University of Virginia Library

Defining The Obscene

Obscenity Laws 'Unenforceable'

By Fred Heblich
Cavalier Daily Staff Writer

—Ed.

Movie censorship and obscenity
laws have been the center of violent
controversy all over the country,
and no less of a storm has been
raging in Virginia over this confusing
subject.

Legislating morality has always
been a difficult task; if not the
most difficult, and in the area of
what the public should be allowed
to see and hear, on the movie
screen, it becomes almost impossible.
The state obscenity law is as
Charlottesville Commonwealth Attorney,
Jack Camblos describes it,
"vague, and almost unenforceable."

Until four years ago, Virginia
had a state censorship board which
reviewed movies. It had the power
to declare movies "obscene," and
to cut scenes or delete language
that were obscene from the movie.
This board was abolished when the
Supreme Court ruled that "prior
restraint" was unconstitutional;
meaning that a movie could not be
cut or restrained against the will of
the exhibitor until after the movie
has first been exhibited to the
public.

Since then, Virginia has had
little luck in censoring movies or
convicting exhibitors of showing
"obscene" motion pictures.

A state code passed in 1960
(18.1-227) reads: 'The word obscene...means
that which considered
as a whole has as its
dominant theme or purpose an
appeal to the prevalent interest, that
is, a shameful or morbid interest in
nudity, sex, or excretion, and if it
goes substantially beyond customary
limits of candor in description
or representation of such
matters."

Misdemeanor

A conviction under this law is a
misdemeanor, punishable by a fine
not to exceed $1,000 or not more
than 12 months imprisonment or
both in discretion of the court or
jury. But convictions have been few
and far between.

Numerous state and local obscenity
laws have been stricken
down by the Supreme Court. The
only one that has been upheld is
the law passed in New York. This
law states that a film must meet
three requirements before it can be
judged obscene. First, it must
appeal to the shameful and prurient
interests; second, it must be in
violation of community standards;
and third, and most important, it
must be without redeeming social
value. This law only applies to
minors, and makes no provisions
for adults.

Since, under this law, a film
must fit all three qualifications it
could overwhelmingly appeal to the
shameful and prurient interests but,
if it had redeeming social value, not
be judged obscene. The part about
social value is "the hooker," as City
Attorney Clyde Goldman puts it.

In Virginia, the criterion about
social value is read into the existing
law. Virginia's law makes no distinction
between minors and adults.
Also, in Virginia, local ordinances
define which persons are minors
and adults. In Charlottesville, an
adult is anyone 18 years or older.

Because of the vagueness of the
state law on obscenity, "enforcing
obscenity statutes is so difficult
that prosecution is almost impossible,"
according to Mr. Goldman.

Mr. Camblos, the Commonwealth
Attorney, noted that "the
efforts in Richmond (particularly at
the Lee-Art Theater) to prosecute
obscenity cases have failed." He
added that a movie exhibitor
"could show just about anything he
wants to within reason."

Private Complaint

An attempt to enforce Virginia's
obscenity code would run something
like this: A private citizen
who saw a film he thought was
obscene would file a complaint
with the local Commonwealth Attorney.
A warrant would be obtained,
and the exhibitor who
showed the film would be arrested
and charged. Most likely the film in
question would be allowed to run
until declared obscene, since action
before a court's decision would be
"prior restraint."

Community Witness

In court, witnesses would be
called from the community for the
defense and prosecution to testify
in determining community standards.
Witnesses would also testify
as to the film's social value. Finally,
if the film (which by this time
would probably have finished its
run at the theater) is declared
obscene by the court, along the
guidelines of constitutionality, the
exhibitor would be convicted.

This process is long, difficult,
and not in the least practical or
dependable. It has several important
drawbacks.

An exhibitor convicted in this
manner could still appeal the
decision, and evidence has shown
that if he fights it long enough he
can probably beat it.

Also, since to be declared
"obscene" a film must violate
community standards, a film declared
obscene in one community
may not be obscene according to
another community's standards,
and to determine this legally, the
whole process must be repeated.
There is no precedent.

Mr. Goldman said that a judge in
Norfolk ruled that each community
can decide its own standards, and
subsequently, its own definition of
obscenity.

And Standards

Theoretically, this means that a
film declared obscene in Charlottesville
could be shown perfectly
legally in say, Arlington, if the
community standards dictated
such.

And, as always, the "hooker"
about social value is quite an
obstacle.

In the opinion of Mr. Camblos,
the state obscenity law is not
practicably enforceable. "We really
have no law," he said. "Each
theater owner is his own judge of
what will be shown." He said that
he knew of no obscenity convictions
in Charlottesville in recent
history.

Mr. Camblos noted that the
state legislature is trying to pass a
law similar to the one passed by
New York to deal with minors.
"Dealing with obscenity to adults is
much harder to pin down," he
added.

No Real Law

By consensus, Virginia has no
real obscenity law. It has a code
which vaguely defines what is
"obscene," but it makes no provisions
for effective enforcement.

In Richmond last week, Assembly
Delegate A.A. Campbell
(D-Wytheville) introduced a bill to
the state assembly which would set
up a Board of Movie Review (5
members), and provide measures
for a practical enforcement of the
obscenity law.

"We have in many instances so
much fifth on our screen without
artistic or social redemption," Mr.
Campbell said in giving his reasons
for the new bill. "My bill will make
our present law enforceable," he
stated.

If passed, an attempt to enforce
the state obscenity law under Mr.
Campbell's bill would run as follows:

A local Commonwealth Attorney
could ask to review a film
before it is exhibited to the public.
If asking is not enough, he can
force an exhibitor to let him review
the film. If the Commonwealth
Attorney finds the film obscene, he
can suggest that the exhibitor have
the film shown to the Movie
Review Board in Richmond. Again,
he can force the exhibitor to take
the film to the Board. If the Board
feels the movie is obscene, it will
file suit and the status of the film
will be determined by a court,
following constitutional guidelines.

72 Hours

The real advantageous feature of
this bill, as Mr. Campbell feels, is
that the whole process will take
place within 72 hours.

Mr. Campbell emphatically
states that his bill is constitutionally
valid, and that it does not
conflict with the Supreme Court's
ruling on "prior restraint."

What he hopes happens, is that
exhibitors do not object to having
films reviewed, and accept the
Board's "advice," making legal
enforcement unnecessary. However,
legal complications will probably
arise if an exhibitor objects to
having a film reviewed.

The Movie Board will not cut
scenes or language, under this law,
but will only judge whether the
whole movie is obscene. The
thinking here is that if a movie is
judged "obscene," the Board will
explain what particular scenes or actions were the culprits, and the
exhibitor will offer to cut or dilute
the parts that were most offensive
in order to meet with the Board's
approval.

Since the movies will be reviewed
by the Commonwealth
Attorney before being shown to the
public, it will be interesting to see
where a Commonwealth Attorney
will get information to determine
which films to review.

Mr. Campbell said his bill was
aimed primarily at stopping films
which had "obscene actions." He
gave this example: "I read 'Goodbye
Columbus' and in the book the
girl reaches under the table and
holds the man's hand. When I saw
the film, the girl reached under the
table and grabbed his penis instead.
I know of no reason why they
changed it."

Personal Taste

As a matter of personal taste, he
said "nudity is not obscene up to a
point."

Mr. Campbell feels that his bill
has great support in the General
Assembly and that it will be passed.
If passed, it will be the first attempt
by the state to make its obscenity
law enforceable, since the censorship
board was abolished.