We start with the observation that
we deal with words alone and no other depictions. While the Supreme Court has
made clear that words as well as pictures may be deemed obscene, many of the
obscenity cases deal with photographs, magazines, and films, where the
portrayal is visual and, at least from an objective perspective, uniform to all
observers. With the written word, however, the images come to fruition only in
the mind of the reader, and it is arguable that purely literary works without
illustrations or photographs are less amenable to regulation as obscenity.
Nevertheless, it is perhaps easier
to apply Justice Stewart’s “I know it when I see it” test to a picture than it
is the corollary we must consider in this case: Do we know it when we read it?
We find it harder to dismiss a novel-length work of fiction as lacking in
literary value than we might find it to so dismiss a magazine containing
obscene photographs.
Indeed, the prison regulation
itself places images in a more restricted category than the written word.
(citations and footnote omitted)
In re Martinez, No. A134400 (Cal. 1st App. May
31, 2013)
H/T GK.
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