Guest Blogger Dan Ellison — TLP, censorship, & discrimination Part 1

A big DukeinLaramie welcome to Dan Ellison (Duke ’77), attorney-at-law, Instructor in Theater Studies, and faculty advisor for Hoof ‘n Horn. Dan has offered his legal expertise to discuss issues of censorship surrounding The Laramie Project. If you all are interested in finding out more about the legal terrain of creating, producing, and consuming performing arts, you should check out Daniel’s fall 2011 course: Legal Issues for the Performing Arts, TS 169S.  In addition to discussions about obscenity and censorship, the course will explore, among other topics, discrimination and copyright issues–both of which intersect with censorship issues.


The dirtiest book of all is the expurgated book.

— Walt Whitman

Any theatrical performance or visual artwork  that deals with gay issues still continues to raise eyebrows and is subject to censorship in many communities throughout the United States.  Productions of The Laramie Project have been banned at numerous secondary schools, colleges and universities.  As recently as March 2009 (and there are probably more recent examples as well), an Oklahoma public school teacher was forced to resign because of teaching The Laramie Project.

My discussion of censorship divides into three parts:  government censorship, private censorship and self-censorship.  The First Amendment is the starting point.  The First Amendment only prohibits  censorship by the government.  “Congress shall make no law . . . abridging the freedom of speech. . . [emphasis added].”  (Through the 14th Amendment, this prohibition applies to the states and municipalities as well.)   Be that as it may, courts have determined that, under certain circumstances,  the government can make reasonable time, place and manner restrictions. [See the very recent March 2, 2011 Supreme Court decision that upheld the right of the Westboro Baptist Church to stage its anti-gay protests at military funerals.] There was no Maryland statute in place, at the time, restricting protests at funerals, so the issue of the constitutionality of a particular statute was not directly before the Court.  Westboro Baptist Church is also infamous for going around the country protesting outside productions of The Laramie Project.  They came to Durham in 2005 to protest the play’s production at the Durham School of the Arts.

Interestingly, obscene speech has been carved out as speech that is simply  not protected at all by the First Amendment.   The legal definition of  “obscene” has changed over the years; furthermore, the determination of whether some particular speech is obscene has never been an exact science.   My grandfather (Charles Marks, a NY judge) ruled in the early 1960s that the 1749 book, “Fanny Hill or Memoirs of a Woman of Pleasure” was obscene and therefore was banned in NY.   The book is tame by today’s standards.   The U.S. Supreme Court reversed my grandfather’s ruling – see the newspaper clipping that follows:

Of course my grandfather, whom I loved and respected, also warned me in 1972, not to go to Flamingo Park in Miami Beach, during the Republican & Democratic National Conventions, because “there were homos there.”   He was from an era of very different standards and sensibilities.  “Homosexuality” was still “the love that dare not speak its name.” At that time, homosexuality was  defined as a psychological disorder and also illegal.  It was not until 1973 that the American Psychiatric Association removed homosexuality from its list of mental illnesses!

Defining obscenity, i.e. defining language that the government is authorized to prohibit, has been continuously problematic.  Supreme Court Justice Potter Stewart’s famous line, “I know it when I see it,” follows his sentiment that he could perhaps never intelligibly succeed in defining the kind of material he understood to be embraced within the shorthand description “hard-core pornography.”

Assuming, for the sake of discussion, that obscenity should indeed be  excluded from  First Amendment protection, First Amendment scholars and advocates  worry most about the “chilling effect” of overly broad and vague statutes that attempt to define obscenity.   If I am not sure that the play I’m writing is obscene (and if disseminating obscenity is a felony), I might choose to err on the side of caution, and change the text and/or plot of my play in order to avoid the issue of obscenity altogether.   Similarly, if I am a publisher, I might choose not to publish a play that deals with sexual content, out of fear that it might be challenged as obscene. [Last year’s movie, “Howl,” based on the obscenity trial of publisher/beat poet Lawrence Ferlinghetti (a UNC-CH alum, by the way), whose City Lights Books published Allen Ginsberg’s 1955 poem “Howl,” provides a wonderful and mostly accurate account of that obscenity trial.]

Most states have obscenity statutes that are similar to North Carolina’s:

NC General Statute § 14-190.1. Obscene literature and exhibitions.

(a) It shall be unlawful for any person, firm or corporation to intentionally disseminate obscenity. A person, firm or corporation disseminates obscenity within the meaning of this Article if he or it: (1) Sells, delivers or provides or offers or agrees to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene; or (2) Presents or directs an obscene play, dance or other performance orparticipates directly in that portion thereof which makes it obscene; or [emphasis added] (3) Publishes, exhibits or otherwise makes available anything obscene; or (4) Exhibits, presents, rents, sells, delivers or provides; or offers or agrees to exhibit, present, rent or to provide: any obscene still or motion picture, film, filmstrip, or projection slide, or sound recording, sound tape, or sound track, or any matter or material of whatever form which is a representation, embodiment, performance, or publication of the obscene.

(b) For purposes of this Article any material is obscene if: (1) The material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section; and (2) The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and (3) The material lacks serious literary, artistic, political, or scientific value; and [emphasis added] (4) The material as used is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.

(c) As used in this Article, “sexual conduct” means: (1) Vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted; or (2) Masturbation, excretory functions, or lewd exhibition of uncovered genitals; or (3) An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre costume. (d) Obscenity shall be judged with reference to ordinary adults except that it shall be judged with reference to children or other especially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be especially designed for or directed to such children or audiences. (e) It shall be unlawful for any person, firm or corporation to knowingly and intentionally create, buy, procure or possess obscene material with the purpose and intent of disseminating it unlawfully

It seems clear that The Laramie Project is not obscene under the NC statutory definition.  Even if someone could argue that it lacks serious literary or artistic value (those values are subjective), it clearly has political value.

If it isn’t obscene, how can a public school (an arm of the government) have the authority to censor/ban The Laramie Project or other similar plays?  I plan to address that question in my next blog post.

One thought on “Guest Blogger Dan Ellison — TLP, censorship, & discrimination Part 1

  1. Judge Charles marks was the executor of my estate in the 1960’s as he was there for me when my parents died…He was a good friend of my father and after kmy father died, my mother Lorraine Buchsbaum…a very good man…Can you contact me as I have a few questions…Thanks so much!

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