Tuesday, June 04, 2013

His hair was perfect: werewolf erotica and images versus text

In the course of holding that a prison illegitimately restricted a prisoner’s access to a werewolf erotica novel, the California court of appeals reasoned:

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)


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