Wednesday, November 4, 2009

Jenkins v. Georgia

In a 1973 case known as Miller v. California, the US Supreme Court established the legal test still in use today to determine whether or not books, movies, or other forms of expression are obscene. Miller requires that a work, taken as a whole, appeal to prurient interests, be patently offensive, and lack serious value.  An item must meet all three of these tests in order to be considered obscene in a legal sense.  Miller allows juries to apply "community standards" to determine what is prurient and  patently offensive.

The idea of "community standards" is important but problematic, and is often abused by would-be censors.  In many attempts at library censorship, the phrase "community standards" is recited like some kind of incantation aimed at allowing each locality an infinite degree of latitude with the definition of obscenity.  The censorious logic assumes that the community can declare anything it disapproves of to be patently offensive, and that such a declaration allows the material so labeled to be suppressed legally.  This logic is wrong at several levels, but especially in its abuse of the concept of "community standards."

The Jenkins v. Georgia decision, made in 1974, was an important clarification of this concept of "community standards."  The US Supreme Court held that juries can NOT, in fact, apply the term just because they disapprove of contested forms of expression.  On the contrary, the Court clarified that contested materials must rise to a certain level of explicitness before the label can be applied, and must be of a "hard core" nature.  The language of the decision makes it clear that mere nudity is not sufficient to meet the definition of "patently offensive," and that even sexual activity must be described in detail before it crossed that line.

The Jenkins case began in Georgia, where a man was convicted of violating that state's obscenity statute for showing the movie Carnal Knowledge in a theater.  The defendant appealed to the Georgia Supreme Court, which upheld his conviction.  When the appeal was taken further, the US Supreme Court disagreed with the Georgia courts and overturned the conviction.  Part of the US Supreme Court's logic was that the movie was not obscene because it did not meet the definitions laid out in the Miller. The Georgia courts had erred in that they allowed the jury too much latitude in deciding what is and is not "patently offensive."

In the court's own words:
Even though questions of appeal to the "prurient interest" or of patent offensiveness are "essentially questions of fact," 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 . . . ."

Our own viewing of the film satisfies us that "Carnal Knowledge" could not be found under the Miller standards to depict sexual conduct in a patently offensive way. Nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the "patently offensive" element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including "ultimate sexual acts" is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards.
For citations and descriptions of the Jenkins and Miller cases, Click Here.