Tuesday, August 28, 2012

Porn Pandering

The RNC has decided to alter its platform so that all existing obscentiy laws on the books are enforced.  It's certain to appeal to the Republican base, especially the religious right.  It's also certain to accomplish almost nothing.

There are plenty of things that I find obscene and that I wish there was an effective way to outlaw.  Certain darker corners of the internet contain things so deviant that I wonder what kind of person would even begin to have an interest in it.  I also know that attempting to outlaw some of these things always risks endangering free speech.

The problem is the law on obscenity is vague and a bit subjective.  The standard was set in the Miller v. California ruling.  It requires that to find a work obscene:
  1. the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
  2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
  3. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
I'm no lawyer, but I've picked apart a few laws in my time.  Here's the layperson's breakdown.  The first one just means that someone figures that it must be material designed to arouse someone.  The second one just means that something depicts sex as defined by state law, depending on which state you're in.  The third one...is a son of a bitch.  Whether or not something has serious literary, artistic, political, or scientific value is frequently a matter of opinion.  Prosecuting an opinion or legislating opinion is inherently dangerous territory.  This is a fine way to run afoul of the first amendment.

Let's face it, some people are more prudish than others.  John Ashcroft famously (and ridiculously) covered a statue of the Spirit of Justice, because one of her breasts was exposed.  He had a problem with it, but many other people would not.  Opinions vary.  Nude art is not uncommon, and has never been considered obscene.  It's entirely possible that other works might be nude, and perhaps a bit provocative, but not obscene.

There's the problem.  Provocative things frequently do have artistic or literary value.  In a sense, the first amendment is designed to let us be provocative.  So where does someone draw the line between provocative and obscene?  Answer: they don't.  Former Justice Potter Stewart stated that he just "knew it when he saw it".  Apparently, they can't even draw a line between what is erotic and what is obscene.  I'm not sure what the difference is either, I just know that erotic material is considered protected speech and obscene material is not.

All of these things seem to imply that obscenity is in the eye of the beholder.  So a prosecution on that kind of case would have to obtain mountains of evidence showing that something had no literary, artistic, political, or scientific value.  The jury's own subjective opinions would affect the outcome.  In the event of a guilty verdict, this sounds like an appeal waiting to happen.  This is why there is so little enforcement.  It's too much work, and the outcome is always uncertain.

If the Republican's were proposing a new law that more clearly defined obscenity, that's something I could consider.  But they only seek to enforce the vague laws that exist.  I think they're pandering to the base.  Posturing like this is not uncommon in campaigns.  I predict nothing will come of this; this is just a vote grab.  And if there is an attempt to prosecute these kinds of cases, it will just be a colossal waste of time and money at a time when we can ill afford to waste either.

No comments:

Post a Comment