Page 32 - AVN January 2016

LEGAL NEWS
LEGALESE | | By Clyde DeWitt
The Latest Wrinkle
Utah’s latest bizarre attack on erotica
the current
”In recent years,
Supreme Court
has been
disinclined to
add any new
exceptions to
First Amendment
speech
protection,
squarely
rejecting three
attempts
Clyde DeWitt is a Las Vegas and Los Angeles
attorney, whose practice has been focused on adult
entertainment since 1980. He can be reached at
ClydeDeWitt@earthlink.net. More information can
be found at ClydeDeWitt.com. This column is not a
substitute for personal legal advice. Rather, it is to alert
readers to legal issues warranting advice from your
personal attorney.
The latest wrinkle in attacking erotica comes from Utah, a new
attempt to get a different angle on it. This is not new, just a
different angle. But the whole thing—dubbing “pornography”
a “public health crisis”—is as laughable from a legal
standpoint as it is from a political one.
The history of mankind has been riddled with efforts to
censor speech that supposedly could “pollute the mind.”
They don’t get it: the remedy for bad speech isn’t censorship;
rather, the remedy is more speech.
Many of the recent efforts in this realm are well-
documented in Dr. Marty Klein’s wonderful book of a
few years ago, America’s War on Sex. Well before the stunts
chronicled in Marty’s book, however, there was an infinity of
other tries.
The sea change in obscenity jurisprudence was the Supreme
Court’s 1957 Roth decision. The core holding of Roth was that
obscene speech was not protected by the First Amendment,
although delineating a tough test limiting what was legally
obscene. Once the limits were defined, the stunts attempting
to end-run the First Amendment were many and varied.
One seemed to have been taken from prohibition, when
federal agents would raid the illegal booze operations with
axes, chopping up the whiskey or beer barrels with the hooch
running into the street and then to the sewer, dramatized
by Walter Winchell in The Untouchables television series in
the late ’50s and early ’60s. Apparently enamored by Robert
Stack’s character beating up all of the illegal rum runners,
local cops tried the same stunt with dirty book stores. The
Supreme Court put a stop to that practice in two cases, Marcus
v. Search Warrant of Property at 104 East Tenth Street, Kansas City,
Missouri in 1961 and Quantity of Books v. Kansas in 1963.
Another end run around the free sexual speech arose
in the wake of Stanley v. Georgia, a 1969 Supreme Court
opinion holding that, although obscenity was not protected
by the First Amendment, private possession of it was
protected. Reeling from that, Congress set up the President’s
Commission on Obscenity and Pornography—which, to the
chagrin of Congress and President Nixon, found that erotica
wasn’t such a big problem. President Nixon’s response was
sort of, “Never mind.”
Meanwhile, the Sexual Revolution was steaming ahead, the
fire stoked by Hugh Hefner, The Pill and the protesting Baby
Boomers. In the midst of that, in June of 1972, Deep Throat
hit the street. It didn’t take too long until there were lines—
including many couples—wrapped around the block to see
it. The Greatest Generation was bewildered by this XXX cult
classic.
After over a decade of the courts being flummoxed by
what to do with obscenity cases, the whole thing came to a
crescendo with five opinions issued by the Supreme Court
on June 21, 1973, led by Miller v. California—the absurd
Miller test. In a 5-4 decision that would have come out the
other way had Bobby Kennedy not been gunned down at the
Ambassador Hotel in Los Angeles on his way to a victory
in the 1968 Presidential election, the Court again held that
obscenity, with minor tweaks for the worse in the test, was
not protected by the First Amendment. Ironically, Justice
Brennan, who had written the 1957 Roth opinion, figuratively
threw up his hands, dissenting on the ground that there was
no test that would pass constitutional vagueness muster that
could draw a line between constitutionally protected speech
and obscenity that could land the speaker in the hoosegow.
(Continued on page 34)
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