The First Amendment, the courts, and the law
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
“Isn’t pornography protected by the First Amendment?”
When you express concern about the prevalence of pornography in our culture, it doesn’t take long for this question to be posed. And it’s an important question – the First Amendment has been one of the bastions supporting our political and religious freedom since it was passed in 1791. However, the idea that it protects any and all pornography is of relatively recent origin and just plain wrong.
Some argue the words of the First Amendment – freedom of speech – include all speech. Yet, there are laws against consumer fraud, conspiracy, libel, slander or falsely shouting “fire” in a crowded theater – none of which are protected by the First Amendment. The U. S. Supreme Court interprets the First Amendment this way: “This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment” (Miller v. California, 1973).
Many assume if pornography is available in a community, it is legal. This simply is not so. There is a difference between enacting and enforcing legislation; and harried prosecutors with limited resources cannot always enforce all of the laws of their community. Since they tend to respond to the most clearly expressed priorities of their constituents, community inaction can be mistaken for community approval.
What’s the law? How does the law define child pornography?
Any visual depiction of actual or simulated sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or a lewd or lascivious exhibition of the genitals or pubic area where the depiction is of a child who is or appears to be under the age of 18 years. (18 USC Section 2256, New York v. Ferber, 458 U.S. 747 (1982), Osborne v. Ohio, 495 U.S. 103 (1990).
Where does pornography stand under the law?
First of all, some things are not pornography: for example, serious works of art, literature, politics, science or medical works. Although proponents of pornography would like to suggest otherwise, no one seriously believes that the statue of Venus de Milo is pornography. Stripped of the legal jargon, public concern leads to the recognition of essentially three categories of pornography proscribed by the laws of the land. These are:
Material which is illegal to possess
This refers only to child pornography, which so outrages people that its very existence is considered “contraband,” i.e. illegal. In part, people’s repulsion at child pornography is that the very act of photographing a child in any sexual context is abusive. At root, though, the idea of placing a child in a sexualized context is as offensive as the act. Thus, when technology enabled pedophiles to prepare “synthetic” child pornography (digitally blending an adult body with a child’s face, or vice versa), the law was extended to include such material.
Material which is illegal to distribute
Most people believe there is a right to privacy in the bedroom, including the sense that intimacy which is beautiful in the bedroom doesn’t necessarily belong on the street. As a result, some material is legal to possess but not to distribute. Much hard-core pornography has this standing, although the term includes a broad spectrum from “just beyond” soft core to material far removed from the beauty and intimacy of the bedroom.
The legal term for prosecutable pornography is “obscenity,” which is defined by the three-part “Miller test” as follows:
1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; and
2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state (or federal) law; and
3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Material which is illegal to distribute to minors
Most adults believe that some activities are acceptable or permissible for adults, but not for children and minors: for example, driving the family car, voting in elections, obtaining unrestricted access to tobacco or alcohol or to pornography. Each of these activities requires maturity of judgment. The legal terms “indecent” and “harmful to minors” correspond to this category of material which has First Amendment protection for adults but not for minors because of the surpassing value of protecting the young. Restrictions on broadcast indecency and telephone pornography extend into this category, as does much of the concern about Internet pornography.
The few who would abolish all prohibitions on pornography argue that the above categories are too vague and the laws should therefore be abandoned as unworkable. Certainly, judgment is required in applying phrases like “indecent” and “obscene,” but that is also true of many other areas of law. We routinely expect juries to distinguish between negligence, gross negligence and willful and wanton conduct, without anyone suggesting that the entire law of negligence be abandoned for vagueness.
Excerpted from the National Coalition for the Protection of Children and Families
Understanding which laws apply
In organizing an anti-pornography campaign in your community, it is important that you have a basic understanding of the various laws that are applicable to the sale, display and distribution of pornographic material.
Most states have statutes incorporating the Miller definition of obscenity, thus making it a crime to distribute obscene material. Many states also have various forms of civil remedies to control the distribution of obscene material. These civil remedies include:
- a. Public nuisance abatement
- b. Declaratory judgments
- c. Injunction actions
These civil and criminal remedies have been used effectively in numerous cities and states to control the sale and availability of obscene material.
Many states also have laws that prohibit the open display of materials harmful to minors.
Many states have enacted statutes that prohibit the use of children in any kind of sexual performance. They make it a crime to sell such material, regardless of whether it meets the test for “obscenity.” These child pornography laws have been given approval by the United States Supreme Court and are necessary to control the problem of child pornography. A growing number of states also have laws that prohibit the private possession of child pornography.
