6.3.1 The Sufficiency of Existing Criminal Laws

Part: 
Two
Chapter: 
6

The laws of the United States and of almost every state make criminal the sale, distribution, or exhibition of material defined as obscene pursuant to the definition set forth by the Supreme court in Miller v. California.[50] The enormous differences among states and among other geographic areas in obscenity law enforcement are due not to differences in the laws as written,[51] but to differences in how, how vigorously, and how often these laws are enforced.

Some witnesses have urged us to recommend changes in the criminal law resulting in laws that are significantly different in scope or in method of operation from those now in force. We have, for example been urged to recommend a "per se" approach to obscenity law that would make the display of certain activities automatically obscene and we have been urged to recommend a definition of the legally obscene that is broader than that of Miller. We have thought carefully about these and similar suggestions, but we have rejected them. We have rejected these suggestions for a number of reasons, the most important of which is that it has not been shown that the basic definitions or broad methods of operation of existing laws are in any way insufficient legal tools for those who care to use them. Some witnesses have complained about the uncertainty of the existing legal definition of obscenity, but it has appeared to us that these uncertainty claims have usually been the scapegoat for relatively low prosecutorial initiatives. A substantially larger number of witnesses involved in law enforcement have testified that they do not find excess uncertainty in the Miller standard as applied and interpreted, and consequently believe that the existing laws are sufficient for their needs. The success of prosecutorial efforts in Atlanta, Cincinnati, and several other localities, in which vigorous investigation, vigorous prosecution, and stringent sentencing have substantially diminished the availability of almost all legally obscene materials, plainly indicates that the laws are there for those areas that choose the course of vigorous enforcement. We recognize that not all localities will wish to make the commitments of resources that Atlanta and Cincinnati have, but the experiences in such localities persuades us that the desire to have new or more laws, while always appealing as political strategy, is in fact unjustified on the record.

Moreover, a new law incorporating a definition of its coverage different from that in Miller would be sure to be challenged in the courts on constitutional grounds. At the moment, the conclusion must be that these proposals are constitutionally dubious in light of Miller, that they would remain so until there was a Supreme Court decision validating them and in effect overruling Miller, and that there is no indication at the present time that the Supreme Court is inclined in this direction. Even assuming a desire to restrict materials not currently subject to restriction under Miller, a desire that most of us do not share, we find a strategy of embarking on years of constitutional litigation with little likelihood of success to be highly counterproductive unless the current state of the law is distinctly unsatisfactory in light of the desire to pursue legitimate goals. Because we do not find the existing state of the law unsatisfactory to pursue the goals we have urged, we reject the view that laws incorporating a different and constitutionally suspect definition of coverage are needed or are in any way desirable.

Notes

  1. 413 U.S., p. 15 (1973). We discuss Miller and other applicable cases in detail in Chapter 3.
  2. There are exceptions to this, however. For example, California has until recently employed as a definition of obscenity not the test in Miller, but the "utterly without redeeming social value" test from Memoirs v. Massachusetts, 383 U.S., p. 413 (1966).