Obscenity Law’s ‘Chill’ Is Tepid

In an effort to make it easier to prosecute pornographers, the state of California has changed its definition of obscenity.

Supporters and opponents of the change, which will take effect Jan. 1, predict that it will increase obscenity prosecutions, which is exactly what the proponents want. The opponents--who include civil libertarians, librarians and the film industry--fear a “chilling effect” on free expression in general. The facts, however, indicate that the changed definition of obscenity will not be nearly as significant as has been suggested. The new California standard has been the federal standard for more than a decade, during which there has been no discernible reduction in the availability of sexually explicit material.

To back up: In 1966 the U.S. Supreme Court said that material must be “utterly without redeeming social value” in order to be obscene. Subsequently, many state legislatures, including California’s, enacted obscenity laws that adopted essentially that language, thereby guaranteeing that the statutes would at least be constitutional.

California’s statute defined obscenity as material that was “utterly without redeeming social importance” rather than “utterly without redeeming social value.” (Some have argued that there is a difference between “importance” and “value,” but it is hard to imagine what it is.)

In any case, the standard was practically impossible to meet. It is very hard to show that something is utterly without redeeming social value or importance.

Meantime, the Warren Court, which had promulgated the definition, became the Burger Court, which wanted to make it easier to stop the spread of sexually explicit books and films. In 1973, the court reconsidered the issue and enunciated a new definition of obscenity. It required that the material in question lack “serious literary, artistic, political or scientific value.”

That is the definition that the California Legislature has now essentially adopted--with two changes: In place of “serious,” California will require “significant” value, and the category of “educational” is added to the list of possible redeeming values. So, for material to be found obscene, it will have to lack “significant literary, artistic, political, educational or scientific value.”

If the changes make any difference at all (and it is not clear that they do), it is in keeping California’s standard tougher than the federal standard. That is, it will still be very hard to bring a successful obscenity prosecution in California.

The federal standard supposedly makes prosecution easier, but a review of its effect gives anti-pornography forces little to cheer about and free-speech defenders little to fear.

After the 1973 opinion, which came in the case of Miller vs. California, some legislatures were quick to incorporate the new language into their own state statutes. In 1977 an extensive study of the effect on prosecutions was conducted at New York University Law School. The results were published in the NYU Law Review, in an article of more than 100 pages. In a preface to the article, Judge Harold Leventhal of the District of Columbia Circuit Court concluded:

“In the South, the latitude given by Miller is discerned to have had an effect in both limiting available materials and facilitating prosecutorial efforts. . . . Elsewhere, however, the survey’s empirical data indicate no increase in prosecutorial activity, nor is Miller believed to have significantly eased the burden of prosecution. And as prosecutors appraise it, Miller has had no effect on the quantity or explicitness of available sexually oriented materials.” There is no indication that the situation has changed since.

Leventhal attributed the lack of successful obscenity prosecutions to “substantial community tolerance” of sexually explicit material. “This tolerance leads to a lack of jury unanimity for conviction--even for materials meeting hard-core tests,” he wrote. He cited the 1970 Report of the Commission on Obscenity and Pornography, which found that “a majority of the American people presently are of the view that adults should be legally able to read or see explicit sexual materials if they wish to do so.”

To be sure, a new obscenity commission, carefully selected by the Reagan Administration, is about to make its report, and its findings are expected to be much different. Nonetheless, California prosecutors will still have an uphill battle trying to prosecute obscenity under the state’s new law.

And well they should. It is still the case that the majority should not be able to tell individuals what they may read, look at or think about.