Law School Dean Erwin Chemerinsky: 'Repeal Obscenity Laws'

IRVINE, Calif.—Few will mistake UC Irvine Law School Dean Erwin Chemerinsky for anything but a dyed-in-the-wool liberal. He currently represents one of the inmates at the Guantanamo Bay Detention Center; he disagrees with the U.S. Supreme Court's decision in District of Columbia v. Heller that being able to carry a gun is a constitutional right; he has no problem with Roe v. Wade, which legalized abortion, saying about its critics, "Judicial activism is the label for the decision that people don't like."—and Bill Clinton almost offered him a job on the Ninth Circuit Court of Appeals. So when Erwin Chemerinsky authors an article in the conservative Orange County Register about why obscenity laws should be repealed, anti-porn liberals might want to step up and take a look. "The phenomenal success of Fifty Shades of Grey—as a book and now as a movie—should provide the impetus to finally repeal federal and state laws that prohibit obscene material," Chemerinsky's article begins. "It is long overdue for the Supreme Court to reverse its decisions holding that obscenity is unprotected speech." Of course, no one but the most virulent right-wing religious fanatic would label either version of Fifty Shades as "obscene," but that's just a jumping-off point for Chemerinsky. He notes, for instance, that judging by history, most notably the obscenity prosecutions of various people for selling such classics as James Joyce's Ulysses, Henry Miller's Tropic of Cancer and D.H. Lawrence's Lady Chatterley's Lover, there's a good possibility that if Fifty Shades had been published 60 or 70 years ago, it too could have found itself (and its author, of course) sitting at a defense table in some courtroom in Middle America. "Federal law continues to prohibit the interstate shipment of obscene materials, and from time to time, especially when there are Republican presidents and attorneys general, there are obscenity prosecutions," Chemerinsky notes. "For example, in 2005, the George W. Bush administration created the Obscenity Prosecution Task Force, which launched a number of prosecutions. During the Reagan administration, the Meese Commission on pornography urged aggressive enforcement of anti-obscenity laws, and many prosecutions resulted. Virtually every state has a law prohibiting obscenity and these, too, continue to be enforced sometimes." Chemerinsky takes particular aim at the U.S. Supreme Court's decision in Roth v. United States, where in 1957, the Nine first codified the idea that "obscenity is speech that is not protected by the First Amendment, and thus its sale and distribution can be constitutionally punished." He goes on to observe that no peer-reviewed studies have concluded that obscene material causes any social harms, and observes that no one knows what "obscenity" is, anyhow, as exemplified by Justice Potter Stewart's famous statement that he couldn't define "obscenity," but "I know it when I see it." "In Roth, the court said that obscenity is material that appeals to the 'prurient interest'," Chemerinsky writes. "According to the dictionary, 'prurient' means arousing lustful or lascivious thoughts. Fifty Shades of Grey does this, but so do writings and films that are far less sexually explicit." If there's anything troubling about Chemerinsky's article, it's that he would give the government the power to regulate sexually explicit material to the point of allowing it to require that porn's creators "prevent the spread of sexually transmitted diseases," but of course, that can be done in several ways, including the adult industry's current excellent testing program. He's also all for the government's power to make sure that the people who perform sexual material are doing so of their own free will, without coercion, and that they be protected in other ways, as well. "Social attitudes about depictions of sex in books and movies have thankfully changed enormously over the past half century, but the law has not," Chemerinsky concludes. "The court should overrule decisions such as Roth and provide First Amendment protection for sexually explicit materials. The federal government and state governments should repeal their antiquated obscenity laws, most of which date to the 19th century." Well said, Erwin!