Social value? Tough shit!

[doktor at primenet.com]

Bob--

I'm cc'ing this to the P-list, since it was there that concerns about the
CDA first crossed my monitor.  P-listers, if this is too off-topic, hit me
over the head with a copy of Fanny Hill, OK?

I read the transcript of the oral argument over the constitutionality of
the CDA yesterday. As you so thoughtfully informed us, the URL is

http://www.aclu.org/issues/cyber/trial/sctran.html

I also went back and read the _Miller_, _Pacifica_ and _Denver Area_ cases.

Emerging from this monkish phase, I fear that the court is well on its way
toward legitimizing statutes which prohibit indecent speech, even when it
is conceded that the speech has (to quote Miller) serious literary,
artistic, political, or scientific value.  That's something that even those
P-listers who are not pornographers should find appalling.

In the _Miller_ case, the court set forth its now-famous three-part test
for determining whether "a work" was obscene.  Under that formulation, a
work could only be considered legally obscene if

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

It's easy to make fun of this definition, but in practice it has meant that
most of us can go into our local "adult" bookstore and buy videos and
magazines depicting everything sexual except fisting, pederasty, toilet
tricks and necrophilia. Is this a great country or what?

Then in _Pacifica_, the case concerning a radio station's broadcast of
George Carlin's Seven Dirty Words riff, the court OK'd certain restrictions
on the broadcast of indecent speech.  (Unfortunately, this failed to
prevent the rise of Howard Stern.)  Carlin's monologue wasn't without
social or literary merit, but it was all right to ban it from broadcast
over the radio at times when kiddies were likely to be listening because of
the ubiquity and pervasiveness of radio.

Last term, the Supremes decided _Denver Area_, in which the court, led by
Clinton-appointee Justice Breyer, let stand a statute which permitted cable
companies to refuse to air indecent or patently offensive programming.  In
addressing what this prohibition meant, Breyer wrote that the statute

"would seem to refer to material that would be offensive enough to fall
within [the _Miller_] category but for the fact that the material also has
'serious literary, artistic, political or scientific value' or nonprurient
purposes."

Breyer reached this alarming conclusion even though cable is unlike radio
in that one has to go out and subscribe to it through a local cable
monopoly.

On Tuesday, during the oral argument over the constitutionality of the CDA,
Chief Justice Rhehnquist attempted to curtail any claim by the plaintiffs
that the CDA prohibition on "indecent" cyberspeech was vague by stating "we
construed the term 'patently offensive' in our _Denver Area_ opinions last
term."  The court thus seem to be moving toward the elimination of the
third element of the _Miller_ test, the one which says that a work cannot
be proscribed if it has serious literary, artistic, political, or
scientific value.  Call it _Miller_ Lite.

I hope I am wrong.  God, what irony: I'm rooting for Justice Thomas, with
his famous chronologically indexed back-issues of Playboy, to carry the
day.  But if the social-value prong of the _Miller_ test falls by the
wayside, then Gravity's Rainbow itself could one day be banned.  Twentieth
Century masterpiece?  Tough.  It's patently offensive, it's indecent, and
fuck you and your perverted pointy-headed intellectual friends who find
something of value in it.

I've been out of the legal racket for a while now.  I didn't even read the
_Denver Area_ opinion when it came out last term.  So I have to thank you,
Bob: now I'm back to spending restless nights waiting for the million-pound
shithammer to fall on our right to discuss Pynchon.  Those checks to the
A.C.L.U., the A.L.A. and the E.F.F. go out today.


--Jimmy
http://www.angelfire.com/oh/Insouciance/index.html