Constitutional Law: What's Obscene for the Country

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The facts were not in dispute when twelve defendants faced a nonjury trial before General Sessions Court Judge Harold H. Greene on various misdemeanor charges of violating Washington, D.C.'s obscenity ordinance. Among the twelve were four dancers accused of giving "an indecent exposition" after admittedly "baring their breasts" at the capital's Gayety Burlesk Theatre. Common as it was, the case produced a precedent that promised to baffle prosecutors all over the country simply because Judge Greene asked the prosecutor: What are "national standards" in sexual expression?

The question was far from capricious. The Supreme Court says that allegedly obscene material can lose the free-speech protection of the First Amendment whenever (among other things) it clearly affronts "contemporary community standards relating to the description or representation of sexual matters." Because obscenity is a federal constitutional issue, adds the court, those standards must be national rather than local. Does this really tell lower courts how to decide obscenity cases?

As the sole trier of facts in the case before him, Judge Greene said that he could not weigh the defendants' conduct without knowing the national standards by which he was to measure it. After two weeks to research the question, the prosecutor refused to answer on the ground that national standards should be determined by the judge himself, as a representative of the community.

In a tightly written opinion, which is rare in such lower courts, Judge Greene has just acquitted all twelve defendants. A judge cannot decide obscenity cases merely upon "his own predilections and prejudices," he said. "When a judge condemns without evidence, he is acting not as a court of law but as a censor. I decline that role." Holding that the burden of proof in obscenity cases was still fully upon the prosecutor, Judge Greene dismissed all charges because "the prosecutor failed in these cases to prove a vital element of the offenses."