The Law of Obscenity And Military Practice

• Author: by Captain Harvey L. Zuckyan
• Pages: 02

1. INTRODUCTION

   In recent years, problems surrounding the law of obscenity have become increasingly important and thia derelopment has resulted in a corresponding awzreness oi these problems by the courts, both &.ate and federal. This awareness IS now being ex-tended into the military legal field Two recent decisions, one by the rnited States Court of Xilitar>- Appeals 1 and the other by an Army board of revie\v,* haw focused attention on the military's handling of obscemty problems under the Uniform Code of Xilitary Just~ce.~

   These recent decisions encompass issues occurring in eiyilian practice as xell as issues peculiar to the military. Before any analyiis of these and related decisions can be undertaken, however, it would be mell to ipractical tests for determining abscemerror committed by one international cthis convention met in Geneva to discus8 the common problem of controlling the publication and dissemination of obscenity. Ere" after prolonged and heated debate the convention \\as unable to agree on a workinp definition of obscenity.. But, as one noted author put ~t,' after cancludlnp that they didn't know \\hat the? were talking about, the convention members settled dawn to dis-cuss the subject.

   11. KHAT IS OBSCESITY?

   The question posed by the title of this section had long perplexed American courts as well as the aforementioned interna- ~ *The opinions and e~n~!u~:onipresented herein are those of the author

   and do not mceasarily reprosent the VIOW of The Judge Advocate Ger.era1'~

   School or any other poverrmenta! ~ i e n c v Ione of the factual material herein

   *oo 80128 43

   tional convention when the cam of Knitrd States v. Raths was presented to the United States Supreme Court. Roth nas B leading publiaher and seller of erotic literature and other materials who had made the mistake of Bending certain of his material through the mail. He was convicted in the Southern District of New York for violating the federal mail obscenity statute and his conviction had been affirmed by the United States Court of Appeals.. Because the delicate and far-reaching constitutional question of ahether obscene expression is protected by the First Amendment was involved in the case. the Supreme Court granted review The Court held that obscenity is not expression protected by the First Amendment and affirmed Roth'a conviction. Then. to insure that protectible expression war not mistaken far that ahich was not, the Court attempted ta define precisely what obscenity was. In so doing the Court substantially adopted the American Law Institute's view that "a thing is obscene if. considered ae a whole, its predominant appeal is to prurient interest ''* The rationale for the Court's holding that obscenity wva8 not protected expression under the First Amendment uas that obscenity did not hare "the slightest redeeming ~oeial importance." Thus, in effect, the Court raid that material may only be condemned as obscene which ha8 far its chief purpose the appeal to man's baser inrtincts since such appeals have no redeeming social importance.

   The narrownejs of this standard is illustrated in part by the possibility that some material may be 50 sile or repulsive as not to appeal to the prurient interest of the average person in the community and therefore be within the ambit of constitutional protection.@

   Thus, unles~ the Supreme Court chooses to broaden its test for determining obscenity, and there appears to be no disposition

   [Tent Draft Sa 6. 1867) The Court in turnrehd upon Webster's Dictionary to define "pzment interest" BP "itching; lancing, uneasy with desire 01 longing: of persons. havior I~SC~Y~DYIianpmgs. of desire, ~ u i i o i i t ~ or propensityNev International Dictionary 1986 (2d ed unabi 1949)

   Q That Herr) Jliller's Trapm o i Canow represents such material has been suggested. Clayton, "Maryland 'Tropic' Ruling Faeee Test," The Washington Port. Dec. 26, 1861, f B. p. 16. CO~S. 1-3. Mr Clayton. the Waahmptan Pant legal uriter. reported that Justice Department lawyers discovered that many people found Miller's urmngn. which slm include Tmpic of Caprrcam and Qsiiet Days at Clichy, dmguntmp and shocking but not 3exuaily excitmg. For this and other reaiann "there w a ~ remarkable agreement that the Government could nac w ~ n if It charged that Mdier'i work 19 obscene." Shortly after this canelusion wag reached the Post Office and Customs Bureau bani on Tmpio o j Concrr were lifted.44 *oo BWZB

   OBSCENITY AND MILITARY PRACTICE

   on the part of the Court to do so at this time,lU obscenity prasecutions, both military and civilian should be limited to the condemnation of the publication or the dissemination of pornoyraphy.-z i.e., material designed to arouse and excite the immature. base and unnatural sexual instincts of the recipien:s.'3 More specificall?, pornography 1s material "which is designed to act upon the reader 88 an erotic psychological stimulant" or "aphrodisiac."" Definitions in this area are woefully inadequate to conve? precise meanings because wards are used to explain other words or concepts that have little or no concreteness. It is enough to sa>', hoverer, that whether obscenity is a broader concept than pornography or is synonymous with it, prosecutions should be limited to the publication and dissemination of materials a b w

