american porn
homewatch the programprosecutingthe businessspecial reportsdiscussion
Highlights from the Defense and Prosecution

The opposing sides argued whether the videos in question violated the three prongs of the "Miller Test," which were set forth in a 1973 Supreme Court case (Miller v. California) and are now the legal basis for prosecuting all U.S. obscenity cases.

According to the Miller Test, material must meet the following criteria in order to be considered obscene:

  • The average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
  • The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the state law;
  • The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Does the material fit with contemporary community standards?

From the Prosecutor's Opening Statement

(Assistant District Attorney Chuck Credo) ... [W]e certainly know our own community. ... You can tell me, just by looking at this, whether or not this goes over the line. ... [Y]ou don't need an expert to tell you, "Yeah, this is obscene." "No, this isn't what I watch on television at night." Or, "No, this isn't what I rent on HBO at night." Or, "No, this isn't what I bring to my family parties." It's that kind of common sense, evaluation, and application of these standards that's going to control this case. And you don't need to be a Ph.D. in physics, you don't need to be an expert in any particular field. ...

If we went back to the '60s, the year of free love, that's one era. ... But we're talking about today. We're talking about metropolitan New Orleans. ... On Mardi Gras Day, I will stipulate that women bare their breasts on Bourbon Street. ... I'm not going to say it's appropriate, but I know it's acceptable and it's done down in the Bourbon Street area on Mardi Gras Day.

Now, take that same behavior and do it on Easter Sunday, and it's a little different, isn't it? See, it's the same thing, the same breasts, you know. But, see what I'm saying? ... [M]aybe on Mardi Gras Day we have a community standard that every one of us in this room knows. But on Easter Sunday we have another standard. So, it's not that difficult to question. It's not that intensive with knowledge that you have to have. All you have to do is just be an average community citizen and know what the values in your own community are. ...

From the Prosecutor's Closing Arguments

... Is there a demand for it [adult material]? Yes. There's always going to be a demand for it. ... Just because there's a demand for it doesn't mean that it fits the community standard. It's always been there; it's always going to be there. ... Community standards cannot be measured any more by the number of adult store patrons than they can be measured by the number of people in church on Sunday. That's not how we measure community standard. We measure it by the average person taking the thing as a whole. ...

[E]very journey begins with a single step. And this is the first step. You've got to determine for us the community standards. It's almost like it's D-Day in Jefferson Parish regarding the law of obscenity and you are on the first Higgins boat hitting Utah Beach. You establish the beachhead, you draw the line in the sand. This is your case. ...

From the Defense Attorney's Opening Statement

(Attorney Franz Zibilich) ... We're going to ask you ... to pretend that you're the average person that's applying contemporary community standards. ... I am asking you to not have yourself and all of your values automatically preclude what you think the average person applying contemporary community standards -- not the average person applying conservative standards, but the average person applying contemporary standards -- would think about this. ...

I suggest to you that in each and every one of our homes we have a TV. I suggest that most of us have cable. All sorts of things are available on cable TV today that were not available ... in 1960. We're going to show you some snippets, some vignettes, if you will, from [HBO's] "Sex and the City" and from other things that are available at your house. We're going to show you pieces of movies ... that are available at your house on DirecTV. We're going to show you that the things ... that the FCC allows ... you to view on DirecTV, and makes available on DirecTV, literally, [are] the same matters that the State of Louisiana is asking you to proscribe as illegal. ...

We're going to show you magazines -- Penthouse, other magazines -- that are not only available, but are accessible to each and every one of us. If we choose to go purchase [them], we can go to the Katz & Besthoff where they have the things behind the counter. ... No different than how this corporation [Major Video] operates its business. We're going to show you photographs of all sorts of stores that rent literally the same things. ...We're going to show you boxes of other adult videos that are available and accessible at other outlets throughout our community. ... We're even going to show you, ladies and gentlemen, some sex devices/sex toys that are available and accessible that I suggest were not available nor accessible in 1960. ...

We ask that you look at this case in the year 2001 -- not in 1950 when the statute was enacted, not in the 1960s. ... [L]ook at it from the eyes of an average person in the year 2001. Not the average person who lives Des Moines, Iowa, not the average person who lives in Cheyenne, Wyoming, but the average person in a contemporary town such as the Greater New Orleans area. And I think when you use your common sense and realize how available and how accessible all of these things are -- not just these three movies, but all sorts of other things in this same sphere, if you will -- I think you'll be left with no conclusion but that the verdict should be not guilty. ...

