When it comes to defining “hard-core pornography,” the late U.S. Supreme Court Justice Potter Stewart provided an explanation for the ages:
“I shall not today attempt to further define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”
So, practically speaking, what is obscene, lewd or just sexually titillating is in the eye of the beholder. However, the judiciary is rarely satisfied with such generalizations and so, over the years, pornography and obscenity cases have prompted courts to issue specific definitions to delineate between sexually explicit and obscene.
In 1973, a decade after Potter’s opinion, Chief Justice Warren Burger in Miller v. California developed a three-pronged guideline for jurors in obscenity cases. 1) Whether the average person applying community standards finds the work appealing to prurient interest. 2) Whether the work depicts sexual conduct in a patently offensive way as defined by applicable state law. 3) Whether the work lacks serious literary, artistic, political or scientific value.
Still, even with those guidelines, the Courts have generally reinforced First Amendment protections in obscenity cases. Just last week, U.S. District Court Judge Thomas Parker — a Donald Trump appointee — struck down Tennessee’s first-in-the-nation law putting strict limits on drag shows, citing the First Amendment.
“Simply put, no majority of the Supreme Court has held that sexually explicit — but not obscene — speech receives less protection than political, artistic or scientific speech,” Judge Parker wrote.
Which brings us to the current controversy in West Virginia. Last week, the Jefferson County Commission, in a three-two vote, passed an ordinance prohibiting anyone under 18 from attending adult live performances that are defined as obscene in West Virginia Code.
Commissioner Jennifer Krouse proposed the ordinance, saying she was following through on her campaign promise of putting family, faith and freedom first. She said the ordinance does not outlaw drag shows, but rather it is “nothing more than a commonsense way to protect children in an increasingly sexualized world.”
Commission President Steve Stolipher voted against the ordinance, primarily because it was rushed through. He felt there should have been a public hearing first so members of the community had more chances to express their opinions. He is right. There was minimal opportunity for comment and the ordinance was passed after an executive session.
Notably, the Jefferson County ordinance is different from the Tennessee law because it only prohibits children from attending adult performances considered obscene. In the Tennessee case, Judge Parker did acknowledge that the state has a “compelling government interest” in protecting minors.
But still the ordinance will likely be challenged. The ACLU-WV said, “As written, the ordinance does not actually outlaw drag. But these laws are designed to create confusion and chill free speech.” It promised “swift action” challenging the ordinance.
Is lewd or obscene behavior at organized events where children are present really a problem in Jefferson County? Commissioner Stolipher, who has lived in the county all his life, said he was unaware of any.
Let’s say there is a Gay Pride parade in Jefferson County where a few adults are dressed provocatively. Will parents who bring their children to the parade be in violation of the ordinance?
It will be a challenge for local authorities to enforce the ordinance fairly. Even with the more specific definitions, police will have to make difficult decisions about what is and what is not obscene.
Perhaps they will know it when they see it.
