Asked to predict where obscenity law will be in ten years, we write -
The Future of Obscenity Prosecutions
By J. D. Obenberger, Attorney at Law
© MMIII J. D. Obenberger, All Rights Reserved
Adapted from an article appearing in the April, 2013 edition of Xbiz World
1. That every action causes an equal and opposite reaction is not just a law of physics; I think it's true in society as well. Moral conservatives can be expected to vent their frustration and rage at an advancing legal sexual agenda and the social changes that come with it - and they are likely to do so where they have the most influence - at the local and state level. When federal obscenity prosecution grinds to a halt - as it seems to have done - one can expect pressure for obscenity prosecutions directed at local District Attorneys. In some cases, they will be welcomed by the local prosecutors who think that this might put them on the map as conservative leaders - and advance their political careers.
In the next decade, I expect local prosecutions against adult operations or distribution are possible eventually in places like Maricopia County, Arizona, in Johnson County, Kansas, in Utah, and perhaps in the traditional Deep South, anywhere from south of Atlanta to Northern Florida, from the Mississippi River to the Atlantic Coast. Whether the prosecutions are predicated on obscenity itself or some closely related theory that the prosecutors think is "safer" (maybe prostitution), I think that all of them will fizzle or go down in flames. The end result of these efforts will backfire, will boomerang against the prosecutors fool enough to make the attempt. Juries will acquit in all but the most extreme cases, and I think that they will do so everywhere. Regional differences about depictions of sexuality and porn have been substantially diluted by network TV, HBO, newspapers of national readership, and contemporary music and novels. The moral conservatives have no sense at all about how broadly the availability of free Internet porn - and even the depictions of sex on The Sopranos, Boardwalk Empire, Game of Thrones, have changed attitudes and "contemporary community values". The traditional view of private morality - that it's inappropriate for government regulation - seems to be rekindled in the generations that are coming up - and some prosecutors will never understand that until it's too late. How can anyone worry about the morally polluting effects of such pornography against the backdrop of a culture that gives relationships consummated by sodomy the full sanction of legal protection? For that reason, more than any other, I think that the issue of pornography and obscenity rapidly becomes a social irrelevancy; but precisely that state of affairs is what will trigger local, conservative reaction, a reaction which will be as futile as the intransigence of King Canute sitting at the shore and commanding the tide to cease. Expect that prosecutors will be reluctant to bring obscenity cases without a companion allegation that is easier to prove, for example tax, drug, or gun charges, in order to coerce a guilty plea on the obscenity charge.
2. I expect that any federal obscenity prosecutions will be isolated reactions against content that is truly macabre and without a numerically substantial fan base - material as tangential to the mainstream of sexual interest as Ira Isaacs' content was - and that it will come from US Attorneys in particularly conservative venues, if it arises at all. Assistant US Attorneys and FBI Agents all grow up in the same culture that we all share, and there is no reason to believe that they are antagonistic to the kind of porn that contemporary culture accepts, uses, and jokes about on late night television. Even within the culture of federal law enforcement, content would have to be quite extreme to generate support for indictment and prosecution in the decades to come. Exceptions might be made in cases complicated by income tax fraud, spamming, suspicion of sexual exploitation, the involvement of organized crime, or the need to establish a RICO predicate.
3. Will the courts act to invalidate obscenity prosecutions under the First Amendment? While it's theoretically possible, I think that the odds are remote because a very long string of decisions has painted the Supreme Court into a corner and limits its freedom of mobility - I don't think it is likely to suddenly overrule 10 to 20 cases holding these laws valid or implementing their enforcement. Somewhat more likely are decisions in the decades to come that act to make defenses and acquittals easier and which place more burden on the prosecution to secure a conviction. For example, establishing a constitutional requirement that the prosecutors establish by specific evidence the existence and violation of community standards of prurience and offensiveness - or agreeing with the Ninth Circuit that national standards must be applied to Internet distribution - or imposing a meaningful scienter element that prevents conviction without proof of specific knowledge about a particular video or community standards - or broadening the notion of "work as a whole" in charged works - or perhaps requiring prosecution at the place where distribution took place. If the Supreme Court does one or more of these things, each may have the practical effect of pounding nails into the coffin of obscenity law.
4. The era in which we now live is marked by the slow death of obscenity law, much the same way that blasphemy, fornication, and adultery laws, even where they are still on the books as crimes, seem to have functionally disappeared. I believe that obscenity will eventually fade from being taken seriously by cops and prosecutors. We are not there yet, but I think that result is inevitable now. A cautionary tale is seen in the example of the Vietnam War: even when all of us knew US involvement was coming to an end, up until the day we cleared out the embassy in Saigon, there were still casualties; every war has a last casualty, and the war against obscenity laws will eventually have a last conviction. His cell in the Bureau of Prisons will be no more comfortable or endurable than that of the first man sentenced for obscenity.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is email@example.com.