obscene

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:

was unconstitutionally overbroad and vague on its face and unconstitutionally vague as applied to him, and that the evidence was insufficient to support the  trial court’s finding that he had violated the condition.

The Court summarily dismisses his overbreadth argument, citing a long line of SCOTUS decisions (see Virginia v. Hicks) holding that such an analysis is appropriate only if First Amendment rights are implicated. And there’s the puzzling thing. In its decision, the Court takes great pains to point out – over and over again – that Stephens is not making a First Amendment challenge to the special condition of probation barring his possession of adult pornography. The only challenges made are under the Constitutional right to privacy, which are just as easily dispensed with:

For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. . . . [T]o prevail on his claim, the defendant must demonstrate beyond a  reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement.

The Court finds – as it should – that possessing nude photographs constitutes possessing sexually explicit material, but there is an important – and useful – holding when it comes to the second prong. Although the Court holds that the materials possessed by Stephens fall squarely within core meaning of the special condition, and thus there was no violation of his right to privacy, the condition itself may not pass constitutional muster in a different case:

[When] a statute provides insufficient general guidance, an as-applied vagueness challenge may nonetheless fail if the statute’s meaning has a clear core. . . . In that case the inquiry will involve determining whether the conduct at issue falls so squarely in the core of what is prohibited by the law that there is no  substantial concern about arbitrary enforcement because no reasonable enforcing officer could doubt the law’s application in the circumstances.’’ (Citations  omitted; internal quotation marks omitted.) Farrell v. Burke, 449 F.3d 470, 493–94 (2d Cir. 2006). Under the foregoing standard, we cannot conclude that the  special condition prohibiting the defendant from possessing ‘‘sexually stimulating material deemed inappropriate by a [p]robation [o]fficer’’ provided  sufficient, general guidance for law enforcement purposes.

Given the jurisprudence in this area and the Court’s proper application of it, it really bothers me that a First Amendment challenge was no raised, especially given the holding of Stanley v. Georgia:

He is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.

…

We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.

Without this First Amendment challenge, it is Connecticut law that conditions of probation that prohibit the mere possession of adult pornography by an adult are valid. And the materials don’t even have to be obscene.

Putting aside the Constitutional aspects of this case, it is worth pondering whether such conditions really have any value or are counter-productive? Would we rather have an adult male relieving his sexual tension while viewing adult pornography, or would we rather that this tension bottle up and percolate and perhaps dangerously spill over into action that may endanger those around him?

Are we at the point where we’re approving any and all restrictions on these modern-day witches without rational thought and forethought? There are legitimate reasons – whether you’re on probation or not – to prohibit the creation, possession and dissemination of child pornography. I can see that. The possession of adult pornography, in the words of Justice Stewart, is not that.

Whew. Made it through a porn post without a single mention of 2 Girls 1 Cu-dammit. Don’t Google that. It’s for your own good.

We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. . . . The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them.

From the WSJ:

The decision doesn’t mean broadcast TV and radio shows will now be littered with profanity, because advertisers and viewers would likely complain. But the ruling will likely end, for now, the commission’s campaign to cleanse the airwaves of even spontaneous vulgarisms with the threat of hefty fines.

Interestingly, the indecent policy doesn’t apply from 10p.m. to 6a.m. and only covers the networks anyway, but when’s the last time you heard someone say fuck on cable television even at midnight?

For some dense it-could-only-come-from-a-law-prof legal analysis of the decision and its implications, click here. For the second grade reading level analysis, read this. As you can tell, I’m all for this decision right now, but if I’m ever subjected to Janet Jackson’s nipple again, I might sing a different tune. I still wake up with a cold sweat in the middle of the night and see tassels floating before my eyes.

The most interesting article produced as a result of the FCC ruling is this one from Reason, asking the important question: “if indecency is unconstitutionally vague, why isn’t obscenity”? Everyone who’s been within 1500 feet of a law school knows the old “you’ll know obscenity when you see it” line. Sort of like how my contracts professor explained consideration to us: “It’s like chicken sexing. You’ll know it when you see it.”

Exactly.

What I find obscene may not be obscene to you, or, more likely, what you find obscene will not be obscene to me. Take this, for instance. It’s both obscene and indecent. Yet there are no fines.

So, ponders Sullum:

What both definitions have in common is an inescapable vagueness and subjectivity that make enforcement actions utterly unpredictable. Both require the application of “contemporary community standards,” whatever those are, and a judgment about what is “patently offensive.” In practice, this means broadcasters are at the mercy of bureaucrats’ capricious tastes, while the freedom of a defendant in an obscenity case hinges on exactly how icky a bunch of randomly selected people think his films are. The results cannot possibly be anything but arbitrary. As anti-porn activist Patrick Trueman concedes in Reason.tv’s video “Obscenity vs. Freedom of Speech,” the films that triggered Stagliano’s indictment are “in many respects typical of what’s available today”—i.e., they are not different in kind from pornography that is widely available in the District of Columbia (where Stagliano is being tried) and throughout the country. Yet as Richard Abowitz reported the other day, the judge overseeing the trial has barred Stagliano from presenting testimony to that effect.

