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Ask The Attorney: Future of Obscenity Laws

Ask The Attorney: Future of Obscenity Laws

April 30, 2013
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" The U.S. is a relatively young nation and diverse country. The U.S. is growing in both diversity and maturity and in 20 years we will most likely look back at what people thought was obscene and wonder what the big deal was all about. -Corey Silverstein "

Will obscenity laws and enforcement exist 20 years from now?


1. That every action causes an equal and opposite reaction is not just a law of physics; I think it’s true in society as well. Moral conservatives can be expected to vent their frustration and rage at an advancing legal sexual agenda and the social changes that come with it — and they are likely to do so where they have the most influence —at the local and state level. When federal obscenity prosecution grinds to a halt — as it seems to have done — one can expect pressure for obscenity prosecutions directed at local district attorneys. In some cases, they will be welcomed by the local prosecutors who think that this might put them on the map as conservative leaders —and advance their political careers.

In the next decade, I expect local prosecutions against adult operations or distribution eventually in places like Maricopia County, Ariz., in Johnson County, Kan., in Utah, and perhaps in the traditional Deep South, anywhere from south of Atlanta to Northern Florida, from the Mississippi River to the Atlantic Coast. Whether the prosecutions are predicated on obscenity itself or some closely related theory that the prosecutors think is safer (maybe prostitution), I think that all of them will fizzle or go down in flames. The end result of these efforts will backfire, will boomerang against the prosecutors fool enough to make the attempt. Juries will acquit in all but the most extreme cases, and I think that they will do so everywhere. Regional differences about depictions of sexuality and porn have been substantially diluted by network TV, HBO, newspapers of national readership, and contemporary music and novels. The moral conservatives have no sense at all about how broadly the availability of free Internet porn — and even the depictions of sex on “The Sopranos,” “Boardwalk Empire,” “Game of Thrones,” have changed attitudes and “contemporary community values.” The traditional view of private morality — that it’s inappropriate for government regulation — seems to be rekindled in the generations that are coming up — and some prosecutors will never understand that until it’s too late. How can anyone worry about the morally polluting effects of such pornography against the backdrop of a culture that gives relationships consummated by sodomy the full sanction of legal protection? For that reason, more than any other, I think that the issue of pornography and obscenity rapidly becomes a social irrelevancy; but precisely that state of affairs is what will trigger local, conservative reaction, a reaction which will be as futile as the intransigence of King Canute sitting at the shore and commanding the tide to cease.

2. I expect that any federal obscenity prosecutions will be isolated reactions against content that is truly macabre and without a numerically substantial fan base —material as tangential to the mainstream of sexual interest as Ira Isaacs’ content was —and that it will come from U.S. Attorneys in particularly conservative venues, if it arises at all. Assistant U.S. Attorneys and FBI agents all grow up in the same culture that we all share, and there is no reason to believe that they are antagonistic to the kind of porn that contemporary culture accepts, uses, and jokes about on late night television. Even within the culture of federal law enforcement, content would have to be quite extreme to generate support for indictment and prosecution in the decades to come. Exceptions might be made in cases complicated by income tax fraud, spamming, suspicion of sexual exploitation, the involvement of organized crime, or the need to establish a RICO predicate.

3. Will the courts act to invalidate obscenity prosecutions under the First Amendment? While it’s theoretically possible, I think that the odds are remote because a very long string of decisions has painted the Supreme Court into a corner and limits its freedom of mobility —I don’t think it is likely to suddenly overrule 10 to 20 cases holding these laws valid or implementing their enforcement. Somewhat more likely are decisions in the decades to come that act to make defenses and acquittals easier and which place more burden on the prosecution to secure a conviction. For example, establishing a constitutional requirement that the prosecutors establish by specific evidence the existence and violation of community standards of prurience and offensiveness —or agreeing with the 9th U.S. Circuit Court of Appeals that national standards must be applied to Internet distribution —or imposing a meaningful scienter element that prevents conviction without proof of specific knowledge about a particular video or community standards —or broadening the notion of “work as a whole” in charged works —or perhaps requiring prosecution at the place where distribution took place. If the Supreme Court does one or more of these things, each may have the practical effect of pounding nails into the coffin of obscenity law.

