The Eye of the Beholder

Although "pornography" and "obscenity" are often used interchangeably, there's a crucial difference between the two words. The first (when it involves adults, at least) is legal; the second is not. But the vocabulary of sin can get garbled quickly when you're talking about dirty pictures.

Discussing obscenity back in 1964, U.S. Supreme Court Justice Potter Stewart famously declared: "I shall not attempt today further to define [obscenity]. But I know it when I see it." The line became a common-sense definition of what should be illegal. Yet the judge's solution also suggests the problem inherent in defining obscenity: That which is sexually obscene to a soccer mom in Ohio can be coffee-table art in Los Angeles.

In his book The Brethren, Bob Woodward revealed the behind-the-scenes discussions of U.S. Supreme Court justices as they attempted to parse what was and was not obscene during several important cases in the 1960s and '70s. Generally, what the male justices found most disturbing was the aroused male sex organ. "No erect penises, no intercourse," one clerk wrote, summarizing the position of Colorado's own Justice Byron White. Justice William Brennan more or less agreed, holding to what his clerks privately referred to as their boss's "limp dick" standard: Flaccid is fine; hard is out.

The Supreme Court's first formal definition of obscenity was crafted in 1957 and tweaked sixteen years later. In 1973's Miller v. California, the judges came up with three litmus tests to determine whether an image was obscene and thus illegal: does the work, when viewed by the "average person, applying contemporary community standards" and "taken as a whole," appeal to "the prurient interest"? Does the work depict in "a patently offensive way" sexual conduct prohibited by state laws? Does the work, taken as a whole, lack "serious literary, artistic, political or scientific" value?

The three-test standard may sound definitive, but applying it has proven tricky. People charged with obscenity, for example, have successfully argued that the pornography they were busted for had demonstrated its scientific merit by improving their personal sex lives -- that porn was, in effect, educational. Public surveys have shown that the majority of this country's citizens have no idea what "prurient" means.

And what about those "community standards"? Since a butt plug that might be used in a community-college course in Madison, Wisconsin, could be reason enough for a public protest in Baton Rouge, the judges figured it made sense to let each community decide for itself what it's willing to tolerate. Yet even within a single community, there is heated disagreement.

Four years ago, a video-store owner in Provo, Utah, named Larry Peterman was charged with obscenity for selling and renting adult movies. What most people in the Mormon state thought of porn seemed obvious. Between 2001 and this past spring, when the position was eliminated to save money, Utah was the only state to have a "porn czar" -- a state prosecutor whose sole job was determining what could be considered obscene. And Utah County, which includes Provo, is considered one of the most conservative enclaves in a conservative state.

Yet when Peterman's lawyer asked local hotels and cable and satellite providers how many of their customers bought or rented adult movies, he discovered that the residents of this very traditional community were also disproportionately large consumers of the very same type of materials that prosecutors had deemed obscene and illegal for Peterman to sell. A jury quickly acquitted him of all charges.

As modern sensibilities have changed and become more accustomed to pornography, federal obscenity standards have become more permissive, too. (In the late 1800s, for example, it was considered legally obscene to talk about birth control.) And Colorado laws are even more tolerant of graphic depictions of sexual behavior than those permitted by the U.S. Constitution.

In 1985, the City of Denver charged Kitty's Pleasure Palace and Kitty's Bookstore with violating state obscenity laws for selling dildos, among other items. The adult business fought back, and the case eventually made it all the way to the Colorado Supreme Court. In their decision, which favored the porn palace, the judges concluded that the crucial phrase -- "patently offensive" -- that defined obscenity in the state, was so vague that it didn't really mean anything. (The chief justice, William Erickson, even concluded that the word "obscene" was so vague as to be unconstitutional.)

Thanks to that decision, obscenity prosecutions are rare in Colorado. The last major one was attempted a little over a decade ago, when a city attorney in Longmont tried to get a series of magazines and videos (spanking and bondage were common themes) sold by Mile High Emporium, a local adult store, declared obscene. He lost -- just as Boulder County had a year earlier, when it tried to do the same thing to the same store.

"Prosecutors feel they can just throw this stuff in front of a jury and they'll be offended enough to convict," says Mike Gross, an attorney who defended the bookstore. "But juries in Colorado haven't been willing to do that."

As a result, "Obscenity cases in Colorado have become somewhat of a dinosaur," says Arthur Schwartz, a Denver lawyer who is a nationally recognized expert on obscenity laws. "There's very little that can be prohibited in this state." Among what can be prohibited, he cites images that depict sex mixed with violence, animals, corpses -- and, of course, children.


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