[This Stagliano trial is highly amusing for several reasons. One is that the prosecution couldn't get the damn video to play; the same video it says is obscene. Today, the judge precluded the State from entering that video into evidence.]

Will the Supreme Court agree to review the Second Circuit’s decision? Will they hold that the FCC’s policy is indeed unconstitutional? Will people start saying “fuck” on national TV during primetime? Stay tuned.

But you didn’t come here and read this post for First Amendment analysis. You came for the video. And let’s be real, this entire post is a big fat excuse for two things: 1. For me to say fuck as many times as I can. Fuck.

2. This:

Did I say fuck yet? Fuck.

[As you can tell, we at 'a public defender' are not shy about using the most versatile word in the English language.]

The FCC, in its Victorian wisdom, has decided that no matter the context, the word always evokes a sexual connotation. Fucking stupid. Which means, apparently, that someone is copulating with someone named “stupid”. What the sex.

For more coverage, see Scott and if you’re really inclined, Adam Liptak’s NYT piece.

We’ll see if the Justices agree and at 11am tomorrow we will read whether the Justice engaged in profanity.

Unless, of course, you agree with one friend of this blog who pointed out to me on Friday that they already have [for those of you who are too fornicating lazy to click on that link, the friend was referring to McCleskey v. Kemp].

I have not been inclined to follow this case very closely and I will admit that I made up my mind early on, stemming from some archaic sense of discipline and respect and other such nonsense. Reading the blog posts today, however, I wondered if I was wrong. So I decided to do the only sensible thing and read media reports the decision.

What I also found in the blawgosphere was a mis-reporting of the facts. Perhaps they thought they were the MSM for a day.

So let’s look at the facts, as found by the District Court and adopted by the 2nd Circuit:

1. Jamfest was some sort of band-off, which was scheduled for April 28.
2. At a student council meeting on April 24, the students were made aware that, for reasons that are unimportant, the date or venue needed to be changed yet again.
3. That morning, four students, including the plaintiff, met in the computer lab, accessed someone’s e-mail account and sent out a mass e-mail to students, asking them to contact administration to urge them to hold Jamfest as scheduled.
4. Both defendants received an influx of e-mails and telephone messages. One of them, who was away for the day on school business, had to be called back to deal with the situation.
5. Later that day, the principal spoke with Avery in a hallway and advised Avery that she was disappointed that the student council had resorted to mass e-mails rather than going to her or the superintendent to resolve the issue.
6. The principal also expressed disappointment that the e-mail contained incorrect information, because the administration was open to moving Jamfest to another location.
7. Avery apparently agreed to send out a corrective e-mail. That never happened.
8. That night, the infamous blog post appeared, which stated that “jamfest is canceled due to douchebags in central office” and exhorted students to write and “piss her off more”.
9. Lots of students took up that request and wrote and wrote.
10. The very next day, the student council and the administration decided that Jamfest would be rescheduled for June 8.
11. Despite this resolution, the administrators continued to receive e-mails and calls about rescheduling.
12. On May 7, the post in question was discovered by the son of the superintendent.
13. The principal concluded that concluded that Avery’s conduct had failed to display the civility and good citizenship expected of class officers.
14. They declined to endorse her nomination for Senior Class secretary, though she was permitted to remain as a representative in the Student council.

This portion of the lawsuit was seeking an injunction against the admin’s decision to prevent her from running for office only. The 2nd Circuit lays out the standard and focuses on the second prong:

Tinker provides that school administrators may prohibit student expression that will “materially and substantially disrupt the work and discipline of the school.” Tinker, 393 U.S. at 513.

The district court found that her posting, although created off-campus, “was purposely designed by Avery to come onto the campus.” Doninger, 514 F. Supp. 2d at 216. The blog posting directly pertained to events at LMHS, and Avery’s intent in writing it was specifically “to encourage her fellow students to read and respond.” Id. at 206. As the district court found, “Avery knew other LMHS community members were likely to read [her posting].”

Contrary to Doninger’s protestations, moreover, the record also supports the conclusion that Avery’s posting “foreseeably create[d] a risk of substantial disruption within the school environment.” Wisniewski, 494 F.3d at 40. There are three factors in particular on which we rely to reach this conclusion. First, the language with which Avery chose to encourage others to contact the administration was not only plainly offensive, but also potentially disruptive of efforts to resolve the ongoing controversy. Her chosen words — in essence, that others should call the “douchebags” in the central office to “piss [them] off more” — were hardly conducive to cooperative conflict resolution. Indeed, at least one LMHS student (the one who referred to Schwartz as a “dirty whore”) responded to the post’s vulgar and, in this circumstance, potentially incendiary language with similar such language, thus evidencing that the nature of Avery’s efforts to recruit could create a risk of disruption.

