Gender
Sexuality, and Law: A New Twist on Obscenity
Harper
Jean Tobin
As John Ashcroft was preparing his
“parting shots” at federal judges and civil liberties advocates last month, one
federal judge had a shot of his own for the outgoing Attorney General. On
January 20, a District Court judge in Pennsylvania dismissed a raft of criminal
charges against California pornographers that could have landed them in jail
for up to fifty years. Their crimes? Peddling dirty movies, of course.
Aside from its symbolic import as a
rebuke of Ashcroft’s draconian approach to protecting the public, what’s really
interesting about U.S. v. Extreme Associates is that it’s not what you
think: it’s not a First Amendment case.
Nearly fifty years ago the U.S. Supreme
Court definitively held that “obscenity” was not protected by the First
Amendment. Those accused of peddling obscenity argued in their defense that
their product was not obscene, and for years the Court floundered about trying
to come up with a satisfactory test. Finally, they settled on a “community
standards” test in the 1973 Miller case, and that standard still holds
sway today -- though recent cases regarding the Internet have shown its
increasing irrelevance and resulted in some renewed judicial scrambling.
Ashcroft wanted to renew the time-honored
but waning tradition of locking up pornographers, and he couldn’t have picked a
better target. Extreme Associates purveys some of the most crass and arguably
misogynistic hardcore porn on the market. Although director/starlet/codefendant
“Lizzie Borden” brushes off suggestions that her films harm women, there’s no denying videos like “Forced Entry,” “Cockhounds,” and “1001 Ways to Eat My Jizz”
are “extreme.”
Extreme Associates had no earthly
hope of arguing their work was not obscene. Instead, they asserted that even
though it was obscene, banning it was an unconstitutional infringement of
privacy rights. The District Court agreed, relying heavily on – you guessed it,
kids! – Lawrence v. Texas, the 2003 decision striking down sodomy laws
under the Due Process clause. Thus begins a new chapter in obscenity
jurisprudence.
The District Court considered Lawrence’s
holding that the state could not intrude on consensual, adult bedroom
activities in conjunction the 1969 Supreme Court holding in Stanley v. Georgia
that the possession of obscene material in one’s own home could not be
criminalized. Read together these precedents led to the conclusion that
obscenity laws implicate a fundamental liberty interest at the intersection of
privacy and freedom of expression.
The Court went on to say that
advancing a “moral code” was not a legitimate state interest, but protecting
minors from smut, as well as adults not wishing to view it, was. This being
admitted, the defendants had taken adequate precautions in their marketing and
website design to ensure such protection. Case dismissed.
Of course, whether the privacy
rights recognized in Lawrence apply to a case like this depends on
whether the case is read broadly or narrowly. The District Court adopted a
broad reading, stating that Lawrence “can be reasonably interpreted as
holding that public morality is not a legitimate state interest sufficient to
justify infringing on adult, private, consensual, sexual conduct" – period.
Others would take a much narrower view, emphasizing instead the majority’s
reference to sexual behavior being potentially “but one element in a personal
bond that is more enduring.” Under this view, only forms of sexuality that may
be expressive of a deeper relationship are protected under Lawrence. This
may include fornication and even adultery, but not “sex for sex’s sake” as in
pornography or prostitution.
The U.S. Attorney’s office
apparently takes the latter view, and is “very disappointed” by the dismissal. Incoming
Attorney General Gonzales has declared that fighting porn will be “one of my
highest criminal enforcement priorities,” and he will want to see this decision
appealed. But will Justice be confident enough of success to fight this
decision and risk having it affirmed by a higher court? Only time will tell. In
the meantime, all this attention can only be good for Extreme Associates –
they’re running a “Federal Five” special featuring the indicted movies. But if
such fare is a bit too coarse for you, I recommend the more subdued reading
pleasure afforded by the now imperiled federal
obscenity statutes themselves, with their quaint references to filthy
silhouettes and phonograph recordings.