Michael Masinter’s Guide to the Legal Issues in U.Md. Porn Screening Case

People following the extended fuss over Maryland legislative attempts to block the showing of a porn film called 'Pirates II' at the University of Maryland may be interested in this comprehensive summary of the relevant law posted by U. Miami visiting professor Michael Masinter to a law professor's list, and here reprinted with his kind permission:

First, there is the terminology problem; pornography is a term with no legal significance. Obscene speech and obscene films as defined in Miller are unprotected speech; their display can be criminalized or suppressed on the basis of content. Maryland can and does forbid the display of obscene films. Maryland defines obscenity using the language of Miller in Md. Code, Crim. L. § 11-203(a)(5), and forbids its display in Md. Code, Crim. L. § 11-202. From all I've read, the content of the film comes within the statutory definition but for the question of whether the film is patently offensive under current contemporary standards in the community (and perhaps the question of artistic merit associated with its high production budget). But the question of community standards is critical. Much has changed since Miller; explicit displays of actual, as well as simulated mainstream sexual practices seems no longer to be patently offensive to many communities; sexually explicit material is freely available over the internet, from pay per view cable tv, in hotels, bars and elsewhere. The adult film industry operates openly and above board despite obscenity laws because it seemingly has reached a kind of detente with prosecutors. A prosecutor who brings an obscenity case against a producer, exhibitor or vendor of a film displaying mainstream sexual practices will almost certainly encounter a very well funded and sophisticated defense team, with expert witnesses prepared to delve deeply into what are the community standards that prevail in a given community, using evidence compiled from online sales records, from hotel pay per view purchases, and from local cable tv companies that offer pay per view explicit films. Knowing that first rate defense lawyers backed by persuasive experts will show that a significant percentage of local folks consume explicit films, and that juries will likely think that prosecutors must have something better to do than prosecute these cases, most prosecutors don't bring obscenity prosecutions any more for explicit mainstream adult sex.

Second there is the question of how to regulate the showing of obscene films. Maryland already makes their display a misdemeanor; if its legislature thinks it wise, it would seem to be free to separately forbid their display on state funded university campuses. But there must be some mechanism by which to determine whether a particular film is or is not obscene; legislators cannot do that on the floor of the legislature. Pirates II may not be obscene; it may not be patently offensive in College Park even if it would be in Garrett County, and perhaps its high dollar production values even translate into substantial artistic content; those are questions ill suited to legislative determination; they require the opportunity for an adversarial hearing. So as a matter of ordinary procedural due process law, the legislature cannot determine whether a particular film is obscene. That concern is magnified when the legislature interferes in the operation of a university by making content based judgments about what may be shown on campus. So both procedural due process problems and free speech problems arise if the legislature attempts on an ad hoc basis to dictate what can be said or shown on campus.

Third, if the film is not obscene, can the legislature use the power of the purse to forbid its showing on state college grounds? Here the problem is, as Mark already noted, that no state funds were used to show the movie, and the movie was shown in a university created student controlled limited public forum. As the Supreme Court has made clear, leaving aside display to minors, nonobscene sexually explicit speech enjoys full protection under the first amendment. Content based discrimination against nonobscene speech runs headlong into contemporary first amendment law. The state may not have to pay to show nonobscene porn, but it cannot suppress it.

Fourth, and hypothetically since it won't happen, is there any remedy if the legislature were to retaliate against the university by reducing its budget? Here the answer would seem to be no; passing a budget is a legislative act; legislators enjoy absolute immunity for legislative acts, and so no obvious remedy would seem available to compel the restoration of funding. But there's no chance that will happen; the Maryland legislature is not about to destroy its flagship educational institution.

So at the end of the day, legislators can fume, and can propose prospective legislation to ban the showing of obscene films on state campuses, but can't determine whether a particular film is obscene.

The more interesting question is whether a campus administrator can, under a hypothetical university rule or statute forbidding the recreational display of obscene films on campus, ban the proposed showing of an individual film based on a preliminary judgment that it is obscene? If Pirates II featured explicit bestiality, necrophilia, or perhaps other non-mainstream sexual practices it probably would be obscene even under contemporary community standards in College Park. Could a campus administrator ban a film's showing, subject to prompt and plenary judicial review under a properly drawn rule, on the grounds that it is obscene? That question never arose in the Pirates II controversy since pretty clearly the university administrator who acted did so in response to legislative pressure rather than under any rule regarding the display of obscene films on campus or any judgment that the film was obscene.

Thank you, Michael Masinter!

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One Response to Michael Masinter’s Guide to the Legal Issues in U.Md. Porn Screening Case

  1. Hi Michael,

    Thanks for passing this on. The thing I find interesting here is that “porn” films at the University of Maryland have been at the center of a long history of defiance. Back in 1973, the University stopped the showing of “Pink Flamingos” because the Maryland State Censor Board complained. Maryland, strangely enough, was the last state with a censor board. While I was a student there in the late 70’s, I vaguely recall that the last controversy that the Censor Board was involved in centered on a showing at the University (but I can’t find a source for this.) But various student groups certainly showed such films on campus without interference during that time.

    This time around the controversy seems to have been driven by a complaint by the local chaplain of the Catholic Student Center, and a member of the State Senate who just happens to be a member of the Knights of Columbus. There are much more important things for the Senate to be doing than wasting their time indulging the posturing of such characters.

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