While I have seen it many times, and have had to escort a client or two of my own to the courtroom for sentencing in obscenity cases, the concept never ceases to amaze me. How far is this from jailing citizens for political dissent? Not very far, in my view. The United States is looked to as the standard-bearer of freedom and liberty in the world — yet we do this to our own citizens.
Was the material produced by these folks disturbing? Sure... to most. Was it degrading to women? Not unless it caused someone to degrade women just by seeing it. The women in the films choose to perform, and were paid to play a role. They were not degraded. You'd still have to convince me that people act on what they see in a movie. That link has never been successfully established in the social research. Was it obscene? I don't know. What does that mean, anyway? A politically-motivated prosecutor obviously thought so, and decided to initiate the prosecution. A federal judge agreed to accept the defendants' guilty plea, so he must be ok with the concept. But does it matter if something is 'obscene' in current society? Does it matter enough to put people behind bars with the likes of Bernie Madolf and the Unibomber? I have yet to hear a rational policy argument for the continued viability of obscenity laws. Originally, the government claimed that these laws were necessary to prevent the inadvertent exposure to obscene material by the unwilling viewer, and to protect children. How does a random obscenity prosecution, here and there, protect the unwilling viewer? The Internet would need to be shut down to accomplish that goal. What about protecting children? Ok, how does putting a few people in jail every year, for obscenity violations, protect children from viewing this material? Obscenity laws make no reference to exposure to children, for a violation to occur. The arguments in favor of their constitutionality would be substantially more sound if that were the case. But in the Rob Black case, there was no allegation that children viewed the material, or that it was available to children. The material was made by adults for adults. The only adults who were forced to watch it were the judge and (if the case had gone to trial) the jury.
This material was no more 'obscene' than terabytes of media found on the web, with a click of the mouse. How does a citizen tell the difference between illegal obscenity, and constitutionally protected pornography? As many judges have admitted, they can't. While due process mandates that citizens be put on notice as to what activity is criminal, so they can conform their actions to the dictates of the law – obscenity laws are the obvious exception. There is no fair notice, when it comes to obscenity. The only time that a defendant knows whether he or she committed the crime is when the jury comes back and announces its verdict.
Rob Black and Lizzy Borden are freedom fighters. They pushed the envelope of free speech, and the government pushed back. While it would have been interesting to see if a jury actually convicted them for this material, they will spend a year of their life in a free country, behind bars for making a fantasy come to life on film. The judge could have recognized the absurdity of this law, and placed them on probation. He didn't.
I will think about Rob and Lizzy, along with all the other free citizens that this country confines to a cage, every time I go into a courtroom and push back against government censorship. It was not in vain, folks. Keep the faith.