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THE LAW IS A ASS for 12/11/2001
DOCKET ENTRY
"The Law is a Ass" Installment # 125
Originally written as installment # 114 and published in Comics Buyer's Guide issue # 710, June 26, 1987 issue
To hell with modesty!
Harlan Ellison called me a hero for writing this one.
I didn't come down for weeks!
******
"The Law is a Ass"
Installment # 125
by
Bob Ingersoll
I should probably have my head examined!
Today I am going to analyze a recent decision (like released on May 4, 1987) of the United States Supreme Court. It's a decision which clarifies the Supreme Court's definition of obscenity. I foolishly promised Maggie I would do this, when I told her about the decision; so I will.
Why did I say "foolishly promised?" Quite frankly, I'd rather book passage to Lebanon than analyze a Supreme Court decision. Have you read any recent Supreme Court decisions? I have. It's what I do for a living, if you can call it a living. The Supreme Court has nine judges and each one seems to want to spread his or her own personal wisdom on paper. On the big important cases, the court can't get a simple consensus. All they can get is opinions. Your average Supreme Court decision has more opinions than a Gallup poll. Plurality opinions. Concurring opinions. Dissenting opinions. Opinions concurring in part and dissenting in part. With all the separate opinions by all the separate justices they shove in, current Supreme Court decisions are about as straight forward as a plate of spaghetti and as concise as senate filibuster.
But a promise is a promise and not a margarine. So here goes the analysis of the decision.
The decision in question is Pope v. Illinois, which is found in Volume 481 of United States Reports on page 497, or 481 U.S. 497 if you're familiar with Harvard Blue Book cite form. That's where you'll find it, if you're looking, although I don't know why you would be when you've got me telling you about it.
And if I'm to do that, I'd better get started now, because, as I said, Pope, like so many recent Supreme Court decisions doesn't have one opinion. It has five. That makes it tricky to determine what the case actually does hold. As I also said, it clearly does alter the prevailing definition of obscenity. We're just not sure--and will be fighting over in the years to come--exactly what the definition was changed to.
Now, why is this installment of a column about the law, as it is portrayed in or affects comic books, being devoted to a new test for determining what is or is not obscenity? If you have to ask, you haven't been paying attention these last few months.
The topic of comic book subject matter--what should or should not be depicted, should or should there not be a ratings system--has been much discussed by all levels of comics, both professional and fandom. Most of this discussion stems from obscenity. Of late there have been charges made against comics. Charges like those equating Elektra: Assassin with Penthouse or that compare Vigilante to the kind of entertainment you're likely to encounter in a Times Square Peep Show. The whole situation exists because current comics contain more "dirty pictures" and "dirty words" than they did before, or, at least, more words and pictures that some people want to declare dirty. Face it, if we were just talking about adult story lines that didn't contain nudity or scatology, we wouldn't be talking at all. No one would care.
Right now, some retailers are running scared and demanding rating systems on the books artificially imposed by the publisher. Why? Because some Chicago comic store is being prosecuted for pandering obscenity, that's why.
Trust me on this one; it all stems from obscenity. Obscenity laws are the only weapons available to those who would force their views of propriety onto what you and I can see or hear. So they use, or abuse, them to the maximum possible effect.
Therefore, as the United States Supreme Court has announced a new obscenity test, which is binding on all the states and which makes it harder to prove that something is obscene, that has a bearing on comic books. What was once obscene, now may not be. And that, ladies and gentlemen, changes the whole picture. Up to and including obviating the need for a rating system.
But a little background is needed. Here it is.
On July 21, 1983 two policemen bought magazines from an adult book store in Rockford, Illinois. The salespersons who sold the magazines were tried under the Illinois obscenity statute. When the trial court defined obscenity for the jury, it used a definition Illinois derived from the United States Supreme Court decision Miller v. California, 413 U.S. 15 (1973). Under that test, material is obscene if--taken as a whole and under the prevailing community standards--it 1) appeals to the prurient interest; 2) depicts sexual acts in a patently offensive way; and 3) lacks serious literary, artistic, political, or scientific merit.
Please note the word "and," which as your old grammar teacher used to remind you, is "conjunctive," while "or" is "disjunctive." That means that here, where the conjunctive "and" was used, all three prongs must be present, for material to be obscene. If even one is missing, the material is not obscene.
The defendants were found guilty. The jury found that, under prevailing community standards, the work appealed to prurient interests; that, under the same prevailing community standards, the works depicted sexual acts in a patently offensive manner; and, again according to the prevailing community standards, lacked any literary, artistic, political, or scientific value.
The defendants appealed to the United States Supreme Court, arguing that the Illinois obscenity definition was unconstitutional, because it violated the First Amendment guarantees of Freedom of Speech and Freedom of the Press. The Supreme Court agreed. And here ends our background. Now on to the part I've been dreading and stalling off for as long as I can. (It wasn't just padding my word count for the extra pay, there were sanity issues involved, too.)
The Pope court ruled that Illinois, and most other states, have misinterpreted Miller. Most states have been analyzing the third prong or Miller--the lacking in serious literary, artistic, political, or scientific merit prong--using the prevailing community standards. The Supreme Court said that Miller did not call for the value prong to be measured by analyzing the material under the prevailing standards of the local community. Indeed, the Pope court pointed out that Miller specifically said that the third prong should not be scrutinized under local standards.
