Obscenity and Pornography: Forging Decency Through the Law
| Publication year | 1988 |
| Pages | 45 |
| Citation | Vol. 17 No. 1 Pg. 45 |
1988, January, Pg. 45. Obscenity and Pornography: Forging Decency Through the Law
Municipalities are being lobbied by well-organized and orchestrated citizens' groups to enact legislation relating to adult entertainment establishments and to place criminal sanctions on obscene performances and materials. It is crucial for public entity counsel to distinguish between pornography, which enjoys First Amendment protection, and obscenity, which falls beyond the pale of constitutional protection. Because the line between pornographic and obscene is blurred by shade and degree, the reader is invited to find solace in the concept of "obnography" when the classification is too close to call under the present legal standard.
The U.S. Supreme Court recently decided Pope v. Illinois,(fn1) which clarified the landmark decision of Miller v. California.(fn2) This article dwells on the question of whether the outer limits of the First Amendment debate finally have been reached.
Possibly the most often quoted insight into the nettlesome concept of obscenity is inauspiciously incomplete. Justice Stewart, in his celebrated concurrence in Jacobellis v. Ohio,(fn3) crystallized the problematic task of precise definition by quipping "but I know it when I see it. . . ." Justice Stewart should have continued by making clear that the "it" does not encompass an obscenity law impervious to the barbs and snares of evolving social consciousness, technology and, most importantly, case law.
In Pope, a sharply divided Court in a plurality opinion held that the third prong of Miller (whether the allegedly obscene material had any literary, artistic, political or scientific value) was not to be discerned by contemporary community standards. Rather, an "objective" or "reasonable person" test must be applied. So clarified, the Miller/Pope obscenity threshold beyond which the U.S. Constitution provides protection is set forth in a three-prong inquiry:
1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest in sex;
2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, as written or authoritatively construed; and
3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
The third (value) prong of the tripartite test, initially announced in Roth v. United States(fn4) and Memoirs v. Massachusetts ("Fanny Hill"),(fn5) was substantially relaxed by Miller. Roth/Memoirs material was deemed obscene only if utterly without redeeming social value, a test Miller recognized as being "a burden virtually impossible to discharge under our criminal standards of proof."(fn6)
CRS § 18-7-101(2) defines "obscene" by tracking the three prongs of Miller and, in conformance with the second prong, specifically defines the objective standard for the depiction or description of patently offensive sexual conduct. This articulation includes (1) patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy and sexual bestiality; or (2) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, or covered male genitals in a discernibly turgid state. In People v. Seven Thirty-Five East Colfax, Inc. ("735 East Colfax"),(fn7) the court invalidated as overbroad portions of the Colorado obscenity law which defined "patently offensive" in terms of "decency," and struck down provisions prohibiting the promotion of obscene devices.
Prior to 735 East Colfax, the history of attempts to address obscenity successfully and legally was bleak.(fn8) In the latest Colorado Supreme Court pronouncement, the court ruled that the "decency/indecency" standard is...
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