Should Ira Isaacs Go To Prison?

Ira Isaacs is a filmmaker. Chances are excellent that you would never, ever, ever want to watch his films. I sure don't. Isaacs makes sexualized fetish films, often depicting bestiality and defecation. For the record: YUCK.

The Feds are prosecuting him. They intend to show six hours of his movies to a jury in Federal Court in the very near future -- in a courtroom presided over by noted judicial free-speech scholar Alex Kozinski, a judge frequently mentioned as a possible future nominee to the U.S. Supreme Court.

Here is the applicable legal definition of obscenity: "(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller v. California (1972) 413 U.S. 15, 24.

Lots of issues here, which are old news to freedom of speech scholars. Who, exactly, is the 'average person'? From what 'contemporary community' does this 'average person' come, and what 'standards' apply within that community? What is the difference between a 'patently offensive' description of sexual conduct, and a non-offensive description of sex? Who is to judge whether a putative work or art has or lacks 'serious literary, artistic, political, or scientific value'? A lot of today's advertisements, despite containing no nudity, is nevertheless powerfully sexually suggestive.

When Chief Justice Burger wrote the Miller opinion, he seemed to be taking dead aim at pornography. Thing is, pornography is pretty mainstream now -- millions of magazines and DVD's are distributed daily which are unabashedly pornographic. They depict things that, back in 1972, would probably have flunked the Miller test -- any of a variety of sex acts in various stages of completion, and quite apparently offered for no apparent reason other than to appeal to the viewer's prurient interest (that is, to engender sexual stimulation). It seems fairly clear that no substantial literary, artistic, political, or scientific exposition is proffered by this stuff.

And, by the standards prevailing in most of the country in 1972, much of what you can buy at the corner liquor store or order on pay-per-view in your hotel room today would have been considered 'patently offensive.' I suppose in some places and by some people, it still is. But nearly anyone I know these days takes the attitude of, "Well, if you get off on it, that's your business." Which is pretty much the opposite of what Burger was shooting for by making the focus on "contemporary community standards."

Can we agree that if your neighbor were to buy a copy of Penthouse at the corner liquor store, you would not find that particularly offensive? Seriously, why would you be offended? Why would you consider it any of your business? Why would you even care, other than a level of mild discomfort with the intrusion into your neighbor's privacy? If Penthouse is a bit too spicy for your tastes, what about Playboy? Or Maxim? Or the Victoria's Secret catalog? At some point, it's going to become being something for you to not worry about.

At some point, your neighbor's review of material dealing with sex falls into a category innocuous enough that you would say, "Hey, wait a minute, you can't prosecute someone for that." And you'd object to someone being prosecuted for making it, too.

But that road goes the other direction, and at the extreme other end of that road are the movies that Isaacs makes. And someone has decided to prosecute him for making his movies. Presumably, they could prosecute his customers for buying it, too.

What is the qualitative difference between Isaacs' movies and a topless Marylin Monroe supine on a red satin sheet? It's difficult to pin down a bright line, when you think about it, that anyone, anywhere can say "This is acceptable and that is not." I might not be bothered by Penthouse; you might be. Who can possibly say what "community standards" really are? At what point do we move beyond Isaacs and start getting into the acceptable clean, porn that I like? At what point do we start telling Frederick's of Hollywood how it can and cannot legally advertise its trashy lingerie?

My next question is, doesn't putting this sort of question to a jury unleash the power of peer pressure to create a dishonest result? How many jurors on an obscenity case are going to say, "Ewww, Penthouse; in my community, that sort of thing would be unacceptable," and then turn around and go home to play "Naughty Schoolgirl and Stern Headmaster," complete with costumes, paddles, and lube? Someone's buying all the non-prosecuted smut out there, and my strong suspicion is that in a jury room, it will take an exceptionally brave juror to step up and say, "Yeah, my wife and I read Penthouse and I think that's perfectly acceptable conduct within our community." Most jurors, I expect, will not be so brave as that.

Now, in terms of getting a conviction, Isaacs is a pretty likely defendant. The movies sound nasty, and not in a good way. But while almost everyone would be offended by watching them, he does somehow find an audience for his movies; he sells between seven hundred to a thousand movies a month. Let's bypass the issue of the consent of the adult actors in the movies for a moment. (I confess that I wonder if the actress reported in the Fish Wrapper, who cried during the entire production, really consented to what was going on. But like I say, for the most part the movies seem to have been made with the consent of adults involved. I'm unconcerned about the animals unless they were actually harmed.) So if there's ever going to be an obscenity conviction, this is going to be it.

But my real, ultimate question is, assuming that Isaacs is really guilty of obscenity, why are we prosecuting him for it anyway? What exactly are we being protected from here? This guy sells to a miniscule market. Only a tiny percentage of people are kinky enough to want this stuff. There is no evidence, at least that I've seen here, that these people (or Isaacs himself) are likely to commit any kind of violent or sexual crime. The charged crime here is obscenity, not drug use, not rape, not assault, not child molestation. The prosecution of this particular crime seems to be done because the government sees obscenity, a purely moral offense, as being inherently worthy of prosecution.

Either that, or the government is afraid that if it doesn't ever prosecute anyone for obscenity, its power to ever do so will atrophy and eventually obscenity will become protected speech. Not bloody likely, if you ask me.

I object. I might look at Isaacs' movies and say "Eww." Given the description of them, that's very likely what my reaction to them would be. But "Eww" isn't and should never be enough to put someone in prison. Because Isaacs filmed an actress performing a sex act with an animal, our government going to imprison him, for six years.

No. This is wrong.

I'm not saying that there should be commercials for smut sponsoring Saturday morning children's cartoons. Sexually-explicit material can be legitimately subject to reasonable time, place, and manner regulations. But sexually-explicit material should not be banned categorically. And that is precisely what the Obscenity Task Force is aiming at.

And the fight has to start with guys like Isaacs precisely because he's such an easy target. It has to start with Isaacs not because he's making a controversial work of art like filming Lolita. It has to start with Isaacs so the fight never gets to someone making a movie like Lolita, so it never gets to the point where mainstream sorts of expression -- Playboy, for instance -- has to even fear prosecution. Someone who wants to make a movie about wholesome, well-groomed young Christian kids reciting the Pledge of Allegiance complete with the internal religious reference does not need the First Amendment. (They might need a new job, because the movie sounds pretty boring.) Such a movie will never be prosecuted in the first place, so calling it "protected speech" is a purely intellectual exercise.

The fight starts with Isaacs because it's guys like Isaacs, who do and say unpopular things, who show us where the limits to our freedoms really are. And we should never, ever, ever forget that this is about what the limits of our freedoms are, not what makes a half dozen people say "Eww."