmed that obscene speech is not constitutionally protected. It reaffirmed the doctrine articulated in earlier cases that it is not unconstitutionally impermissible to criminally sanction persons found guilty of obscenity under the local contemporary community standards of the places into which they transmit materials and messages. The Supreme Court affirmed the District Court's determination that Section 223(b)'s outright ban on non-obscene "indecent" expression was unconstitutional; it was not narrowly tailored to constitutionally serve its legitimate goals for the protection of children from indecency without offense to the expressive and communicative rights of adults under the First Amendment.

United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)

   Part of the residue of the Tracy Lords debacle. The defendant was convicted of the sale of many copies of depictions of the 15-year-old Tracy Lords in explicit sexual conduct. Perhaps for younger readers unfamiliar with her story, I should explain that Tracy Lords was "discovered" on the beach in LA by a porn modeling agency, that she appeared with ID indicating that she was no child, but which she had fraudulently obtained in California by the use of the birth certificate of an adult. Within months, she was a Penthouse Pet, and within a very short time thereafter, she started appearing in mainstream hardcore pornography, ultimately performing in about 100 such features. She was approximately the most popular female porn actress in the country and many thousands of tapes featuring her were on sale wherever sexually explicit materials were found. Very suddenly, and under quite murky circumstances, it became known that she had started her career at age 15. Truly, not many who saw those performances would have guessed that she was underage, because her sexual performance displayed as much innocence, delicacy, naivet√© and diffidence (and was as loud as) as a barelling freight train. Here, the Supreme Court contended with the 9th Circuit's reversal of a conviction of a distributor who sold these materials after he knew that Tracy Lords was depicted in them while she was fifteen. The 9th Circuit found the statute under which he was convicted - 18 USC 2252 - to be unconstitutional because it lacked a requirement that the seller knew the material to depict persons under the age of 18. The United States Supreme Court reversed that finding, affirming the conviction, by holding that Section 2252 does require guilty knowledge on the part of the defendant that he or she is trading in materials that depict a minor. The case seems to be about the rules of grammar and how language is to be construed as much as it deals with sound public policy. There was apparently no dispute that the defendant actually did know her age when he sold the material. It is interesting that Justice Scalia and Justice Thomas dissent, and state that they would have upheld the determination of the 9th Circuit that no mens rea/guilty knowledge requirement is contained in the statute and would have thereby affirmed the reversal of a conviction of one who knowingly sold child pornography because he was charged under a statute that did not require that knowledge for conviction. This case also discusses the history of the child pornography statute which, until 1984, only penalized trading sexually explicit materials featuring those under the age of 16. 

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

   The Supreme Court's rejection of thematic, topical per se obscenity; the Court invalidated a federal law strictly criminalizing the production of erotic, explicit works portraying adult actors in the roles of minors. Congress had enacted a law that disregarded the Miller Test and proscribed such works without regard to prurience, patent offensiveness, or serious value; the statute went further and prohibited the sale or possession of material that claimed to depict underage performers, even when that was not true; the High Court said that both provisions went too far in an opinion joined by five justices. Congress later retaliated with a statute aimed at the advertising and promotion of materials - pandering them - as works actually depicting minors. The validity of that statute was upheld by the Supreme Court in Williams, a later case which hearkens to the dissent of Chief Justice Rhenquist in Ashcroft. Perhaps the most inspiring words in the Opinion are these: "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

United States v. Williams, 504 U.S. 36 (2008)

    The Empire Strikes Back. This case arose out a statute inspired by Chief Justice Rhenquist's Dissent in Ashcroft, suggesting the legitimacy of a statute that punishes the pandering of explicit materials as though they contained child performers, though in fact created exclusively with adult performers; the statute in question did precisely that: it criminalized the behavior of a person who  "knowingly‚€”  . . . ‚€œ(B)‚€‚advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains‚€” (i)‚€‚an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii)‚€‚a visual depiction of an actual minor engaging in sexually explicit conduct."  Accordingly, it is important for the publishers of online materials to positively and conspicuously assert that all performers depicted were eighteen years of age or older whenever the appearance or circumstances depicted might raise an inference of younger age. We have written about this case at greater length here.

 

  VA few important Free Speech Cases from outside the realm of sexual expression that touch on issues important to the protection of adult oriented expression.

