Wednesday, June 11, 2008

Isn't It Ironic

As a rule, I really, really dislike obscenity trials. We live in a country where the freedom of speech is deemed to be one of the fundamental freedoms (unless of course you happen to be someone who believes that "free speech zones" are constitutional). So when talking about criminalizing speech as "obscene" then, in my opinion, in most cases you are talking about supporting censorship.

Which is why today's news is a bit ironic. In Los Angeles today, a trial has started. In it, the Department of Justice is prosecuting Ira Isaacs for obscenity. Now, Ira Isaacs is not some misguided artist, or someone trying to make a statement with their art. He is a porn producer. Among the titles he is being prosecuted for, include such titles as "Hollywood Scat Amateurs No 7" and "Gang Bang Horse (Pony Sex Game)". (A strong advisory is out not to Google search for any of Mr. Isaacs' videos).

Now, whether or not these videos are obscene is not something I am going to comment on. Whether they should be criminalize, is something else. Regulating speech is something that is a slippery slope. Would I want to watch any of the titles I have heard of Mr. Isaacs producing? Almost certainly not. Should he be criminally penalized for his speech (as opposed to perhaps animal cruelty or health and safety regulations)? I think not.

By the way, the test of whether something is obscene, as defined by the U.S. Supreme Court in Miller v. California, is whether (1) the average person, applying contemporary community standards, would find that the material as a whole appeals to the prurient interest; (2) the material depicts or describes sexual conduct in a patently offensive way; and (3) the material, as a whole, lacks serious literary, artistic, political or scientific value.

In the past, trials have upheld the artistic value of photographs shown depicting homosexual sex, sadomasochistic acts, "filthy" or profane language. Some literary works which are now considered to be classics, such as Ulysses, Lady Chatterly's Lover, and Last Exit to Brooklyn, have all been attacked as obscene in various court systems. After long periods, have eventually been cleared of being criminally obscene.

Alright, now for the ironic bit. At the same time that the trial judge is warning the jurors about the graphic nature of the images which they will be shown as part of the evidence, another story has come across the wire. Apparently, the chief judge of the Ninth Circuit Court of Appeals has had to pull down a website. A website which contained "a video of a man cavorting with a sexually aroused farm animal[.]" Judge Kozinski has since restricted access to his website. Ultimately, if there is a conviction in the Issacs case, Kozinski is the Chief Judge of the court of appeals which will hear the appeal.

Correction and update at 2122:

I made a mistake earlier. Apparently Judge Kozinski is the trial judge. Although Judge Kozinski is the Chief Judge for the Ninth Circuit (making him an appellate judge), it appears that there is a program where Ninth Circuit judges are hearing trial cases in criminal matters. It appears that Kozinski has offered to recuse himself in this case. Above the Law apparently has Judge Kozinski's explanation about how this all happened.

No comments: