Wednesday, July 23, 2003

Rights & Reason: Lawrence on Obscenity

In the aftermath of Lawrence v. Texas, a lawyer has asked an Ohio judge to strike down that state's prohibition on "pandering obscenity". The lawyer's client, Shawn Jenkins, was arrested in 2001 for selling a sexually explicit videotape at his Cincinnatti store:
"Practically all choices made by consenting adults regarding their own sexual practices [are] a matter of personal liberty and thus beyond the reach of state control," H. Louis Sirkin told Common Pleas Judge Richard A. Niehaus in Cincinnati in presenting his view of the Supreme Court's 6-3 June decision in Lawrence v. Texas.

Judge Niehaus reserved decision on Mr. Sirkin's 15-page motion and allowed the trial of Shawn Jenkins of Cincinnati to enter a second day yesterday.
The prosecutor, not surprisingly, takes a different view:
"It's our position that [the ruling] doesn't apply to the seller in obscenity prosecutions," Mr. Allen said. Mr. Jenkins, he said, runs a store that sells videos and is not a purchaser viewing them at home.

"I can't remember the last time in this county a person was prosecuted for owning an obscene videotape. It's the person who's selling or distributing, or pandering, if you will." This suggests that Mr. Sirkin is distorting the sodomy ruling.
This is an interesting admission: It's illegal to sell obscenity, but not to possess it. What other type of commercial item is this reasoning applied to? Prohibition generally applies equally to the producer and consumer, as is the case with narcotics. And if it is acceptable to possess obscenity, why is the consumer not entitled to take the necessary steps to obtain it? A right is meaningless if it's legally impossible to exercise.

Finally, the standard in Ohio for judging guilt under the obscenity law is whether the questioned material "violates community standards of decency," a standard that is wholly within the jury's discretion to decide. In other words, whether a seller breaks the law comes down to the particular tolerance levels of 12 randomly chosen jurors. This is hardly objective law, and it is unreasonable to expect the jury to carry out a vague (and selectively enforced) government mandate.

Now as to the question of whether Lawrence affects the Ohio law, I'm forced to partially agree with prosecutors because there's nothing in Justice Kennedy's majority opinion that leads me to believe the Supreme Court amended its holdings on pornography regulation in the context of strking down the Texas sodomy ban. The conduct questioned in Lawrence was private, non-commercial conduct; here the question deals with the scope of Ohio's power to regulate commercial transactions. While I believe the Ohio ban is almost certainly unconstitutional on First Amendment grounds (and probably Fourteenth Amendment due process grounds as well), Lawrence does nothing to affect disposition of the Jenkins case one way or the other.

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