   01w1!! produced to exploit the sexual nature of men and ivomen.'j

   lo If awthmg. the trend af thinkma on the Court would neem to be ID the direction of narrawine the reit far obscenity. At least two iu~tieei would tighten the atandard for condemning obscenity by re~uming that the con- 11 It II settled that mdwiduale I" the armed servxes are entitled to the eonstltunonal prateetmni af the Bill of Rights except those ahirh are expreasly or by necessary implication inapplicable ta the defense establishment United Scates v Jaeoby, 11 USCXA 428. 29 ChlR 244 (1960): Burns V. R'lron, 346 U.S. 137 (1963). Therefore, trial e~un~elam apparently

   bound by the First Amendment ruling3 of the Supreme Court and m pre-paring to prosecute "obscenity" easel aavld be well-advised to ~cr~tinize the

   material In question elaiely. even ta the point of avbmltting it officially fa

   other individuals far their reacnons before proceeding to trial.

   11 In People v Richmond County Sews, Ine, 9 I Y.Zd 578, I75 8 E Zd 681, 216 N.Y.S2d 369 11961). B majority of the New York Court of Appeals, ~n two separate opinmnr, decided that in eonformlty with the Supreme Court's deeism ~n Rofh, the prohibitions of Kea Yark's crminai obscenity statute must he limited to "hard-core pornography." See Lockhart & PcClure, Censamhv of Oheoemfy: Tha D~vrlop~ng

   Constitutmol Standards. 45 Ymn. L. Rev. 1, 60 (1'3601. But see Manfred V. Stale, 266 Id. 312, 173 A 2d 173 I19611 (majority and dissenting opmmn). While Justice Hailan'i opinion m hlanual Enterprises v Day, aupro note ID, left open the queatm whether anything other than "hard-core pornography" may be condemned eonstitu. tianally, ~t IS submitted that the only material meeting the two-faid test for obscenity laid down in the opinion 1s "hard-core pornography?'

   1s The Kranhsurens, Pornography and the Law 18, 17b244 i1959) i Lack- hart & McClure, ~upronote 12, at 62-66.

   14 The Kronhsusens, op. czt. ~up70 note 13, at 178.16 A valuable Study prmdmg an lnterenting guide for the determination of material constructed to exploit the prurient interest of individuals is that conducted by Drs. Eberhsrd and Phyllis Kronhausen and reported in their book, Pornography and the Law. They isolate the main characteristic of pornography BQ the "buildup of eratic exeitement.l' Op cat sup70 note 13, at 178. It IS interesting to note that the Government apgended thla work toIta appellate pleading before the Army board of review in CM 405791, Ford, supra note 2, ai an aid to the board in determining whether Heim and Deawa by Frances Lengel wan obscene.

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   I\IILITIRT LAW REI-IEW

   In wmmari. 'hen. vhen ne talk about ab-ceni:: we do not refer to erotic maremi in it; entirety'. but rather to that material vhich deliberatel? ehplo~ts s e ~ in such a \why as to arouse and excite the sex instincts and drives of persona itha are exposed to the matend

   111. COIIMON ORSCESITY QUESTIOSS IN CIVILIAS ASD lIILITARY PRACTICE

   The two recent Arm>- abrcemty cases raise many questions which also confront the civilian bench and bar. Discussion of these common westions w11 be followed by a separate discu,aion of obscenity problems particularly releinnt :o military practice.

   The first Significant obscenity case to reach the United States Court of 3Iiiitary Appeals 1s that of Cniied Stotes U . Holi 1. in d, a thirty-two year old sergeant, wrote a Series TO a young under-age g ~ r l nith whom he was affair The pirl saved the letters which were subsequent1:- discovered b)- her mother. The sergeant nas charged with carnal knairledge in ~!olation of Article 120 and three specifications of mailing obscene 1et:ers in violation of Article 131 I'

   He pleaded guilt? to all charges and specifications, but as a matter m agpraratlon the trial counsel introduced the serpeant'j letter3 after :he findinpi. On appeal to an Arm)- bcard of re~iewthe ac- cused contended that h13 plea of gullty to the mail offenses was improvidently entered since the letters were not obscene. JVithaut

   OBSCENITY A6D MILITARY PRACTICE

   ruling on the precise question presented, the board. one member diseen:inp. held the serpeant'a plea incan5istent vith his testimony on Tentence that he "intended the letters only as 'lore letters "' The Judge Advocate General then certified to the Court of Ililitary Appeals the broad question whether the board of rerieiv vas "correct in holding that the plea of guilty.. was improvident " As B result of The Judee Advocate General'? action seceral important questions of obscenity law confronted the Court.

   The first of these questions was whether a letter writer's subjective intent ha8 any relevance to a prosecution for...