October 11, 2008
Free Speech Department
Scumbags and Prurient Interests
In response to my admittedly harsh missive about the conviction of Paul "Max Hardcore" Little, commenter "jt" writes:
I couldn't help but notice you mentioned you've never seen a Max Hardcore video. Perhaps you should. Once you have, you may understand how a jury could find his work obscene, based on the old Miller three prong test, and therefor not constitutionally protected speech. The outcome may not be what you would like to see, but the jury based their decision on the state of the law, not how they--or you--would like the law to read. The judge only enforced the law as it currently exists, she didn't make this stuff up either. If you want guys like Max Hardcore to continue to crank out their particular brand of "art," then get the law changed and quit pissing on the people who's only offense is doing their duty under the law and not making up their own along the way in order to get the result you would have preferred.
I'm sure "jt" is right that Little is a scumbag. Practically everybody says so. It's one of the reasons I don't want to see his videos.
Yet that's not what they prosecuted him for. I've heard that it looks like the women in his videos are really being abused. If they are, some cops and prosecutors really should come down hard on him for that. It seems like it would be a pretty easy case, what with all the video of the crime.
But that hasn't happened. Instead we get this federal-level porn distribution case. It's not even a real porn distribution case. Little was charged with conspiracy, for making the porn that the actual distributor sent to Florida.
(I'm always suspicious when the prosecution charges someone with crimes involving concepts like conspiracy and intent or their after-the-fact brethren, money laundering and obstruction. Not that those things aren't against the law, but couldn't they find a real, tangible crime? You know, something where people get hurt or lose money? Something with a victim?)
I have to admit that "jt" has a pretty good point about the judge and jury only following the law. This is especially true of the jurors, reluctant participants who are intentionally kept in the dark about legal theories other than the official version. Perhaps I was more disrespectful of the decision makers than they deserved.
Then again, all of Little's actions took place in California, but the federal prosecutors made their case in Florida. The obvious reason for this is that the feds thought they would lose their case if they tried it in California. Suppose Little's lawyer had been able to get the trial moved to California, and suppose Little had been found not guilty as the feds obviously expected. Wouldn't that judge and jury also have been following the law? How much respect does a court decision deserve if it could easily have come out with the opposite result just by moving the proceedings to a different state?
Clearly, one of these trial outcomes---from the actual trial in Florida or the hypothetical trial in California---has to be wrong, and I'm saying it was the one in Florida that was wrong. To put it another way, the feds have no respect for California courts or California juries, so I'm not sure why I should give any more respect to the Florida court and the Florida jury.
Even if I accept that the judge and jury were only doing their duty and following the law when the found Little guilty, there's still the matter of sentencing. It's not as if the judge was just following an administrative process. She had broad discretion over the sentence, and she made the choice she did. It's reasonable to criticize her for that.
Finally, as to whether I should "get the law changed" if I don't like it, I think the law is already quite clear on this matter:
Congress shall make no law...abridging the freedom of speech, or of the press...
There's not a lot of wiggle room in there, not even for dirty pictures.
Since "jt" mentions the Miller test, perhaps he's not talking about the written law, but about case law as established by the history of court rulings on this subject. In that case, getting the law changed means getting judges to rule differently than they have been, so it only seems fair to comment on the judge's ruling.
Speaking of the Miller test, I'm not a big fan. Consider the first prong of the test:
whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest,
How are potential offenders supposed to know what community standards are? It's one thing that "ignorance of the law is no excuse" but ignorance of the standards of every single community in the country?
And just what's wrong with prurient interests anyway?
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I've never been a big fan of the Miller test, either. It was a complete cop-out by the Supremes. It's even worse today, where community is harder to define.
To me, if you're going to use community standards as the guide (a vague and troubling proposition at best), then the only conceivably legitimate way to do so is to apply it to the one who brought it into the community, not the distributor or producer.
In other words, if a store in Florida sells that video, then the community standards in Florida could be considered. If a store in California sells the video and someone from Florida goes to the store in California (by phone, mail or electronically) and buys it and has it shipped (or delivered electronically) to them in Florida, then judge the individual who bought it by community standards in Florida. Otherwise, use the California standards for the store in California.
Of course, my real preference would be to respect the First Amendment and toss out this nonsensical idea of obscenity.
Hey Pete, Good to hear from you.
You make a good point about imposing the burden of community standards only on the person who brings the contraband into the community. If we drive to Indiana to buy fireworks and get busted bringing them back into Illinois, the state cops would nail you or I for it, but the feds wouldn't go after the fireworks factory for "conspiring" with us to violate Illinois fireworks law...although I suppose there are people who's like to change that...
What really gets me is the concept of imposing local community standards on internet porn. First of all, it misrepresents the technical nature of the internet, and second, it ignores the fact that the internet is a community all its own. And on the internet, porn is king. You could download porn on the internet long before you could download Supreme Court opinions.
Pete, I should have guessed you'd have given the First Amendment a lot of thought, considering that your photographic interests would be illegal in some countries. (Lookin' very Man Ray here, by the way.) I wish I could have found time to see the show.
If you want true obscenity, read the judge's comments here:
http://www.bakelblog.com/nobodys_business/2008/10/legislating-fro.html
The fact that the judge openly disregards the statement that there was no *real* pain inflicted, and that the actresses are not contesting the films or pressing charges, seems to lend credence to the notion that there was nothing afoul in the films themselves, and that this was a 100% agenda-driven prosecution, start to finish.
The evidence of the films themselves, that showed throat-f*cking to the point of choking and repeat vomiting, and recorded women begging Mr. Little to stop anally penetrating them, was in evidence, and the jury was well within its province when it decided that those physical reactions simply could not be feigned, but depicted actual abuse. One always runs the risk, when depicting pain, of inflicting it, and the jury apparently concluded that was happening. Free speech is a good thing, and I personally would prosecute none of it, but Mr. Little was very likely justly convicted under the law as it stands. Free speech defenders would do much better to turn their attention to the stifling of political speech, the suppression of third parties, and the monopolization of speech in mainstream venues. No one is defending us on that front. Porn we will not run short of.
All good points, Amy. Thanks for commenting.
Inflicting pain is not necessarily a crime, else every boxing match and football game would end in police custody. It has to be done by force against an unwilling person.
I didn't follow the case except through a few blogs, so I'm not sure what went on, but if those things you describe were, in fact, non-consensual, why hasn't some prosector simply put the women involved on the stand and prosecuted the son of a bitch for violent crimes against women?
As for where else we turn our attention, all those issues you raise are important, and we need to address them. However, I consider things like extreme porn to be consitutional tripwires---or maybe canaries in the civil liberties coal mine---as long as extreme speech is safe, my speech is safe.
yep,
amy is either being deliberately misleading or is misinformed. a great deal of attention was paid to the real pain and consensuality issue. max's actresses were very clear in their testimony. the real proof is that no chares were brought against max for violation any rape or force statutes. if the feds thought they even had a ghost of a chance with that there would of been a whole string of charges. sorry amy, sometimes there really is acting in porn films.