Wednesday, November 18, 2009

How SafeLibraries is Wrong about "Community Standards"

I agree 100% with SafeLibraries when he says that “community standards” are an important part of the legal definition of obscenity.  The US Supreme Court has clearly done away with the possibility of a single, nation-wide definition.  The court has recognized that community standards can vary one from another, so material that is acceptable in one town might be prohibited in another.

The problem, as is too often the case in censorship battles, is overreach:  censorship proponents take the idea of “community standards” further than courts ever intended or will allow.  Yes, the standards used to decide what is or is not obscene can vary from community to community, but they cannot vary infinitely.  Courts have placed significant limits on the degree of latitude juries have in that decision.

The legal definition of obscenity was established in its current form in a 1973 US Supreme Court case known as Miller v. California.  In that case the court decided:
This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. . . . We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary , artistic, political, or scientific value.  [Internal citations omitted]
It is clear from this language that the legal definition of obscenity can be applied only to materials that are highly sexually explicit.  The court itself emphasized that point, just a little further into their decision, by writing:
Under the holdings announced today , no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or  construed.
Language in various parts of the Miller decision made it clear that community standards could be used by juries who were charged with determining whether an item was obscene.  But, the language of Miller also made it clear that materials must be “hard core” in order to meet the definition of obscenity, limiting the latitude juries had.

Those limits were tested almost immediately, in the 1974 case Jenkins v. Georgia.  That case tested the conviction, under Georgia state law, of a movie theater owner who showed the film Carnal Knowledge.  A local jury held that the film was obscene, and the Georgia Supreme court agreed.  The US Supreme court not only disagreed, but also overturned the conviction, holding that the lower courts erred in finding the movie obscene.  They chided the lower courts for allowing the local jury to stray too far from the “hard core” requirement previously established.  They wrote:
. . . it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is “patently offensive” . . . . we made it plain that under that holding "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct . . . ."
The language of the Miller Test was a little vague as to what kinds of standards were to be used in evaluating each of the three prongs of the Test.  The US Supreme Court eliminated some of that vagueness in a 1987 case known as Pope v. Illinois.  The court wrote:
Only the first and second prongs of the Miller test - appeal to prurient interest and patent offensiveness - should be decided with reference to "contemporary community standards." The ideas that a work represents need not obtain majority approval to merit protection, and the value of that work does not vary from community to community based on the degree of local acceptance it has won. The proper inquiry is not whether an ordinary member of any given community would find serious value in the allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.
The phrase reasonable person should be understood here in its special, legal sense.   Specifically, the standards of a reasonable person do not vary from community to community.  This, then, acts as another check on the latitude juries have in defining obscenity.  Serious value must be judged by the standards of a theoretical, reasonable person, not by the standards of just one community, and any material that has such value cannot be found to be obscene.

Libraries, of course, rarely, if ever, acquire materials that meet this legal definition of obscene.  Not surprisingly, then, all or most of the books that are argued about in any typical library challenge are also not obscene.   Of the challenged books I’ve reviewed on this blog, I’ve yet to find even one that is obscene.

If the pro-censors really want to accomplish something, they’re going to have to start by giving up their exaggerated word play.  Claims that books are “inappropriate,” “pornographic,” “encourage homosexuality,” “teach witchcraft,” and the like, are vague and sloppy and don’t tell anything about whether or not a book is protected speech.  Given that the pro-censors want to limit access to speech that clearly is protected, they’re going to have to begin by honestly facing the limitations courts have already defined, and finding ways to work within those.  Groundless claims about obscenity are pointless, as are over-played assertions that local communities can redefine that term at will.

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