- 413 U.S., p. 15 (1973). We discuss Miller and other applicable cases in detail
in Chapter 3.
- There are exceptions to this, however. For example, California has until recently
employed as a definition of obscenity not the test in Miller, but the "utterly
without redeeming social value" test from Memoirs v. Massachusetts, 383 U.S.,
p. 413 (1966).
- Of the remaining twenty-nine cases, only three resulted in acquittals.
- In this connection, we should note our support (and our specific recommendation in
that section of this Report) for use of the Racketeer Influenced and Corrupt Organizations
(RICO) Act as a method of requiring many of those convicted of multiple and substantial
obscenity violations to disgorge the profits from their enterprises. Whether in this form
or another, methods of attacking profits, or the assets purchased with those profits, seem
likely to be more effective financial deterrents than substantially smaller fines.
- In addition to trying to achieve some degree of analytic clarity, we put aside child
pornography in this context because we note the extent to which prosecutors and other law
enforcement officials have frequently relied on the number of child pornography
prosecutions to give a general impression of vigorous enforcement of the obscenity laws in
their jurisdiction. On closer examination, it has usually appeared that there was a great
deal of activity with respect to child pornography, and virtually none with respect to the
obscenity laws. We do not of course deny the importance of allocating large amounts of
resources to child pornography. We do not believe, however, that any purpose is served by
clouding the existing state of affairs with respect to the enforcement of the obscenity
laws.
- In discussing priorities here, we exclude from consideration child pornography. As we
explain in Chapter 7, child pornography involves a different range of materials, a
different kind of "industry," a different kind of offender, and consequently
different approach to the problems of law enforcement. We treat it separately because it
is so different. We do not in so doing wish to suggest that the problems are any less. If
anything they are greater, but they remain different, and little purpose is served by
dealing with child pornography as part of the larger category of pornography.
- Indeed, all of the survey evidence supports the view that there are substantial
disparities between societal views regarding restrictions on materials depicting sexual
violence and materials depicting sex alone.
- We emphasize that it is the values of the entire community that are relevant, and we
do not suggest here that it is appropriate for a prosecutor or law enforcement official to
substitute his or her values for that of the community as a whole.
- 413 U.S., (1973), p. 115.
- For example, the Detroit ordinance that was before the Supreme Court in the Young case
defined as an "adult establishment" any establishment concentrating on offering
material emphasizing "specified sexual activities" or "specified anatomical
areas." "Specified sexual activities" were defined to include, for example,
"Human Genitals in a state of sexual stimulation or arousal," "Acts of
human masturbation, sexual intercourse or sodomy," and "Fondling or other erotic
touching of human genitals, pubic region, buttock or female breast:' The definition of
"Specified anatomical areas" was similarly broader than would be permitted by
Miller if the aim were total prohibition. To the extent that zoning approaches concentrate
on establishments specializing in this material, we note that such approaches may have the
effect of providing incentives for attempts to introduce more plainly pornographic
material into more mainstream outlets.
- 427 U.S., (1976), p. 50.
- 54 U.S.L.W. 4160 (Feb. 25, 1986).
- On this point, see, Schad v. Mt. Ephraim, 452 U.S., (1981) p. 61.
- Although such clauses may be required by state law, we note that nothing in the First
Amendment, or in federal constitutional law generally, would require such an approach.
- American Booksellers Ass'n v Hudnut, 598 F. Supp. (S.D. Ind. 1984), p. 1316.
- 65. American Booksellers Ass'n v. Hudnut, 771 F.2d (7th Cir. 1985), p. 323.
- Hudnut v. American Booksellers Ass'n, 54 U.S.L.W., (Feb. 24, 1986), p. 3560.
- 438 U.S., (1978), p. 726.
- Cruz v. Ferre, 755 F.2d, (11th Cir. 1985), p. 1415. Community Television of Utah v.
Roy City, 555 F. Supp. 1164 (D. Utah 1982); HBO v. Wilkinson, 531 F. Supp., (D. Utah
1982), p. 987. The Supreme Court has yet to be faced with the question.
- We believe this to be the case even when the messages are directed at and available
only to adults. To the extent that they are directed at and available to minors, the
application of the test for obscenity may properly take that into account. Ginsberg v. New
York, 390 U.S., (1968), p. 629.
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