HOW PROSECUTORS ARE USING OBSCENITY LAWS TO STIFLE DISSENT
by: Marjorie Heins
Prosecutors around the country are dusting off America's archaic obscenity laws for new ends. Their purposes are frankly ideological: to suppress ideas they don't like, including gay/lesbian art and literature, and alternative journalism that they find rude, distasteful, and subversive. Twenty-two years ago, the United States nearly got rid of obscenity laws. But Justice Abe Fortas had been forced off the Supreme Court in 1969 and the new Chief Justice, Warren Burger, became the swing vote four years later in the notorious Miller v. California case, reaffirming the notion that "obscene" books, pictures, plays, and movies were not protected by the First Amendment.
Censors of Various Political Stripes
are Misusing Obscenity Laws
Miller did have the redeeming virtue at least of making clear that obscenity laws cannot be used to prosecute anything other than "hardcore pornography." What that means, of course, somewhat difficult to say, but the Court specified that works with "serious literary, artistic, political or scientific value could not be obscene.
Despite that clear warning, prosecutors in Cincinnati last year brought obscenity charges against the Pink Pyramid, the city's only gay/lesbian bookstore, for renting the film Salo by Pier Paolo Pasolini, one of the leading art film directors of postwar Europe. The police had sent a vice squad member into the store to rent "sexually oriented" videos, but the first selections were evidently not explicit enough, so he returned, asking for something "stronger" and "more graphic." On this second occasion, a clerk rented him Salo.
Salo is a bitter, grueling political allegory, but it is not anywhere close to hardcore pornography. The city nevertheless charged the bookstore with three counts of "pandering obscenity."
Not coincidentally, all this occurred just as the city was about go to trial in federal court last summer to defend an anti-gay rights referendum that the voters had passed in 1993, voiding that portion of the city's human rights ordinance that barred discrimination based on sexual orientation. It's a fair inference that the city was out to embarrass the gay community just as the federal trial began, and to "get" the Pink Pyramid, perhaps to close it down entirely, and with it the open display of gay literature, art, and identity in Cincinnati.
Neither the defendants' lawyers nor an impressive array film scholars, artists, festivals, and museums that filed a friend-of-the-court brief (including Martin Scorsese, Alec Baldwin, the Lincoln Center Film Society, and the Museum of Modern Art) were able to persuade the Ohio trial judge assigned to the Pink Pyramid case that the prosecution should be dismissed on the ground that Salo was protected by the First Amendment and could not possibly be found obscene under the Miller v. California test. In November the judge did order suppression of the evidence (the video) on Fourth Amendment search-and-seizure grounds -- the police had kept the film well beyond its return date, thus unlawfully seizing it before they had a warrant. The city is appealing this order suppressing the "contraband," without which, of course, it cannot make its case in court.
Gay rights is not the only point of view that local communities are trying to shut down through obscenity laws. Earlier this year in Bellingham, Washington, police received a complaint about a local newsstand that was selling an alternative magazine (or "'zine") called Answer Me!, whose current issue dealt from a variety of perspectives with the subject of rape. The bulky 'zine consisted of interviews, fiction, investigative journalism, and discomforting visuals, all designed to provoke, reflect, parody, and savage both prevailing attitudes about violence against women, and the vociferous right wing of feminism which views censorship of pornography as the solution to the evils of sexism. (The cover of Answer Me! showed a battered woman with a sign saying "I asked for it"; articles included "Chicks Make me Nervous," "Revolt Against Penis Envy," "Fucking Andrea Dworkin," and many more with a similarly nihilistic cast.) Answer Me! is widely considered one of the best of the alternative 'zines in the nation.
The citizen complaint led to a visit by one of Bellingham's finest to the newsstand in question; the officer warned the owners, Ira Stohl and Christina Hjelsand, that they risked obscenity charges. Stohl and Hjelsand were sufficiently intimidated to stop selling Answer Me!, but they were also sufficiently incensed by the police department's high-handed censorship methods that they created a protest display complete with an issue of the magazine bound up in chains. This gesture apparently did not amuse the local prosecutor, who in February informed Stohl, Hjelsand, and their attorney Breean Beggs (a volunteer recruited by the local ACLU) that he would file obscenity charges unless they forthwith removed display and agreed never again to sell Answer Me! or anything "similar." When Stohl and Hjelsand responded with a federal suit seeking to stop the threats, the prosecutor countered with obscenity charges in state court.
As in Cincinnati, so in Bellingham, the defendants filed motions to persuade the state court judge that there was no way Answer Me! could be considered obscene under the Miller v. California test, and that because of the severe chilling effect of simply being prosecuted for obscenity, even if ultimately acquitted, the court had a constitutional obligation to dismiss the spurious charges without subjecting the defendants to the ordeal of a trial. Voluminous affidavits accompanying these motions attested to the literary, artistic, political, and psychological value of the 'zine, including one by a University of California instructor who had assigned Answer Me! to her freshman composition class in order to study satirical style and ideas of "normality" in contemporary society.
But as in Cincinnati, the Washington judge refused to dismiss the charges. He not only disregarded the requirements of Miller; he also ignored the fact that this case was brought specifically to suppress a certain viewpoint about rape, at least as perceived by the prosecutor and the person who initially filed the complaint. A prosecutorial desire to suppress nasty ideas is a constitutionally illegitimate reason to initiate a criminal case, as the Supreme Court has frequently noted. But Supreme Court precedents are sometimes not a great help in the local communities and trial courts where obscenity law is increasingly being used to advance political agendas.
The law of obscenity has always been an oddity. In a legal universe where the First Amendment generally protects "offensive" speech from those who would like to suppress it, obscenity laws not only allow community notions of offensiveness to play a role in deciding whether a book or film will be banned and its authors or distributors criminally punished, but convictions often turn on exactly how offensive the community, as represented by a local jury, finds the material. And although scholars have pointed out that sexual speech has at frequent points in history been a weapon of political dissent, satire, and subversion, the Supreme Court continues to insist that obscenity laws are not "viewpoint based," but are simply directed at material that is "no essential part of the exposition of ideas." Until obscenity laws are finally invalidated, government will continue to use them to harass, threaten, and silence nonconformity, rebellion, and dissent.
From the ACLU Arts Censorship Project Newsletter, 132 W. 43rd St. NY, NY 10036
The ACLU Arts Censorship Project was created in 1991 to combat mounting threats to artistic freedom from both government and private pressure groups. The Project engages in precedent-setting First Amendment litigation and educational campaigns. It works with ACLU affiliates to fight censorship on the local level, and with the ACLU National Washington Office on federal legislative issues. The Project offers legal assistance in censorship cases to individual artists and arts organizations.