Ira (Chip) Lupu
iclupu at law.gwu.edu
Tue Apr 7 10:58:10 PDT 2009
Michael Masinter deserves our gratitude and applause for a world-class post (below) on the questions arising from the screening of Pirates II at the Univ of Maryland. Thanks, Michael.
---- Original message ----
>Date: Tue, 07 Apr 2009 13:33:27 -0400
>From: "Michael R. Masinter" <masinter at nova.edu>
>Subject: Re: Downloading Porn
>To: conlawprof at lists.ucla.edu
>Pirates II is not child pornography; it is an adult film using adult
>actors who apparently engage in lots of adult sex. Whether the state
>can regulate the academic use of otherwise unprotected child
>pornography is not at issue here. Although Pirates II does not
>present child pornography issues, it presents several other issues.
>First, there is the terminology problem; pornography is a term with no
>legal significance. Obscene speech and obscene films as defined in
>Miller are unprotected speech; their display can be criminalized or
>suppressed on the basis of content. Maryland can and does forbid the
>display of obscene films. Maryland defines obscenity using the
>language of Miller in Md. Code, Crim. L. § 11-203(a)(5), and forbids
>its display in Md. Code, Crim. L. § 11-202. From all I've read, the
>content of the film comes within the statutory definition but for the
>question of whether the film is patently offensive under current
>contemporary standards in the community (and perhaps the question of
>artistic merit associated with its high production budget). But the
>question of community standards is critical. Much has changed since
>Miller; explicit displays of actual, as well as simulated mainstream
>sexual practices seems no longer to be patently offensive to many
>communities; sexually explicit material is freely available over the
>internet, from pay per view cable tv, in hotels, bars and elsewhere.
>The adult film industry operates openly and above board despite
>obscenity laws because it seemingly has reached a kind of detente with
>prosecutors. A prosecutor who brings an obscenity case against a
>producer, exhibitor or vendor of a film displaying mainstream sexual
>practices will almost certainly encounter a very well funded and
>sophisticated defense team, with expert witnesses prepared to delve
>deeply into what are the community standards that prevail in a given
>community, using evidence compiled from online sales records, from
>hotel pay per view purchases, and from local cable tv companies that
>offer pay per view explicit films. Knowing that first rate defense
>lawyers backed by persuasive experts will show that a significant
>percentage of local folks consume explicit films, and that juries will
>likely think that prosecutors must have something better to do than
>prosecute these cases, most prosecutors don't bring obscenity
>prosecutions any more for explicit mainstream adult sex.
>Second there is the question of how to regulate the showing of obscene
>films. Maryland already makes their display a misdemeanor; if its
>legislature thinks it wise, it would seem to be free to separately
>forbid their display on state funded university campuses. But there
>must be some mechanism by which to determine whether a particular film
>is or is not obscene; legislators cannot do that on the floor of the
>legislature. Pirates II may not be obscene; it may not be patently
>offensive in College Park even if it would be in Garrett County, and
>perhaps its high dollar production values even translate into
>substantial artistic content; those are questions ill suited to
>legislative determination; they require the opportunity for an
>adversarial hearing. So as a matter of ordinary procedural due
>process law, the legislature cannot determine whether a particular
>film is obscene. That concern is magnified when the legislature
>interferes in the operation of a university by making content based
>judgments about what may be shown on campus. So both procedural due
>process problems and free speech problems arise if the legislature
>attempts on an ad hoc basis to dictate what can be said or shown on
>Third, if the film is not obscene, can the legislature use the power
>of the purse to forbid its showing on state college grounds? Here the
>problem is, as Mark already noted, that no state funds were used to
>show the movie, and the movie was shown in a university created
>student controlled limited public forum. As the Supreme Court has
>made clear, leaving aside display to minors, nonobscene sexually
>explicit speech enjoys full protection under the first amendment.
>Content based discrimination against nonobscene speech runs headlong
>into contemporary first amendment law. The state may not have to pay
>to show nonobscene porn, but it cannot suppress it.
>Fourth, and hypothetically since it won’t happen, is there any remedy
>if the legislature were to retaliate against the university by
>reducing its budget? Here the answer would seem to be no; passing a
>budget is a legislative act; legislators enjoy absolute immunity for
>legislative acts, and so no obvious remedy would seem available to
>compel the restoration of funding. But there's no chance that will
>happen; the Maryland legislature is not about to destroy its flagship
>So at the end of the day, legislators can fume, and can propose
>prospective legislation to ban the showing of obscene films on state
>campuses, but can’t determine whether a particular film is obscene.
>The more interesting question is whether a campus administrator can,
>under a hypothetical university rule or statute forbidding the
>recreational display of obscene films on campus, ban the proposed
>showing of an individual film based on a preliminary judgment that it
>is obscene? If Pirates II featured explicit bestiality, necrophilia,
>or perhaps other non-mainstream sexual practices it probably would be
>obscene even under contemporary community standards in College Park.