Second, and perhaps more significantly, Avery’s post used the “at best misleading and at wors[t] false” information that Jamfest had been cancelled in her effort to solicit more calls and emails to Schwartz. Doninger, 514 F. Supp. 2d at 202. The district court found that Avery “strongly suggested in her [post] that Jamfest had been cancelled, full stop, despite the fact that Ms. Niehoff, even according to Avery’s own testimony, offered the possibility of rescheduling Jamfest later in the school year.” Id. at 214. This misleading information was disseminated amidst circulating rumors of Jamfest’s cancellation that had already begun to disrupt school activities. Avery herself testified that by the morning of April 25, students were “all riled up” and that a sit-in was threatened because students believed the event would not be held. Schwartz and Niehoff had received a deluge of calls and emails, causing both to miss or be late to school-related activities. Id. at 206. Moreover, Avery and the other students who participated in writing the mass email were called away either from class or other activities on the morning of April 25 because of the need to manage the growing dispute, as were Miller, Hill, and Fortin. It was foreseeable in this context that school operations might well be disrupted further by the need to correct misinformation as a consequence of Avery’s post.

Finally, the district court correctly determined that it is of no small significance that the discipline here related to Avery’s extracurricular role as a student government leader. The district court found this significant in part because participation in voluntary, extracurricular activities is a “privilege” that can be rescinded when students fail to comply with the obligations inherent in the activities themselves.

I think when you read the entire decision, it is clear that her actions were more than simply calling administrators douchebags. When viewed in that context, the actions are certainly more defensible and definitely do not portend the demise of the First Amendment.

I know I write almost exclusively about criminal law, but I have spent the past hour reading 7 posts at Volokh on the application of the First Amendment and the issue is just too fascinating not to share. It reads like a law school hypothetical. The entire thread of posts is collected here (oldest to most recent).

Here’s the skinny:

Elaine owns Elane photography. She is, among other things, a wedding photographer. A lesbian couple approaches her and asks her to photograph their commitment ceremony. She responds, saying that she photographs only “traditional” ceremonies. They ask what “traditional” means. She responds that she does not photograph gay ceremonies. Somehow it ends up in front of the New Mexico Human Rights Commission, who fines her and orders her to pay legal fees.

The question is: Is her refusal to photograph this “non-traditional” ceremony protected by the First Amendment?

Several key points:

• Same-sex couples are apparently a “protected class” under New Mexico law.
• Is there a distinction between her refusing to be hired by same-sex couples or refusing to be hired by anyone to photograph same-sex couples?
• Is that indeed a key distinction in this case?
• If she refuses to photograph same-sex couples because of her religious beliefs, does that entitle her to an exemption from the anti-discrimination law?
• Why the hell didn’t the couple just go to another photographer?
• Why is she turning down perfectly good business?

The comments to these posts are very…interesting…to put it mildly.

I know nothing about First Amendment law and even less about First Amendment law, but it seems to me that there is a significant distinction between someone refusing to be hired by a same-sex couple because they are a same-sex couple and refusing to be hired by a same-sex couple to create/produce something they don’t believe in.

I do think that if you are a business, holding yourself out to be a business, then you should be unable to discriminate based on the customer’s race, sex, sexual orientation, etc.., but you should be able to refuse to accept work because you find the product you are asked to create to be objectionable.

For example: If I am a photographer and a same-sex couple asks me to photograph a same-sex commitment ceremony, I should be able to refuse that job because I am deeply against same-sex ceremonies, but not because the couple asking me to photograph that ceremony is a same-sex couple.

But then i think about it and it gets more complicated. What if a same-sex couple asks me to photograph an inter-racial marriage? Can I still validly refuse because I don’t think people of different races should marry? Is that still not discrimination? If so, is it still protected by the First Amendment?

I told you it was interesting.

Image courtesy amanky. License details here.

As part of an ongoing feud with his employees over whether the department will unionize, Bexar County probation director Bill Fitzgerald is seeking the identities of anonymous employee blog commenters on a relatively new blog called Bexar Me the Pain.

This is indeed very troubling, not only for those employees targeted, but for what kind of precedent it could set if the “outing” were permitted. Everyone seems to be pretty clear that the comments would be covered by the guarantee of Free Speech under the First Amendment [Note that (as far as I can tell) the AG is seeking the "outing" of the commenters and not the author of the blog.]

Scott asks:

I also wonder what Greg Abbott, the Texas Attorney General, thinks about his minions trying to out anonymous blog commenters, not because they libeled anyone but simply to expose them to possible retaliation? Why would Abbott allow his attorneys to bully Bexar probation officers this way?

And would Google have just turned the information over if plaintiffs’ attorneys hadn’t filed a motion to quash? I’ve wondered about this in the context of Texas Youth Commission commenters on Grits, and this makes me more curious than ever what information Google/Blogger keeps on IP addresses of anonymous blog commenters and under what circumstances they release the information?

Here [pdf] are all the pleadings in this lawsuit, but they total 270 some pages, so here’s the Motion to Quash, which should give you a basic idea of what it is all about. Grits’ coverage of the lawsuit is here and here.