Legal Group Argues in Favor of Community Standards on Obscenity

July 7, 2008 - 8:03 PM

( - A legal watchdog group has filed a brief with the Montana Supreme Court arguing that individual counties in the state should be allowed to enact more restrictive laws on obscenity than those provided by state law.

Liberty Counsel, a Florida-based legal group, is appealing a 1999 decision by District Judge Jeffrey Langton to overturn three ordinances regulating obscenity that Langton said were too broad and impinged on freedom of expression.

The judge ruled that ordinances passed by Ravalli County, Mont. in 1994 prohibiting distribution of obscene material, the display of obscene material to minors and public indecency were more restrictive than state law and could criminalize action already permitted by state law.

"Allowing a local government to adopt obscenities ordinances that impose a more restrictive standard than that proscribed by state statute potentially imposes a burden upon the intra-state exercise of free expression," and is therefore unconstitutional, the court ruled.

"The problem with that rationale is that obscenity is not protected speech," argued Mathew Staver, president of Liberty Counsel, who is appealing the decision. "Consequently, it can be significantly regulated and the Supreme Court has said it is regulated based upon local community standards."

What the Montana trial court did in this case was rule that statewide standards take precedence over local community standards, "so the more liberal parts of the state would ultimately control the more conservative parts of the state," Staver added.

The ruling not only gutted Montana law, which says local communities can enact policies more restrictive than state obscenity laws, but also goes against the U.S. Supreme Court opinion, which says obscenity prosecutions are based upon local community standards, he said.

Local communities set the standards for obscenity, based on whether the evidence appeals to a prurient interest or has any redeeming social value.

Montana originally said in its statutory law that local municipalities and governments could not adopt more strict regulations than the state. However, in 1976, the Montana Supreme Court ruled that was inconsistent with the U.S. Constitution and other pornography prosecution standards, Staver said.

Consequently, the state amended the statutes and ruled that individual municipalities could adopt more restrictive standards than those imposed by the state.

"What's at stake is the ability of local communities to regulate obscenity," Staver said. "There is no one state-wide or national standard regulating obscenity. Obscenity is unprotected speech and may be regulated in accordance with local community standards."

Cynthia Smith, an attorney who fought successfully against the Ravalli County ordinances on behalf of a group of plaintiffs, noted that the Liberty Counsel was not arguing that the ordinances were constitutional, but addressed the more narrow issue of whether the county had the right to enact a more restrictive ordinance.

"That's a really limited, narrow issue, specific to the state and it's not specific to the issue of obscenity," Smith said. "It applies to many other kinds of conduct. The issue before the court is not whether obscenity should be prohibited, it's 'can the county enact a more restrictive law.'

"And that's not going to be based on a U.S. constitutional question, it's a question of state law," she added.

Both sides are still in the briefing stage and a decision is not expected in the near future.

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