Is the passion movie obscene?

Sat Feb 28 13:58:28 PST 2004

    I agree with Paul that obscenity laws are a bad idea.  But if I were a
religious conservative who supported obscenity laws and who really liked the
movie (and I'm not the former nor would I likely be the latter!) -- or even
a moderate on this issue -- I wouldn't see why this example shows the
weakness of obscenity laws, or shows that "suppression makes all art, ideas,
and literature vulnerable."  Even if the law may satisfy one of the prongs
of the North Carolina statute, it's protected under the other two prongs.
As a result, its distributors have nothing to fear from North Carolina
obscenity law, which is the right result.  And (again, to those who support
obscenity law as it currently exists) this would be the right result for the
right reason:  The point of having several prongs is precisely that a work
shouldn't be found obscene just because it fits under one of the prongs --
it may well still be quite valuable and rightly constitutionally protected.

    I'm all in favor of arguing using a parade of horribles -- I just don't
think that this particular float will impress many of the spectators.

    Eugene

-----Original Message-----
From: Paul Finkelman [mailto:paul-finkelman at utulsa.edu] 
Sent: Saturday, February 28, 2004 1:34 PM
To: Volokh, Eugene
Cc: 'conlawprof at lists.ucla.edu'
Subject: Re: Is the passion movie obscene?

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