How Things Have Changed When It Comes to Obscenity.

In 1969, I argued a case in the U.S. Supreme Court involving the banning of the 1967 Swedish film I Am Curious (Yellow). My client had been sentenced to prison for showing this film at the Symphony Cinema, a respectable art-film theater across from Symphony Hall in Boston. Several of the justices, as well as some of the lower-court judges, were outraged at the nudity and sexuality portrayed in the film. (In reality, it showed no explicit sex and only a small amount of nudity.) We eventually won the case and my client was spared imprisonment, but the film was banned in many parts of the country, and claims that it was protected by the First Amendment were rejected by several courts.

This past year at the Cannes Film Festival, another film was shown and subsequently opened in select theaters around the U.S.: French director Gaspar Noé’s Love. Although it shows explicit sex in graphic 3D, almost no one took notice, except some film critics. There wasn’t a peep from law enforcement, despite the reality that existing Supreme Court precedents might well allow it to be banned, as it falls outside the protection of the First Amendment.

In the area of obscenity, hypocrisy functions to allow the courts to maintain a pretense of puritanism.

When I saw Love at the Angelika Film Center in New York City, the theater was nearly empty. Two elderly women sat behind me, and two middle-aged women in front of me. A scattering of other couples, all donning 3D glasses, constituted the remaining audience. The film was a bit too graphic for my taste, especially one in-your-face scene that I will not describe. The plot was about a man who regretted the loss of an earlier love and relived their passion in his mind (and on the screen). The 3D component added little.

The point of comparing Love to I Am Curious (Yellow) is that the law has hardly changed in the half century that separates the films, but public acceptance of cinematic sexuality has changed perceptibly. The internet, where all manner of porn is easily available, is both a cause and effect of this change.

It’s important to remember that in a democracy, even a democracy in which the Supreme Court plays so central a role, it’s the people who ultimately decide. This is especially true in an area like obscenity, where “community standards” help define the law. These standards are ever-shifting, and are subject to influences outside of the law.

While the Supreme Court has insisted that the government has the power to punish the showing of “obscene” films in theaters and on cable and on-demand television, the people have voted the other way with their feet (and their remotes). The law in action today bears little resemblance to the law as articulated by the Supreme Court, which places obscenity outside the protection of the First Amendment. The law in action more closely resembles the approach I advocated in my first encounter with the law of obscenity back in 1969, when I argued that the government has no business telling a consenting adult what he or she may or may not watch in a theater (or on video or TV) from which children are excluded, so long as the “externalities” — the images that appear in public view outside the theater, like trailers and movie posters — are not obscene.

Generally, the law as articulated by the courts will follow the law in action, lest it become anachronistic or patently hypocritical. Hypocrisy, it has been said, is the tribute vice pays to virtue. In the area of obscenity, hypocrisy functions to allow the courts to maintain a pretense of puritanism in a world of prurience. British historian and politician T. B. Macaulay once observed that, “The Puritan hated bear-baiting, not because it gave pain to the bear, but because it gave pleasure to the spectators.” Some adults enjoy watching sexually explicit films. Although some puritans and feminists hate this, there is no evidence that it causes the type of harm (or pleasure) that government should be empowered to prevent by censorship.

In recent years, few obscenity prosecutions involving adult films viewed by adult audiences have been brought. That, too, is the law in action — or inaction.

Most Americans seem to understand that obscenity, while offensive to some, is not provably harmful to others. That’s why obscenity prosecutions have a relatively low rate of success. I have been involved in dozens of obscenity cases over the years and do not recall ever losing one.

PHOTO: COURTESY OF WILDBUNCH INTERNATIONAL SALES / © GASPAR NOÉ