Does the material appeal to the prurient interest?

From the Prosecutor's Closing Argument

... It's not about sex. That is not sex, that's exploitation. The people, the degrading acts that are performed to the women in these tapes must make people like Gloria Steinem stand up and scream. This is degradation. This is not normal sex. How do you know that? Does it happen like that in your neighborhoods? Is that the kind of stuff you see out on the street? Does it ever happen like that work that somebody gets up on a desk and just goes to town? Oh, yeah, that's normal. Sure. Community standards have changed. ...

I didn't see any women on the stand. ... The role of the women is not to watch it; the role of the women is to perform and to be in it. ...

A prurient interest is not a candid interest in sex but morbid, degrading, or unhealthy. Well, you saw what's in these tapes. You saw masturbation, you saw anal intercourse, you saw ejaculating, which is shooting into the faces and the other parts. There was never any attempt to procreate. Did you see anybody in these tapes say "I love you"? Did you see anybody in these tapes say "I commit to you, I want to have children with you, I want to use sex for what God intended it to be used for, to procreate"? That's not in these tapes. So, is it unhealthy? Well, certainly, to show unprotected sex, yeah, even the people on the tapes say it's unhealthy. ...

From the Defense's Closing Argument

... He talks about prurient interest. And the Judge is going to read you the definition of that. And we agree with it. An appeal to the prurient interest is an appeal to a morbid, degrading, and unhealthy interest in sex as distinguished from a candid interest in sex. The sex therapist says, "I want people having sex; it's good for them." ... If they watch this and it helps them to have good sex, then good sex it is, and it's healthy.

Let's talk about those words, "morbid, degrading, and unhealthy." I spent some time in the dictionary. And it says, under "morbid":

"Abnormally susceptible to or characterized by gloomy or unhealthy feelings; grisly and gruesome."

Well, I didn't see any grisly and gruesome. I didn't see it anywhere.

"Degrading":

"Reduced far below ordinary standards of civilized life in conduct."

I didn't see any of that. What I saw was consenting adults, whether for money or for otherwise, having sex. And they certainly appeared that they looked like they were enjoying it. I didn't see anybody in pain. I didn't see anybody gruesome. I didn't see anything grisly. It wasn't morbid. It may not be what you do at your house; that's not the issue. The issue is whether or not it was morbid and degrading, and I suggest to you, ladies and gentlemen, it wasn't.

Does the work depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable state law?

(In Louisiana, if a work depicts "hardcore sexual conduct" in a patently offensive way, then it may qualify as obscene. See Louisiana's definition of hardcore sexual conduct.)

Editor's Note: The defense attorney offered clips from HBO's "Sex and the City," along with a pay-per-view movie that was available on Cox Cable's digital service. The movie showed graphic oral sex and intercourse between two women and a man; the "Sex and the City" clips were less graphic, but included depictions of masturbation and lesbianism.

From the Prosecutor's Closing Argument

... [F]irst of all, those shots [in the "Sex and the City" episode] weren't as tight. They didn't show all of the details like these things show. They weren't as close as all of the details. And you know the one big difference? The one big difference is there wasn't a "money shot." In researching this case, I found out that in this industry there's called a money shot. ... [U]nless the person ejaculates into the face or on the body of a female, he doesn't get paid for it. It's called a money shot. So, in these tapes, where's the money shot? Well, now, Mr. Zibilich is going to argue, "Well, wait a minute. In 'Sex in the City' there was a brief money shot." Ladies and gentlemen, maybe that episode crossed that line of obscenity is what I would submit to you. But the rest of it is just four or five women talking about sexual things that are usually confined to a bedroom-type discussion. ...

It has to be shown in a patently offensive way. ... If that's not patently offensive, then I ought to be able to see it on HBO, or I ought to be able to see it on ... CNN, or any of the other channels that are on Cox Cable. Or maybe Channel 6 ought to show it. If it's not patently offensive, I wonder why they don't show it. ... Maybe they ought to get rid of those late night movies on WYES or PBS stations and show this if it's not patently offensive. And I think that in your common sense and your ability you know that's not going to happen. ...

From the Defense's Closing Argument

Editor's Note: Read more on Louisiana's definition of "hardcore sexual conduct."

