SEXIS WRONG

spring directly from humanity’s horizontal positions; the room
turns golden and time is redeemed while strangers laugh together
at the absurdity of it all—the defendant is found guilty,
but that’s later.” 44
Famed Chicago First Amendment and civil liberties attorney
Elmer Gertz recalled that when the National Tattler—a tabloid
owned by Joe Sturman (brother of Reuben)—was tried on
obscenity charges in the mid-1960s, he manipulated a key
witness—an elderly woman—into admitting that she thought
Jayne Mansfield’s breasts were obscene. The courtroom
erupted in peals of laughter. This scene brought down the
house, and later, brought acquittal. 45
But Marvin was not so lucky. No laughter, no acquittal. Of
course Marvin lost.
Marvin had appealed the California court’s conviction on
the grounds that the brochure passed the Supreme Court’s
1966 Memoirs test according to the national standard set
therein but that the state had its own standard, in violation of
Memoirs. “This case,” as the Court stated in its 5-4 opinion,
“was tried on the theory that the California obscenity statute
sought to incorporate the triparate test of Memoirs. This, a
‘national standard’ of First Amendment protection enumerated
by a plurality of this Court, was correctly regarded at the
time of trial as limiting state prosecution under the controlling
case law. The jury, however, was explicitly instructed that, in
determining whether the ‘dominant theme of the material as
a whole…appeals to the ‘prurient interest’ and in determining
whether the material ‘goes substantially beyond customary
limits of candor and affronts contemporary community
standards of decency,’ it was to apply contemporary community
standards of the state of California.” The Court rejected
Marvin’s assertion that a national standard could not be determined
by conflation of a local standard.
Basically, the Court gave up trying to determine a national
standard of obscenity despite the fact that the Comstock
laws regarding the mailing of “obscene” material across
state lines dictated the necessity for such. The Burger Court
rejected the Warren Court’s prior interpretation of Roth in
its 1966 Memoirs case, which they asserted substituted a
higher threshold for obscenity than the spirit of their Roth
decision allowed. In Memoirs sexually-oriented material had
to be “utterly without redeeming social value” for it to be proscribed.
The Court correctly determined that that formulation
made it impossible to prosecute; you can’t prove a negative.
But rather than just throw in the towel and admit that obscenity
laws were unworkably vague and thus unconstitutional,
Chief Justice Burger, speaking for the majority, rejected his
colleagues’ dissent that obscenity laws should be abolished
secondary to their vagueness, and asserted that the federal
government had a continuing interest “to maintain a decent
society.”
Considering that the Court was now stacked with Justices
considered to be strict constructionists of the Constitution,
this was odd indeed: A mandate to “maintain a decent society”
is nowhere to be found in the Constitution in enumerating
the functions of each of the three branches of government.
This is aside from the fact that the concept of “decent”
is wholly subjective. Since the Court’s 1957 Roth decision,
“contemporary community standards” meant that the nation
as a whole devolved to every local jurisdiction in the country,
not just to fifty state jurisdictions but potentially to every
burg, hamlet, and village in the US.
In its new formulation, “The guidelines the Court composes
to regulate obscene speech must be: (a) whether the average
person applying contemporary community standards would
find that the work, taken as a whole, appeals to the prurient
interest, (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined
by the applicable state law, (c) whether the work, taken as
a whole, lacks serious literary, artistic, political, or scientific
value.”
In his perceptive dissent, Justice Brennan strongly observed
that the “new” test was as vague as the “old” test, since both
tests relied on subjective concepts: prurient interest, patent
offensiveness, serious literary value, and so on. Further, he
stated, the majority of the Court “makes no argument that
the reformulation will provide fairer notice to booksellers, theatre
owners, and the reading and viewing public” that they
may be selling, exhibiting, reading or viewing something illegal.
Brennan’s point is that there is a violation of an underlying
constitutional protection, “that no man shall be held criminally
responsible for conduct which he could not reasonably
understand to be proscribed.”
Justice William O. Douglas also dissented from the majority,
asserting that the obscenity laws were unconstitutional due
to their ambiguity, and that the idea that an individual could go
to jail for violating a standard difficult to understand, interpret,
and apply “is a monstrous thing to do in a nation dedicated to
fair trials and due process.”
The Court’s decision received virtually universal condemnation
in newspapers across the country. “Back to the Dark
Ages With the Supreme Court,” declared the New York Daily
News. 46 The Washington Post, in an editorial, stated that the
Miller decisions “have the double failure of loosening the
check on zealous censors, while giving them different but no
better, guidelines as to what is obscene.” 47
Within two weeks of the Miller decision, the Supreme Court
THE MAN WHO SCREWED THINGS UP 249