Finally, my favorite subject: pornography. Everyone has to have heard of Justice Potter Stewart’s words which form the title of this post, written in a concurrence in Jacobellis v. Ohio, on the issue of “obscene” videos. And almost no one knows what it means. After a flurry of decisions in the 1960s and 70s (Stanley v. GA, Smith v. CA, Miller v. CA, Jenkins v. GA) attempting to define exactly what is obscene and what is protected and just who can be prosecuted with and ending up with a mess of a Constitutional doctrine, the Supreme Court – and the general American public – seem to have given up on pornography altogether. No one really cares anymore and there’s hardly ever a prosecution for the production, sale and possession of adult pornography.
Unless you’re a sex offender on probation, of course. Enter Robert Stephens. Stephens was convicted of possession of child pornography and as part of his sentence, was placed on probation. Some of his conditions were as follows:
One of the seven special conditions was that the defendant’s access to any computer must be approved by the office of adult probation. Among the special sex offender conditions were that the defendant (1) not possess, or subscribe to, any sexually stimulating material deemed inappropriate by a probation officer, (2) not possess a camera, DVD player, camcorder, videocassette recorder or other similar equipment without the approval of a probation officer, and (3) submit to an examination and search of his computer or other similar equipment to verify that it was not being utilized in violation of his probation or treatment.
Note that the condition isn’t “obscene” material, but rather “sexually stimulating material deemed inappropriate by a probation officer”. More on that later.
As is the natural course of events for sex offenders, he was found in violation of his probation for having a few nude photographs of his ex girlfriend and duly sentenced to 42 months in prison. He appealed, claiming that the condition: Continue reading