Tim Cavanaugh writes on http://reason.com/blog: My friend John Stagliano has been scrooged this holiday season after a federal judge refused to dismiss obscenity charges related to adult videos distributed by his company.
In a status conference the day before Christmas Eve, Judge Richard Leon of the U.S. District Court for the District of Columbia rejected defense motions that the case be dismissed on grounds that federal “contemporary community standards” for obscenity are too vague to govern online expression and that the U.S. Supreme Court’s decision to strike down anti-sodomy laws in Lawrence v. Texas created a right to sexual privacy that includes the right to own and distribute sexual media.
Stagliano, a donor to the Reason Foundation, which runs Reason magazine and this site, could stand trial this summer along with his company, Evil Angel Productions. However, Leon indicated the defense could appeal his Wednesday decision to the U.S. Court of Appeals for the D.C. Circuit, saying, “This is about the overarching legal issue in this case, and needs to be resolved one way or another.”
This could be an avenue for addressing the question of whether a community standards carve-out made when porn was still shown in downtown movie theaters is applicable to an era when porn is consumed at home with the blinds drawn. The right to privacy derives from technology, starting with the ability to build houses with separate rooms. There’s no reason it shouldn’t be expanding as technology advances.
Leon also makes an interesting point about the Lawrence v. Texas argument: “The liberty interest the defendants claim pales in comparison to the liberty interest announced in Lawrence.”
I agree, but it’s also true that the greater-good argument for policing sexual behavior is more compelling than the greater-good argument for policing media consumption. Going back to the Trojan War, and continuing through a modern age of broken homes and crimes of passion, there is ample evidence that romantic autonomy results in vast negative consequences for society, and no evidence that consumption of media results in any consequences at all. From a societal-impact viewpoint, it makes more sense for the state to restrict whom you can have sex with than to restrict what you can watch while having sex with yourself.