What do you consider ‘obscene?’ What do you think your neighbor would consider ‘obscene?’ Is is possible that you and neighbor might differ? Do you know people who might disagree with what you consider ‘obscene’?
These are all questions that must be considered when looking at the outrageous case of Max Hardcore. Max is a pornographer pure and simple. His real name is Paul Little and he makes some of the filthiest and most degrading porn around.
If you saw one of his movies you would likely be totally disgusted. However, as despicable as his films may be to the average person there are some people who like his movies. Let me be clear, we’re not talking about child porn here. I’m talking about consenting adults who are in these movies and who watch these movies.
The federal government decided that Paul Little’s movies offended them so they charged Little with 10 counts of distributing ‘obscene’ materials through the Internet and mail.
Little went on trial and 12 jurors sat through several hours of his movies, and after a lengthy deliberation they too decided his movies were offensive. This was despite testimony from some of the women who starred in Little’s movies. The women told the jury that they were well paid and had no regrets about doing the films and were certainly never forced to do anything.
Today Paul Little was sentenced to 46 months in federal prison and fined more than $1.7 million dollars for distributing material that some deemed to be ‘obscene.’
My point here is not to gain sympathy for a pornographer, but to highlight the bigger picture and what it means for free speech.
The Supreme Court uses what is called “The Miller Test” to determine whether or not something is ‘obscene’ or not. There are 3 factors all of which must be satisfied in order for something to legally be considered ‘obscene.’
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions[2]
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific). specifically defined by applicable state law.
The reason this is deeply flawed is because it lacks a national standard. How can you apply a ‘community standard’ to something transmitted over the Internet? Moreover, a community standard might be different in Georgia than it would be in California.
For these reasons, Little has a very good shot at overturning his conviction on appeal. However, that still doesn’t change the seriousness of these kind of prosecutions by the government and what they mean for free speech.
You may not care about the porno guy, but what if next time it’s a song? Or maybe a painting? What if next time the federal government decides a certain book is obscene? The real truth is that ‘obscenity’ is in the eye of the beholder.
One person may find a rap song riddled with the n-word to be obscene and offensive, while another person may like the rap song buy find pornography to be offensive.
In the United States pornography provided all parties involved are at least 18 years of age or older is completely legal. So for the government to single out certain adult filmmakers for prosecution because they don’t like the kind of stuff consenting adults are doing in the films is totally unacceptable.
Pornography does have its legal limitations in the U.S. as well it should. It’s flat out illegal to film persons under the age of 18. It’s illegal to have sex with animals and dead people — which we can all agree are good laws.
At no time was it ever alleged that Paul Little’s movies contained any illegal acts — but merely taken as a whole they were deemed to be ‘obscene.’
The government cannot make pornography illegal, because that would be unconstitutional. So the idea is to try and put pornographers out of business by charging them with ‘obscenity.’ Little’s case is the first one they’ve actually been able to secure a guilty verdict.
In the end the feds don’t really care if they get a guilty verdict, because the cost of defending an obscenity case in court usually bankrupts the porn company in question — so the government ‘wins’ either way.
This is the kind of crap you would expect to happen in Russia, but not in America. Underhanded tactics like that are the real obscenity in this country.
Regardless of how you may feel about porn, this is an outrageous prosecution and represents a shocking abuse of power by the Justice Department and is fundamentally unconstitutional.
(via The Hot Joints)
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