Another U.S. City Declares War on Orgasms

I once had a fairly in-depth discussion dealing with sexual rights and the Constitution. At one point the group of us began considering an Alabama statute criminalizing the sale of sex toys. After analyzing the statute's language, in which the different banned toys were described with Starr Report-like scintillating particularity, someone asked why the state legislature had decided to pass this law in the first place. The room grew quiet. The pause stretched on. "Because the state of Alabama hates orgasms," I finally said. Though others giggled, I was serious. Not quite as serious, it seems, as Alabama and St. George, Utah is in their Comstockian desire to rid the world of sexual pleasure and exploration. These two jurisdictions are as serious as a prison sentence. It appears a St. George woman named Susan Russell had the effrontery to sell sexually explicit videos, magazines and battery operated things that go buzz in the night from the backroom of her jewelry store. For this she's been charged with 15 felony counts. And because the Supreme Court has for the last 34 years refused to revise one of its most sloppy, oppressive and unfortunate opinions, Miller v. California, Ms. Russell may actually be convicted of some or even all of them. Under Miller speech (be it verbal, written or pictured) can be deemed obscene and be thereby criminalized if: 1) if the work, taken as a whole and applying contemporary community standards appeals to a prurient interest. This is judgespeak for seeking to make the recipient of the content horny. 2) It must describe sexual or excretory functions. Depicting mere violence, even a slow-motion terrorist beheading, for instance, can, according to Miller, never be obscene. Comedic romps with a little fornication in them like "Deep Throat" and "Debbie Does Dallas," on the other hand, can be the subject of years of hearings and federal litigation. Even the intelligently made R-rated Mike Nichols film "Carnal Knowledge" was litigated up to the U.S. Supreme Court. 3)The work taken as a whole must lack "serious literary, artistic, political or scientific value. For this element a national, rather than a community, standard applies. Miller has been a nightmare decision for more reasons than a 5:30am post can enumerate. Worst among them is that it gives local community majorities the power to stifle the speech of minorities, even to the point of disallowing the discreet purchase of other people's speech and privately enjoying it at home. A strong legal argument can also be made that the Miller rule violates the fundamental principle of constitutional law laid out by Justice Story way back in 1816 in Matin v. Hunter's Lessee that there must be uniformity amongst the states regarding how the Constitution is interpreted. Under Miller each community may create for itself its own particularized version of the First Amendment. It beggars reason to say that San Fernando Valley and St. George, Utah are living under the same law when a person in the latter can be imprisoned for selling what was legally filmed, packaged and shipped from the former. The anti-sex toys laws Ms. Russell has been charged with violating are a different matter. If her attorneys decide to challenge the sex toys laws it will likely be via the Court's opinion in Lawrence v. Texas, in which a Texas anti-sodomy law was struck down under a general theory of sexual privacy. This opinion, as per usual with sex cases, is disjointed and murkily written. One doesn't know quite what to make out of it. When it was published many hailed it as a vindication of gay rights, while, actually, the Court stopped short of taking the monumental step of recognizing gay sex a fundamental right. Instead it merely said that the Texas law was not rationally related to a legitimate state purpose. Wading through the fog of the text it eventually becomes clear that, for all the pretty hymns it contains to individual liberty, Lawrence was very likely an attempt to pull off the tricky feat of checking oppressive and discriminatory state power without recognizing any new rights. Pace Justice Scalia's heated dissent, since Lawrence lower courts have on the whole been unwilling to recognize a new, broader sphere of sexual liberty. In Muth v. Frank the 7th Circuit refused to extend Lawrence to the point of allowing a brother and sister to marry and have children. And in U.S. v. Extreme Associates the Third Circuit did not recognize a right to help others actualize their right to sexual autonomy by selling obscene material for use in their own homes. To control the sexuality of a person is to control the person. This is why governments have always made a vigorous practice of it. And will continue on until the governed, through determined resistance, compel them otherwise. If you're at all interested in obscenity and the law I can't recommend this book any more highly. It's subtitle--"The Law of Obscenity and the Assault on Genius--perfectly captures the fundamental political truth that state's always use "indecent" when what they really mean is "threatening."