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First Amendment? No thanks, this is Alberto Gonzalez Land

The Salt Lake Tribune reports that two Ohio brothers who mailed adult films to Utah will face up to five years in prison on federal obscenity charges. Story here.

The investigation began last year when the FBI’s Adult Obscenity Task Force in Washington, D.C., got a tip about Movies by Mail and agents say they were able to buy obscene DVDs on the company’s Web site.

Read that carefully. Your government set up a “Task Force” and ran a year-long investigation for the purpose of taking a film depicting consenting adults, produced by consenting adults, mailed by consenting adults, to consenting adults, for viewing by consenting adults. Nevertheless, this idiotic administration believes that this is a proper function for law enforcement. No wonder the Bushes and the Saudis are so tight with each other.

In March, a Salt Lake City agent placed an online order and three of the movies – “Max Hardcore: Pure Max 18,” “Max Hardcore: Extreme 12″ and Extreme Associates: Cocktails 5” – were deemed to be obscene.

Deemed to be obscene by who? This is one of my biggest problems with obscenity law. There is no legal determination that anything is obscene until a judge or jury says so. One or two US Attorneys made that decision. (See Judge Steve Russell, The X On Congress). Now that they made that decision, the defendants get to go along for the ride as they spend hundreds of thousands of dollars in legal fees, and possibly go to prison.

Imagine if you were driving down the highway at 70 mph, but the speed limit signs said “drive as fast as the community will tolerate.” You get pulled over by some slack-jawed idiot from Regent University School of Law Enforcement, and he says “I have determined, through my own investigation, that the community wants you to drive at 45 mph.” Then you get hauled off to trial, and now you have to prove that the community wouldn’t have minded if you drove at 70.

That is the dumbed-down version of how obscenity laws work. Until the material is deemed obscene by a court, it is presumptively protected by the First Amendment. But, once a court determines that it is obscene, you are off to jail — JAIL — for distributing that presumptively protected material. The standard is “you should have known that we would have a problem with this.”

“None of the three films has a plot line,” an FBI investigator wrote in a statement detailing the charge. “The films consist entirely of scenes of hard-core sexual acts being performed by multiple men and women.”

A lack of a plot line? Look at the complaint
. First they say that there is no plot-line, and then the government discusses the plot line of each film. Which side are they taking?

See what he is trying to do? He is trying to make out one of the elements of the Miller Test.

The Miller Test requires that, in order for materials to be deemed “legally obscene,” the government must prove the following:

  1. That the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
  2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions
  3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

He is trying to build the third element here. However, I am uncertain whether you need a “plot” to have serious literary, artistic, political, or scientific value (anyone seen “crash?”). In fact, with the assault on sex that the Bush administration has brought to us, I believe that even having good sex is an act of political revolution in this day and age. Perhaps the films are instructional?

Regardless, why should any of that matter?

These obscenity prosecutions are step one. Perhaps whoever made this decision would be more comfortable in countries where immorality is truly punished. See Motivation and Where “I am more moral than you” gets us.

No, I don’t think we’d find ourselves in either of those situations any time soon, but the loss of rights and the spread of superstition don’t usually attack overnight. Your rights are chipped away slowly, steadily, until one day, you wake up and you realize that you should have spoken up before it was your rights that were threatened.

I’ve read the complaint, and if the descriptions are accurate, the material doesn’t sound very interesting nor titillating to me. Not my cup of tea. Nevertheless, just because I don’t want to watch these films doesn’t mean that I think anyone else should be stopped from viewing, distributing, or acting in them.

If you are small minded, you’d likely read the complaint and say (with the church-chat lady voice) “I think this is horrible, I don’t care if they go to jail.”

If you are inclined to look at these prosecutions as “only going after really bad expression,” then remember the words of Pastor Martin Niemöller:

First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.

If we do not resist this encroachment on our free speech rights, I fear that one day someone will write the following:

First they came for the Pornographers
and I did not speak out
because I was not a Pornographer.
Then they came for the Defamers
and I did not speak out
because I never uttered a Defamatory word.
Then they came for the Political Dissidents
and I did not speak out
because I liked the status quo.
Then they came for me
and there was no one left
to speak out for me.


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