Obscenity Trial’s Highly Subjective

BY DAN HORN \nThe Cincinnati Enquirer

Larry Flynt was on his way home from Cincinnati when the phone rang at the Hamilton County prosecutor's office. It was one of Mr. Flynt's lawyers calling to say his client had enjoyed his visit so much that he wanted to open a store and sell pornography in the heart of downtown.

"He can do whatever he wants," said then-Prosecutor Joseph Deters, "as long as he doesn't break the law."

Although the advice seemed simple enough two years ago, it soon became clear there was simple about Ohio's obscenity law. It was so complicated that Mr. Flynt wasn't even sure how to convince prosecutors he had broken it. He managed to succeed, however, and his trial here set for May 10 will be one of the biggest challenges to the law since it went on the books in the early 1970s. Mr. Flynt and his brother, Jimmy, face nine counts of pandering obscenity, three counts of disseminating matter harmful to juveniles, two counts of conspiracy and one count of engaging in a pattern of corrupt activity. All of the charges stem from the sale of sexually explicit videos at the Hustler store downtown.

Since prosecutors must prove the videos are obscene to get a conviction, the trial promises to be a case study in why the obscenity law is unlike any other. For starters, it's based on perhaps the most subjective test that can be applied to a criminal case: community standards. Since those standards may vary from Cleveland to Blue Ash, they can be determined only by a jury drawn from each community.

The jury must view the sexually explicit material, decide where to set the community standard and then vote on whether the material violates the standard. The procedure is tricky because the jury is required to help define the crime before it decides if someone violated it.

"The test for obscenity has more subjectivity associated with it than most other criminal cases," said J. Michael Murray, a Cleveland attorney and the national chairman of the First Amendment Lawyers Association.

"In a typical case, everyone knows there's a crime. The question is, who did it? In an obscenity case, everyone knows who did it. The question is, is it a crime?" This is why Mr. Flynt, who practically begged prosecutors to charge him, is able to admit selling the videos without admitting to a crime. In his view, he didn't violate the standards.

Setting the standards to help jurors make the call, the U.S. Supreme Court has established a three-part test that is now the foundation of state obscenity laws in Ohio and across the country. The test asks jurors to decide:

Whether the average person would conclude the material appeals to prurient interests, or those based solely on the sex act. \nWhether the material depicts, in a patently offensive way, sexual conduct that is offensive to community standards. \nWhether the material, taken as a whole, lacks serious artistic, literary, scientific or social value. \nThe law is structured to allow different communities to set different standards, while also allowing them to change those standards over time. A jury trial, like the one Mr. Flynt is about to begin, is the only way to find out if standards have changed. The Hustler publisher, who lost an obscenity case here in 1977, is betting they have.

Unlike the first trial, which dealt solely with Hustler magazine, the charges this time involve videotapes. Mr. Flynt believes the proliferation of adult material on the Internet, cable channels, mainstream movies and even primetime TV has significantly changed standards everywhere, including Cincinnati.

He also argues that videotapes - as opposed to X-rated movies shown at public theaters - are seen in the privacy of the viewer's home and should not be covered by the laws.

"Adults have the right to make up their own minds about what they see," Mr. Flynt said. "I don't think anyone should be able to impose their morality on you."

Mike Allen, who took over as prosecutor when Mr. Deters became Ohio treasurer, said the case is about enforcing the law, not morality.

"If Mr. Flynt is unhappy with the laws in the state of Ohio, he should take it up with the legislature," Mr. Allen said. "The legislature has chosen to make it a crime to pander obscenity." Because the trial is only about Hamilton County's community standards, it will not set a legal precedent for the nation. Its impact, however, may still be felt beyond the county line.

Larry Flynt, after all, is not just any video dealer. He is America's poster boy for pornography. And Cincinnati is not just any community. It is a symbol of conservative ideals. Some say their latest battle will reveal much about values and sexual tolerance in America today.

"It has some social and cultural significance," said Marjorie Heins, former director of the art censorship project for the American Civil Liberties Union. It also could be significant to the $4.2 billion-a-year adult video industry.

The publisher of Adult Video News, known as the bible of the porn business, says a victory for Mr. Flynt could increase tolerance of sexually explicit material everywhere. But a defeat, he says, could embolden prosecutors to pursue more obscenity cases.

"Everybody is paying attention," said publisher, Paul Fishbein. "The risk is that if they beat him, with all his money, prosecutors will say, "Let's go after the little dealers.'"

Mr. Fishbein said the case is especially interesting because the 16 tapes that led to the charges are considered standard fare in most adult video stores. With titles like Sex Raiders and Oral Passions, the videos feature well-known porn stars and sex scenes that Mr. Fishbein says range from "mellow" to "a little nasty."

"If they can get a conviction on these titles," he said, "we're all going to hell." Mr. Allen, however, said he's confident a conviction is justified. Attorneys on both sides see the selection of jurors as a key to the case. They are expected to ask candidates a wide range of questions about their personal, religious and social background - anything that could indicate how they'd react to the videos. They also will ask if the jurors are willing to watch all 16 videos, a total of nearly 40 hours of pornography.

"I don't know how painful that will be," said H. Louis Sirkin, Mr. Flynt's Cincinnati lawyer. "That's a lot of movies."

Mr. Flynt thinks the large number of films will work to his advantage by desensitizing the jury to the explicit sex, making it seem more acceptable.

"They're going to put these people through 40 hours of watching that stuff," he said. "I'm bored after 15 minutes." For the jurors, it could be the most difficult part of the trial.

"They are watching the porn, but they know everyone else is watching them," said Dr. Stanley M. Kaplan, a University of Cincinnati psychiatry professor who has studied juries. "They worry that every movement could be misinterpreted."

The attorneys will be paying close attention. Both sides know the case could become personal for the jurors and they'll adjust their strategies accordingly. Mr. Sirkin said one of the best arguments in any obscenity defense is that a film is not obscene simply because you dislike it or find it personally offensive.

Although Mr. Allen would not discuss strategy, Mr. Fishbein said prosecutors often show jurors the least explicit video first and then quickly follow with the most explicit. Defense attorneys also expect prosecutors to spend plenty of time talking about the allegations that a clerk at the Hustler store sold videos to a 14-year-old boy.

"The problem is it conjures up the belief in people that we're somehow involved in child porn, which isn't true," said Paul Cambria, an attorney from Buffalo, N.Y., who also is defending Mr. Flynt. "It stinks up the case."

Mr. Flynt's opponents say it doesn't matter.With or without the juvenile charge, they say, the videos violate community standards.

"(Mr. Flynt) wants to make all pornography protected by the First Amendment, when in reality it is not," said Phil Burress, president of Citizens for Community Values. "He's a very dysfunctional man who's hiding behind the First Amendment."

While Mr. Flynt is the first to admit he's a "dirty old man," he insists he's serious about fighting for free speech. He also said he's done his homework, commissioning several opinion polls and focus groups to gauge public sentiment on obscenity laws.

"I've spent a fortune," he said. "And I really think the climate has changed."