You Know It If They See It

The issue of pornography finds its way in front of American courtrooms every once in a while. This happens because of a tension between two concepts. On one hand, there’s freedom of expression (e.g. freedom of speech and freedom of the press), which is encapsulated by the First Amendment and to many, includes the right to make X-rated videos. On the other, there’s the concept of “obscenity,” which to many jurists, is an acceptable exception to the First Amendment’s protections. In the context of the courtroom, this tension has led to some choice quotes, the most famous of which was written by Supreme Court Justice Potter Stewart a 1964 case: when it came to obscene content, Stewart stated he couldn’t define what was “hard-core pornography” and what was not, but that “I know it when I see it.”

That’s not a very useful rule, though. Over time, courts have refined Stewart’s folly and come up with a more detailed, concrete set of rules. (It’s still not all that useful.) In the 1973 case Miller v. California, the Court adopted a test to determine if something can be labeled “obscene” and, therefore, can lawfully be censored. That test, now known as the Miller test, has three parts, as outlined by Wikipedia:

(1) Whether “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 or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,

(3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

All three parts need to be present for the work to no longer have First Amendment protection. Therefore, when this comes up in litigation, if the attorney representing the party accused of obscenity can show that one of the three parts isn’t true, his or her client wins. That’s what happened in Utah in 2000.

At issue was the “community standards” question. The Miller test, for better or for worse, doesn’t define either “community” or “standards” much further, so it’s unclear how one judges whether his or her work will be judged against that yardstick. But it’s safe to say that the community standards of Provo, Utah are much more restrictive than, say, those of Las Vegas. In this case, it was a video store selling, among other things, adult-oriented films. While the store may have been acceptable to the Vegas community but to officials in the Provo area, the store was “appealing to the prurient interest.” So they charged the store’s owner, a man named Larry Peterman, with violating the local obscenity laws.

Peterman’s lawyer’s solution: show that Provo wasn’t as innocent as its reputation suggested. The solution was right outside the courtroom window, as explained by the New York Times:

Just before the trial, Mr. Peterman’s lawyer, Randy Spencer, came up with an idea while looking out the window of the courtroom at the Provo Marriott. He sent an investigator to the hotel to record all the sex films that a guest could obtain through the hotel’s pay-per-view channels. He then obtained records on how much erotic fare people here were buying from their cable and satellite television providers.

As it turned out, people in Utah County, a place that often boasts of being the most conservative area in the nation, were disproportionately large consumers of the very videos that prosecutors had labeled obscene and illegal. And far more Utah County residents were getting their adult movies from the sky or cable than they were from the stores owned by Larry Peterman.

After only a few minutes of deliberation, the jury found Peterman not guilty of all charges.

Bonus Fact: Beyond being comically vague, there’s another problem with the “I know it when I see it” test — the Justices have to actually watch the movies in question to determine whether the films are “obscene.” And that’s exactly what they did. According to The Brethren, a book about the Court by Watergate reporter Bob Woodward (as recounted here), the Justices would hold an annual “Movie Day” — a day “when the law clerks and the Justices sat down to eat popcorn and see the porn films for the cases awaiting decisions.”

From the Archives: Action Comics: The totally-legit Superman comic in which he makes his foray into the adult film biz.

Related: “The Brethren” by Bob Woodward. 4.3 stars on 77 reviews.