Is the passion movie obscene?

Paul Finkelman paul-finkelman at utulsa.edu
Sat Feb 28 15:34:18 PST 2004


we would have to look at NC statutes to answer the specific question.  I 
am trying sort out the "theoretical" issue here, not make a lawyer's 
case that children should not be allowed in the movie.  And, to be very 
honest, I am interested in this because I think it exposes the absurdity 
of obscenity laws and the should put consevatives, including (maybe 
especially) religious conservatives on notice that suppression makes all 
art, ideas, and literature vulnerable.  I think this movie illustrates 
the problem.  

Volokh, Eugene wrote:

>	Sorry I misunderstood Paul's post.  Whether the movie does qualify
>as containing "sexual conduct" is an interesting question.  If the question,
>though, is whether the movie may be displayed when there are minors in the
>audience (what I take to be Paul's rated-R question), presumably we'd need
>to look to North Carolina's obscenity-as-to-minors statute.
>
>  
>
>>-----Original Message-----
>>From: Paul Finkelman [mailto:paul-finkelman at utulsa.edu] 
>>Sent: Saturday, February 28, 2004 11:51 AM
>>To: Volokh, Eugene
>>Cc: 'conlawprof at lists.ucla.edu'
>>Subject: Re: Is the passion movie obscene?
>>
>>
>>Eugene:  I agree with you, that in the context of the rest of the 
>>statute the movie might pass muster; and I am not intersted 
>>in making an 
>>argument that the movie is obscene; I am pretty much with Black and 
>>Douglas on the notion that we should get rid of obscenity 
>>prosecutions 
>>altogether.  My question is, does the movie come under the 
>>statute as to 
>>"sexual conduct" -- Obviously my posting should have been clearer 
>>(should never post things on a Saturday morning!). If, for 
>>example, the 
>>movie has great deal of "sexual conduct" in it, under the NC statute, 
>>would that require that it not be rated R?
>>
>>Volokh, Eugene wrote:
>>
>>    
>>
>>>	Well, the N.C. statute says:
>>>
>>>(b) For purposes of this Article any material is obscene if:
>>>(1) The material depicts or describes in a patently offensive way 
>>>sexual conduct specifically defined by subsection (c) of 
>>>      
>>>
>>this section; 
>>    
>>
>>>and
>>>(2) The average person applying contemporary community 
>>>      
>>>
>>standards relating to
>>    
>>
>>>the depiction or description of sexual matters would find 
>>>      
>>>
>>that the material
>>    
>>
>>>taken as a whole appeals to the prurient interest in sex; and
>>>(3) The material lacks serious literary, artistic, 
>>>      
>>>
>>political, or scientific
>>    
>>
>>>value; and
>>>(4) The material as used is not protected or privileged under the
>>>Constitution of the United States or the Constitution of 
>>>      
>>>
>>North Carolina.
>>    
>>
>>>(c) As used in this Article, "sexual conduct" means:
>>>(1) Vaginal, anal, or oral intercourse, whether actual or simulated, 
>>>normal or perverted; or
>>>(2) Masturbation, excretory functions, or lewd exhibition of 
>>>      
>>>
>>uncovered 
>>    
>>
>>>genitals; or
>>>(3) An act or condition that depicts torture, physical restraint by 
>>>being fettered or bound, or flagellation of or by a nude person or a 
>>>person clad in undergarments or in revealing or bizarre costume.
>>>
>>>	I haven't see the movie, either, but I'm pretty certain 
>>>      
>>>
>>that taken as 
>>    
>>
>>>a whole it does not appeal to a prurient interest in sex; 
>>>      
>>>
>>and I suspect 
>>    
>>
>>>that, taken as a whole, it has serious artistic value (the statute 
>>>omits the "taken as a whole" language from Miller, but I 
>>>      
>>>
>>assume that a 
>>    
>>
>>>court would read this provision into the statute).
>>>
>>>	Eugene
>>>
>>>
>>>-----Original Message-----
>>>From: Paul Finkelman [mailto:paul-finkelman at utulsa.edu]
>>>Sent: Saturday, February 28, 2004 9:17 AM
>>>Cc: Volokh, Eugene; 'conlawprof at lists.ucla.edu'
>>>Subject: Is the passion movie obscene?
>>>
>>>
>>>I am teaching obscenity next week in my Con Law 2 class.  My 
>>>      
>>>
>>case book 
>>    
>>
>>>-- Curtis, Parker, Douglas, Finkelman, Constitutional Law in Context 
>>>(Carolina Academic Press -- contains a North Carolina Statute on 
>>>Obscene literature and exhibitiions. that includes the 
>>>      
>>>
>>following definition:
>>    
>>
>>>"As used in this Article, 'sexual conduct' means:
>>>* * *
>>>3) An act of condition that   by being fettered or bound, or 
>>>      
>>>
>>flagellation of
>>    
>>
>>>or by a nude person or aperson clad in undergarments or in 
>>>      
>>>
>>revealing or 
>>    
>>
>>>bizarre costume."
>>>
>>>I  have not seen the movie (I almost never ever see any 
>>>      
>>>
>>movie until I 
>>    
>>
>>>can rent it, and then I don't see them very often). However, I have 
>>>read enough about the movie to think that it might contain 
>>>      
>>>
>>"sexual content" under this
>>    
>>
>>>definition.   I wonder if any of you have any thoughts about 
>>>      
>>>
>>this.  It is
>>    
>>
>>>clearly violence, and shows "torture" and "flagellation" of 
>>>      
>>>
>>someone who 
>>    
>>
>>>is bound; I have not seen the picutres to know if the Jesus 
>>>      
>>>
>>figure is 
>>    
>>
>>>an traditional loin cloth-like wrapping that one sees in 
>>>      
>>>
>>many paintings 
>>    
>>
>>>and on the standard  crucifix.  Is so, then this would surely be 
>>>"undergarments" or a "bizarre costume." "Bizarre costume" might also 
>>>apply to the Roman guards who I presume are torturing Jesus.'
>>>
>>>So, my question is, does this movie approach "obscenity" under this 
>>>statute. If nothing else, it would make a great exam 
>>>      
>>>
>>question (although 
>>    
>>
>>>then I might be forced to got to to the movie, but I suppose 
>>>      
>>>
>>I could at 
>>    
>>
>>>least write off the ticket on my taxes as "research.," or 
>>>      
>>>
>>maybe get my 
>>    
>>
>>>dean to pay for it from my research account.)
>>>
>>>
>>>
>>> 
>>>
>>>      
>>>
>>-- 
>>Paul Finkelman
>>Chapman Distinguished Professor of Law
>>University of Tulsa College of Law
>>3120 East 4th Place
>>Tulsa, OK   74104-3189
>>
>>918-631-3706 (office)
>>918-631-2194 (fax)
>>
>>paul-finkelman at utulsa.edu
>>
>>
>>
>>    
>>
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-- 
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu


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