By: Rebecca Slocum
Obscenity is not a form of protected speech under the First Amendment. The legal definition of obscene has undergone several evolutions in the last century; the current definition is based on Miller v. California (1973). Based on this landmark case, “the basic guidelines for the trier of fact must be
- whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
- whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
- whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
These guidelines, sometimes referred to as the Miller test, are used to help define material as obscene or not, based on societal standards. While I certainly affirm there should be standards for these types of decisions, the trouble with these cases is that “societal standards” are fairly subjective. And then there’s the consideration of public versus private consumption of these materials. Is there a point where private citizens experience protections from government policing of the materials they enjoy in their own home?
Stanley v. Georgia
This year marks the 50th anniversary of the Supreme Court case, Stanley v. Georgia (1969). This case was markedly different from previous obscenity cases ruled on by the Supreme Court in that it questioned whether a private citizen had a right to own or view obscene materials in the privacy of their home. Up until that point, the Supreme Court had ruled on obscenity cases dealing with the distribution of obscene materials.
Under the authority of a warrant, police searched the home of Robert Eli Stanley in search of illegal bookkeeping paraphernalia. While not finding their intended target, police did find three reels of eight-millimeter film containing pornography. Stanley was arrested, tried, and convicted under Georgia law for possession of obscene material. The case made its way to the Supreme Court, where the conviction was unanimously overturned. The decision stated that, based on the First and Fourteenth amendments, the private possession of obscene material could not be held as a crime. In his majority opinion, Justice Thurgood Marshall affirmed that “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.”
Why is this case still worth our attention? It’s been 50 years. Private freedoms are viewed as a necessary pillar of our society. As Americans, we have the right to privately read and view whatever information or material we wish. It is unconstitutional for the government to come in and try to police the content of the media we’re consuming. Right?
U.S. v. Handley
Right. Or at least in theory. That doesn’t mean that people aren’t going to attempt it. As recently as the last decade, there has been a case for mere private possession of obscene material. In U.S. v. Handley (2010) , Christopher Handley, a manga collector from Iowa, was arrested and convicted for possession of hentai, a type of sexually explicit manga. The specific material in question featured teenagers in sexual situations. He was sentenced to six months imprisonment, followed by five years of probation, three of them to be supervised. Handley, on the advice of his lawyer, pled guilty due to this type of case carrying a mandatory minimum sentence, meaning a judge cannot lower the sentence for any circumstances. Had Handley’s case gone to trial, it is likely the precedent of Stanley v. Georgia could have been used to aid in his defense.
What’s distressing in both of these cases, is that private citizens are being prosecuted for what they read (or view) and think. What’s even more distressing in the case of Handley, is that a man saw jail time for privately enjoying fictional content. Fictional characters, in fictional situations, in a fictional story. This is a dangerous violation of intellectual freedom. The ALA defines intellectual freedom as the right of every individual to both seek and receive information from all points of view without restriction.
Okay, so why is this important to librarians? These cases deal with private citizens and private possessions, not libraries with materials for public consumption. While these situations are different in terms of legality and how to defend them, they both fall under the umbrella of intellectual freedom. The First Amendment, a pillar of intellectual freedom, is only as strong as the foundation of support it receives from our society. Though the First Amendment doesn’t cover obscenity, these cases point out that what we might consider obscene is not black and white. Each case must be examined for its merits for freedom of thought. If we let one case of defending intellectual freedom fall through the cracks, it weakens the frame for future cases.
I’m certainly not attempting to sow seeds of fear or distrust in the materials a librarian chooses (or doesn’t choose) to stock in their library. I’m also not saying we need to be Professor Moody, constantly on the lookout for anyone seeking to hinder our freedoms. I simply wish to highlight that our role in defending intellectual freedom is not merely just so our patrons can pursue whatever information they choose; it is so every citizen in this country has that right as well.
Rebecca Slocum has worked in education as a teacher and library consultant for the last 5 years and is a recent MLIS graduate student from the University of North Texas. She is interested in issues involving intellectual freedom, censorship, and collection development in school libraries. In her spare time, Rebecca enjoys reading, writing, running, and roaming the world. Currently, she stays at home caring for her son and writes at her blog, The Dewey Decimator. Find her on Twitter @bcslocum.