06.15.08
An Obscenity Trial - Really?
A couple of years ago, there was a big brouhaha over at Suicidegirls due to the DOJ’s supposed new battle against obscenity - the SG admins took down a whole bunch of photosets in order to either protect themselves against the “wrath” of Alberto Gonzales, or to rile up some diehards to fight the good fight. After all, SG features female-only pictures, with no penetration or anything really explicit at all. At worst (or best, depending on how you look at it), I would characterize the photos as “racy,” with some relatively graphic female-parts shots and some suggestions of bondage and girl-on-girl sex. Then again, SG was at the peak of its popularity and no one really knew the extent to which the Bush administration would show its insanity. But eventually - or so I thought - the outcry died down, the pictures came back, the guidelines were once again relaxed. I had expected from the outset that this “war on porn” was an empty cry - after all, in this day and age, how could such a witch hunt possibly stand up to the First Amendment?
I thought it had all blown over and that everyone had come to their senses and focused on things that actually matter…until I read about the unbelievable obscenity trial starting in LA. The DOJ started out by threatening to bring the wrath on pin-up girls in collars and ended up with a single case involving fetish pictures so extreme as to make potential jurors nauseous.
I have a confession to make - I admittedly was not schooled thoroughly on the First Amendment and I did not even realize that the standard of “it’s not obscene if it has literary, artistic, political, or scientific value” was still in effect. I have heard tales of Supreme Court justices gathered with their clerks in a viewing room to screen porn in order to determine if it was obscene, but that was decades ago. In this age of the internet, mainstream porn stars, and pervasive sexuality, the concept of legal obscenity seems…quaint.
I actually laughed when I read about this trial, not only because it is actually happening, but because the defense is “performance art.” This brought to my mind images of shady men ducking into dark back rooms in order to ogle interpretive dance. I realize that “it’s art” has to be the defense with the legal standard being what it is, but no one is fooled by Ira Isaacs posturing himself as an artist on par with Marcel Duchamp. The guy was selling 1000 videos per month at $30 a pop - he’s a businessman who found a niche in the market and filled it quite handily. But it’s also ridiculous to counter that with the argument that child porn is a lucrative niche, but still indefensible as “art” - in the case of legit child porn, there is a victim, there is an actual person harmed by its production. No one here is arguing (as far as I am aware) that the people in these outlandish movies were participating against their will or that any actual, unconsented-to acts were committed. It’s porn. PORN. No one is sending it direct mail to schools or featuring it on the Yahoo homepage. It exists, but it’s easy to ignore. For all those reasons, I am laughing out of disgust that this is ACTUALLY an issue. There is actually a trial going on. There is actually a trial going on with its own scandal because the judge had some sexual images up on the internet.
Legal experts who had called on Kozinski to recuse himself from the Isaacs case said it wasn’t necessarily a problem that the judge had collected sexually explicit material but that he was reckless in allowing it to be discovered.
This may be my favorite part - it wasn’t that the judge was utilizing his freedom of speech or that he had questionable taste in humor (”One such item is a photo of two women seated in what appears to be a cafe with their skirts hiked up to reveal their pubic hair. Behind them is a sign reading ‘Bush for President.’” - Really?), it’s that he was too technologically-challenged to hide it. Somehow, I think it has more to do with the fact that Judge Kozinski has been a supporter of free speech issues:
“When he learned that there were filters banning pornography and other materials from computers in the appeals court’s Pasadena offices, he led a successful effort to have the filters removed.
“I did some rabble-rousing about it,” Kozinski said in a brief interview last week. He said he was made aware of the issue when a law clerk researching a case was banned from accessing a gay bookstore’s website.
“I didn’t think the bureaucrats in Washington should decide what the federal judiciary should have access to,” the judge said. “I thought that was incredibly arrogant for them to decide on their own.”
