XXX Grounds For Prurient Appeal: Hot N' Horny Nonsense on Stilts, vol. 2 XXX

I am amused to read that Eugene Volokh has finally gotten his hands on Demon Beast Invasion 2, the comic banned in Texas for obscenity. I am more amused to think about the fact that, after he returns it to his law library, it will sit on the shelf for any law student - some no doubt Texans - to consult. And well it should. For it is now a significant legal document. Which brings me to my point, which is that it is obviously logically impossible for the work to be bannably obscene at this point because, thanks to Texas prosecutors, it has undeniable legal and political value.

Of course, Eugene is in California. But I am sure there are some Texans in Texas with a non-prurient interest in the question of whether their courts are making good or bad decisions.

This pesky line of reasoning is somewhat akin to the liar's paradox - but not quite the same. Some stuff really is bannably obscene, no question - but the act of banning adds a property that makes it not be so anymore. A perfectly coherent situation, so long as you don't ban anything. But if you do, an invasion of demon beasts - logical ones - can hardly fail to follow.

I remember reading a Jim Holt column in Lingua Franca, years ago, about how Kurt Gödel mentioned while going to take his American citizenship test that he thought the Constitution had a logical inconsistency, from which it presumably followed that you could prove anything was legal. His friends advised him not to mention this to whoever was administering his text.

I figured Gödel somehow had in mind old number nine - "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This might be thought to say: this document says you have rights this document does not say you have. (Yes, I know it doesn't actually say that. I'm just trying to think like Kurt Gödel.)

What a surprise, then, to discover it was good old familiar number one - free speech - harboring the hidden, Gödelian seed. Obscenity incompleteness: it is legally impossible to ban all (in fact any) works that meet the test of being legally bannable. (Not that the obscenity exception is written in the original document. I know better. I'm just talking nonsense here.)

Anyhoo, it might be thought - as Gödel's friends obviously thought - this is not the sort of thing to bring up before a judge. Judges do not like to hear that the law is an ass. If the law contains a paradox, you have the rigorous training it takes to concentrate your gaze and say, 'Hey, look, the Goodyear blimp!' Or something. I dunno.

But there is a semi-serious point to be made here. It is in fact now legally impossible for some ordinary Texan citizens - and perhaps Texan lawyers, even Texan judges - to satisfy non-prurient interests in the question of whether certain folks are behaving decently behind closed doors in Texas courtrooms. For they cannot legally obtain material they need to decide this question. (Eugene's first post is a good example: he had a very specific question which required he see for himself.) Now this sort of thing is not unheard of - I mean stuff ending up secret. Quite common for legal stuff to end up closed and sealed and therefore uncheckable by just anybody with an idle curiosity. But it is not ordinarily the case for this to happen ONLY because no one can POSSIBLY have a non-prurient interest in stuff that ACTUALLY interests many people non-pruriently.

What this nicely illustrates is the way in which obscenity law - with its inherent presumption that some adults are in a position to decide what other adults should and should not be able to see and read - corrodes political liberalism. We think any adult citizen (especially those who are lawyers themselves) ought to be able to judge whether the court has acted rightly. We don't think just anyone off the street ought to be able to overturn a legal decision, of course. We aren't anarchists. But we prize the privilege of intellectually informed private dissent. To dock this privilege, for no compelling reason - well, that seems un-American.

One might be tempted to respond like so: it is not the point of obscenity law to create a situation in which ordinary citizens cannot judge their judges. The clause about 'non-prurient interest' is supposed to guard against that and other illiberal evils. But, to the contrary, it is precisely the impulse to say some adults can judge for other adults, who are forbidden to judge for themselves, that is the source of the awkward result. The root problem is that you cannot devise a law, as an expression of this impulse, that does not express this impulse.

Of course, we can't get any of this hot stuff in Singapore.

UPDATE: The more I think about it, the more I'm talking myself into it.

P1: What Eugene did (arranging for the purchase, and reading for non-prurient reasons) was constitutionally-protected activity.
P2: What Eugene did is illegal in parts of Texas.
P3: No part of Texas can take away Eugene's constitutional rights.

One of these three must go, and it can't be 1 or 3.

There would be one way to finesse it. Call this the one-shot deal. Before being hauled into court, no naughty comic/video has much legal interest. So one can declare any work obscene ONCE - fine one person for its sale - after which it ceases to be bannable, because legitimately legally interesting, and can be marketed freely. Interestingly, once you achieved critical mass, as it were, works fined in this way would cease to be individually interesting and could be banned permanently. BUT. The first one banned permanently, after critical mass was achieved, would hold a certain legitimate interest. So you couldn't ban it permanently after all.

And another thing. Seriously folks. Call this the Reverse Cowgirl Twist. There are lots of people who are interested in porn - in the phenomenon of porn - in an intellectual/literary/scientific/gossipy way. They might well purchase and read an obscene comic because they thought it was funny/ symptomatic/ fodder for thought that other people liked this stuff; they might go on to write about it in a semi-fascinated/ semi-bemused/ semi-clinical/ semi-obsessed but not prurient way. Porn is a $10 billion industry in the US. That's interesting. It can therefore hardly be patently perfectly prurient to peruse any portion of that pile of porn, to alleviate perplexity. (Pardon the persiflage.) You might be an economist doing field work. This is important because it is a very recent cultural development. It would have been far less psychologically plausible, just 20 years ago, for someone buying an obscene comic to say they were doing so out of intellectual/cultural curiosity, collecting economic data, whatever.

The short version of this argument. This article could not have been written 20 years ago (via The Reverse Cowgirl). But the writer of this article could well have bought a comic as part of his research. What the bare existence of this article therefore establishes is that very little can plausibly pass the test of having no obvious non-prurient interest. So there is no need to overturn precedent. It just happens that precedent establishes a test that nothing can pass anymore, in light of cultural change.