Page 55 - AVN July 2013

FEATURE | By Tom Hymes
Flynt Miller A A F Fi ir rs st t A Am me en nd dm me en nt t vs. a ab bs so ol lu ut ti is st t c co om mm me en nt ts s o on n t th he e S Su up pr re em me e C Co ou ur rt t l la an nd dm ma ar rk k c ca as se e
Miller v. California, the famous Supreme Court case that gave us the three prongs of the Miller test that juries still use to decide if someone should go to jail for obscenity, was decid-
ed on June 21, 1973. A mere thirteen months later in July of 1974, the first issue of Hustler magazine was published. In that sense, Larry Flynt’s salacious and iconic publication and
obscenity law’s defining statute were born and came of age like brothers from another mother. Forty years later, who better to ask about Miller’s controversial legacy than Larry Flynt?
More than any man in this business (or perhaps the country), Flynt is personally associated with the fight against the government’s seemingly inescapable need to legislate sexual
speech—or as he puts it, legislate morality. It should come as no surprise that the famous Hustler publisher refuses to soften his absolutist position regarding the First Amendment or
his opinion of Miller, which by definition remains a perpetual if ineffective affront to his sense of the bright line in the sand past which the government has no business venturing.
What are your general thoughts about Miller?
Miller v. California was a bad law made by a bunch of well-intended [Supreme Court]
Justices. They made the fatal mistake of trying to define obscenity, and no one has ever
been able to do that. Justice William O. Douglas once said that obscenity is like the
concept of sin: it defies definition, and what might be to one is not to another; I think
it’s best left in the minds of man.
But I think the justices felt a so-called moral responsibility to try to clean up our
minds, but when you look at the various tests that Miller had to meet in order to be
declared obscene, it’s kind of laughable. It says that pornography in itself is not obscene.
So, if you don’t want pornography to be obscene, well then what is? And they said, well,
if the work lacks serious political or artistic value, it could be obscene. If it appeals to the
prurient interest, it could be obscene. I’ve never understood what a prurient interest is; I
suppose if it appeals to some morbid interest in sex, it might be obscene.
But the justices were all over the place on this; to say that a work of art must lack
serious political and social values—you really can’t separate politics and society from the
whole concept of obscenity. So it was like they were in a barrel of worms trying to make
some sense out of it. They felt that they would come up with these various tests that
would give the prosecutors a road map to prosecute obscenity cases, but only the
extreme cases ever went to jail under prosecutions on the Miller standard.
Exactly. What does community even mean now?
Well, with the advent of the internet, the community has become smaller. With
Miller, they left it up to individual communities to make their own standards. Well,
that’s passé; it’s just not in vogue now. Community has been totally redefined.
Are you saying that the community actually becomes the 12 jurors?
In a sense, that’s right. Here’s an interesting piece of information for you. There was a
study recently that showed that eight out of ten people had seen at least one adult movie.
It surprised me because I thought it would have been maybe four or five out of ten had
seen adult movies. I was really shocked to find out that it was eight out of ten.
What does that mean to you?
How in the world do you select a jury that’s going to send someone to prison for
producing a film that you’re watching?
Now, what would you do if you were a juror on an obscenity trial and had to
make a decision based on Miller? Would you be able to?
I could easily make a decision. I’m an absolutist when it comes to the First Amendment.
I don’
t think the government has a right to interfere with your thought process. You
know, they can’t keep the streets clean, but they want to keep your mind free and clear.
So, in light of that, did they accomplish what they wanted to accomplish, to
separate out what society, or at least that jury, thought was the worst of the
They sure do. So do obscenity laws even matter anymore now that the anti-
porn forces have shifted their argument to say it’s now a social health hazard,
addictive, all of that?
The only thing that really matters is to not use children in pornography. That is a
horrible plague that exists worldwide, and the people who are purveyors of that should
be prosecuted to the fullest extent of the law. But not under the obscenity statute!
Anyone who uses a minor to make an adult movie is violating the rights of someone
who is not old enough to speak for themselves, and that’s the crime. They should have to
rot in prison, I really believe that, But you know, they’re blaming the permissive society
on child porn. I’ve been in this business longer than probably anyone, and I tell you, I
don’t know anybody who’s into kiddie porn. It’s an underground thing. They’re not
interested in making things like Hustler; they’re not interested in adult films; they’re
worst?
No, it never accomplished it. See, one question they needed to ask themselves was
whether they wanted to close down all the art galleries, because most of the old Masters
had a penchant for painting pornographic images, and many of them were very
expensive and very famous. That’s why they basically said that pornography itself is not
obscene. It’s got to meet the following tests in order to be obscene. But they were never
able to separate anything out, and all of the good obscenity lawyers—and there are only
a handful of them around—but they were really, really good in the 1970s and ’80s. And
the prosecutors were really no match for these guys, like Paul Cambria and Stanley
Fleishman, these were some great lawyers.
What’s your impression of how the DOJ felt about Miller?
Well, there were a rash of prosecutions during the Reagan administration, but other
than that, there weren’t under Clinton, there were very few under Bush, and virtually
none under Obama, and it’s not that these administrations were leery of bringing these
actions; it’s just that they got nowhere. It was very difficult to get a conviction because
you had to get 12 people to sit on a jury, many of whom had even seen these movies,
and get up there and tell their neighbors that they don’t have a right to see them.
There
’
s a big difference between impaneling a jury to turn on a question of morals, and
impaneling a jury when someone is facing a capital offense of murder. Big difference.
So after 40 years has Miller basically had no lasting impact one way
or the other?
Well, it had virtually no impact, and I want to explain to you why. Pornography could
not be more pervasive than it is today. It’s infiltrated the mainstream movies that exist
out there, it’s on cable television, adult book stores are thriving, and there are virtually
no prosecutions because it’
s a worthless statute; they can’t win with that statute, and the
court is afraid to go back and try to redefine it because they can’t!
interested in children.
So I have one last question about Miller. Because its definitions—“community,”
“patently offensive” and “literary value,” to name a few—change over time in
the sense that people think about them differently, doesn’t that mean that the
law has actually stood the test of time?
That’s the whole point I was trying to make earlier. People will argue this point but
I’m pretty firm on it. You simply cannot legislate morality, and that’s when they get in
trouble. When they start to legislate morality, it falls apart; it never, ever works.
country), Fl ynt is personally associated with the fight against
”More than any man in this business (or perhaps the
the government’s seemingly inescapable need to legislate
sexual speech—or as he puts it, legislate morality
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