True objectivity is hard. Back when I was young the lines were so clear. Good and bad. Yes or no. Black and white. All those demarcations were easy to discern when I was a pup. Now I’m forced to see the shadings of gray in most situations. No one is completely innocent. No one is completely guilty. Heroes are flawed while common men display heroic behavior. It’s difficult to takes sides in an 'US vs. Them' battle when I can’t tell if I belong to Us or Them.
"MILLER v. CALIFORNIA"
APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE
No. 70-73.
Argued January 18-19, 1972 Reargued November 7, 1972
Decided June 21, 1973
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"Just because you deal in a business that some would find obscene doesn't mean you have to run your business obscenely." |
Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U.S. 413, 418 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held:
1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476 , reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 23-24.
2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (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. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 24-25.
3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 24-25.
4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a "national standard." Pp. 30-34."
I was twelve years old when the Supreme Court made that decision. Admittedly I wasn’t super concerned with grown-up business at that age but it wouldn’t have mattered anyway. The Watergate trials dominated the airwaves and published press. America was caught up in the drama of Sam Ervin, G. Gordon Liddy and John Dean. They had a different kind of obscenity on their minds.
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In spite of thirty years, Miller v. California still stands as the law of the land in matters of pornography. By today’s standards the materials in question would seem ridiculously tame. The objectionable stuff were some pamphlets advertising adult books. The problem was the producer sent these pamphlets through the mail and some of them landed in the wrong mailboxes. What concerns me and should concern each and every adult webmaster is how judges will apply Miller v. California to the Internet.
Back in 1972 nobody knew that someday they’d be able to turn on a machine and dial up a connection to the world. Back in 1972 porn reports made the nightly news but one still had to choose to actually view it. On the net it’s fairly inescapable. A simple engine search for a harmless word like "teen" brings back text results that would have been inarguably described as obscene when I was twelve.
My classmates and I giggle when our biology teacher said the word "penis". Now I am constantly bombarded with inbox messages informing me all about penises and how mine probably isn’t big enough. I stopped giggling after the first thousand of those emails. I didn’t ask for that mail. I’m a woman. I don’t have a fucking penis.
I believe that parents should monitor their children’s Internet activity. I know that they could prevent a lot of porn from invading the realms of their homes if they learned how. Just the same, no matter how safe one is or how learned one is in the ways of the web, those penis spams will keep on coming.
You and I are involved in the beginnings of a massive social upheaval. There’s a battle brewing and it won’t be pretty. Yes, I agree that sexual repression is evil. Yes I believe in freedom of speech and expression. The adult Internet is stripping away all notions of sexuality. We are shining a light on all that is human. Just the same, do we have the right t force our beliefs on everyone with an Internet connection? When we indiscriminately email or put up sites without even a warning page how is that fair to those see our stuff without asking?
Stop spamming. Register with ICRA and get your site properly labeled. Knock it off with the auto-downloads and other nefarious tricks. Just because you deal in a business that some would find obscene doesn’t mean you have to run your business obscenely.