Freedman v. Maryland, 380 U.S. 51 (1965)

   Not every prior restraint on speech is unconstitutional. Under modern jurisprudence, however, prior restraints come to court with a heavy presumption against their validity, imposing a burden on the censor to justify his law. In Freedman, a motion picture operator simply refused to submit the film he intended to screen to the state board of censors, and though it was later stipulated that his film would have been granted a permit for exhibition, he was convicted of presenting the film without prior approval. Freedman contended that the burden to challenge the censors was on him, were he to be denied permission; the board of censors had no time limit in which to decide whether the film should be banned; his remedy of going to court to challenge the censors would present an open-ended delay that amounted to an impermissible burden, keeping the film from the public for an interminable time. The Supreme Court agreed with Freedman that the Maryland scheme violated the First Amendment and reversed his conviction. 

Broadrick v. Oklahoma, 413 U.S. 601 (1973)

    For the purposes of this site, the significance of Broadrick is its articulation of exalted standing - the principle that, in the First Amendment context, unlike in other kinds of cases, a litigant may have the right to bring arguments before the court that are not personal to his own situation; he may bring arguments on behalf of people, not before the court, whose conduct is impermissibly, unconstitutionally punished or affected by the law in question, even when the law could constitutionally be applied to the conduct of the litigant. The court calls it "strong medicine" and the standing conferred by Broadrick is seen by the courts as a last-ditch matter for exceptional cases. It can be used, for example, only when the statute/ordinance/regulation/law cannot easily be limited to its constitutional scope by judicial construction; for example, if a single word expands the scope of the statute beyond what is constitutionally permitted, it may be construed out of existence, while if an entire regulatory scheme which was enacted by legislative balancing is in issue, it may not be so easy for the courts to make what amount to legislative judgments in cherry-picking what may survive, and it would be appropriate for the entire law to fall under Broadrick. In order to permit the First Amendment and the expression it protects "breathing space", "[l]itigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." As later courts have noted, the impermissible over-reach must be substantial, not only in absolute terms, but also in comparison with the proper and permitted sweep of the statute.

United States v. O'Brien, 391 U.S. 367 (1968)

   O'Brien burned his draft card at the height of the Vietnam War in a manner of protest against the war that shocked and outraged mainstream America. He contended that his First Amendment expressive right trumped any power of the government to punish him, but the Supreme Court disagreed. What Mr. O'Brien did mixed expression with conduct and here the Supreme Court addressed laws implicated in expression and the conduct which they forbid. This is a common theme in cases arising in the regulation of adult entertainment and courts in this context have often looked to O'Brien.  O'Brien lays out an intermediate path of scrutiny for laws mixing conduct and speech, between the "rational basis" test applied to ordinary laws and "most strict scrutiny" applied to laws that frankly and directly address fundamental rights such as speech, or suspect classification in the law, such as race. If a law impacting expression does so because it targets expression as such, it must fall unless it meets the daunting standards of most strict scrutiny. However, if it reaches expression only as an incident of a target other than expression as such, the courts examine its validity under the intermediate test of O'Brien. Under O'Brien's approach, a law is valid if 1) it is enacted within the constitutional authority of a legislature, 2) for a compelling/substantial/important/legitimate governmental purpose, 3) that the purpose is unrelated to the suppression of free expression, and 4) the law is narrowly tailored to address the substantial interest in an appropriate manner that regulates the conduct as conduct and the restriction is no greater than is essential to the furtherance of the government interest. (This is essentially the recitation of the O'Brien holding found in the Pap's opinion, set out above, rather than the Court's expression of it in O'Brien.) It is obvious that alternative means of expressing his opposition to the Vietnam War were available to this Defendant and hundreds of thousands of others. All of the nastiest and ugliest cases that cynically give government the power to regulate adult businesses into oblivion or practical impossibility - chiefly zoning and other time-place-manner restrictions - are ultimately justified by the doctrines announced in O'Brien: the courts hold that non-speech "conduct" aspects of adult businesses - going not to the message of eroticism which is performed on their stages, distributed in their magazine racks, and shown on their screens, but instead to the alleged "adverse secondary effects" on local crime, property values, and other such matters, that, it is claimed, arise and emanante from these kinds of businesses to their surroundings - may be harshly regulated, disparately from other kinds of book stores and movie houses, on the thinnest kind of "factual" findings by government. To say that such laws are unrelated to expression is a myth. They are triggered precisely by commerce in one kind of expression. Before O'Brien and Young v. American Movie Theatres, above, few would have guessed that government could constitutionally treat book stores differently on the basis of what kind of books they sell.  It does seem fundamentally unAmerican to do so. And it started here.

