Posted by Eugene Volokh:
Obscene Snow Sculpture, or Frivolous Prosecution?
http://volokh.com/archives/archive_2005_05_01-2005_05_07.shtml#1115164521
[1]Eric Muller points to [2]this story:
Two Laramie men are facing obscenity charges for allegedly building
a snow sculpture of a phallus in their front yard.
Brandon Arp, 20, and Aric Davenport, 19, were arraigned Friday in
Albany County Circuit Court on charges of promoting obscenity. . .
. If convicted, they could each face up to one year in jail and a
$1,000 fine.
According to police reports, the men made the sculpture in the 1200
block of Custer Street on April 21. Reports say the sculpture was
�offensive to other residents in the area.� . . .
If the news account is correct, then it sounds like the defendants are
clearly not guilty. Under [3]Wyoming obscenity law, which tracks the
First Amendment requirements,
"Obscene" is material which the average person would find:
(A) Applying contemporary community standards, taken as a whole,
appeals to the prurient interest;
(B) Applying contemporary community standards, depicts or describes
sexual conduct [in this case, lewd exhibition of the genitals] in a
patently offensive way; and
(C) Taken as a whole, lacks serious literary, artistic, political
or scientific value.
I haven't seen any photographs, but I highly doubt that the penis
sculpture "appeals to the prurient interest," which means "appeals to
a 'shameful or morbid interest in sex.'" Few people, I think, would
find sculptures of a penis to be sexually arousing or even sexually
interesting. They may be offensive to many; they may appeal to an
interest in vulgar humor; but they don't appeal to an interest in sex,
whether or not shameful or morbid.
Likewise, while the sculpture is an "exhibition of the genitals,"
that's not enough for it to be obscene -- to be obscene, it must be a
lewd exhibition of the genitals, which again requires that it be aimed
at sexual arousal. Maybe I'm shortchanging the potential of snow art,
but I doubt that a simple snow sculpture of a penis can qualify as
lewd.
Maybe I'm missing something; but if I'm right, then the prosecution's
case isn't just a loser, but is borderline frivolous. In fact, if Arp
and Davenport were arrested, they should have a good case against the
police department, because it sounds like there wasn't really probable
cause to believe that they had violated a crime -- this makes their
arrest an unreasonable seizure, in violation of the First Amendment.
(They can't sue the prosecutor based on the prosecution, because
prosecutors have absolute immunity from lawsuit, even when the
prosecution is unconstitutional.)
Finally, one could argue that it's constitutional for the government
to bar public display of certain materials, even if they aren't
obscene, in order to protect either unwilling viewers or children. I
doubt that this can be done as to nonsexual nudity (see [4]Erznoznik
v. City of Jacksonville (1975). But in any event, even if such a
statute were constitutional, our sculptors aren't being prosecuted
under such a statute, and as best I can tell Wyoming has no such
statute. According to the news report, they're being prosecuted for
obscenity -- and this just isn't obscenity.
References
1. http://www.isthatlegal.org/archive/2005/05/the_miller_test.html
2. http://www.laramieboomerang.com/news/archivemore.asp?StoryID=103252
3. http://legisweb.state.wy.us/statutes/titles/title06/c04a03.htm
4.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=422&invol=205
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