John & Belle Have A Blog: Solving Logical Paradoxes The Marketing Way?

Eugene Volokh emails a possible resolution of my paradox, while expressing some doubt as to whether it could work. He suggests, of all things, marketing. And he cites a case, Ginzburg v. United States (1965), which can be read as precedent for a (hypothetical) decision that an adult comic marketed, red-light-style, at the prurient interest crowd may not be legal; but the same one aimed at the more high-toned white shoe legal crowd might be. (Well, I'm sure Eugene isn't the white shoe type.)

This marketing proposal raised high my eyebrows over the lantern of my ever-skeptical orbs. I didn't know the case. It sounded very strange. My first thought: if the thing is obscene, you don't need to ask how it's marketed. If not, you can't make it so by false advertising. (If some publisher starts flogging "Hop On Pop" as a vile & shocking tale of incest, he might garner frustrated readers, certainly some grief from the Seuss estate. I doubt he could garner himself a conviction for obscenity ... not even in the great state of Texas.

Legally speaking, I thought this has GOT to fall on the wacky far side of impossible attempts (you can be convicted for attempted murder with a toy gun, if you're really that dumb), square into plain legal impossibility. Thinking something is illegal cannot make it so. If you buy, say, an herbal medicine, thinking it is illegal in your state, but it turns out the DEA gave it the thumbs-up, your wicked intent to buy a forbidden substance cannot make it the case that you actually committed that crime. Oh, and you can't (rightly) be convicted for a crime you bragged about commiting but didn't actually. Right? Ditto for something you think (or say) is obscene, that turns out not to be. Right?

So much for a priori legal scholarship.

The case is interesting and clearly relevant, even if (in my inexpert opinion) ultimately unhelpful in resolving my paradox. The one paragraph syllabus (here's the link again) is unusually clear and to the point. Basically, it comes to this: a work was declared obscene even though it might have had some thin, non-prurient legitimate interest - anthropologically, scholarly, literary, whatever - because it was MARKETED as obscene. Partially this argument for the prosecution amounts to: 'if THEY think it's obscene and WE think it's obscene, who's arguing?' Partially it's a little something more:

The deliberate representation of petitioners' publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material.

Call this the rubbing-our-noses-in-it argument. It's as though you have a product with a dual use, one legit, one illegit - yet the manufacturer has deliberately and unnecessarily engineered it so that you've got to use it illegitimately. (Possible analogies? A radar detector that only works if your car is doing more than 75 mph? Dunno.)

So does this apply to the comics case? Does it explain why Eugene can read the thing (he auto-marketed to himself on legal grounds), but adults in a Texas comic store can't? A problem, it seems to me, is that the comics store was rather stunned to find itself prosecuted. They knew they were selling erotic stuff, marketed as such. But they didn't know they were selling illegal stuff. They didn't MARKET IT as SO erotic it was illegal. In the Ginzburg case, the sellers (a mail-order outlet) promised to refund money if the stuff was inderdicted as obscene. I'm willing to bet there was no sign in the adult section of the comics store promising a full refund if the cops consfiscated anything.

This kills the 'if they think so too, who's arguing?' argument dead; also the 'rubbing our noses in it' argument. How so? 40 years ago, the sellers of these mail order items knew - and prosecutors knew they knew - they didn't have a lot of anthropologists buying their wares, who would be frustatedly forced to confront undue prurience in their scientific attempts to understand housewives better by reading "The Housewife's Handbook On Sexual Promiscuity". But today? I'm going to go out on a limb here - a tentacle, for all I know - and assume "Demon Beast Invasion 2" is rather fetishistic in its treatment of sexuality. Now just last week I was reading Ftrain's amusing essay about fetishes. Here's a guy who takes an interest but just can't work himself up to any significant pitch of prurience. Doesn't have it in him. Now it isn't at all implausible that a guy like this - even in Texas - might wander into a comic store and buy a fetish comic out of sheer arch-bemusement and ironico-slackistical curiosity. Maybe because he had a bright idea for writing something funny about it. It wouldn't surprise the owners of the comic store if this happened. Comics aren't expensive. You can buy weird stuff on a lark. So you could not truthfully say the MARKETING of the comic BY THE STORE was somehow driving prospective, legitimate custom away, or tipping the balance against legitimate use.

In general, there are always extreme hypotheses about possible motives one can entertain: perhaps the guy who was caught, and said he just found the money bag on the street and was bringing it back to the bank, is telling the truth. But most of these hypotheses are rather silly and unbelievable. "I am a student of housewifology, your honor. I was studying the book out of scientific curiosity." Nawww. Thing is: these days excuses are plausible. "I read it because I was sort of curious about fetishes, but I didn't expect to like it much, and didn't. Interesting, though."

This is actually quite a serious point. it's basically the point I made last night about radical cultural shift. Perhaps in no other area touched by criminal law has cultural sensibility shifted so radically as regards obscenity. A document - this legal decision - not half a century old feels utterly alien (but not demonically so). How so? For one thing, it assumes commercialized erotica is presumptively criminal. That just isn't going to hold up today. Nothing on the magazine rack at the supermarket would be legal. American culture is commercially eroticized in 2003. In 1965 the court complained that, "The "leer of the sensualist" also permeates the advertising for the three publications." Nowadays the leer of the sensualist is everywhere.

Turning the point around: I don't much symphatize with crusaders against smut, but I can intellectually appreciate how it really angers them that obscenity law, on the books, goes utterly unenforced. If there was something I cared about deeply, and it was illegal, and every day I saw the law flouted and the cops doing nothing ... well, that would be really annoying. But given that this is the case - unenforcement - the fact is that people cease to think of this stuff as illegal. Which is a crucial data point with respect to Ginzburg. And given the cultural spread of the stuff - due to unenforcement - the culture changes. The result is that, by the terms of the unenforced law, enforcement becomes problematic if not impossible. Ginzburg is again a case in point. Cultural coordinates have changed so completely that, while I don't think the decision was obviously bad when it was written, it is hard to conceive that such a case could arise today. I don't mean the same case. I mean a relevantly analogous case. One in which a borderline case is decided with reference to marketing. I think it would have to involve, at the very least, someone MARKETING their stuff as illegal. And even that would not necessarily be enough. Because there is a sense in which the Ginzburg decision envisions someone saying: 'I might have found this legitimately interesting, but the fact that it was declared on the cover to be obscene was distracting and I found it hard to focus on what legitimately interested me.' A bit unreal, in a world in which a women's magazine on the supermarket shelf might well trumpet its contents as obscene. How can someone watching or reading something pretty hardcore be not bothered by that BUT be offended by the fact that it is marketed like "Cosmopolitan"? I don't think that psychology is possible - certainly not plausible.

If all this cultural change is making gentle readers of this blog feel alienated from the harlot leviathan that is modern life, you will be comforted to learn that some things do stay the same - namely, the obvious:

EROS [one of the publishers] early sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. The trial court found the obvious, that these hamlets were chosen only for the value their names would have in furthering petitioners' efforts to sell their publications on the basis of salacious appeal;

Indeed.