Ward v. Rock Against Racism, 491 U.S. 781 (1989) 

    Ward arises from a proposed concert in New York's Central Park - a constitutionally protected act of speech - and a regulation of New York requiring the sound amplification to be managed and controlled by the City's own staff. The court articulated a familiar test to assess the validity of time-place-manner regulations of protected speech. The government must articulate a substantial or compelling purpose, the regulation must "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." The battle area here concerned whether the narrow-tailoring test required the narrowest regulation which might accomplish its end, such as a suggestion of after-the-fact, ticketing band personnel who set the volume too high and interfered with the quality of life of people in the Sheep Meadow or in the Dakota Apartment.  Reversing the Court of Appeals, which determined the regulation to be invalid, the Supreme Court held that the government's regulations in furtherance of legitimate, content-neutral interests must be narrowly tailored, but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. The Court further held that so long as the means chosen are not substantially broader than necessary to achieve the government's interest, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative.  It's detractors have called the date upon which this decision was announced, "The Day the Music Died", and the three justices dissenting deem the Opinion here to be a wholesale abandonment of a line of cases requiring the least restrictive means to be imposed on protected, expressive activity, to achieve compelling government purposes. This is a case that presents a formidable hurdle to some of the most aggressive arguments against the validity of Section 2257.

Simon & Schuster v. New York State Crime Victims Board, 502 U.S. 105 (1991)

    Henry Hill, late of Goodfellas, was responsible for a ghostwritten book, Wiseguy, that was the basis of the previously mentioned movie. It obviously recounted Mr. Hill's role in many crimes. New York had a law on the books, the "Son of Sam Law", designed to take his money away, to assure that crime did not pay and that victims of crime received compensation -whether the Statute of Limitations had run or otherwise. His publisher received a letter from the State Crime Victims Board notifying it of an obligation to deposit all of the proceeds in an escrow account for the benefit of crime victims who might bring claims or file suit, and for the benefit of governments which might bring tax claims. The Supreme Court invalidated the statute as a direct, content-based assault on speech, noting that it was substantially more overbroad in its reach than any legitimate, articulated purpose inasmuch as such a statute would take the profits from Malcolm X, Martin Luther King, Thoreau, St. Augustine (who admits in his Confessions to stealing fruit), and Jesse Jackson - thus deterring the authorship and depriving the world of the benefit of true life crime and imprisonment stories. Well, I don't think the profit motive had much interest to St. Augustine.  This case is valuable to establish what the court considers to be content-based and for its calculus of how overbreadth (the opposite of narrow tailoring) is measured.

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)

    Not a case about obscenity at all, but a very important case about free speech. One may assume that it is within the power of a government to punish speech that is dangerous enough to precipitate violence - "fighting words". But what if government proscribes only fighting words are of one particular viewpoint that the government detests - such as racially-motivated hate speech? This case is fundamentally about the fair and even playing field that the First Amendment requires in the marketplace of ideas - even in the case of the limited kind of violence-precipitating hate speech that is not entitled to protection.

44 Liquormart v. Rhode Island, 517 U.S. 484 (1996)

   44 Liquormart resolves the apparent collision between two constitutional provisions. The Twenty-First Amendment abolished nationwide Prohibition but extended broad powers to the states to regulate - and to ban - alcoholic beverages in their respective jurisdictions. They would have had such power, probably, even without the provisions in that Amendment expressly granting them to the states, but the chief function of that language is to act as a check or limiting function of what is called the "Dormant Commerce Clause". The United States has broad powers under the Constitution to regulate international and interstate commerce. To the extent that a state, by the exercise of its own sovereign powers, might intrude into a matter that deals with interstate commerce, it does so at the risk that its action may be invalid because its act invades the power of the federal government to regulate interstate commerce, even in situations in which Congress has not yet expressly acted. The Twenty-First Amendment gives states an assurance that their respective regulation of the alcohol trade does not invalidly intrude on a federal power. More important to the purpose of these pages, the Supreme Court here disavowed an earlier reasoning it had used (with five justices agreeing on the reasoning) in the context of a nude entertainment club serving alcohol, that somehow the power of the states to regulate alcohol trumped the expressive rights assured by the First Amendment. The Court now agrees that the power given to the states under the XXIst Amendment does not give it a power to disregard important, fundamental rights protected by the Constitution, such as the right to equal protection of the law, deprivation of property without due process of law, or free speech. This case invalidated Rhode Island's commercial advertising restrictions against the publication of advertisements for liquor sales, even in the newspapers of adjacent states. It is part of a family of cases, recent in the past four decades, in which a constitutionally protected right to commercial speech has been articulated by the high court, subject to greater restriction than noncommercial speech. This doctrine governs speech made for a directly commercial purpose and does not affect newspapers, magazines, porn, movies, even when there is a cost involved in their acquisition or for their viewing. This case has had no appreciable effect on the state's power to prohibit the sale of alcoholic beverages in clubs with a nude format.