... We agreed that a certain percentage of [Major Video's] inventory was not adult and a certain percentage of [its] inventory was adult. We also agreed that these movies ... were rented for private home use only. But hard-core sexual conduct has to be the public portrayal. Well, ladies and gentlemen, there ain't no public portrayal in this case because there was no portrayal in the public. And we agreed to it. ... This case needs to be over. This stuff wasn't portrayed. This stuff was stuck in one of these machines in somebody's house in private. No public portrayal. None. Zero. Didn't prove it. Not a piece of evidence. Not only did [Credo] not prove it, he agreed to it. ...

It has to be shown, next, in a patently offensive way. Now, what does that mean? Another one of those phrases that everybody may have a different interpretation. I went to Webster's this morning. "Offensive":

"Giving painful or unpleasant sensations."

Did you all see any painful or unpleasant sensations? I simply didn't see it. Again, what we have to do, ladies and gentlemen -- and this is the hard part -- we've got to separate what we thought about the stuff and what the law says we have to consider in evaluating the stuff. ... We're here to apply these laws to these facts and throw out whether we liked it or not. That's the promise we made on Tuesday, that's the promise I know you all are going to keep.

Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value?

editor's note: To refute the prosecution's contention that the three adult videos taken from Major Video had no scientific value, Zibilich presented Raymond Swan as a defense witness. "He works with couples who are having troubles in the sexual arena. He's a marital counselor," said Zibilich, in his opening statement. "He says [couples] need to have fun. He says sometimes in order to have fun, he recommends that people plug in an adult video. " According to an account of the trial in The Times-Picayune (New Orleans), Swan testified that he recommends toys and adult videos to couples who need more direct stimulation because of physical illnesses or waning sexual interest.

From the Prosecutor's Closing Arguments

"The Scarlet Letter" has come a very long way from a very prize-winning work of an author, ... all about adultery in the Salem witch trials, to a guy painting an "A" on women's behinds after they have been orally or anally violated. ... Is that serious literary value?

Artistic. Do they have serious artistic value? Now, you can go to any fine art school -- Tulane, [Louisiana State University] -- and they paint nude models every day. Rembrandt, Picasso, all of the major painters painted nude models -- because the human body is a form that is so precious, life, itself, is so precious, that it certainly deserves to be an object of art. Is this an object of art? Do you think this is what Rembrandt and Picasso had in mind, serious artistic value?

Political. It has no political value, at all.

Scientific. We had our doctor [Swan], our over-educated social worker, tell us that, well, it can have some scientific value. But what was his testimony in the end? "I recommend people go find something that excites them and bring it back, and, no, I don't really recommend 'The Back Door Club.' ... I say to people, 'Go out and find something that rejuvenates your marriage.'" And that's what you pay that social worker for an hour to tell you.

From the Defense's Closing Argument

[I]t has nothing to do with whether or not it contains literary, political, artistic value, because we didn't debate that. We claimed it had some scientific value. Once we claim it has some scientific value, the burden then shifts to them to prove that it had none, zero, scientific value.

The man [Swan] said what he said. The man said it in a credible fashion. The man's in his 60s. The man has testified in courts of law throughout this community, on this side of the river, on the other side of the river, on the other side of the lake. He's testified in all of them. He's been branded an expert in this area by every judge and every jury that he's appeared in front of. And if he didn't have the qualifications, ... then this Judge, who is very sharp, a very good judge, would have said, "No, Mr. Zibilich, Dr. Swan doesn't have the qualifications sufficient for me to allow him to testify on that expertise." He didn't do that. He said that the man's an expert; therefore, you have to accept him as an expert.

Now, [Credo is] going to jump up behind me and say, "Well, you can accept him as an expert, but you don't have to believe his testimony." Well, Mr. Credo, if you don't want them to believe his testimony, why didn't you bring somebody in here to refute or to rebut his testimony? The stuff he said made sense, it was credible, it was truthful. And why in the name of anything would Dr. Swan come in here and make up that stuff? He wouldn't lie to you all. He says in certain couples sometimes they have a ho-hum, lackluster sex life; he recommends that they watch things. ...

home . introduction . prosecuting . the business . special reports
watch the program . if you were the juror... . quiz . do you use porn? . discussion
interviews . readings & links . tapes & transcripts . press reaction . credits . privacy
FRONTLINE . wgbh . pbs online

some photos copyright © 2002 photodisc all rights reserved.
web site copyright 1995-2014 WGBH educational foundation

SUPPORT PROVIDED BY

FRONTLINE on

ShopPBS
SUPPORT PROVIDED BY

NEXT ON FRONTLINE

Poor KidsEncore PresentationJuly 22nd

RECENT STORIES

JOIN OUR NEWSLETTER

FRONTLINE on

ShopPBS