Lean Left

The hapless, and very disconcerting, Alvin Greene – you remember, the confused and incoherent character who spent his entire military and disability benefits to enter the South Carolina Democratic primary race for the Senate, and inexplicably won without campaigning – has finally been indicted on the obscenity charges that were hanging over him since before the election.

Authorities said he approached a student in a University of South Carolina computer lab, showed her obscene photos online, then talked about going to her dorm room.

A Richland County grand jury indicted Greene, 32, for disseminating, procuring or promoting obscenity — a felony — as well as a misdemeanor charge of communicating obscene materials to a person without consent.

If convicted, Greene could face up to three years for the misdemeanor or up to five years for the felony.

Now, this is just weird and creepy, and there oughta be a law. But there oughten’t to be this law, and if there is, he oughta be acquitted.

The problem here is not that he’s harassing students and creeping them out with gross photos and lewd suggestions. (I mean, OK, that’s definitely the problem here, but it’s not the legal problem.) The problem is the “obscenity” beef.

By the logic of the charges as stated, to be convicted of “disseminating obscenity” or “communicating obscenity”, he has to have been disseminating or communicating . . . obscenity. Meaning that the stuff he was showing this woman on the computer has to have been obscene – in the legal sense. Now, I don’t know what kind of thing he managed to download over a South Carolina state college campus library Internet connection, but unless he’s got some kind of private password to a secret file server for the really bad stuff, I imagine it was your run-of-the-mill Internet porn. And it’s well established that there’s virtually nothing you can get over the Internet that’s legally obscene under the traditional Supreme Court test (“the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest . . . describes, in a patently offensive way, sexual conduct specifically defined by applicable state law . . . lacks serious literary, artistic, political or scientific value”).

That test – as its conservative detractors stamp their little feet and whine incessantly – is almost impossible to fail, because, even taking “community standards” into account, almost anything can be plausibly claimed to have some sort of artistic, political, or scientific value. (In fact, as William O. Douglas pointed out at the time, the test is too stringent, because it requires that you establish certain particular justifications for the things you happen to be interested in, and gives other people a veto right over them - but even so, almost nothing is ever actually found legally obscene.)

This is appropriate. The government has no business telling its citizens what they are allowed to look at by their own choice, and it has no business empowering reactionary yahoos to criminalize other people’s interests or desires. The existence of “obscenity” law is itself an affront, but the Supreme Court has been faced with the underlying truth of the matter nonetheless: if people have any right to make their own decisions, there is no rational ground for taking that right from them because other people simply don’t like the decisions they make.

So, on substantive grounds, there’s a real problem charging somebody with a crime that consists in looking at the wrong pictures. And in practical terms, there’s probably no legally defensible way to convict him of such a crime without establishing as a matter of fact that the pictures he was looking at were legally obscene, which it is unlikely they were. The prosecution appears to be bringing charges they must know cannot be legally proven, as a political dirty trick or an act of right-wing grandstanding. (Note that they did not charge the ISP or the library with obscenity, even though such charges would be possible if the material in question is legally obscene. And they have apparently not charged anyone else in South Carolina who may have accessed the same or similar material, though they have equally little right to obscenity. They also did not charge Greene with anything related to his unwelcome propositions to the woman for sex. The charges have purely to do with the fact that he showed her pictures that are not politically approved, and are laid against one single person who happens to be prominent, black, and Democratic, when surely a casual search would have turned up thousands of people in that state accessing, distributing, or providing access to, identical images.) Note finally that the “teenage student” referenced in news stories was, if I am not mistaken, over 18, and a legal adult – they are charging Greene with forcing someone to look at something it would have been legal for her to look at on her own, but the legal substance of the charge is the content of that material, not the fact that he forced her to see it.

These charges smack of an attempt at political embarrassment, and possibly of an attempt to ram an indefensible legal finding through a conservative jury, against someone who doesn’t have the money to mount an effective defense or appeal. This is precisely the sort of problem you run into when you allow the government, acting as the tool of its most reactionary and rabid citizens, to criminalize people’s desires, and to make certain kinds of information, knowledge, or hot, hot raw action, outlaw.

Still, the alleged behavior is offensive – not because he looks at dirty pictures, but because he offends people by making them look at dirty pictures. It seems like something should be done about that, but what? It’s not the fact that he was harassing this woman that gets him into trouble. Creepy men harassing women is protected under law. You can stand on a corner and whistle at every woman who goes by, make lewd remarks, issue crude and disgusting pickup lines, or just be a general sexist jerk as much as you want. It’s all legal. You can chase women around and stick pictures of bloody tissue in their faces, while they try to avoid you, outside their healthcare clinics – that’s not only legal, but highly lauded (and practiced) by the same people who are trying to criminalize pictures of people having sex. And it seems obvious that if Greene had accosted this woman with non-sexual, but suggestive, pictures, accompanied by lewd suggestions, he would not have been arrested. It is the fact that the grand jury disapproved of what he was disseminating, and not the fact that he was intruding on a woman who didn’t want his attentions, they they are criminalizing.

Arguably, there should be some sort of personal privacy protection that would offer recourse against harassment involving otherwise legal speech or actions – you should be able to see or say what you want, but not force others to watch or listen – but the problems defining and enforcing such protections are obvious. At any rate, we simply do not criminalize the actions of asshole men who badger and harass women with offensive and unwanted speech – doing so in this case is merely political repression based on disapproval of his particular form of speech.

Given that Greene’s “speech” in this case is otherwise almost surely legal, he should not be punished by stretching the laws on permitted speech to indulge the whims of people who are in general all too eager to employ the law to impose their own arbitrary preferences and distinctions regarding permitted attitudes and desires.