'Between sexual candor and moral shame,' more skirmishes at the border


October 28, 1990|By Lyle Denniston | Lyle Denniston,Lyle Denniston is The Sun's legal correspondent in Washington and makes his base at the Supreme Court.

Nothing in the law ever seems to be truly settled once and fo all, so it is folly to draw final conclusions about the meaning of the latest jury verdicts in the unending legal-moral conflict over obscenity. But this much is clear: This has not been a good month for the morals police, and there just might be good reasons why.

In seeming tribute to the memory of Anthony Comstock, the founder of the New York Society for the Prevention of Vice -- America's all-time champion obscenity-basher -- prosecutors here and there occasionally rediscover their zeal to go after the more vivid forms of sexual expression.

Every new round of "Comstockery" seems to test, for each era, where society is prepared to draw the line between sexual candor and moral shame, to paraphrase Judge Learned Hand. What is acceptable in the public discussion of subjects sexual does change from generation to generation, and the law of obscenity may or may not keep up. Prosecutors seem to have a recurring need to find out whether it does.

The latest tests, of course, came in the Cincinnati prosecution of an art gallery and its director for the exhibit of photographs by the late Robert Mapplethorpe, and the Fort Lauderdale prosecution of three members of the rap band 2 Live Crew for a nightclub performance.

L "Not guilty," on all counts, was the verdict in those cases.

It is most uncommon, in this age or any earlier one, for there t be back-to-back verdicts of innocence in such celebrated obscenity cases. Because of the rarity of that, one might be tempted to suggest that there must be a trend running -- a trend, perhaps, of moral permissiveness among jurors?

That suggestion, however, probably is extravagant. Jurors in many other, less visible, routine obscenity cases continue to hand down guilty verdicts, especially against "adult" bookstores and theaters for selling sexually explicit magazines and films.

Since the Supreme Court, in 1973, relaxed somewhat its earlier rulings that had made obscenity prosecutions all but impossible, prosecutors have won many obscenity cases. Juries have not been prepared to relax, regularly, their sense of moral outrage at sexual expression in some contexts.

One of the reasons that those routine cases so often result in guilty verdicts may be that obscenity at the retail store level may seem to jurors to have nothing to redeem itself: It is, in an unpleasant phrase, merepandering -- "dirty" words and pictures for their own sake.

The point is well illustrated by the fact that, just last month, a record store owner in Fort Lauderdale, Charles Freeman, was successfully prosecuted there in a rather ordinary obscenity case that drew a lot of publicity only because of the item sold: it was the album, "As Nasty As They Wanna Be," made by the same rap band that was involved in the performance case. The jury there was unpersuaded that the 2 Live Crew album had any artistic merit.

"Comstockery," in those kinds of cases, gets the result it seeks and, to that extent, sends a message that obscenity in crass commercial form is not acceptable in this age. But there seemed to be something different about the return of "Comstockery" in the Cincinnati museum and Fort Lauderdale performers' cases.

The message that those prosecutions seemed to send was that obscenity is obscenity, not only when it is sold from over or under the counter in a tawdry little store, but also when it is hung artfully on the wall of an uptown museum or sung out creatively at a concert by an ethnically different group of entertainers.

To prosecutors in those cases, context made no difference. But, from the verdicts, and from what the jurors said afterward, context seemed to be everything. This time, they apparently felt, prosecutors were going after "culture," or "art," or both, and they would not allow it. The jurors translated context into a matter of "taste" and implicitly let prosecutors know that the law cannot always be the arbiter of that.

Are the Mapplethorpe photos of explicit homosexual activity different when seen in the Contemporary Arts Center than if sold at retail or if mailed by someone to your home in a plain brown envelope? Is the provocative verbal imagery of a rap band any different when heard in the din of a nightclub than if heard on the album "As Nasty As They Wanna Be" bought at a record store or if performed live in the assembly hall at the local high school? Does obscenity actually change character with the different scenes in which it is seen or heard?

The answer, probably, is yes, very much so. There may be a time and place for it, according to the implied message of this month's two jury verdicts. There was no indication, of course, that any of the jurors in either case found the photos or the rap words to their personal liking; but they did let prosecutors know that they did not want the law to define acceptability, either -- at least in these contexts.

Whether or not that is the beginning of a trend, only time will tell.

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