Fighting the pornification of America by enforcing obscenity laws.

• Author: Hatch, Orrin G.

INTRODUCTION

Simply put, we know more than ever how illegal adult obscenity contributes to violence against women, addiction, harm to children, and sex trafficking. This material harms individuals, families, and communities and the problems are only getting worse. As you know, adult obscenity is not protected by the First Amendment. Congress has for decades passed laws seeking to curb the production and distribution of obscene pornography, including on the Internet. A consistent and strong commitment to enforcing these laws can have a significant impact. (1)

In 2001, Esquire magazine described "the pornographication of the American girl" (2) in its profile of a former pornographer. Four years later, author Pamela Paul testified before the U.S. Senate Judiciary Subcommittee on the Constitution about how our lives, relationships, and families have become "pornified," a term that became the title of her recently published book. (3) More recently, the Boston Globe described the "pornification of America" this way:

Not too long ago, pornography was a furtive profession--its products created and consumed in the shadows.... What is new and troubling, critics suggest, is that the porn aesthetic has become so pervasive that it now serves as a kind of sensory wallpaper, something that many people don't even notice anymore. (4) Some say that because of shifts in culture and technology, "pornography has already won." (5)

Sadly, pornography "is so commonplace that for many it is merely an annoyance." (6) It may indeed be "the new metaphor" and "the new universally shared experience." (7) But pornography is not simply a matter of taste; It is a matter of harm that is magnified because today's pornography is more extreme and more readily available than ever. Limiting its negative impact on individuals, families, and communities requires a comprehensive approach. This Article focuses on something that both federal and state government can do as part of the solution. Government can enforce existing laws that prohibit obscenity, a defined category of pornography that is not protected by the Constitution.

These laws have not been seriously enforced for a long time. The 1986 Attorney General's Commission on Obscenity and pornography noted that, "with few exceptions the obscenity laws that are on the books go unenforced." (8) During the Clinton administration, federal prosecutions fell by more than half, with only twenty cases in the year 2000. (9) The National Research Council of the National Academy of Sciences noted in 2002 that, "obscenity prosecutions have been relatively rare." (10) In April 2011, a bipartisan group of forty-one Senators joined me on a letter to Attorney General Eric Holder urging stronger enforcement of federal obscenity laws. (11) A few weeks later, he told the Senate Judiciary Committee that "since we have been in office, seven obscenity cases have been brought that have involved only adult pornography." (12) The excerpt from our letter to Attorney General Holder quoted at the beginning of this Article captures the case for such enforcement. These laws should be enforced because this illegal material is harmful.

1. ADULT OBSCENITY IS ILLEGAL

   The First Amendment prohibits Congress from making any law "abridging the freedom of speech." (13) This guarantee was the first clause of the Bill of Rights that the Supreme Court applied to state and local governments. (14) In Roth v. United States, the Supreme Court cited cases dating back to 1877 to show that this Court has always assumed that obscenity is not protected by the freedoms of speech and press." (15) The Court thus held in Roth that "obscenity is not expression protected by the First Amendment" (16) and has reaffirmed this principle many times. (17)

   A content-based restriction on expression that is protected by the First Amendment is "presumptively invalid." (18) Rebutting that presumption requires the government to prove that the regulation is "the least restrictive means" to achieve "a compelling interest." (19) Since it lacks First Amendment protection, however, obscenity may be restricted or prohibited altogether without meeting this demanding legal standard. (20) This difference makes identifying the category of obscenity especially important.

   "Obscenity can ... manifest itself in conduct, in the pictorial representation of conduct, or in the written and oral description of conduct." (21) The substance of obscenity, however, is harder to define than its form. Discussion or analysis of obscenity often lacks clarity because it is insufficiently distinguished from broader categories such as sexually explicit material, pornography, or indecency. These may be interchangeable in the eye of the casual beholder, but they are very different in the eyes of the law. Obscenity is a narrow category of material that has been defined by the Supreme Court and that government has maximum ability to prevent.

   The common law definition of obscenity, articulated in Roth, was drawn from a famous 1868 English case Regina v. Hicklin. (22) Material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed obscene and could be banned. (23) This definition turned out to be very broad because it "allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons." (24) In Roth, the Supreme Court began developing a narrower definition of obscenity by endorsing the following test: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." (25) This material, the Court said, is "utterly without redeeming social importance." (26) As the focus thus shifted from the common law to constitutional law, the definition of obscenity shifted from its effect to its content.

   In Jacobellis v. Ohio, (27) the Court used the Roth definition to reverse an obscenity conviction but the 6-3 judgment did not produce a majority opinion. Two concurring Justices argued that despite Roth's reference to community standards, "the constitutional status of an allegedly obscene work must be determined on the basis of a national standard." (28) Two dissenting Justices argued the opposite, "that when the Court said in Roth that obscenity is to be defined by reference to 'community standards,' it means community standards--not a national standard as is sometimes argued." (29) And in a separate concurring opinion, Justice Potter Stewart famously noted that "criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it...." (30)

   Two years later, in Memoirs v. Massachusetts, (31) the Court again voted 6-3 to reverse an obscenity conviction and again failed to produce a majority opinion. Three Justices argued that each element in the Roth definition must be applied independently: the dominant theme taken as a whole must appeal to a prurient interest in sex, the material must be patently offensive measured by contemporary community standards, and the material must be "utterly without redeeming social value." (32) The Court would later describe this as veer[ing] sharply away from the Roth concept" (33) and a "drastically altered test" because it required prosecutors to "prove a negative, i.e., that the material was 'utterly without redeeming social value'--a burden virtually impossible to discharge under our criminal standards of proof." (34)

   A majority of Justices finally agreed on a definition of obscenity in the Court's 1973 decision in Miller v. California. (35) This refined three-part test asks:

   (a) [W]hether the "average person applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (36)

   This decision is important for several reasons. First, it reaffirmed as "categorically settled" that obscenity is not protected by the First Amendment. (37) Second, it was the first time since Roth that a majority of the Court agreed on a definition of obscenity. (38) Third, it confines elements from Roth such as average person, community standards, dominant theme, and prurient interest to depictions of sexual conduct defined in statute. (39) Fourth, it modifies the "utterly without redeeming social value" to the more practical and usable third prong of "lacking serious literary, artistic, political, or scientific value." Fifth, admitting that this "may not be an easy road, free from difficulty," (40) the Court rejected both "an absolutist, 'anything goes' view of the First Amendment" and "arbitrarily depriving the States of a power reserved to them under the Constitution ... which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day." (41) Finally, the Court rejected that "there are, or should or can be, fixed, uniform national standards of precisely what appeals to the 'prurient interest' or is patently offensive.'" (42) This is a question of fact, and requiring "a State to structure obscenity proceedings around evidence of a national 'community standard' would be an exercise in futility." (43)

   Supreme Court decisions have also shaped application of this definition. In Hamling v. United States, for example, the Supreme Court held that the "community" referenced in the Miller definition does not necessarily refer to a "precise geographic area." (44) And in Pope v. Illinois, the Supreme Court clarified that "the first and second...