Vol. 1, No. 7 (September, 1991), pp. 96-98
THE POLITICS OF OBSCENITY: GROUP LITIGATION IN A TIME OF LEGAL
CHANGE by Joseph F. Kobylka. Westport: Greenwood Press, 1991. 224
pp. Cloth $45.00.
Reviewed by Donald A. Downs, Department of Political Science,
University of Wisconsin, Madison
Controversy over the status of sexually explicit materials has
been intense since the Supreme Court ruled that obscenity was not
protected by the First Amendment in 1957. The debate has pivoted
around three distinct periods of constitutional doctrine: the
late 1950s, when a largely conservative approach to obscenity
prevailed; the 1960s, when Supreme Court doctrine turned
decidedly liberal; the 1970s and 80s, when revived conservative
doctrine (established in MILLER V. CALIFORNIA in 1973) wrestled
with the liberal suppositions of general First Amendment law to a
standoff. MILLER rendered obscenity doctrine somewhat more
responsive to local community values, thereby increasing the
importance of trial courts in the determination of the obscene.
The doctrinal patterns of this struggle are well known. Less
known are the specific patterns of interest group politics and
litigation that affected (and, in turn, were affected by) the
constitutional developments in this area. In THE POLITICS OF
OBSCENITY: GROUP LITIGATION IN A TIME OF LEGAL CHANGE, Joseph F.
Kobylka casts light on these patterns, especially the ways in
which major changes in the law engendered changes in group legal
and political strategy. More ambitiously, Kobylka hopes to
inaugurate a new research agenda that goes beyond the now ample
empirical literature on group litigation and the politicization
of law to establish the foundation for a more theoretically
coherent approach to the study of the group process as it reacts
to legal change. This is accomplished through an unusual
longitudinal study of the political and legal activities of the
major groups in obscenity litigation over a thirty year period.
Key legal activities include initiating or defending lawsuits,
filing amicus curiae, and providing information about obscenity
law and prosecutions. By focusing on the major groups' reactions
to the MILLER decision, which radically altered the
constitutional landscape, Kobylka hopes to provide a
"natural experiment in which the behavioral effects of the
interaction between group specific and environmental factors can
be assessed." (xiii) The study "indicates that the
litigation behavior of groups, the development of law, and group
theory concepts can be woven into a framework that provides a
more generalized basis for explaining the size and flexibility of
the group system, especially as it incorporates litigation."
(xiv).
Drawing on prevailing group theory, Kobylka depicts two basic
types of groups: "purposive," which are dedicated to
broad philosophical social policy goals, and
"material," which exist to promote the narrower
professional or monetary interests of their members (Ch. 1). In
the obscenity field, two types of groups prevail:
"libertarian" groups, who want to restrict censorship,
and "proscriptionist" groups, who strive to limit the
spread of sexually explicit materials. (Ch. 2) The major
libertarian group is the American Civil Liberties Union, which is
purposive; other libertarian groups are material, including the
American Booksellers Association, the Media Coalition, and the
Association of American Publishers. All proscriptionist groups
are
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purposive, including Citizens for Decency through Law and
Morality in Media. By comparing the legal activities of these and
related groups before and after MILLER, Kobylka unsurprisingly
finds that organizational adaptation was influenced by such
factors as the internal dynamics of the organization (including
the relationships between leaders and members) and the goals of
the organization in relation to litigation opportunities. (Chs.
3-5)
For example, the ACLU was by far the major libertarian actor in
the 1960s, mainly because the Supreme Court was busy vindicating
libertarian principle, making the expenditure of litigation
resources well worth the effort. In addition, members and leaders
believed in the "classical" liberty model, which
emphasized basic civil liberties and freedom of expression. After
MILLER, however, the ACLU largely "exited" the field.
The reasons are interesting. Membership and leadership became
more politically aware and ideologically Leftist in orientation
during the 1970s, as indicated by the Union's pronouncements
against the Vietnam war and President Nixon, and the membership's
revolt during the Skokie litigation. This orientation downplayed
the classical approach to freedom of expression. Second, the
Supreme Court's unwillingness to overrule the basic MILLER
framework meant that only expensive victories at the margin (in
trial courts) could be won, which the ACLU found less enticing in
an organizational environment replete with new, competing
priorities. Because material groups' interests were less
philosophical and more affected by decisions at the margin of
obscenity doctrine, they took over the ACLU's leadership role
(what Kobylka calls "mobilization").
Though the constitutional environment was inhospitable in the
1960s, proscriptionist groups were active in obscenity cases.
After MILLER, such groups not only remained active (what Kobylka
calls "continuance"), but they have also collectively
marshalled resources to litigate more intensely at the local
level, the new domain of action. First, they have striven to
apply the Miller formula wherever feasible. Second, they have
fought against the weakening of MILLER in cases involving its
application to specific areas. Furthermore, the new conservative
political environment provided incentives for continued
mobilization, and the Supreme Court's ambivalence about obscenity
law (despite continued adherence to MILLER) forced these
organizations to remain vigilant.
Kobylka draws several conclusions from his findings. (Ch. 6) Most
broadly, the evidence indicates that groups adapt their
litigation strategies to deal with changing cues in the legal
environment, and to facilitate the interests of their members.
More specifically, group litigation is becoming more centralized
and professional in nature, like the group political process in
general. In addition, seminal Supreme Court decisions may lead to
a shift in the litigation burden shared by relevant groups, the
distribution of intensity among groups, and in the density of
litigation (the number of groups involved in litigation). MILLER
affected each of these factors. "This increased density was
a direct result of MILLER and suggests that judicial decisions
are significant forces shaping the contours and dynamics of the
group litigation system." (p. 162).
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Kobylka's conclusions are interesting and insightful, but at
times their obviousness flirts with the banal. Despite his
broader ambition, the most interesting aspect of his book is the
information it provides about the group process in obscenity
litigation. And he augments group litigation studies by showing
that the promulgation of constitutional doctrine can affect
groups as much as they can affect doctrine's framing. Whether a
broader theory of this direction of impact is possible or even
interesting is not answered by Kobylka's useful book.