Obscene Laws

September 2001

Should police have the right to ransack your house, seize your privately-kept diaries, and send you to jail if they deem what you’ve written to be sufficiently offensive?

Of course not, any sensible person would answer. A cornerstone of civilized jurisprudence is that lawmakers may concern themselves with action, but cannot police thought. Freedom of conscience and expression is enshrined in the Bill of Rights. Only in a totalitarian state would the contents of your diary subject you to incarceration.

But Brian Dalton is in prison now because police went through his Columbus, Ohio, house, seized his diary, found 14 pages they thought offensive, and charged him with “creating obscenity.” A jury and judge sentenced Dalton to seven years in prison, six months for each page in question.

Such violations of civil liberties seem like something out of Stalin’s Russia or Hitler’s Germany– how could they be happening today in Columbus, Ohio?

Gestapo-like tactics are allowed because Dalton was on probation for a 1998 conviction of “pandering obscenity” involving images of minors. As such, he had no rights of privacy– police were free to rifle through his house and possessions at will. And since his diary described violence and sex– purely fictional by all accounts– with minors, Dalton was charged under an Ohio law forbidding the “creation” of “any obscene material that has a minor as one of its participants.” The fact that no real minors were involved, that the material was simply written words, and that Dalton never showed his diary to others didn’t matter. He was convicted of having wicked thoughts.

Some civil libertarians have rightly noted that Dalton’s case has a chilling effect on other, more palatable, expression: does a novelist or screenwriter now have to fear that their murder or rape scenes might land them in jail if too vivid or upsetting? Others have worried about privacy for those never convicted of any crime: are journals kept by those in therapy to be scrutinized by police eager to pre-emptively arrest anyone sufficiently deviant?

But few have tackled the fundamental two problems. First, we have allowed the law to claim that “obscenity” does not have First Amendment protection. And second, we have abandoned all commonsense about adolescent sexuality. The mere allegation of any sexual activity by someone short of their eighteenth birthday is taken to signal that a crime of unspeakably monstrosity has occurred; those who suggest otherwise are themselves branded suspect.

The current hysteria surrounding adolescent sexuality is so intense, so widely held, so profitable to so many, that we are not fooled into thinking we can soon end the assaults it engenders on civil liberties.

But if a sensible dialogue is ever to be held, if police excesses are ever to be curbed, we must always assert two principles. First, “obscenity” is a pernicious legal fiction. The Supreme Court has defined obscenity as material lacking “serious literary, artistic, political, or scientific value.” But the power to make such judgments is precisely what the First Amendment denies to any court. Since what one person dismisses as prurient titillation another may find profoundly liberating (remember your first peek at gay porn?), the doctrine of obscenity is nonsensical; it must be challenged and abolished.

And second, we must insist on the sanctity of civil liberties for everyone, most especially those like Brian Dalton, demonized for their alleged actions and suspect thoughts. We must cultivate an appreciation that civil liberties exist to protect us all from police excesses. Abandoning the rights of the despised does not prove moral rectitude; rather, it demonstrates civic cowardice. Instead of joining the mob, let us find courage and foresight to resist sexual McCarthyism. Let it be known that we don’t first examine our neighbor’s diary before defending his civil liberties– that we take the Bill of Rights more seriously than the police and the courts.

Pasted from <http://guidemag.com/magcontent/invokemagcontent.cfm?ID=58D63BDE-D372-410A-B0275C1EC95E7E41>