January 30, 2008

Which One Was Logjammin'?

From my Criminal Procedure casebook: "The Court found that the affidavits in the instant case [New York v. P.J. Video, 475 U.S. 868 (1986)] contained more than enough information to conclude that there was a 'fair probability' that the movies satisfied the statutory definition of obscenity (i.e., predominant appeal to prurient interest in sex, specific sexual conduct presented in patently offensive manner, and no serious redeeming social value). Justice Marshall, joined by Justices Brennan and Stevens, dissented. He argued that the affidavits described only some excerpted scenes, and not the entirety of each film. So in his view the magistrate could not have determined that the sex acts pervaded the films or that the films as a whole lacked artistic value; while the affidavits were pervaded with sex acts, it did not necessarily follow that the films were obscene. The majority's response to Justice Marshall's argument was that one of the affidavits, for example, described five hardcore sex scenes, taking place in a 93 minute film; therefore the sheer volume of sex acts depicted in the such an [sic] affidavit established at least a fair probability that there was no time left for the film to include any matters of redeeming social value."

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