4. The era in which we now live is marked by the slow death of obscenity law, much the same way that blasphemy, fornication, and adultery laws, even where they are still on the books as crimes, seem to have functionally disappeared. I believe that obscenity will eventually fade from being taken seriously by cops and prosecutors. We are not there yet, but I think that result is inevitable now. A cautionary tale is seen in the example of the Vietnam War: even when all of us knew U.S. involvement was coming to an end, up until the day we cleared out the embassy in Saigon, there were still casualties; every war has a last casualty, and the war against obscenity laws will eventually have a last conviction. His cell in the Bureau of Prisons will be no more comfortable or endurable than that of the first man sentenced for obscenity.


Some things in life are given: People will always want to have sex. People will always want to create depictions of sex, whether in paintings, photographs, or on film. People will always want to view those depictions.

And sadly some people will always want to try to prevent others from doing any of those things.

So, yes there will be obscenity laws and enforcement 20 years from now.


Obscenity laws will exist somewhere in the world, 20 years from now. There will always be prudish societies willing to shame and punish those who create and publish erotic media. Government and religion typically try to control human behavior through money, food, intoxicants, and sex. Obscenity laws are an expression of the government’s desire to control basic human sexual interest. Political power has been built on efforts to control human sexuality, and the desire for power will not evaporate in 20 years.

The more interesting question is whether the U.S. will retain its obscenity laws —and continue to enforce them — over the next 20 years. The average citizen in 1993 might not have predicted that sodomy would be legalized, and that we’d be on the verge of recognizing gay marriage throughout the U.S., in 2013. Thus, much can change in a couple decades. With the connectivity provided by current social networking tools, the government and morality groups are becoming less effective in their propaganda efforts. Real information about human sexuality will continue to be published, absent new controls on Internet communications. Sexual mores are changing rapidly, as more people have access to information about the many, varied forms of sexual activity that exist in nature. With books like “50 Shades of Grey” on the bestseller list, it seems like just a matter of time before obscenity laws become outdated; a quaint remembrance of a time gone by. But in the most recent U.S. Supreme Court cases to discuss the status of obscenity laws, the majority of Justices seemed content to continue recognizing their validity, and treating obscenity as an exception to First Amendment protection. Short of a major shift in the makeup of the court, the fate of obscenity laws will likely be in the hands of legislators and prosecutors. Even now, prosecutors seem reluctant to bring obscenity cases, given concerns over changing juror attitudes towards erotic media. So in 20 years, we may have the same laws on the books, but just like statutes prohibiting ‘cohabitation’ or the sale of liquor on Sundays, the laws may simply go unenforced. That said, never underestimate the power of a national tragedy like the Sandy Hook shootings. A new serial killer like Ted Bundy may show up with a terabyte of porn on his hard drive, and that could reignite the entire debate over restriction on sexually explicit media.


In the U.S., there is no definition of what legally constitutes “obscene” material. The words “I know it when I see it”, spoken by Justice Potter Stewart in the 1973 U.S. Supreme Court decision, Miller vs. California are deeply engraved into the history of not only First Amendment law but are some of the most famous words to ever come from a U.S. Supreme Court justice.

In deciding whether material is obscene, and thus not protected by the First Amendment, Miller vs. California held that the basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (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.”

I believe that in 20 years from now, in the U.S., the Miller test will continue to guide obscenity law. However, I believe that as society and local communities continue to mature with the help of modern technology, including but not limited to, the expansion of high-speed Internet access, smartphones and social networking, communities will move away from strong conservative views and become more tolerant of certain types of material.

I have no doubt that in 20 years obscenity prosecutions will still exist, led by conservative politicians; however, I am convinced that certain material that has led to obscenity prosecutions in the past 10 years will not be the same sort of material that leads to obscenity prosecutions 20 years from now. A very good example of the continued evolution of what society and local communities tolerate can be seen in the sex toy market. While historically many states had bans on the sale of sex toys, only, Mississippi, Alabama and Virginia have current bans on the sale of “obscene devises.” More recently, in 1997, the 5th U.S. Circuit Court of Appeals ruled that the Texas law making it illegal to sell or promote obscene devises, violated the right to privacy guaranteed by the 14th Amendment, and was thus unconstitutional.

The U.S. is a relatively young nation and diverse country. The U.S. is growing in both diversity and maturity and in 20 years we will most likely look back at what people thought was obscene and wonder what the big deal was all about.


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