Tomorrow, the Supreme Court will hear opening arguments in United States v. Stevens. At issue, as explained by About.com: Animal Rights guide Doris Lin, is 18 USC Section 48, which reads:
Title 18 USC, ¬ß 48. Depiction of animal cruelty
(a) Creation, Sale, or Possession.-- Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.
(b) Exception.-- Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
(c) Definitions.-- In this section--
(1) the term "depiction of animal cruelty" means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and
(2) the term "State" means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.
I would expect the Court to ask two questions: Does this law serve a compelling interest, and does it use the least restrictive means possible to meet that interest?
My suspicion is that the law will meet that standard, but a more interesting question to me is whether animal cruelty videos, marketed for obvious sexual purposes, would qualify as obscene.
I've been following the Roman Polanski situation lately, and in the course of my reading ran across this very wise statement from his late wife Sharon Tate:
I honestly don't understand the big fuss made over nudity and sex in films. It's silly. On TV, the children can watch people murdering each other, which is a very unnatural thing, but they can't watch two people in the very natural process of making love. Now, really, that doesn't make any sense, does it?
The Supreme Court's definition of obscenity has conventionally been limited to content of a sexual matter, while violent content, even violent content intended to appeal to twisted sexual impulses, has not historically been regarded as obscene. But the word "obscene" has to do with the way material is perceived, not sexual content; it comes from the Latin root obscaenus, meaning "ill-omened." And the Supreme Court has historically held that obscene content is not protected speech.
The trouble I see is that if we live in a world where graphically violent content intended and marketed to appeal to sexual sadism is not regarded as obscene, but video of two people having consensual sex is, then it's reasonable to question our priorities. The short-term answer the Supreme Court will most likely provide in the Stevens case is that the law is acceptable because it serves a compelling government interest. But the more long-term question is what content still qualifies as obscene rather than merely indecent, and how (or if) the Court should make a distinction between the two.
The current definition of obscenity, taken from Miller v. California (1972), holds that material that is not of a sexual nature cannot, by definition, be considered obscene--that violent content such as animal torture videos, for example, cannot be considered obscene even if it is created to appeal to a prurient interest. The Miller standard reads as follows:
The basic guidelines for the trier of fact must be: (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.
I find this unsatisfactory for many reasons. I'll suggest new wording in a later blog entry, but first I want to hear from you. In a paragraph or less, tell me: How would you define obscenity?
Related: The First Amendment: Text, Origins, and Meaning