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)).
Continue reading Arizona Obscenity Law 40 Years After The Last Picture Show Ban
Associate Supreme Court Justice Samuel Alito gave an in-depth interview to American Spectator magazine. It is a wide ranging interview that encompasses both his personal life and judicial philosophy.
The Justice describes his judicial philosophy to the magazine. “’I start out with originalism,’ he says. ‘I do think the Constitution means something and that that meaning does not change. Some of its provisions are broadly worded. Take the Fourth Amendment. We have to decide whether something is a reasonable search or seizure. That’s really all the text of the Constitution tells us. We can look at what was understood to be reasonable at the time of the adoption of the Fourth Amendment. But when you have to apply that to things like a GPS that nobody could have dreamed of then, I think all you have is the principle and you have to use your judgment to apply it.'”
I think I would consider myself a practical originalist.
I find this view interesting, to say the least. There is so much how our country has changed since the adoption of the Constitution, I think I like this pragmatic approach. To me at least, our forefather’s and their intentions play a critical role in interpreting the Constitution, but it cannot be the end-all, be-all of the analysis. I think how society changes also needs to be taken into account. I have never heard of the term ‘practical originalist’ before, so I am happy he gave it some context.
The interview also focused on technology. There are several high profile cases this year including ABC v. Aero (transmitting public programming over the Internet to subscribers), and Riley v. California (cell phone search by police). One of the critiques of the courts is that they do not understand technology as well as other segments of society.
We need to own up to the fact that we are a lot older than a lot of the population. We don’t have the same level of experience with these things that a lot of people do.
It is refreshing to me when anyone is self-aware enough to admit his or her shortcomings — it is even more impressive when that person has the power that a Supreme Court Justice does.
It is a really interesting read. I gained insight, understanding, and consequently respect for Justice Alito. It is a good read.
Samuel Alito: A Civil Man