As I understand it, the Supreme Court bars censorship of sexually explicit material unless it is declared obscene or without any redeeming social value by contemporary community standards. Since the Supremes never gave any indication of what, exactly, contemporary community standards are supposed to be, the only way to determine if certain material is in fact obscene is to have the trail jury decide what contemporary community standards are. This leads to inconsistency within jurisdictions, as every jury will probably reach a different consensus as to what the standard is, thus giving prosecutors carte blanche to drag anybody they see fit to trial (see: my local prosecutor’s decades-long pissing contest with the Flynt brothers).
The Question:
What is to prevent local (or even state) jursidictions (or community values groups, or the AVN people, for that matter) from settling the community standards question once and for all by means of public referenda or ballot initiatives? How come we here in Cincinnati have never had the chance to vote on, say, “Issue 6969, a motion to declare depictions of orgies involving goats in violation of contemporary community standards”?
If this wanders in to GD territory, I apologize in advance.
Oh man, I gotta tell you a great story I saw on CourtTV. A video rental shop in Salt Lake City got hauled up on obscenity charges for renting softcore porn tapes. His defense was that his tapes did not violate community standards, and to prove it, he subpoenaed subscriber records for SLC DirecTV customers. DirecTV fought, but lost in court when it was shown that they did not want information on individual users, they just wanted general statistics on how much pay-per-view porn people were buying. So of course, people were watching tons of porn that was far more explicit than the stuff he rented, and he won his case. Now THAT is justice in action!
Interesting. I’d never considered the idea, but I think that this would be acceptable. There would have to be limits, though, as it would otherwise take discretion from the jury, which would possibly impinge on the defendant’s Sixth Amendment right to a jury trial. But the courts of the United States are typically very cautious about declaring that democratically enacted laws are not the will of the people – the bedrock assumption is that laws are the will of the people because they can always be changed if the will changes. This would hold true for Acts passed either by the local legislature or through direct democracy. State-level action would probably not be acceptable because “the community” is typically cut finer than that, and the courts would be worried that, although this pronouncement of State mores is accurate, it would impinge on a legitimately different community standard in a smaller territory.
–Cliffy
P.S. The Court has given some guidance on this issue – nudity is not pornographic.