Lawrence v. Texas, 539 U.S. 558 (2003)

    This is an important case about liberty, tantalizing in its largely unfulfilled promise, and most frustrating in failing to expound more general principles of greater applicability. Like Stanley, it affirms a right that means far less in application than it promises. Lawrence overrules Bowers v. Hardwick, 478 U.S. 186 (1986), and it invalidates the Texas statute against private, consensual, noncommercial sodomy. It seems that two guys were going at it and making enough of a commotion that people outside weren't sure whether somebody was in real peril and called the police. And just like in Me and Julio Down at the School Yard, when the police got there, what they saw was against the law. They were convicted of consensual sodomy and their cases wound up at the Supreme Court, which, in reversing, fails to enlighten any of us not wearing black robes a block from the Capitol, exactly what standard of review was applied to the Texas law and precisely whether a "fundamental right" was at issue in this case or simply the "rational-basis" review of an unreasonable law took place in the Justice's conference room. It makes a difference. A big difference. So far, lawyers have tried - in just about every case - to use Lawrence to invalidate obscenity statutes. They got some traction with Judge Lancaster in Extreme Associates (above), but he was reversed by the Third Circuit (also set out above)  - and the Supreme Court then conspicuously refused to take a look at the issue. The other courts which have addressed defense arguments that Lawrence gives rise to a Substantive Due Process right of sexual privacy that protects allegedly obscene material, such as the 11th Circuit in Little - the Max Hardcore Case, above - have been fairly peremptory and dismissive regarding the arguments arising from Lawrence. At least one imaginative lawyer has crafted an argument that a right to masturbate arises from Lawrence, and that from that right derives another right to obtain materials with which to enhance that experience. Ahem. It has also been used in attempts to invalidate various prostitution and public sex laws, and laws prohibiting the distribution of sexual stimulation appliances, with essentially no success.  Justice Scalia's Dissent says that this case is really about the culture war concerning a homosexual agenda. Legal developments thus far, and the limited utility of this case outside the area of homosexual sodomy, have not shown him to be wrong. Those of us with a broader agenda of personal liberty will continue to use this case to bang at the door of every available court until, we hope, one day a high door  will open. For the time being, like Stanley, it remains an isolated example and remnant of a philosophy that once (happily) dominated the American legal landscape, the notion that you can't legislate morality - and that it's wrong for government to try, because when it does, it inappropriately invades a different - and I think higher - morality that respects Liberty of the individual.

United States v. Stevens, 559 U.S. ____,130 S.Ct. 1577 (2010)

    The animal rights activists really hate this case. It deals with a congressional attempt to outlaw animal cruelty videos. The Supreme Court handed down a strong decision in favor of free speech under the First Amendment, invalidating 18 U.S.C. ¬ß 48  (effective December 9, 1999, enacted in Pub.L. 106-152). In Stevens, the Supreme Court overturned the sentence of a man who had been sentenced to 37 months incarceration, just for distribution of such videos, not for their creation. Two videos depicted Pit Bull dogfights and the third presented a brutal attack on a pig. Stevens did not film the original video, but his voice narration and editing were a large part of the final product. On conviction and sentencing (after his motion to dismiss on First Amendment grounds was denied), the Third Circuit overturned both, holding that no justification existed in the existing free speech case law for such a statute - it fit into no traditionally-recognized exception to "the freedom of speech" such as hate speech, defamation, state secrets, obscenity or child pornography. The Government sought review in the Supreme Court, and ultimately certiorari was granted. The Supreme Court affirmed the Third Circuit, agreeing that the statute was indefensible. The lone dissenter, Justice Scalia, argued that such a statute nearly fit into the exception specially created for child pornography in the Ferber case, presented above; but the Supreme Court majority wasn't buying the idea of creating another exception to freedom of speech when animal cruelty came before it.

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