Thursday, April 16, 2015

Heraclitus v. California

Via the Kenwhite, a couple-years-old piece by M-Ben on using existing obscenity standards to prosecute "revenge porn." Slap on your old checkered polyester bell-bottomed dungarees and travel back with me to the lurid days of 1973, deep in the ass-end of Nixon's domestic and foreign travails.

U.S. Supreme Court

Miller v. California, 413 U.S. 15 (1973)

Miller v. California

No. 70-73

Argued January 18-19, 1972

Reargued November 7, 1972

Decided June 21, 1973

413 U.S. 15

Witness, gentlefolk, the mewling birth-cries of the so-called Miller Test. Obscenity has been unprotected since at least Roth v. US (1957). The underlying statute here is 18 USC§ 1461 - Mailing obscene or crime-inciting matter. Here's the full text of the statute (I think it's current, but IANAL, so consult an actual attorney if you plan to violate any of the following):
Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and—
Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and
Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and
Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters,
articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and
Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and
Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—
Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001 (e) of title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.
The term “indecent”, as used in this section includes matter of a character tending to incite arson, murder, or assassination.
It's the first little bit here of interest to the topic at hand, but it's worth noting the remainder of the statute for its specificity. You can't use the post office to send useful information about abortion, nor anything that might tend to incite arson, murder, or assassination. Of great interest indeed to anyone who claims that we might need to "BTFSTTG" or something.

At any rate, the Miller case cleared up, or at least attempted to clear up some fuzziness left over from Roth. Here's the test to determine whether or not a piece of work is "obscene":

(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

At least at the University of Michigan, the popular Hollywood film "American Sniper" failed the local Miller test. The tender community standards on campus were so easily bruised that school officials decided, I swear to God Above I am not making this up, to run a big screen adaptation of old-timey British children's fare Paddington instead. Well, at least it fails to meet one of the three AND criteria. In a court challenge, it'd pass the "serious literary" test easily enough.

Revenge porn wouldn't. It wouldn't pass the second criterion either. It's patently offensive to share footage of sexual acts without the consent of all parties. I don't want to put words in Mark's mouth (and please sound off in the comments if I'm off base, good sir), but I think he prefers using something like the Miller test over the rubbish revenge porn statutes proposed (and passed!) in several states is that it a) preserves existing 1A jurisprudence, b) won't result in Pyrrhic SCOTUS challenges to clearly unconstitutional state statutes, and c) ought to be reasonably clear to citizens and jurors alike.

On these points I agree. The anti-revenge-porn Valkyries busy shrieking down from Valhalla to deliver model statutes to the battlefields of the two-and-a-half score state legislatures propose language that would torch not only well-established, robust 1A protections but would make criminal virtually every parent to ever walk the earth bearing a camera. Where I disagree with Mark is that the Miller test is bullshit. And it's bullshit because Heraclitus.

Campus sentiment is an imperfect bellwether for future public sentiment, but it's about the best we've got. And if the shrinking violets on the many college campuses of America are any suggestion, even slight deviations from the modern secular orthodoxy will fail to meet the "whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest" test. Here, "contemporary" is the problem. Overly-sensitive Gertrudes who need their fur stroked incessantly will almost certainly find in favor of punishing, say, yoga pants supermarket creep shots. Sure, such things may be in bad taste, but I fret about allowing myopic, excessively sensitive community standards decide what is and is not obscene, given the highly heterogeneous and rapidly-changing nature of community standards. If Chesterton's fences were all intact, I'd say go for it. But they aren't, so I urge greater caution.

So what would I propose in lieu of Bennett's statute? Nothing. I have to agree with Ken that it's the best I've seen. The problem, so they say, lies in the stars. We have met the enemy and he is us. The great task is to reconsider whether or not the large project of re-ordering society on incoherent, mutually-contradictory principles is ultimately wise. Revenge porn is a symptom, not a larger ailment.

The law is not euvoluntary, but not as not euvoluntary as recklessly knocking over Chesterton's fences all willy-nilly.

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Do you have suggestions on where we could find more examples of this phenomenon?