3. Performers and Obscenity Law

Part: 
Four
Chapter: 
2

The refusal of previous commissions to consider carefully the situation of performers in sexually-explicit material is hardly unique in this area; indeed, it is a characteristic of virtually all legal analysis of "pornography" until very recently. In this country, of course, the Supreme Court did not squarely address the constitutional issues inherent in suppression of obscenity until the Roth decision in 1957.[944] There the Court rested its view that obscene material could constitutionally be suppressed on the failure of such material to have "even the slightest redeeming social importance,"[945] and made no distinctions in its analysis among writings, drawings, or photographs.[946] During the following sixteen years of acrimonious judicial debate over the problem of "obscenity" the Court singled out "photographic speech" for special analysis only twice: in Times Film Corp. v. Chicago[9][47] and Freedman v. Maryland[948] it laid out rules governing prior review and censorship of motion pictures. Yet in those decisions, the Court's "recognition that films differ from other forms of expression"[949] seemed in no way based on dangers to performers but rather on a largely unexplained concern for the special power of films to corrupt viewers.[950] When in 1973 the Court finally settled on the test and the rationale for regulation of obscenity in, respectively, Miller v. California[951] and Paris Adult Theater v. Slaton,[952] photographic speech was not discussed separately and possible risks or harms to performers in sexually explicit films were not mentioned.[953] The decision of the Court on that same day that "words alone" could be suppressed if obscene reinforced implicitly the assumption that constitutional doctrine governing sexually-explicit material was based solely on its effects on viewers and the public.[954]

With minor exceptions[955] that assumption continued to govern judicial pronouncements on sexually-explicit material until the Supreme Court decided New York v. Ferber[956] in 1982. There the Court for the first time extended its analysis of such material to encompass the "privacy interests" of the performers[957]-in this case children. Filming children in the midst of explicit sexual activity not only harmed them because of the sexual abuse involved, but also because "the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation."[958] In addition, the continued existence of a market for such materials was found to make it more likely that children would be abused in the future thus justifying a ban on distribution as the "most expeditious if not the only practical method of law enforcement. . . ."[959]

Since Ferber, courts have begun to consider problems faced by performers in pornography, including adults as well as children. The Fifth Circuit recently upheld a judgment against Chic magazine for publishing a nude picture of a woman whose consent had been obtained fraudulently.[960] The same court sustained a judgment against Hustler magazine for "reckless" publication of a nude photograph which had been stolen from the subject's home.[961] And in overturning the "Indianapolis Ordinance"-which sought to provide civil remedies against pornography as a form of sex discrimination-the Seventh Circuit declared that "without question a state may prohibit fraud, trickery, or the use of force to induce people to perform in pornographic or in any other films,"[962] and that under the principles of Ferber the state might be able to "restrict or forbid dissemination of the film in order to reinforce the prohibition of the conduct."[963]

In the wake of the Ferber decision, then, it is still difficult to predict the precise constitutional boundaries which govern regulation of photographic "speech" on behalf of performers.[964] That such performers have privacy and other interests worthy of protection, however, now seems clear. In part as a response to these judicial developments and in part as an effort to aid in future legal analysis, we feel compelled to examine with the utmost care the evidence bearing on the situation of performers used in pornographic photographs, video tapes, and films.

Notes

  1. Roth v. United States, 354 U.S., (1957), p. 476.
  2. Id., p. 484 (emphasis added).
  3. Indeed, the Court was strongly criticized by justice Harlan in his separate opinion for refusing to examine the materials at issue and make "particularized judgments" on the "individual constitutional problem" presented by each of them, Id., p. 497.
  4. 365 U.S., (1961), p. 43. In Bantam Books v. Sullivan, 372 U.S., (1963), pp. 58, 70 n. 10, the Court distinguished a system of "prior restraint" affecting books from one affecting movies without explaining relevant differences in the character of each mode of speech.
  5. 380 U.S., (1965), p. 649.
  6. Freedman v. Maryland, supra, 380 U.S., p. 61. The initial indication by the Court that motion pictures might present a "peculiar problem" came in its first decision holding films to be constitutionally protected "speech." Joseph Burstyn, Inc. v. Wilson, 343 U.S., (1952), pp. 495, 502-03.
  7. In Times Film Corp., the Court referred only to Chicago's "duty to protect its people from the dangers of obscenity in the public exhibition of motion pictures" as a basis for distinguishing films from other modes of expression. Id. p. 49. In Freedman the Court muddied its references to the distinctive qualities of films by ultimately suggesting that Maryland look for guidance to a previously approved prior censorship scheme for books (in Kingsley Books, Inc., v. Brown, 354 U.S., (1957), p. 436, 380 U.S., p. 60.
  8. 413 U.S., (1973), p. 15.
  9. 413 U.S., (1973), p. 49.
  10. The Court explained in Paris Adult Theater that suppression of obscenity by the States could be justified by the conclusion that "public exhibition of obscene material, or commerce in such material has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize ... the States' 'right to maintain a decent society', " 413 U.S., p. 69.
  11. Kaplan v. California, 413 U.S., (1973), p. 115. In that decision the Court distinguished between "traditional and emotional response" to suppression of words and the tepid defense mounted on behalf of "obscene pictures of flagrant human conduct." 413 U.S., p. 119.
  12. See, Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978) (cartoon depiction of famous boxer in the nude was held actionable because of its effects on him). In Zacchini v Scripps-Howard Broadcasting Co., 433 U.S., (1977), p. 562, the Court held that a circus performer's "right of publicity" in his act could, consistent with First Amendment, receive protection under state tort law.
  13. 458 U.S., (1982), p. 747.
  14. Id., p. 759 n. 10.
  15. Id., p. 759. Circulation of the pornography was found by the Court to violate "the individual interest in avoiding disclosure of personal matters." Id., p. 759 n. 10 (citing Whalen v. Roe, 429 U.S., (1977), p. 589).
  16. Id., p. 760.
  17. Braun v. Flynt, 726 F. 2d, (1984), p. 245 , cert. denied, 105 S. Ct., (1984), p. 783.
  18. Wood v. Hustler Magazine, Inc., 736 F.2d, (1984), p. 1084, cert. denied, 105 S. Ct., (1985), p. 783. Accord, Hustler Magazine, Inc. v. Douglass, 769 F.2d, (7th Cir. 1985), p. 1128, cert. denied, 54 U.S.L.W., (Mar. 31, 1986), p. 3646.
  19. American Booksellers Assn. v. Hudnut, 771 F. 2d, (1985), pp. 323, 332, aff'd mem., 54 U.S.L.W., (Feb. 24, 1986), p. 3560.
  20. Id. But cf., Faloona v. Hustler Magazine, 607 F. Supp. (D.C. Tex. 1985), p. 1341, appeal docketed, No. 85-1359 (5th Cir. 1985) (children whose nude pictures, including one showing the plaintiff child holding her vagina open facing the camera, Hustler, (Nov. 1978), p. 33, appeared in adult magazine had no right to revoke mother's consent to publication).
  21. For an indication of the confusion still remaining compare Braun v. Flynt, supra note 960, with Faloona v Hustler Magazine, supra note 963. Deference to the parent's "consent" to publication of the nude pictures in the Faloona case is difficult to justify in view of their graphic character, See, note 963 supra, which makes them at least arguably prohibited "child pornography" under state and federal law. But see, Faloona, supra, 607 F. Supp. p. 1343 n. 4 (denying that the pictures constitute child pornography despite inclusion in federal statute of prohibitions directed at "lewd exhibition of the genitals" of children 18 U.S.C. S2255(2) (D) (1984).