Legal Brief the Author Preparing This Brief

Legal Brief

The author preparing this brief is asked to defend against the banning of a book on the grounds that it is obscene and thus it should be barred from sale and distribution in the public sphere. The laws and standards surrounding obscenity are vague, subjective and impossible to reliably and consistently enforce in a manner that is even-handed and objective. As such, the banning of a book, movie or other piece of art or literature should not happen unless the case is clear-cut and without question. While obscenity laws are well-intentioned, at least most of the time, they don't pass muster unless wielded for very narrow and well-established reasons.

Per Miller v. California, there are three standards of obscenity that must be surpassed for a work to be banned with good conscience and all three of them can be quickly dismissed and in short order over the course of this case. First, it has to be true that the "average person" would find the work, when viewed and summarized as a whole, is obscene and is rife with a "prurient interest." In other words, something full of sex and gratuitousness would generally tend to be obscene in many cases. While cases could (and some say "should") be made for things like child pornography (or virtual depictions of the same) and/or rape in general, even those two are not clearly cut. If it were, shows like Law and Order: SVU and many movies that have depictions of rape and/or sexual assault would not be aired on national television at all, let alone network television or even regular cable.

However, while the examples above give good context, another example (although not sexual) really drives home what it means to truly define with certitude what an "average" person might think. That example is the "Passion of the Christ" movie made by Mel Gibson, and there are a number of angles that one can take here. Many demonize the movie and its depictions because of the prior anti-Semitic rhetoric that Mel Gibson has engaged in, drunk or not. Others say that the Jews in the movie are depicted in a very poor fashion. Others still are very passionate about the movie and how it represents the death of Jesus Christ and they are vocal proponents of the movie. In short, there is not a clear-cut "average" response to the movie because there are several fairly common responses and reactions and none of them usurps the other entirely. The same can be applied to art and film that is sexual in nature. Some feel that the statue "David" is a work of art and a tribute to the human form while others may feel that his body should be covered. Regardless, even if an "average" response is ascertainable, foisting and forcing that on other people based on moral, religious or legal grounds is a very slippery slope. There is legal precedent to back this up. Namely, Jacobellius v. Ohio established that there is no legal definition of "pornography" and thus enforcing obscenity statutes cannot be enforced.

As for the second item that qualifies an item as obscene, that would be that there is a depiction of sexual conduct in an offensive way. This ties in and dovetails with the prior point and that is a definition of what "offensive" is. Some people feel use and talk about contraception is offensive on religious or moral grounds while others see it as a way to prevent unwanted pregnancies and/or spread of sexual transmitted diseases. Indeed, that is a basic example and there are other actions and behaviors that are described and depicted in books and movies that are a little more opaque. For example, the actress Helena Bonham-Carter had a line in the movie "Fight Club" in which she said "I haven't been (expletive) like that since preschool." While that line would surely offend a lot of people, the movie itself was quite popular and is rather highly rated in many circles as one of David Fincher's best works. One could point to Quentin Tarantino in any number of ways or the infamous scenes in Kubrick's "A Clockwork Orange" as other examples of this in action. Even if the presentation is tawdry and profane, a point is being made. Coming back to "Fight Club," the movie was a full-frontal assault on consumerism and also explored facets of mental disorders such as split-personality disorder and insomnia, not to mention sociopathic behaviors by the truckload. However, one could quite easily fixate on the depravity portrayed or, to some, glorified in the movie as pointless, mindless and of no worth. However, the whole thing about art is that just about anything that evokes an emotional response is technically art and the response does not have to be a good one to get the point across.

The third standard for obscenity meshes quite well in its aims and in its responses in the negative against such a standard. The perception and idea of what brings literary, artistic, political or scientific value varies by the day and the person. The United States is a very polarized nation with a clear divide between the liberal left and the conservative right. Lines are drawn by things such as religion, empathy, freedom of expression, freedom of behavior and, of course, freedom of sexuality. Trans-genders, gays, lesbians and other "alternative" lifestyles are coming to the forefront and pushback against organizations and countries that would try to hush them like Russia, Iran or even many (but not all) of the elements of the Christian Right in the United States is visceral and in full force even though the people involve represent a stark minority of society, even in the United States.

Just as laws against pornography, consensual sodomy and the like have been relaxed over the years, the same will come to pass for other controversial sexual acts as they are depict and film and indeed happen in real life around the world. So long as there are consenting adults engaging in the behaviors, reading about them or watching them and so long as people are not being exposed to the behaviors before they are able to contextualize and realize what they are seeing and that the people involved are not only based on figments of a person's imagination, then people should be allowed to consume the material and film that they wish. Lines should be drawn for things child pornography or anything that directly aids and abets rapists, murders and such of a sexual nature (or anything else for that matter).

However, as the aforementioned Law and Order: SVU as well as other shows, movies and books like it, there is a corner of entertainment and literature that should be reserved for such things because acting like they can't or won't happen is foolish and ignorant. Glorifying it is wrong, but simply depicting it is not. As established by U.S. v. Ulysses, just because a sexual scene or even is depicted does not mean that the desired result with the audience is "titillation." A good example of this is the character in Law and Order: SVU portrayed by Mariska Hargitay, that being Oliva Benson. It is established early and on throughout the show that Olivia is the product of a rape and they even had an episode in which Benson's mother relived the even as it happened while her daughter listened to the audio of the police interview after it happened.