Regardless of what you have been told, there are federal laws that can be used to control the distribution of obscene material. These laws prohibit (1) the interstate transportation of obscene material, (2) the use of common carriers to distribute obscene material, and (3) the importation of obscene material into this country from other countries. These laws make it a felony to transport, ship or send obscene matter across any state or U.S. border; or in the U.S. mails; or by common carrier, such as bus, train, plane, trucking company and UPS, even within a state. (Title 18, U.S. Code Sections 1461,1462, 1465.)
There are also federal laws which control the content of radio and television broadcasts, and which prohibit any obscene, indecent or profane language or conduct by means of the broadcast media. Federal laws can be enforced regardless of whether a state has an effective obscenity statute.
Like many states, the federal government has taken steps to ensure that children are protected from purveyors of pornography. The Congress has enacted law that protects children from sexual exploitation. Codified at 18 US Code Section 2251, these laws criminalize certain activities involving children, including the manufacture, distribution, and or sale of materials that visually depict children in sexually suggestive poses or situations.
Obtaining a copy of applicable laws
For a copy of City or County Ordinances that regulate sexually oriented businesses contact: city clerk, local police department, city attorney or prosecutor, county attorney or prosecutor. These offices can be located in the phone directory or by contacting city hall, or the county courthouse.
For a copy of State Laws that regulate obscenity contact: local police department, state attorney general’s office, or secretary of state’s office. These may be located in the phone directory or by dialing directory assistance for your state capitol.
For Federal statutes that regulate obscenity contact: U.S. Attorney’s office. Check the phone directory for the nearest location or inquire at one of the above offices.
Generally, you may also locate these phone numbers at your local library.
If you have an attorney involved with your group or who is sympathetic toward your cause, he/she would be able to locate a copy of all the applicable statutes from a law library. You can also research many applicable laws on the Internet.
However you approach it, request the statute by number and, if possible, a copy of all other statutes in each of the applicable areas.
Enforcement of obscenity laws
There are several areas of legal questions that concerned individuals generally pose. The following information is designed to assist in responding to these queries.
Do I need to have an obscenity law enacted in my town or county to address the problem? Generally, no. Most states have laws prohibiting the dissemination of obscene material. The most effective method of addressing obscenity law enforcement is to enforce existing laws. Here are effective steps toward the enforcement of obscenity laws.
1. Know the laws available to be enforced. These laws may be federal, state or local. They may include prohibitions against prostitution, obscenity, in addition to health, zoning and building codes.
2. Know the individuals responsible for enforcing the laws. Identify the prosecutors and law enforcement officers who have jurisdiction to enforce the laws that are being violated. Ask for enforcement of a law only by the person who has authority to enforce it, i.e., child pornography by FBI, felony obscenity by district attorney, misdemeanor obscenity by local prosecutor.
3. Know the types of activities that constitute a particular violation of the law. This means being a knowledgeable member of the community as to what types of materials are available and where they are distributed. A Pornography Awareness Survey may be very helpful. Go to www.afa.net for a sample survey that will aid in compiling and organizing the information to be gathered. It is unwise, however, for a citizen to engage in an investigation of a criminal violation. For example, no one goes to the neighborhood crack house to buy some crack to take to the police, nor should citizens be expected to buy porn for this purpose.
4. Respect the resource constraints of the prosecutor’s office or the police department. While each government agency has resource limitations, this reality should not serve to deter the prosecutor from enforcing the law. It should, however, place a burden upon the agency to efficiently enforce the law and use its resources wisely.
Role of the police
The following questions may serve as a foundation for an analysis of law enforcement’s role in enforcing laws in this area.
In the past year, how many obscenity and pornography-related complaints were filed with the police department? How many actual investigations were conducted? In the current year? How many obscenity and pornography-related arrests did the department make? Did those arrests involve child pornography? Adult obscenity violations? Other? Did those arrests evolve as a result of investigation or through some other circumstance?
How many obscenity and pornography-related cases did the police department present to the local prosecutor for prosecution during the preceding year? Current year? How many of the cases did the prosecutor present for indictment? What types of cases were these? How many cases did the prosecutor decline to prosecute? What types of cases were these? What was the basis for the prosecutor’s decision not to prosecute these cases?
