South Carolina- The movies and novelties sold at Anderson’s adult businesses are pleasant diversions for a certain population and smut for another.
Those differing standards partially explain why obscenity prosecutions have been rare on both the state and national levels.
Tenth Circuit Solicitor Chrissy Adams said she was not aware of any other obscenity cases being prosecuted by the solicitor’s office since her term began in January.
In the 13th Circuit, which includes Greenville and Pickens counties, the solicitor’s office has prosecuted two cases in Greenville County in the past five years. Both cases involved adult video stores, and both ended in guilty pleas.
The First Amendment to the U.S. Constitution protects certain forms of pornography as long as they are not deemed obscene. The U.S. Supreme Court established guidelines for deciding whether something is obscene in its 1973 ruling in Miller v. California.
The three-part Miller test defines something as obscene if an average person applying “contemporary community standards” would characterize the material as appealing “to the prurient interest,” depicting “in a patently offensive way sexual conduct specifically defined by the applicable state law,” or a work “taken as a whole” that “lacks serious literary, artistic, political or scientific value.”
The South Carolina obscenity law defers to the Miller test and includes an extensive, explicit list of acts and depictions that could be considered obscene.
But reliable records of obscenity cases are not kept in most places.
Eldon Wedlock, law professor at the University of South Carolina, said the change in the way adult films are marketed has made obscenity cases rare.
“There’s no movie theater that shows these things anymore. They go straight to DVD,” he said.
And the variability of community standards – the litmus test for what is obscene – makes obscenity prosecutions extremely unusual.
Jeffrey Douglas, a criminal defense attorney in Santa Monica, Calif., and chairman of the board of the Free Speech Coalition, said the number of obscenity prosecutions nationwide peaked in the late 1980s and early 1990s.
“Obscenity prosecutions are strikingly unusual,” he said. “There are about 10,000 releases of adult DVDs per year. I don’t believe there are as many as 100 prosecutions.”
The Free Speech Coalition serves as the trade association for the adult entertainment industry.
Mr. Douglas said most obscenity cases end in plea agreements. Without a victim, prosecutors are less inclined to allocate resources to uphold an obscenity charge.
“It’s really hard for them to be able to say you shouldn’t be able to rent this video and watch it in the privacy of your own home,” Mr. Douglas said.
Where obscenity cases have been prosecuted, Mr. Douglas said two strong forces were present in the community: “huge public outcry” and “the political motivation.”
“There are extraordinarily complex First Amendment issues and often Fourth Amendment issues involved,” he said. “Since it (the Miller test) provides no guidance (as to what is obscene), that makes everyone uncomfortable.”