Similar problems are raised by the prosecution of obscenity, defined as "patently offensive" sexual material that "appeals to the prurient interest" (as judged by "the average person, applying contemporary community standards") and lacks "serious literary, artistic, political or scientific value." Because each element of this definition is inescapably subjective, in practice it is indistinguishable from Justice Potter Stewart's famous standard: "I know it when I see it."
John Stagliano, founder of Evil Angel Video, faced federal obscenity charges that could have sent him to prison for 32 years. But as anti-porn activist Patrick Trueman conceded, the films cited in Stagliano's indictment, "Milk Nymphos" and "Storm Squirters 2," are "in many respects typical of what's available today."
Even if the sex acts depicted in the targeted films were highly unusual, there would be no principled basis for declaring, say, that fluid emerging from women's bodies is obscene while fluid emerging from men's bodies is not. This is not justice, this is a joke.
U.S. District Judge Richard Leon stopped the trial after the prosecutors rested their case, ruling that they had failed to present enough evidence tying Stagliano to the films. But if the prosecutors hadn't been so sloppy, Stagliano's freedom would have hinged on exactly how icky 12 randomly selected strangers thought the movies were. As Stagliano put it in an interview with Reason.tv, "The case law says you just play the movie and see if people are disgusted by it."
Even Americans who don't object to the idea of imprisoning people for movies made by and for consenting adults should worry about the unavoidable arbitrariness of obscenity prosecutions. Like broadcasters operating under the threat of indecency fines, porn producers can never be sure what material will be deemed illegal. That kind of uncertainty should be unacceptable in a society that upholds the rule of law.