In what types of cases have obscenity convictions been obtained in the past year? Of the cases prosecuted, how many resulted in convictions? Of the convictions obtained, how many resulted in incarceration? Fines? In how many cases was the charge reduced by negotiation?
What problems do the law enforcement agents encounter in making obscenity and pornography-related arrests? What problems do law enforcement agents face in presenting these cases for prosecution?
What is the police department’s, local prosecutor’s and U. S. attorney’s general policy concerning obscenity and pornography related law enforcement? What do these law enforcement agencies perceive as the community standard?
The line of questions listed above should also provide a framework for questions for the local prosecutor and U. S. Attorney. Citizens should specifically inquire about the prosecutor’s assessment of the community standard in their area as it relates to pornography and obscenity and the basis for the opinion.
Assessing community standards
Ask your police/prosecutor/elected official: “Do you believe our community standards in your city allow for the sale or rental of hard core pornographic magazines and videos? If so, what evidence supports your belief?”
Approaching your prosecutor
1. Write or call the prosecutor for an appointment to discuss the situation in your community. Identify the nature of your concerns when calling.
2. Establish a friendly relation with the official if possible. This wisdom speaks for itself, although there are some officials who will be so personally biased when you approach them, they will be hostile at first.
3. Prepare for the meeting. Don’t go alone – take at least one person with you. Don’t assume they are familiar with the obscenity statutes or effective procedures in prosecution. Have with you a copy or statute number of all possible statutes that may apply for their easy reference. (If there is not a law, then you should not be meeting to ask for enforcement. You should first work towards the passage of a good obscenity law.) Provide a good sample of a law that has been upheld in court.
4. Present factual information and resources for their assistance. Make a list of the types of violations you believe are taking place and those individuals or businesses that are responsible. You may wish to compile a list of titles of video tapes or magazines that are being distributed in your community which are potentially in violation of the law.
5. It is critical that you be well informed and be able to discuss the obscenity problem in your community. Remember that the prosecutor may not have the legal authority to resolve all problems in your community and you should not ask him to do something he does not have authority to do.
6. Support the prosecutor who will enforce the law. Identify your support and the support of your group for a prosecutor who will enforce the obscenity laws as he does other laws in your community. You should, however, maintain an “arm’s length” relationship with the prosecutor and police department. You are only asking the prosecutor to do his job, not become involved with your organization or support the efforts of your group. Let the prosecutor know that there are training and trial resources available to him through groups like AFA, should he wish assistance in the preparation of the obscenity case.
As in any effort, you must remain polite, yet firm, in approaching public officials. An informed and courteous approach will benefit all sides involved in maintaining a high quality of life in your community. Establish a friendly relationship with public officials who may have some influence with the prosecutor. Remain reasonable and civil at all times. Always conduct yourself as a concerned citizen working within the law. Don’t be disappointed if they do not approach this area as enthusiastically as you would like. Prosecution of obscenity is not a priority across our country.
When a prosecutor is uncooperative
There are other avenues open to citizens when officials refuse or delay acting upon your complaints.
1. Public pressure – The Prosecutor’s position is a public office. He is not free to act upon his personal preferences but is to professionally carry out the responsibilities outlined by the appropriate charter for this office and the oath of office he swore to uphold. He may be an elected official or appointed by an elected official. In either case, public pressure can be focused upon the appropriate offices through the various means listed below. Keep researching the issue until you reach the elected official responsible. Apply public pressure to his office. It may be necessary to check campaign contributions that are, according to law, part of the public record. You may check at your county or city clerk’s office for a copy of the political contribution records. Examples of public pressure include:
- a. Personal appeal to the mayor or appropriate supervisor
- b. Appear at a city council meeting to speak publicly
- c. Organize a letter writing or phone calling campaign to his/her office and media
- d. Picket his/her office
- e. Host a town meeting and invite the prosecutor to explain why the laws are not being enforced
- f. Host a non-partisan debate where the issue is obscenity enforcement
2. Grand jury investigation – Normally the identity of the grand jurors is confidential. But if the chairman or any members of the grand jury are known or if you are serving on a grand jury, you may attempt to bring the issue to the jury’s attention for discussion in session and possible investigation.
If none of the above citizen actions are effective in getting obscenity laws enforced, you must take the following action first. First and foremost, you don’t have a pornography problem; you have a political problem! You must choose to get involved in the election process, outside your non-profit organization or church, to find and support a candidate who will make this an issue in the next election. Then, and only then, will you begin to make progress in raising the standards in your community.