"Can I Do That?" Obscenity, and the Murky Waters Floating "edgy" Content in the Entertainment Industries.

By Vincent J. Kostiw, Esq., as published in the Communiqué, the monthly publication of the Clark County Bar Association.

With the ever shortening attention span of the public, entertainers and entertainment providers keep pushing the envelope, presenting content that is often more “edgy” and outrageous than ever.  Content that was taboo just a decade ago is finding its way not only into satellite/cable broadcasting but also onto the public airwaves as part of popular primetime traditional network programs.   

With the greater integration into the mainstream of this “edgy” content, the content once confined to stag parties and seedy backroom theatres has come out into the light and has become a multi-billion dollar industry appealing to both men and women.  Attorneys that have clients involved in the entertainment industries are often asked “can I do that?” when the client decides to venture into an area of content that could potentially get them into trouble with the law, especially in the area of obscenity (often the question is presented after the fact as “can I get away with that?”).  As we will explore below, the answer is often “maybe”.

“Heavens to Betsy! There ought to be a law!”

Since the days of Lenny Bruce and his “racy” comedy in the early 1960s, and the “stag” films of that era, the “obscenity” laws have not significantly changed, but content that would have certainly landed a person in jail back then, has become commonplace in network programming.  This shift in the legality of certain content is based on the changing definition of obscenity, which is based in part on an ever changing contemporary community standard. 

In 1957 the Supreme Court held that obscenity is not within the area of constitutionally protected speech or press.  The Court stated that ideas having the slightest redeeming social importance are generally guaranteed constitutional protection, but “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance”, rejecting constitutional protection for speech deemed obscene. Roth v. United States, 354 U.S. 476, 484-485 (1957).

Blacks Law Dictionary, seventh edition, Bryan A. Garner Ed., West Group (1999) defines obscenity as: “The quality or state of being morally abhorrent or socially taboo, especially as a result of referring to or depicting sexual or excretory functions; something (such as an expression or act) that has this quality. 

The Court in Roth noted that sex and obscenity are not synonymous, but that obscenity is “material which deals with sex in a manner appealing to the prurient interest”. Roth at 487.  Blacks Law Dictionary defines prurient as “Characterized by or arousing inordinate or unusual sexual desire.”

The Roth Court applied the traditional test for obscenity, that of speech appealing to the prurient interest as applied by contemporary community standards, but modified the historic view by looking at the dominant theme of the speech, where earlier courts had only considered isolated parts of the speech.

In 1964, when faced with a case involving Les Amants (“The Lovers”), a racy French film, the Court again considered the dominant theme of the speech and found that the film was not obscene, therefore providing it constitutional protection.  Jacobellis v. Ohio, 378 U.S. 184 (1964)  The problems defining obscenity using the Roth test were clearly illustrated in Justice Stewart’s concurring opinion where he stated that he believed the French film was not obscene, and further, that he believed obscenity under the Roth test was limited to hard core pornography.  He couldn’t really define what hard core pornography was, other than his famous quote that “I know it when I see it”.  Jacobellis at 197.

In 1973 a man was convicted in California for distributing obscene materials through the mail.  On appeal, the Supreme Court chose to enhance the Roth test and formulated a new three part test for defining obscenity. Miller v. California, 413 U.S. 15 (1973):

  1. Whether the “average person applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest.

  2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

  3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Ummmm….Can I be turned on…and grossed out …at the same time?!

Kathleen Sullivan, a former Dean of Stanford Law School, is one of many who have summed up the inherent problems with this test.  “The first two parts of [the Miller test] are incoherent: to put it crudely, they require the audience to be turned on and grossed out at the same time.”  Kathleen Sullivan, The New Republic (Sept 28, 1992).

 And what is the contemporary community standard? Is the community a local community or a national community?  If a local community, how local, and what defines it?  The Miller Court defined the state of California as the relevant community, while other courts have defined the county, tri-county areas, as well as the state as the community.  It has been suggested that the bar setting the local community standard in North Las Vegas is the existence of the Palomino, an old strip club in North Las Vegas, which was “grandfathered” to continue to allow nudity, alcohol sales and private rooms despite that some of these activities are prohibited by the current North Las Vegas Municipal Code.

What is serious value?  The first two prongs of the Miller test, prurient interest and patent offensiveness, are issues for a jury to determine applying the “contemporary community standard”, but the third prong, serious value, was held to be defined by a national standard. Pope v. Illinois, 481 U.S. 497, 500 (1987). 

The Miller Court rejected a national standard for all parts of the test, reasoning that a national standard would drop the bar on speech to the most restrictive level in the nation.  In 1957 the Court had a similar conclusion where an over restrictive Michigan statute prohibiting the sale of certain reading materials was deemed unconstitutional.  The Court held that a statute, which effectively reduced the reading level of all Michigan citizens to that of children, was unconstitutional. Justice Frankfurter compared the statute to “burn[ing] the house to roast the pig”.  Butler v. Michigan, 352 U.S. 380, 383 (1957).    

A test that is part local standard and part national standard creates a host of problems.  The terms used for testing whether speech is obscene have no common meaning in today’s society.  People do not commonly use the word “prurient” or speak of things as being “patently offensive”.  There is no field test for law enforcement to determine if something is obscene.  Because of these archaic terms and the vague community standard, speech cannot be deemed obscene in the field, or anytime before a jury verdict.  In most criminal cases the defendant knows from the outset if he or she is guilty.  In obscenity prosecutions the defendant cannot know if he or she is guilty and enter a plea until after conviction or acquittal, which leads to another problem.  How many people are comfortable discussing their views on erotica in a public setting?  Probably not too many.  Imagine then how the contemporary community standard can get skewed when a group of uncomfortable male and female jurors that have never met before are asked to discuss their views of erotica in a jury deliberation room.  The test does not work.

So what do I tell my client when they ask me “can I do that”?

Consider this.  Adult oriented content that might have been considered obscene in the past may have mainstream appeal today.  Consider the recent popularity of the movie Boogie Nights, a major studio production, and a widely released film.  This film is loosely based on 1970s porn star John Holmes, depicting his life and times as part of the adult film industry.  Consider the placement of a Fredrick’s of Hollywood or Victoria’s Secret shop in most every mall in America.  Consider that most major hotel chains now offer adult pay-per-view in-room movies to their guests.  Consider the 1988 opinion of the Supreme Court of California which held that a producer paying actors to engage in legal and non-obscene sexual acts did not constitute pandering or prostitution. See People v. Freeman, 758 P.2d 1128 (Cal. 1988).  The Freeman Court considered the payment to the actors, not as payment for the sex acts, but payment for the right to photograph the conduct.  It is no wonder that the adult video industry thrives in the State of California.

Images of erotica have become a staple of modern culture, but at the same time discussion of erotica is still a private matter for most people.  It is unclear whether conduct that is permitted in California would be legal in Nevada or elsewhere.  The bulk of cases regarding obscenity often hinge on whether the conduct came to the community or the person exposed to the content was seeking the content.  With the availability of Internet, satellite television and radio, and other widely disseminated forms of communication, the question of access becomes murky, which further clouds the tests for obscenity. 

So just like the “final answer” to those fun law school exams, when your client asks “can I do that?”, especially in an “edgy” area that could be deemed obscene, the answer more often than not is “maybe”.

*Note: This publication is simply the opinion of the author and should not be construed as legal advice.*

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