Court Rules That California Prisoner Can Keep His Werewolf Erotica

June 7, 2013
By

When Andres Martinez ordered The Silver Crown by Mathilde Madden, he expected an erotic novel about werewolves. What he didn’t expect is for the book to be seized and labeled obscene by government officials. Why was the book kept from Martinez? He’s a prisoner at Pelican Bay State Prison in California, and as such, the materials to which he is allowed access are closely monitored. Officials typically ban access to erotica and they decided The Silver Crown specifically was obscene due to graphic sexual depictions. So, Martinez sued for access to the book — and he won his suit.

The prison made a fatal error in labeling the book obscene. From the Court of Appeal ruling:

We conclude first that the prison failed to abide by governing statutes and regulations in judging the book to be obscene. And we go on to find that the book is not obscene applying the correct definition, and further that it is not likely to incite violence. We therefore grant the writ and order the Warden to give the book to petitioner.

The decision itself is a fine piece of writing. In ruling the book was not obscene, the court acknowledged that while the book depicts violence, it does not dwell on it. Further, while the book does have graphic sexual depictions, sex occurs between consenting adult characters and is not sadomasochistic. Essentially, the book passes the Miller test for obscenity.

Miller v. California was a landmark case that forever changed the definition of obscene material. As a result of the case, the three-prong Miller test is now used to determine whether material is obscene or protected speech. Material is judged based on the following criteria:

  1. An average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to “the prurient interest”
  2. The work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and
  3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value (This last standard was clarified by the Pope. v. Illinois decision, which defined who or what determines the value of a work.)

The decision regarding The Silver Crown describes the Miller test, reiterating that it applies to the material taken as a whole, not in part. Ultimately, the Court of Appeals did not have to rely only on the Miller test in making their decision, instead relying mostly on California’s own penal code in ruling that Martinez could keep the book. The Miller test was used as background in ruling that prison authorities incorrectly identified the book as obscene. Regardless, the decision further reinforces the line between obscene and protected speech. (You can download the Court of Appeals decision here.)

For more on what differentiates protected speech from obscenity, check out the following stories in our Obscenity Case Files series:

Obscenity Case Files: George Carlin’s Seven Dirty Words
George Carlin’s expletive-laden 12-minute monologue about the seven dirty words that can’t be said on TV became the cornerstone case for the regulation of indecent speech and the seminal Supreme Court case that authorized the FCC to restrict content, but the case is also considered by some as one of the worst decisions on First Amendment rights. Keep reading…

Obscenity Case Files: United States v. One Book Called “Ulysses”
James Joyce’s Ulysses has been called one of the most challenging and rewarding novels ever written and is considered to be one of the most important works of Modernist literature. What many people don’t realize is that the book was also the subject of litigation that led to a major change in the way the courts analyzed obscenity cases and expanded the First Amendment rights of authors. Keep reading…

Obscenity Case Files: “I know it when I see it”
Jacobellis v. Ohio, a decision that pre-dates the current obscenity touchstone, Miller v. California, set an inaccurate bar for defining obscene speech and it the origin of the infamous “I know it when I see it” language that was long applied to obscene material. Keep reading…

Obscenity Case Files: Pope v. Illinois
Miller v. California set the standard for identifying obscene material that is not protected by the First Amendment. However, some portions of the standards set by Miller are clearer than others. Pope v. Illinois clarified who or what determines which works have serious literary, artistic, political, or scientific value. Keep reading…

Obscenity Case Files: The Miracle Decision
Before 1952, movies were not protected from censorship under the Constitution. Things changed in 1952 thanks to Roberto Rossellini, Federico Fellini, and an amorous interlude between a wanderer named Saint Joseph and a disturbed peasant who believes herself to be the Virgin Mary. With Joseph Burstyn, Inc. v. Wilson, the Supreme Court held that film was an artistic medium and should be given the same First Amendment rights as any other form of creative expression. Read more…

Obscenity Case Files: Lenny Bruce
Lenny Bruce was as infamous for his prosecution for obscenity as he was famous for his groundbreaking comedy. He is now widely recognized for paving the way for modern comedic entertainment despite a conviction for obscenity that stood until only 10 years ago, when Robert Corn-Revere convinced New York Governor George Pataki to issue the first posthumous pardon in the state’s history. Keep reading…

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Betsy Gomez is the Web Editor for CBLDF.