Legalese Column: Utah's Latest Bizarre Attack on Erotica

This article originally appeared in the June 2016 issue of AVN magazine. Click here to see a digital edition of the magazine. The latest wrinkle in attacking erotica comes from Utah, a new attempt to get a different angle on it. This is not new, just a different angle. But the whole thing—dubbing “pornography” a “public health crisis”—is as laughable from a legal standpoint as it is from a political one. The history of mankind has been riddled with efforts to censor speech that supposedly could “pollute the mind.” They don’t get it: the remedy for bad speech isn’t censorship; rather, the remedy is more speech. Many of the recent efforts in this realm are well-documented in Dr. Marty Klein’s wonderful book of a few years ago, America’s War on Sex. Well before the stunts chronicled in Marty’s book, however, there was an infinity of other tries. The sea change in obscenity jurisprudence was the Supreme Court’s 1957 Roth decision. The core holding of Roth was that obscene speech was not protected by the First Amendment, although delineating a tough test limiting what was legally obscene. Once the limits were defined, the stunts attempting to end-run the First Amendment were many and varied. One seemed to have been taken from prohibition, when federal agents would raid the illegal booze operations with axes, chopping up the whiskey or beer barrels with the hooch running into the street and then to the sewer, dramatized by Walter Winchell in The Untouchables television series in the late ’50s and early ’60s. Apparently enamored by Robert Stack’s character beating up all of the illegal rum runners, local cops tried the same stunt with dirty book stores. The Supreme Court put a stop to that practice in two cases, Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri in 1961 and Quantity of Books v. Kansas in 1963. Another end run around the free sexual speech arose in the wake of Stanley v. Georgia, a 1969 Supreme Court opinion holding that, although obscenity was not protected by the First Amendment, private possession of it was protected. Reeling from that, Congress set up the President’s Commission on Obscenity and Pornography—which, to the chagrin of Congress and President Nixon, found that erotica wasn’t such a big problem. President Nixon’s response was sort of, “Never mind.” Meanwhile, the Sexual Revolution was steaming ahead, the fire stoked by Hugh Hefner, The Pill and the protesting Baby Boomers. In the midst of that, in June of 1972, Deep Throat hit the street. It didn’t take too long until there were lines—including many couples—wrapped around the block to see it. The Greatest Generation was bewildered by this XXX cult classic. After over a decade of the courts being flummoxed by what to do with obscenity cases, the whole thing came to a crescendo with five opinions issued by the Supreme Court on June 21, 1973, led by Miller v. California—the absurd Miller test. In a 5-4 decision that would have come out the other way had Bobby Kennedy not been gunned down at the Ambassador Hotel in Los Angeles on his way to a victory in the 1968 Presidential election, the Court again held that obscenity, with minor tweaks for the worse in the test, was not protected by the First Amendment. Ironically, Justice Brennan, who had written the 1957 Roth opinion, figuratively threw up his hands, dissenting on the ground that there was no test that would pass constitutional vagueness muster that could draw a line between constitutionally protected speech and obscenity that could land the speaker in the hoosegow. During the ’70s and early ’80s, obscenity prosecutions were hit-and-miss terrorist attacks on the First Amendment. One of the more interesting ones was a federal prosecution called MiPorn. In the late ’70s, the feds went to the “Consumer Software” component of the Consumer Electronics Show (CES) in Las Vegas. Back in those days, what is now the Adult Entertainment Expo was a part of the CES. Conventioneers whose wives thought they were out selling transistor radios in fact were checking out porn stars. So, what the FBI did was to go to Vegas to check out CES to amass information about the adult video producers and distributors. Armed with what they learned there, they set up an undercover operation in Miami, purchasing porn from all of the distributors that they had learned about. The amazing result, which ultimately was found to be out of whack with legal reality, was a single indictment against all of the distributors, claiming a colossal nationwide conspiracy to distribute obscene material, claiming CES to be the hub of the conspiracy. It really didn’t get very far. The next political stunt was connected with President Reagan’s 1984 landslide reelection. Owing a big debt to the Evangelicals (“Religious Right” in those days’ parlance), another commission was created, this one in the image of the 1950-51 Kefauver Commission hearings on organized crime and the 1954 Army-McCarthy hearings on Communism. What became known as the “Meese Commission”—named after Attorney General Edwin Meese III who was a buzz saw against pornography—was a group of clerics, conservative politicians, psychologists and even a judge that was totally stacked as result-oriented. The Meese Commission’s report offered scores of recommendations on how to deal with the supposed problem of pornography. What happened after that until Bill Clinton kicked the Republicans out has been the subject of other columns. Around that time, though, there was another stunt that matches what Utah has done. Two radical feminists, preppie scholar Catharine MacKinnon and her cheerleader, NFL-tackle-sized Andrea Dworkin, decided to attempt to define pornography as “graphic sexually explicit subordination of women.” That was an attempted end-run around the First Amendment, much akin to what Utah recently has done. This feminist duo managed to sell the city of Indianapolis, Indiana on enacting an ordinance embracing their concept. Because pornography was bad for women, it could be illegal, the First Amendment notwithstanding, so they claimed. Nope. American Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d, 475 U.S. 1001 (1986). The Seventh Circuit’s opinion’s first paragraph said it all: “The City’s definition of ‘pornography’ is considerably different from ‘obscenity,’ which the Supreme Court has held is not protected by the First Amendment.” That court fight cost Indy a pretty penny. Now, Utah has tried another, comparable end-run. Utah’s slant on this is that “pornography is creating a public health crisis.” After a couple of pages of “whereas” clauses, the Utah legislature concluded: “NOW, THEREFORE, BE IT RESOLVED that the Legislature of the state of Utah, the Governor concurring therein, recognizes that pornography is a public health hazard leading to a broad spectrum of individual and public health impacts and societal harms. “BE IT FURTHER RESOLVED that the Legislature and the Governor recognize the need for education, prevention, research, and policy change at the community and societal level in order to address the pornography epidemic that is harming the people of our state and nation.” Now, you need to give the Utah legislature some credit here. When Indianapolis got sucked in by the Dworkin-MacKinnon nonsense, it set itself up for the court challenge noted above, along with a hefty attorneys’ fees judgment. What Utah did was just a resolution. Unlike ordinances, resolutions do not threaten prosecution so, therefore, are not so easily subject to legal challenges. If the Utah resolution had been enacted into a statute, it likely would fare no better than the Dworkin-MacKinnon absurdity. In recent years, the current Supreme Court has been disinclined to add any new exceptions to First Amendment speech protection, squarely rejecting three attempts: Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (simulated child pornography); United States v. Stevens, 559 U.S. 460 (2010) (dogfight/crush videos); Brown v. Entertainment Merchants Association, 564 U.S. ___, 131 S. Ct. 2729 (2011) (violent video games accessible to minors). Justice Scalia’s death and his potential replacement, whoever and whenever that may be, cannot be expected to change any of that. Justice Scalia’s replacement could not be more conservative; so a Republican justice would not change the Court’s thinking. A more liberal justice, of course, can be expected to be more speech-friendly.