What do John Stagliano, Lizzy Borden, and Rob Zicari have in common? All three were prosecuted under Federal obscenity laws. Lizzy Borden and Rob Zicari were sentenced to 1-year prison terms while Stagliano’s indictment was dropped by the Court.
ReasonTV recently did a story on the idea of obscenity:
The idea of obscenity is, in my opinion, a preposterous idea, even more so than blasphemy. Basically by having obscenity laws, among other anti-sexuality laws, people are attempting to assert a right against being insulted or offended, though no such right exists.
The notion also flies in the face of personal liberty. Basically if you are going to try to tell me what I can and cannot view, read or write, I must have the same liberty to say the same to you. If I can’t read or write erotica or watch pornography, you can’t read your Bible, write about Christianity, or watch anything about Christianity. Seems fair, in my opinion.
Arguably the largest problem with obscenity laws is in defining obscenity in a legal context. Most of our criminal statutes strictly define a crime, with set criterion that are non-negotiable. In a court of law in a criminal trial, facts are weighed against these rigid criteria beyond reasonable doubt. The facts presented at trial either apply to the charge or they don’t, along with any defenses that are raised. There is little room for the juror to make a judgment call or ruling based on their opinion. Think of any crime and you’ll find a set definition in criminal codes.
That is, until you come to obscenity.
In the legal context, the most widely used definition of what material is obscene derives from the “Miller test”, so named because it was created in the United States Supreme Court decision Miller v. California1. Arguably the largest criticism of the Miller test is its relegation to “community standards”. This means that the criminal definition of obscenity is little more than an ice skating rink. It also allows juries to use their own individual opinions on whether something is obscene rather than referring only to facts and set definitions and is a clear definition of “prior restraint”, which itself is a violation of the First Amendment.
This means that a finding regarding whether something is obscene is likely to differ where the makeup of the jury differs — younger juries or predominantly male juries may be less likely to convict on an obscenity charge than older juries or predominantly female juries. Where you are less likely to have inconsistencies with juries is where the Sixth Amendment and violations thereof can come into play.
Quoting John “Buttman” Stagliano in another video by Reason.tv on obscenity (embedded below):
The first thing is, you know, that we’re a government of laws and not men. If you don’t, if you don’t have a law that’s written that says, that okay, if you do this you will go to jail, then, then that’s a good law. If you have a law that says, well, you know, we might say that this is obscene or we might say that’s obscene, but we don’t really know in advance, we’re just gonna maybe decide to prosecute you, that’s the first number one bad thing about this situation is that I didn’t know I was breaking the law.
Quoting Nick Gillespie (same above video):
Will Storm Squirters 2 be considered a cinematic masterpiece in 50 years? Maybe not. But here’s hoping that the guidelines governing free expression will have disappeared completely, or at least evolved to a point where nobody’s livelihood or freedom depends on the random opinions of 12 strangers called to serve on a jury.
Pornography and erotic literature should be fully permitted within society for one simple reason: when you purposefully seek it out and expose yourself (no pun intended) to that kind of material, you are literally confronting your current notions about sex and sexuality and expanding your horizons beyond what you currently know into realms you may find curious, arousing, or maybe just eye opening, or possibly downright disturbing.
It also shows to the world that sex is not something of which to be ashamed and forces you to confront your own sexuality. How is this not a good thing?
The freedom of speech is about forcing people to confront their own pre-conceived and long-held notions. Consider the longest-running animated program on television, and one of the most controversial in its earlier seasons, The Simpsons. In 1997, a television program that is arguably worse showed up on Comedy Central: South Park. Quoting Marty Klein, one of the speakers in the above video:
The right to see South Park, may actually depend on the right to watch Butt Busters 3… If people want to have the right to do what they want to do, they have to protect the rights of other people to do what other people want to do.
I would actually go further than this into a slightly different direction: your right to watch motion picture productions regarding religion and politics is also dependent upon another person’s right to watch The Simpsons and Virgins of the Screen.
Now before everyone gets all up in arms, I’m aware there are videos out there of a prurient nature that also double as evidence of other crimes. One that readily comes to mind are so-called “crush videos”: videos that show a woman dressed in a seductive manner, likely also wearing what I call “porn heals”, crushing small and young animals to death, all with the intent of getting off the person watching it. Those are absolutely disgusting and also, as I said, evidence of another crime.
I’m also certainly not going to advocate pornography or erotica depicting under-age teenagers and prepubescent children. Like “crush videos”, child pornography is also evidence of more serious crimes.
But the fact that there are words that cannot be said in certain combinations and in certain contexts and certain actions that cannot be filmed is the very definition of censorship. Criminal sanctions for “obscenity” equate to censorship, and is something that should be eliminated from our criminal codes post haste.
The Miller test actually overrode a lighter standard for obscenity that basically relied on whether the content was utterly without any redeeming social value. As I’ve described herein, erotic materials, whether visual, audio or written, have a lot of social value because it forces you to confront your own ideas and your own notions, the very idea protected by the freedom of speech.
Now you may not want to seek out these materials, and no one is forcing them upon you. But not liking something doesn’t give you the right to tell others they can’t have it either.
Oscar Wilde once said, “The books that the world calls immoral are the books that show the world its own shame.” He also said that ideas not considered dangerous should not be considered ideas. Ironically, Oscar Wilde was a homosexual who was prosecuted and jailed for homosexual acts.
But how far has the idea of obscenity in the United States gone? If you want a recent glance, look no further than the fictional series His Dark Materials by Phillip Pullman. In the third book of that trilogy, The Amber Spyglass, in the chapter called “Marzipan”, some language describing Lyra’s reaction to a story she was being told were abridged. Wikipedia has the details.
My fiancée and I have a copy of a trilogy edition of His Dark Materials. In learning of this censorship of the third novel in the series, I was glad to find a copy of the UK text at a local used book store.
Other famous previously-censored books in the United States were published long ago, such as Lady Chatterley’s Lover by DH Lawrence in 1928 and Memoirs of a Woman of Pleasure written by John Cleland in 1748, commonly known as “Fanny Hill”. You can find Fanny Hill on Project Gutenberg. Lady Chatterley’s Lover is still under copyright in the United States, so it can be found at your favorite local or online book store.
Where are we as a society that we are so willing to prosecute people for material that might be objectionable? Are we any better than regimes where merely questioning the government is a risk to life and limb?
Pornography questions more than government and law. It questions the very notions of what we find acceptable in society. Yet rather than confront their own personal views on sex, sexuality, and pornography, many in society would rather cover it up with their own prudishness guised as criminal laws, and that is as much a detriment to society as taking Glenn Beck off the air.
The charges against Stagliano have since been dropped, but the fact that criminal charges were pursued at all is disturbing.
Other videos by Reason.tv:
- Feminist Constance Penley on Porn, Obscenity and John Stagliano
- John Stagliano is Free on Obscenity Rap!
- 413 US 15 (1973) [↩]