A Spirited Defense of First Amendment Rights

Russ Lawrence

On March 29, the Ravalli Republic published the following Letter to the Editor from ABA President Russ Lawrence of Chapter One Book Store in Hamilton, Montana. Lawrence, who is a former member of the Board of Directors of the American Booksellers Foundation for Free Expression, wrote in response to a letter from a local censorship activist who dared critics to prove that obscenity laws threaten free speech.

Ordinance Weakens First Amendment Rights

By Russ Lawrence

In January, Dallas Erickson issued a challenge to name one incident in which a legitimate library, school, bookstore, museum, or cultural arts institution was charged with obscenity.

Name just one incident? The challenge is outrageous -- I don't know what Mr. Erickson was thinking. Recent history suggests that legitimate cultural entities are very often the target of such laws. It also suggests that such prosecutions are rarely successful, and frequently quite costly to local taxpayers.

Anti-pornography crusaders like Mr. Erickson were emboldened by the Meese Commission report in 1986. Among their first targets was a record retailer in Alabama, who was convicted of obscenity for selling an album by the rap group 2 Live Crew. Two years later, a Florida judge declared a second 2 Live Crew album to be obscene. Both decisions were overruled. The retailer was acquitted following a second trial. The Florida decision eventually reached the U.S. Supreme Court, which declared that record lyrics cannot be legally obscene.

How about museums? In 1990, Dennis Barrie, the director of the Cincinnati Contemporary Arts Center, was indicted for obscenity and child pornography in connection with an exhibition of the photos of artist Robert Mapplethorpe. He was acquitted.

In 1995, a prosecutor in Bellingham, Washington, demanded that The Newstand, a magazine retailer, remove from sale a limited-circulation 'zine that dealt satirically with the issue of violence against women.

When the owner refused, he and the store manager were indicted for obscenity. They were acquitted, and they sued for wrongful prosecution.

A jury awarded them $1.3 million.

In 1997, Focus on the Family joined forces with anti-abortion activist Randall Terry in a campaign to force booksellers to remove the books of award-winning photographer Jock Sturges. While Focus on the Family encouraged its members to pressure police to indict booksellers on child pornography charges, Terry led demonstrations against the Barnes & Noble and Borders chains. In at least 15 cases, demonstrators entered stores and destroyed Sturges' books. Two Barnes & Noble stores in Alabama were indicted for sale of child pornography. The prosecutions were later dropped.

In 1997, Oklahoma City police showed a judge 30 seconds worth of The Tin Drum, a film about the horrors of life in Nazi Germany that won the "Palm d'Or" at the Cannes Film Festival in 1979, and an Academy Award for Best Foreign Film. The judge, without viewing the entire film, without a hearing, and without issuing a written opinion, pronounced it obscene. Police then went to every video rental business in the city, seizing copies of the film, and records of those who had rented it. They then proceeded to the homes of those who had rented it, and seized it from them.

Judges eventually ruled that the film was not obscene, and that the police had acted improperly. That one cost Oklahoma City taxpayers $580,000 in attorney's fees.

Finally, Mr. Erickson should have known better than to submit his challenge, as he himself was involved in a debacle in Libby, when he resided there.

After persuading the Lincoln County commissioners to adopt an obscenity ordinance, he lobbied the county attorney to go after SaveRite Gas, a convenience store that sold magazines, some admittedly less literary than others. Deputies showed up and began sacking magazines, with a warrant written by the county attorney and issued by the Justice of the Peace, neither of whom had seen the magazines or made any determination of their "obscenity," a clear Fourth Amendment violation. The owner, Rob Uithof, was charged with six counts of obscenity. The jury literally laughed the obscenity case out of the courtroom and acquitted Uithof. But nobody laughed when Uithof then sued the county for the illegal search and seizure, settling for a significant sum that included attorney fees.

Three important points emerge from this: First, that obscenity laws have been used, and will be used against legitimate businesses and cultural institutions to advance a narrow agenda. The fact that they are unsuccessful does not alter the "chilling effect" that such prosecutions may have. For every prosecution that is pursued, many more are threatened, and legitimate artists and institutions unwilling to face such an ordeal back down.

Next, these prosecutions are generally a waste of prosecutors' time, and frequently a huge waste of taxpayer dollars.

The last is that the Constitution and the First Amendment exist not to enforce the will of the majority, but to protect the rights of the minority.

Simply because a majority find a particular work distasteful -- be it a movie, a book, a magazine, or a work of art -- is not alone sufficient reason to take legal action against those who create, view, or distribute it.

Justice William J. Brennan, Jr. asserted that "if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable."

Justice Thurgood Marshall wrote, "If the First Amendment means anything, it means that a state has no business telling a man sitting in his own house what books he may read or what films he may watch."

Justice Anthony M. Kennedy wrote, "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

I suggest that Mr. Erickson reflect on the above -- and check his facts -- before he speaks again.

Russ Lawrence's Letter to the Editor was developed with the help of Chris Finan, president of the American Booksellers Foundation for Free Expression, and David Horowitz, executive director of The Media Coalition.