Day 880: Litigious Humping, According To The Supreme Court

originally published May 29, 2014

When Paul Ferber found himself behind bars for participating in a routine business transaction, he was outraged. How dare they? So he sold a couple of video tapes to an undercover police officer – is that a crime? Even if the videos featured young boys masturbating? It’s art! Maybe the songetto cavato score beneath the monkey-spankage was poignant, while the chiaroscuro lighting through the window shades evoked themes of loss and redemption.

Or maybe it’s just obscene and illegal. It certainly was at the time; the United States was guided by the landmark 1957 Supreme Court case of Roth v. United States, which enabled Congress to ban any potentially obscene thing they wanted, provided it was “utterly without redeeming social importance”. It was an improvement to a system that had previously nixed work by D.H. Lawrence, Balzac (even his name could make women in the temperance league squirm with disdain), Flaubert and James Joyce. But it left a few legal uncertainties on the table.

There was still no federal standard for what could be considered ‘obscene’. While films of free-flappin’ genitalia might be fine for the slobbery denizens of the East Village, they might offend the delicate sensibilities of Utah. It would take decades before the justice system would figure out where exactly they should land on the pornography issue. And of course it only took about a week of the internet existing to blow it all apart.

In 1973, the Supreme Court had to engage the question once again. Marvin Miller, a California-based mail-order smut peddler (sorry, that’s not fair… sweat-laden-erotica peddler) sent out a brochure to plug some of his latest product. The brochure was not as suggestive and puritanishly murky as one might expect a pre-Deep Throat pornography ad to be. For some reason, one of those brochures found its way to a restaurant in Newport Beach, where the owner and his mother were outraged enough to call the cops.

Miller argued his way up to the highest court in the land, claiming that there was social value in the product he was pushing. And not just the social value of watching strangers boning – there was more to it. Besides, there was no official national definition of “obscenity”, so who’s to say?. As the curtain rose on the grand Warren E. Berger-led be-robed nonet, the big question that had to be addressed was whether or not obscenity should be protected under the First Amendment.

The short answer? No. They opted to let the states decide whether something was prosecutable, provided the offending material met three guidelines:

  1. The average person would say the work “appeals to a lewd curiosity.”
  2. The work depicts sex-stuff and/or poop-stuff in an offensive way.
  3. The work lacks any serious artistic, political, literary or scientific value.

Some may say that this was the death knell for the sexual revolution. Others might argue that we heard that knell sound when the baby boomers started having kids and stopped having free-for-all skronk-n-weed parties. I don’t know – I grew up in the AIDS era, when the sexual revolution was some mythical far-away Valhalla. But I digress.

States had more clout to close up sex shops, to restrict how much their strippers could shed during a show and whether or not movie houses could show adult fare. But the flesh-lovers weren’t done fighting. Which brings us back to 1982 and to Paul Ferber.

Paul’s attorneys wanted the court to consider the three-pronged “Miller test” as it applied to the videos in question. Obscenity is not considered to be covered under Freedom of Speech, but if something passes those three tests, it’s not necessarily obscene (though it is up to the state to regulate it). Ultimately, the Supreme Court decided that child pornography actually was obscene no matter what.

First of all, the government wants to protect children from exploitation. Secondly, kids doing sex-stuff is pretty much the same thing as kids being sexually abused. Thirdly, visual depictions of kids in pornography has negligible artistic value. Fourthly… goddammit, it’s kids, for fuck’s sake. The court shouldn’t have had to rule on this matter; Paul Ferber should have been ordered to be kicked in the nuts by no less than 20% of active NFL linebackers.

By 1990, the grandest court in the nation was looking at whether or not to expand the clamp-down on kiddie porn by making it illegal merely to possess it, not just distribute it. A 1969 ruling (Stanley v. Georgia) had nixed a state conviction for the mere possession of pornography, and since no other ruling had separated regular porno from underage porno yet, the precedent simply wasn’t there. In the case of Osborne v. Ohio, which once again escalated to the toppermost of the legal food chain, it finally was. Possession was officially out.

Of course, as the 90’s progressed, the problem wasn’t necessarily keeping kids out of starring roles in pornography (well, that still is a problem, but the legality of that was pretty solidly established by that point), but keeping kids out of pornography’s reach. The internet was the wild frontier of swinging dinks and jiggling boobies, and it was not unreasonable for parents to be somewhat concerned at how much of it their kids might glimpse.

The Communications Decency Act was a federal attempt at criminalizing the transmission of anything obscene to anyone under 18. The government cited a previous case that ruled that adult material must be marketed under strict regulations, even if the ads themselves are devoid of anything offensive. The Supreme Court had backed them on this – even sticking up for the FCC when they levied heavy sanctions against a radio station for broadcasting George Carlin’s brilliant “Seven Dirty Words” bit.

The ACLU felt that the anti-indecency provisions of the Communications Decency Act were out of control, and were greatly infringing upon the First Amendment. They filed suit and in 1997 the case landed in the Supreme Court. This time, the pornographers won and the Act was turfed (or, at least it was pretty much flattened).

By now the government knows that regulating indecency and obscenity is going to be a tough sell. There are new sites popping up daily that will offer thrills like watching dudes have sex with oxen, or massive orgies in hot tubs filled with Aunt Jemima syrup. A lot of those sites are based in other countries, leaving American laws in the dust. Fortunately, most every country in the world has a problem with child pornography, so hopefully peddlers of that crap will perpetually find themselves locked up for it. But as for the rest of the collective world’s deviant sexual imagination? The genie has long left the bottle and he’s having way too much fun to go back inside.

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