Arizona Obscenity Law 40 Years After The Last Picture Show Ban

I had a discussion with a family member over the phone the other day about modern movies and obscenity.  “Joe, have you heard about the movie 50 Shades of Grey coming out?” Because of my female friends and acquaintances I have some passing familiarity with the subject matter.  “Do you think it could be considered obscenity?  Some people are saying it is kinda like pornography for women.” Inquired my family member.  Well that is some food for thought…

It turns out that city of Phoenix has banned a movie before because of obscenity.  Could it try to do it again?  Using the movie 50 Shades of Grey as an example, I will analyze if a commercial movie with national appeal could be considered obscenity or not.

Phoenix’s Last Picture Show Ban

Almost forty-one years ago, the city of Phoenix, Arizona banned The Last Picture Show from its theaters because of obscenity. BBS Productions, Inc v. Purcell, 360 F. Supp 801 (D. Ariz 1973). The Phoenix City Attorney objected to “total frontal nudity of a female swimmer,” lasting approximately four seconds. Id. Apparently the scene in question involved Cybil Shepherd skinny-dipping.  The film received an R (restricted) from the MPAA (Motion Picture Association of America).  The Phoenix City Attorney said the film could be played if that four seconds of nudity was deleted from the film.  Id. Phoenix claimed the movie violated Ariz. Rev. Stat. § 13-537 (1971), which defined and banned obscenity.  “It is unlawful for any person knowingly to place explicit sexual material upon public display, or knowingly to fail to take prompt action to remove such a display from property . . under his control after learning of its existence.”  Id. (quoting Ariz. Rev. Stat. § 13-537 (1971)).

Despite the fact the film won eight (yes, eight) Academy Awards, the City of Phoenix objected to four seconds of nudity.  Seriously Phoenix?

The federal district court in the end ruled the movie was not obscene. “[W]e conclude that the exhibition of the charged four second segment of total frontal nudity of a female swimmer is not violative of Section 13-537 and therefore we are not confronted with any actual or justiciable issue of the constitutionality of the Section on its face.” BBS Productions, Inc v. Purcell, 360 F. Supp 801, 805 (D. Ariz 1973).

With the release of the movie 50 Shades of Grey, could Phoenix have another repeat on its hands?  Let’s take a look.

Arizona Obscenity Laws

There are quite a few obscenity statutes on the books that can be found in Arizona Revised Statutes, Title 13 Criminal Code, Chapter 35 Obscenity.  I think there are three pertinent statutes when it comes to the idea of the obscenity of movies.

An item is obscene within the meaning of this chapter when all of the following apply:

(a) The average person, applying contemporary state standards, would find that the item, taken as a whole, appeals to the prurient interest. In order for an item as a whole to be found or intended to have an appeal to the prurient interest, it is not necessary that the item be successful in arousing or exciting any particular form of prurient interest either in the hypothetical average person, in a member of its intended and probable recipient group or in the trier of fact.

(b) The average person, applying contemporary state standards, would find that the item depicts or describes, in a patently offensive way, sexual activity as that term is described in this section.

(c) The item, taken as a whole, lacks serious literary, artistic, political or scientific value.

Ariz. Rev. Stat. § 13-3501(2) Definition.

The Arizona Supreme Court notes in State ex rel. Collins v. Superior Court, 787 P. 2d 1042, 1043-44 (Ariz. 1986), the obscenity statutes are modeled after the United States Supreme Court case Miller v. California, 413 U.S 15 (1973). 

There are three important aspects of this test: 1. it must cause sexual arousal (appeal to the prurient interest); 2. it must be patently offensive; and 3. it lacks serious value.  The first two standards are judged on a local or statewide standard.  The last is judged on a national standard.  All three must be present in order to meet the definition of obscenity.

A. Expert testimony or other ancillary evidence is not required to determine obscenity if the allegedly obscene item has been placed in evidence. The item itself is the best evidence of what it represents.

B. If a person relied upon a rating given to a film or motion picture by the motion picture association of America or an equivalent rating association, the rating and evidence concerning the person’s reliance on such rating shall be admissible in evidence in a trial for violation of this article.

— Ariz. Rev. Stat. § 13-3510 Evidence of obscenity.

If obscenity is hard to define, it must be even that much more difficult to try to find evidence of obscenity.  Statutorily, Arizona makes an attempt to show what sort of evidence can prove obscenity.  The law is pretty broad and instead of trying to define what evidence is best, the statute seems to try to define what it is not. Expert testimony is not needed to determine obscenity.  An individual merely should look at the item to determine if it is obscene or not — just look at it and make a determination for yourself. Section B probably needs to be read in conjunction with Ariz. Rev. Stat. § 3501(2).  “We believe that the practice of the legislature in reacting to the federal supreme court cases included the recognition that the standards would be a matter for the jury.” State ex rel. Collins v. Superior Court, 787 P.2d 1042, 1046 (Ariz. 1986).  The jury would then have to decide the three prongs.

** Obscenity is also forbidden by Arizona racketeering statute Ariz. Rev. Stat. § 13-2301.  No definition of obscenity is given in the racketeering statute, so it is possible a prosecutor would use Ariz. Rev. Stat. § 13-3501 to determine if it is obscenity in the first place.

Ok, well that gives us a baseline of where the current obscenity law sits, and what kind of evidence is admissible in making the case for obscenity.

50 Shades of Grey

At this point 50 Shades of Grey is still being made and it will be months before anyone will know what the content may be.  Based upon how the book may be adapted for the movie, I am hypothesizing at what the future content will entail.  Let it be noted that I have nothing to do with the production of this movie and this is all purely speculative based off the content in the book and the preview of the movie.

If you didn’t watch the preview of the movie above, you should probably take a quick look at it.

The Guardian newspaper reviewed the book, Fifty Shades of Grey by EL James. “The trilogy features Anastasia Steele, who falls in love with Christian Grey, a troubled young billionaire who likes sex only if he can accompany it with quite formal, stylised corporal punishment.”  In the review of the book, the newspaper characterized the writing style as “[the author] writes as though she’s late for a meeting with a sex scene.”

If the popularity of the book is any indication of how the movie might fair, the movie might wind-up as an instant classic.  The book has sold 100 million copies worldwide (this is just the book, not the entire trilogy), with 45 million sold in the United States.

The city of Phoenix or another city in Arizona could try to ban a movie like 50 Shades of Grey, but it would likely be met with the same result.  I think the last prong of the test set forth in Ariz. Rev. Stat. § 13-3501(2) is really tough to meet.

The first prong of sexual arousal or prurient interest is probably satisfied by the potential subject matter of the future movie.  The second prong is a little bit more difficult to forecast.  It would be up to a jury of Arizonans to determine if the future content matter of the movie is patently offensive or not.  The third prong, lacking social value is the big problem spot. If a movie is to make a profit on a national scale, I think it is difficult to say it lacks social value.  People are speaking with their money when they go to see movies in the theaters or even purchase the DVDs.  I think sales alone could indicate whether a movie has social value or not, on a national scale.  Another indication would be the awards won.  Like in the case of the Last Picture Show it won eight Academy Awards!  Winning national awards for the movie can be demonstrative of social value on a national scale.

It certainly will be interesting to see where the producers of the movie go with 50 Shades of Grey.  It will also be interesting to see how the movie adds to our ever-changing notion of what is obscenity.

 
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