Is the passion movie obscene?

[Paul Finkelman]

This may be true, as the central event of Christianity, but it is also 
true that much of the movie could not have happened that way simply 
because of the nature of Jewish law.  What does one say about a story 
which is central to your faith, but accuses others of acts we know, 
historically, they could not have committed? Scholars from all faiths 
(Gibson is of  course not a scholar) recognize the *impossibility* of 
much that is in Gibson's version of the passion, and that is the parts 
that are indeed anti-Jewish.  In the US we don't have to reconcile this 
because the first amendment allows Gibson the right to make his art, 
however wrong or destructive it might be; but it is worth a serious 
conversation among serious people:  to what extent is there an 
obligation on the part of people of one faith to distance themselves 
from the bigotry and dishonesty of ancient texts?  This is not a legal 
issue, per se, but then this list rarely is contrained by that.

Paul Finkelman

Scarberry, Mark wrote:

>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 
>
>    
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>prongs
>
>  
>
>of the North Carolina statute, it's protected under the other two 
>
>    
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>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 
>
>    
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>support
>
>  
>
>obscenity law as it currently exists) this would be the right result 
>
>    
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>for the
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>  
>
>right reason:  The point of having several prongs is precisely that a 
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>    
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>work
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>  
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>shouldn't be found obscene just because it fits under one of the 
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>    
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>prongs --
>
>  
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>it may well still be quite valuable and rightly constitutionally 
>
>    
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>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 
>
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>that
>
>  
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>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) 
>
>    
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>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 
>
>    
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>qualify
>
>  
>
>as containing "sexual conduct" is an interesting question.  If the 
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>    
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>question,
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>  
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>though, is whether the movie may be displayed when there are minors in 
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>the
>
>  
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>audience (what I take to be Paul's rated-R question), presumably we'd 
>
>    
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>need
>
>  
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>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; 
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>    
>
>and
>
>(2) The average person applying contemporary community 
>
>      
>
>standards relating to
>
>    
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>the depiction or description of sexual matters would find 
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>      
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>that the material
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>taken as a whole appeals to the prurient interest in sex; and
>
>(3) The material lacks serious literary, artistic, 
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>      
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>political, or scientific
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>    
>
>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.
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>    
>
>(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 
>
>      
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>uncovered 
>
>    
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>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 
>
>    
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>that, taken as a whole, it has serious artistic value (the statute 
>
>omits the "taken as a whole" language from Miller, but I 
>
>      
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>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 
>
>      
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>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 
>
>      
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>"sexual content" under this
>
>    
>
>definition.   I wonder if any of you have any thoughts about 
>
>      
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>this.  It is
>
>    
>
>clearly violence, and shows "torture" and "flagellation" of 
>
>      
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>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 
>
>      
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>many paintings 
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>    
>
>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 
>
>      
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>question (although 
>
>    
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>then I might be forced to got to to the movie, but I suppose 
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>      
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>I could at 
>
>    
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>least write off the ticket on my taxes as "research.," or 
>
>      
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>maybe get my 
>
>    
>
>dean to pay for it from my research account.)
>
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>      
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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