Defining decency down

The linguist and public radio commentator Geoff Nunberg, known for his pithy commentaries on language he occasionally offered as a brief segment on PBS’ Fresh Air program, passed away earlier this year. Because law has so much language that is confusing or unfamiliar to the average person, a number of his oral “essays” offered observations about legal lore.

For example, some years ago Nunberg brought up the morass into which the U.S. Supreme Court plunged itself nearly 50 years ago in a 1973 case called Miller v. California, when it tried to come up with a workable definition of “obscenity.” Miller was the high court’s last foray into defining obscenity — but whether Miller was the last word because the court succeeded or just recognized it was wasting its time is anyone’s guess.

In Miller, the court fashioned a new, three-part definition of “obscenity.” That definition was (deep breath): first, taken as a whole, the material appeals to the prurient interest in sex; second, it portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, third, taken as a whole, the material does not have serious literary, artistic, political or scientific value.

In crafting this easily-applied definition, the court also abandoned its previous test, less than a decade old, that something was obscene if “utterly without redeeming social value.” (It’s a good thing it did, too, because most reality television would be “obscene” under that definition.)

Nunberg’s point was that, in its definition, the court used the word “prurient” apparently thinking it would assist jurors and prosecutors in making decisions about what was obscene. If that was the idea, he said, the court failed miserably. “Prurient” is about as fuzzy a term as “obscene,” and simply replaced one obscure term with another. In fact, according to Nunberg, about half the references to “prurient” in news articles are based on Miller itself. Thus, instead of giving local citizens a word defining “community standards,” the term simply refers back to the court’s own opinion — which wasn’t the Supreme Court’s idea.

The debate surrounding Miller was important, though, because “obscene” material is one of only four categories of speech the court has said are unprotected by the First Amendment. (The others, just in case you ever find yourself on Jeopardy, are defamation, “fighting words,” and incitement to riot. The court has also held that child pornography, assuming that it depicts real children, is not protected, even if not obscene.)

Miller may be more or less the last word from the Supreme Court, but it was a great disappointment to civil liberties advocates because it allowed each state to define obscenity instead of setting a national standard. Civil liberties supporters felt that the Supreme Court should set a national First Amendment standard, instead of having one definition in, say, Peoria, Illinois and another in San Francisco.

Of course, it’s easy to see why the court wanted to abandon defining “obscenity” when all it got for its efforts was a lot of ridicule — and a legal standard no one still understands. Actually, the best the court ever came up with was probably when Justice Potter Stewart said he couldn’t define obscenity, but “I know it when I see it.” Unfortunately, Stewart died many years ago, and so isn’t around to help as each new case comes along today.

The best result of the Miller decision, though, may be what happened the week the case was decided in June, 1973. Back in those days, old-time viewers of the show 60 Minutes (both of you) will remember that at the end of the show, instead of “A Few Minutes with Andy Rooney” (another segment that itself is long gone), the show used to have two commentators conduct a one-minute debate. The feature was known as “Point-counterpoint” and originally featured liberal columnist Nicholas von Hoffman and his conservative counterpart, James J. Kilpatrick.

Kilpatrick began the debate the week of the Miller decision and said the court had done well. This new definition would, he suggested, finally allow local officials to set standards that would clean up filthy material often being sold at certain businesses in the community.

Von Hoffman, in the “counterpoint” segment, gleefully pointed out that, almost on the day that the decision came down, a local sheriff in Kilpatrick’s own central Virginia applied the case immediately. He confiscated all copies of Playboy magazine at the local 7-11 — a “cleansing” of the kind Kilpatrick suggested.

And what was featured in that very issue? Well, along with the photographs that no doubt motivated the sheriff was an article by none other than — James J. Kilpatrick.

Prurient stuff, von Hoffman chuckled, indeed.