Obscenity Case Study

MDS 4100 COMMUNICATION LAW Spring 2020

Case Study #3: Obscenity Is this Bud for you?

The legislature of the state of Utah recently updated its obscenity law. Elections in the past four years gave the Populist Party a majority. That party sponsored the revisions to the law. The Populist Speaker of the House said the law was intended to “re-establish traditional morality.” Its wording is as follows: A person is guilty of obscenity when, knowing its content and character, he promotes or possesses with intent to promote, any obscene material. The new law also defines obscenity: Any material or performance is obscene if (a) considered as a whole, its predominant appeal is to shameful or morbid interest in nudity, sex, excretion, masochism, or sadism, and (b) it goes substantially beyond customary limits of candor in describing or representing such matters, and (c) its predominant appeal is such that it lacks serious literary, artistic, political, or redeeming social value. Predominant appeal should be judged with reference to ordinary adults of this state. Shortly after the law was passed and signed into law by the governor, it was put to the test. In the small city of Pine Grove two undercover police officers entered Bud’s Palace, an adult entertainment and video store owned by Bud Finley. The business had been in operation for nearly a decade. The officers purchased two DVD movies, both containing bondage and lesbian and group sex scenes. After the sale was complete, the officers arrested Finley on charges of violating the state’s new obscenity law. Bud’s Palace was padlocked and remains closed to the public. Finley was released on $50,000 bond and is awaiting trial. Also charged with obscenity violation is X-citement Video of Los Angeles, the producers of both videos. At the pre-trial hearing, both Finley’s attorney, Bill O. Wrights, and District Attorney I.M. Proper, provided respective arguments to the court. For the defense, Wrights asserted that the state obscenity law violated the First and Fourteenth Amendments. He argued that material not considered obscene in one state cannot be considered so in another. Neither of the videos, each released in fall 2016, had been found obscene elsewhere. It is the defense’s position that the Fourteenth Amendment guarantees the residents of all states protection from their state governments as exists concerning the federal government. Wrights: “Adult entertainment is a billion dollar-a-year industry in the U.S. and employs thousands of individuals. The sale and manufacture of adult entertainment videos and literature involves not only small businesses, but multi-million dollar corporations as

MDS 4100 COMMUNICATION LAW Spring 2020

Case Study #3: Obscenity well. Nothing in these videos is debasing. No actors were forced against their wills to participate in the making of these videos. In reality, the two videos are reflections of what takes place daily in homes and hotels across this country and in the state of Utah. If the Utah obscenity statute is allowed to stand, the consequences may be the end of an entire sector of our economy.” For the prosecution, Proper noted that the entire nation is witnessing a fundamental change in morality. “The statute under question was created based on a popular demand, she said, and enjoys widespread support throughout the state. Collectively, the people of the state have stated a preference for a certain way of life where obscene entertainment cannot be sold. Traditional American values are reflected in every sentence of the new law,” she added. “The United States is not a single, homogeneous unit. Instead, diversity is celebrated and difference is preferred to the tyranny of sameness. It must be recognized that the values of residents of Utah differ substantially from those of residents of California. This difference is good. It allows people a choice of lifestyles. The state’s obscenity statute benefits all people of the United States by allowing freedom of choice.” Assignment: You know the facts and have heard arguments on both sides. Now it’s time to apply this case to the law of the land as it stands in 2020. Either Finley is guilty and the statute is constitutional, or the authorities erred in their action by targeting two non-obscene videos and closing down a legitimate business. Should X-citement Video be liable? Prepare your case. Citing appropriate state and federal court decisions, make a persuasive and convincing argument. You must decide: Guilty or Innocent?