Court upholds conviction of cable team charged with obscenity

Court upholds conviction of cable team charged with obscenity

11/06/95

TEXAS–The U.S. Court of Appeals in Austin (3rd Cir.) in late October rejected arguments by a cable television public-access show producer and host that obscenity convictions related to their show should be overturned because of the program’s educational value.

A lower court found that a program that aired a video promoting safe sex between homosexuals was offensive and obscene.

The program’s producer, Terrel Denise Johnson, and host, Gareth Rees, were sentenced to a year of probation and 200 hours of community service in April 1994, after they aired a short film clip titled “Midnight Snack” during the second hour of their call-in cable show, “Infosex.” The film featured two men using condoms while engaged in graphic sexual acts.

The short film, which was broadcast in August 1993, between midnight and 2 a.m., resulted in charges against Rees and Johnson of promoting obscene material and harmful display of obscene materials to minors. After viewing the three-minute clip, a jury convicted the two of violating the state’s obscenity law.

On appeal the defendants argued that the purpose of the “Infosex” program was to promote safe sex practices and prevent the spread of AIDS, and that “Midnight Snack” was an integral part of the program. The two also argued that the convictions were based on one film clip, not the entire program. They claimed that the prosecutors did not provide expert testimony that the show was obscene and failed to prove beyond a reasonable doubt that the defendants knew the film clip was obscene.

The three-judge appeals panel rejected the defendants’ claims by calling the program a sham and mere pretense for the promotion of the film “Midnight Snack.” They ruled the clip could be viewed as an entire work, and that the “Infosex” program was used as a vehicle to promote and display the film.

Since the film could be viewed “alone and apart from the Infosex program, the state had no burden to prove that the entire [program] was obscene and as a whole lacked serious value,” the court said.

The panel also said that expert testimony regarding the film’s obscenity was unnecessary since the film was submitted into evidence for the jury to examine. According to the panel, “‘Midnight Snack’…lacks serious literary, artistic, political, or scientific value. Its graphic, explicit depiction of two males engaged in [sexual] acts…constitutes hard-core pornography that is unprotected by the First Amendment.”

The panel concluded that prior testimony revealed that Rees and Johnson knew the state obscenity law, but chose to appeal to the “prurient interest” of the viewing audience.

Defense lawyer Peter Kennedy said his clients were unsatisfied with the ruling and will seek a rehearing before the panel. (Texas v. Rees; Texas v. Johnson; Media Counsel: Peter Kennedy, Austin)