>Could a campus administrator ban a film's showing, subject to prompt
>and plenary judicial review under a properly drawn rule, on the
>grounds that it is obscene? That question never arose in the Pirates
>II controversy since pretty clearly the university administrator who
>acted did so in response to legislative pressure rather than under any
>rule regarding the display of obscene films on campus or any judgment
>that the film was obscene.
>Michael R. Masinter 3305 College Avenue
>Professor of Law Fort Lauderdale, FL 33314
>Nova Southeastern University 954.262.6151 (voice)
>masinter at nova.edu 954.262.3835 (fax)
>Visiting Professor of Law (2008-2009) 305.284.3626 (voice)
>University of Miami Law School mmasinter at law.miami.edu
>1311 Miller Drive
>Coral Gables, FL 33146
>Quoting Bob Sheridan <rs at robertsheridan.com>:
>> After a bit of mental processing, I took the question to be asking, in
>> effect, whether there was, or could be, a legitimate FA defense to
>> (ultimately) a charge of illegal possession of contraband obscene
>> material, say "kiddie porn," where the justification for the
>> prohibition is the harm done to minors in the manufacture. In a recent
>> state court defense effort in such a case, the prosecution required
>> viewing of the discovery material at the police department rather than
>> provide CD disks containing the material, since possession of the
>> material would be a criminal offense, there not being a statute
>> legitimizing possession for purposes of legal defense. In other
>> contraband cases, 'momentary possession' for innocent purposes is
>> deemed a defense (California: Peo. v. Mijares from the early '70s).
>> Thus a person who had picked up drugs to take to the police station was
>> held to have a good defense. Police are legally privileged to possess
>> contraband, as are courts, for the purpose of law enforcement and legal
>> review (picture the justices sitting back to view yet another porn film
>> in the days of Roth, etc.). Defense attorneys are not so privileged as
>> a general matter. I wonder whether the discovery material could have
>> been made privileged by court order.
>> The question that arises is whether the possession for study of kiddie
>> porn for academic purposes, or intellectual curiosity, is a legitimate
>> defense. And what if some of the downloaded material contains 'kiddie
>> porn' where where the KP is contained or concealed in some less
>> offensive, legally, material? And what happens if Prof. A, deciding he
>> needs to consult with Prof. B, emails the material onward. Or worse,
>> posts it to this list and it winds up in the mailbox on our hard drive
>> and on-screen just as the police arrive. Possession is one thing,
>> forwarding another.
>> It seems to me that there are, or should be, defenses to possession of
>> "intellectual" contraband, but I'm not sure which cases squarely so
>> hold other than the private possession of obscene material in the
>> Stanley v. Georgia case. In short, it's risky business to download and
>> especially to forward kiddie porn, innocently or not, since the
>> liability is far stricter.
>> Here's an example: The accused is a sick old man who sits in front of
>> a computer for much of the day where he downloads porn, including
>> kiddie porn, some of which he forwards to one or more like-minded
>> individuals across the country, people he met in a chat room devoted to
>> this. One reports the forwarding, and the material, to a monitoring
>> group in the Midwest which contacts a police agency in Silicon Valley
>> which contacts San Francisco PD which obtains a search warrant. Police
>> are monitoring the man's computer as the raiding party approaches his
>> apartment door. Police knock and announce and the man leaves his
>> computer and opens the door. Police enter and on his screen, what do
>> they see? More evidence... They seize his computer with its damning
>> hard drive.
>> In state court, in view of age, poor health, etc., this was good for a
>> relatively light probationary sentence and no public attention. Had it
>> been prosecuted in federal court where they make a business of making
>> examples of people, complete with issuance of press releases after
>> convictions, I've seen reports of sentences into the double digits.
>> Mark Graber wrote:
>>> Here's a good constitutional law outside of courts question that I
>>> faced yesterday.
>>> At 9:00 AM, I was asked to participate in a panel discussion later
>>> that day on the University's decision to cancel a showing of
>>> "Pirates II" in response to pending legislation cutting off all
>>> funding to the university if we showed porn films.
>>> Two sets of issues. First, there are the obvious constitutional
>>> issues. is the film pornographic under relevant definitions, does
>>> the president have the right to cancel under Kuhlmeier, is the
>>> funding cutoff constitutional, is there an overbroad issue here,
>>> and what about academic freedom.
>>> Second, some personal issues. I did not have the time to go home.
>>> Having never heard of the film (at first I thought we were talking
>>> J. Depp), I went on line and discovered that I could download some
>>> scenes. Should I have done so? Did I have academic reason to do
>>> so, or could I have answered all of the above questions without
>>> knowing much about the film. Should I have contacted my dean a) as
>>> a friend or b) to get permission.
>>> I came to the conclusion that there was no need to see the actual
>>> film. Curious what others think.
>>> To post, send message to Conlawprof at lists.ucla.edu
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>>> can (rightly or wrongly) forward the messages to others.
>> To post, send message to Conlawprof at lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> Please note that messages sent to this large list cannot be viewed as
>> private. Anyone can subscribe to the list and read messages that are
>> posted; people can read the Web archives; and list members can (rightly
>> or wrongly) forward the messages to others.
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
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