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Whatever… YOU Think Is Obscene?

July 12, 2010

Care to get seething mad?  If not, then don’t read what I’m fixing to write.  This cat named John Stagliano and his company Evil Angel are facing federal charges of obscenity — a conviction of which would carry a penalty of up to 32 years in prison and a $7 million fine — for making three pornographic movies.  That’s right: this guy might go to jail for a real long time for making pornographic films that are “obscene”.  Stagliano had requested that certain “experts” testify to the “scientific and artistic value” of the films, since, apparently, if it’s determined that the films do possess those qualities then they can’t be “obscene”.  The judge was having none of that, though:

In a stunning upset, Judge Richard J. Leon has denied both the prosecution and the defense request to have expert witnesses testify at the John Stagliano/Evil Angel obscenity trial.

In a written opinion which he read from the bench and which will be published in the court record at some point, Judge Leon began by reciting the three “prongs” of the Miller test for obscenity: That “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest; that the work depicts or describes sexual conduct in a patently offensive way so as to offend the standards of the community where the action is brought; and that the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Okay, well that makes sense: you don’t need experts to know if something on a screen is “prurient” — that means lewd — or if it offends the “standards of the community” or if it lacks artistic value.  As Nick Gillespie notes, this trial “will basically hinge on whether 12 people from the DC area think that the material in question (purchased online by federal agents and delivered via the mails to a prosecutor in the nation’s capital) is obscene and hence not worthy of First Amendment protection.” Unfortunately, the only reason there’s even an argument about whether or not you need experts to determine these things is because what the hell does that even mean.

Under this definition, if I were one of those jurors, I’d be expected to make a judgment call about what an “average person” finds lewd, what said person thinks offends the “standards of the community” — whatever the hell those are in the first place — and what the average person thinks artistic value is.  Uh… WTF?  That’s an incredibly unreasonable expectation.  I’m not even really sure what an “average person” is, much less what his sentiments would be about lewdness and artistic value.  Is this “average person” closer in morality to Howard Stern or is he closer to Dolores Umbridge?  I have no idea, and I suspect nobody on that jury does either.  That just means that each juror is going to draw conclusions based on his own judgments of what is and isn’t “obscene”.  And this is supposed to be a legal proceeding?

The fact that this law even exists in the first place has to be unconstitutional.  I’ve never been a fan of the FCC, but at least it just regulates what can and cannot be seen and heard on public airwaves.  This law, on the other hand, makes it possible for people to go to prison for a very long time for producing material that some people think is dirty.  The point is not to critique what “average people” do and don’t find offensive.  The point is that it shouldn’t be illegal to create something and sell it to people who were willing to pay for it just because of the perceived sentiment of the populace.  What if it was determined that the “average person” thought any nudity on screen was “prurient”?  The making of The Godfather, Titanic, and American Beauty would have all been unlawful acts.  Of course, the “average person” probably wouldn’t call brief scenes of topless women “obscene”, but, again, that’s not the point: what if he did?  Would that be grounds for criminal prosecution?

This is really bad.  Just say it out loud: a guy might go to jail for thirty years because of the sexual content of some movies he made and sold to consenting adults.  Just because the movies are called Milk Nymphos, Storm Squirters 2 and Fetish Fanatic 5 doesn’t mean Stagliano doesn’t have Constitutional protection under the First Amendment.  If he is convicted, I doubt that anyone will decry what happened to John Stagliano.  Your country is what you make of it, folks — you’re either for free speech or against it.  Let’s hope this jury is for it.

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