Yes, the first two prongs are to be determined using prevailing community standards. That is work should be evaluated using the prevailing community standards to determine whether it appeals to the prurient or is patently offensive. But literary, political, artistic, or scientific value must be determined without reference to community standards.
A work does not have to obtain the approval of the local majority, in order for it to have value or be protected by the First Amendment. Indeed, it is frequently the minority view, which needs the most protection, as the minority view is the most easily suppressed. The Supreme Court ruled, the proper standard to be used in the value prong is the "Reasonable Man Standard." If a "reasonable man" viewing the work as a whole finds literary, artistic, political or scientific value in it, then it is not obscene.
It does not matter that the "reasonable man's" opinion doesn't agree with the majority of the local community. As long as it is the view of a "reasonable man," the work is not obscene.
(Courts use this "Reasonable Man Standard" all the time. I expect the eventual creation of a brand new profession, The Reasonable Man Corps. Imagine a mobile band of persons--all Board certified to be reasonable--who travel the country from court room to court room to give the jury the benefit of their "Reasonable Man" opinions.)
The Supreme Court found that the Illinois courts used the wrong obscenity definition. Therefore, the convictions for Pope (and what's the Pope doing with obscene material in the first place?) and Morrison for selling obscenity was not proper.
But tell Adrian Chase to put away his .357. The defendant's haven't gotten off on their technicality yet. The Supreme Court didn't set aside the convictions and order a new trial. It remanded the case back to the Illinois Supreme Court so it could determine whether the defendants would have been convicted, even if the correct obscenity definition had been used; even if the value question were determined using a reasonable man standard and not the prevailing community standards. If the Illinois Supreme Court finds the defendants would have been convicted anyway, the convictions will stand, because the error of using the wrong obscenity definition was harmless.
The import of the Pope case is this: if the entire city of East Elbowjoint, ________, (you can fill the blank in with whichever state you think is the most provincial, I see no need to insult any particular state) is a populated by a bunch of prudes--you know, the type that want to clothe the animals in the zoo and refer only to chair limbs, because the word, leg, is suggestive--their local prudish beliefs cannot determine whether something is obscene. They must evaluate the material using the universal beliefs of a reasonable man.
Six justices--White, Rehnquist, Powell, O'Connor, Scalia, and Blackmun--all agreed with this test. So that gives us an actual majority of six justices who have ruled how the obscenity test should be applied. That is the law. There were, of course, other little wrinkles in the case.
Of these six justices comprising the majority opinion, two wrote separate opinions. Blackmun believed the new definition was correct. However, he also believed that the convictions should have been set aside. He did not believe that giving the wrong definition to the jury could have been a harmless error.
Scalia agreed with the new standard. However, he said he did so only because no one had asked the court to reconsider Miller, and asked someone to bring to the Supreme Court a case requesting that Miller be reconsidered.
Scalia then went on to state his opinion on legislating obscenity: don't. Scalia quoted the Latin maxim, De gustibus non est disputandum, which Maggie tells me translates rather colloquially into: "there is no use arguing about taste." Justice Scalia wrote, there is no use legislating taste, because what one group will find obscene, another group will find acceptable.
Scalia's concurring opinion does two interesting things. First, it outright asks someone to present a case to the Supreme Court, so that it can reconsider and change the Miller test of obscenity. Second, it says that obscenity should not be legislated or prosecuted.
(Personally, I agree. Obscenity should be regulated by those tools of all democracies, taste and the free market system. If obscenity does not appeal to a sizable enough portion of a local community, then businesses selling it will not be profitable. Result: the businesses will close up without any having to legislate them out of existence. If, however, a sizable enough portion of the community supports the business to make it profitable, they should not be denied the material simply because another portion of the community disapproves of it. The solution in that case is for the disapproving portion to avoid the businesses and thereby avoid exposure.
Such a radical concept! Do you think it has a snowball's chance in... Can I say Hell under the new obscenity test?)
Justices Stevens, Marshall, and Brennen do not agree with the new Pope/Miller standard. It's not that they thought the magazines Pope sold were obscene. These three justices didn't like the "reasonable man" test. They thought the test shouldn't be would a reasonable man find any value, but could a reasonable man find any value. Only with this test can the function of the First Amendment--protecting ideas--be fully accomplished. Justices Stevens and Marshall believe that the states should not criminalize the sale of any material to consenting adults who know what they are buying, so long as the material does not contain any explicit material involving minors.
Justice Brennen took it one step farther in his dissenting opinion. He wrote that the states should not criminalize the sale of any material to consenting, knowing adults--regardless of the content--because to regulate content in any way is impermissible under the First Amendment.
So where are we? The Supreme Court has--per six justices-- stated that the value prong of the obscenity test must be evaluated under a reasonable man standard, and two of the other three justices would use an even more restrictive test. And the last justice doesn't think there should be obscenity laws. That bodes ill for those who would dictate what we can say or can hear. It makes it harder for them to impose their views on the rest of the world. Even more ominous for those who believe the First Amendment is nothing more than toilet parchment is the fact that a sizable faction of the court may be ready to declare that thought and art can not be legislated and are asking for the opportunity to do so.
We live in interesting times, people. God willing, they will soon be even more interesting.
Bob Ingersoll
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