Is the passion movie obscene?

Sun Feb 29 09:07:04 PST 2004

Rabbi Marc Gelman and Monsignor Thomas Hartman (the "God Squad") reviewed
the film on CNN (in an interview by Wolf Blitzer, I think). I have not been
able to find a transcript on-line, but Rabbi Gelman said the film was not
anti-semitic. He said it was an authentic presentation of a central part of
the Christian story, and that people should grow up and realize that
Christians need to be able to tell their story. He had been fearful before
seeing the film that it would be anti-semitic, but apparently seeing it
changed his mind.

I realize other Jewish leaders have had a different reaction to the film.
And I'm not sure I will see the film. The story depicted in it is central to
my life, but I'm not sure I want to see such a graphic depiction of the
violence that was involved in the torture-killing inflicted by Romans on
Jesus (and on many thousands of others).

It is a bit strange to read dispassionate (pun intended) discussions of
whether an authentic depiction of a central story of my faith might be
legally obscene. There is no chance that any judge with half a brain would
find that it lacks serious literary, artistic (or religious) value.

Mark S. Scarberry
Pepperdine Univ. School of Law

-----Original Message-----
From: Marty Lederman
To: Paul Finkelman; Jonathan Miller
Cc: Volokh, Eugene; conlawprof at lists.ucla.edu
Sent: 2/29/04 4:29 AM
Subject: Re: Is the passion movie obscene?

This discussion brings to mind that old doctrinal adage -- with
apologies (of sorts) to Justice Stewart -- "I know it when I've read
about it."  Or, perhaps, Sandy Levinson's question of a few weeks back
about how one can teach obscenity law without turning the classroom into
a porn theater.  

Of course, the odds are exceedingly slim, bordering on the fanciful,
that the Passion is legally obscene in any jurisdiction, foreign
(Western European, anyway) or domestic.  And once we get beyond
discussions of legal obscenity, I imagine we're not the best, or most
enlightening, judges of the film -- especially those of us who haven't
seen it.

Having said that, I should add that, from all I've read, it does appear
that this film is obscene in many respects, even if it does not as a
legal matter satisfy Miller v. California standards.  For what it's
worth, and for those who are interested, the best critiques I've seen
include the following 

Leon Wieseltier:  http://www.tnr.com/doc.mhtml?i=20040308
<http://www.tnr.com/doc.mhtml?i=20040308&s=wieseltier030804>
&s=wieseltier030804

Greg Easterbrook (quasi-constitutional hook:  he's Frank Easterbrook's
brother):  http://www.tnr.com/easterbrook.mhtml?pid=1378
<http://www.tnr.com/easterbrook.mhtml?pid=1378> 

Edward Rothstein:  http://www.nytimes.com/2004/02/28/arts/28CONN.html
<http://www.nytimes.com/2004/02/28/arts/28CONN.html> 

Robert Alter:  dialogue beginning here:
http://slate.msn.com/id/2095946/entry/2096184/
<http://slate.msn.com/id/2095946/entry/2096184/> 

Christopher Hitchens:  http://slate.msn.com/id/2096323/
<http://slate.msn.com/id/2096323/>   [Note:  If Hitchens is to be
believed, perhaps the film is closer to legal obscenity than we might at
first have suspected!]

----- Original Message ----- 
From: Paul Finkelman <mailto:paul-finkelman at utulsa.edu>  
To: Jonathan Miller <mailto:jmiller at swlaw.edu>  
Cc: Volokh, Eugene <mailto:VOLOKH at law.ucla.edu>  ;
'conlawprof at lists.ucla.edu' <mailto:'conlawprof at lists.ucla.edu'>  
Sent: Saturday, February 28, 2004 11:47 PM
Subject: Re: Is the passion movie obscene?

Someone who did see the movie sent me this description:
==========
Jesus is stripped of his robe and down to a towel-like loin cloth in a
light brown.  He is hand-cuffed to a short pillar by leather straps.  He
is bare except for the loincloth.  The scourging is an intense and
violent scene.  The Romans are in typical centurion uniforms with bare
legs and sandals.  The two Roman soldiers who do the flogging are both
bare chested in much of the scene to show off their muscular bodies.
The officer in charge sits at a table and is in the regular short tunic
uniform and metal helmet.  The executioners are bare-headed. 
==========
I agree with Eugene that the movie  would probably not flunk the other
prongs of the NC statute, but this does strike me as potentially highly
sexualized and ritualized torture. 

Is some other movie, without the "redeeming" social, religious or
political content of this movie,  had a similar scene in it, the movie
might fail under the NC law, or could someone make an otherwise S & M
movie that would appear to violate the NC law, but put it in a scene
about Jesus, similar to this one, and then claim it was  about
comparative scourging and religion?  

Paul Finkelman

Jonathan Miller wrote:

I would not want to see the movie banned, and will also likely never see

the movie because I dislike extremely violent movies, but I suspect this

is one movie that some foreign countries should consider pratially 

censoring as incitement to violence.  In the context of centuries of 

blood libels against the Jews, a movie that decides to deliberately 

emphasize a reading of the New Testament that ultimately holds the Jews 

responsible for the sort of extreme violence depicted, does not seem far

from the sort of Easter sermon that provoked Russian pogroms.
Regardless 

of the importance of the story told, at a certain point a graphic 

depiction becomes an incitement to violence, even if it is a graphic 

depiction from a treasured text or of an historical event.  Given the 

possible impact of the movie in parts of Europe and Latin America, while

U.S. constitutional law would not permit government censorship of 

portions of the film, the Covenant on Civil Political Rights might.

Jonathan Miller

Professor of Law

Southwestern University School of Law

    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
<mailto:paul-finkelman at utulsa.edu> ] 

Sent: Saturday, February 28, 2004 1:34 PM

To: Volokh, Eugene

Cc: ' conlawprof at lists.ucla.edu <mailto: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
<mailto:paul-finkelman at utulsa.edu> ] 

Sent: Saturday, February 28, 2004 11:51 AM

To: Volokh, Eugene

Cc: ' conlawprof at lists.ucla.edu <mailto: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
<mailto:paul-finkelman at utulsa.edu> ]

Sent: Saturday, February 28, 2004 9:17 AM

Cc: Volokh, Eugene; ' conlawprof at lists.ucla.edu
<mailto: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 <mailto: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 <mailto: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 <mailto:paul-finkelman at utulsa.edu> 

  _____  

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