legal 5.03


The police storm into the local Blockbuster Video. Acting on a complaint from a fundamentalist group, they have decided that a particular tape is obscene. The police threaten the teenaged clerk with an obstruction of justice rap unless she reveals the name and address of anyone who has rented the tape. Armed with that information, they burst into the homes of tape renters to confiscate copies.

Nutso paranoid scenario, you say? I wish. This is exactly what the police in Oklahoma City did on June 25, 1997, when they seized copies of The Tin Drum, 1979’s Academy Award winner for Best Foreign Language Film. The controversy began when a fundamentalist pro-censorship group, “Oklahomans for Children and Families,” was upset that the film was available at the public library. They went to the police and the police, in turn, went before state District Judge Richard Freeman, who told them that the film violated Oklahoma’s obscenity law barring any depiction of children under 18 having sex. (The film is the story of a troubled boy growing up in Nazi Germany. The movie includes one scene that suggests, but doesn’t actually depict, an oral sex act between the boy and a teenage girl. The fundamentalists weren’t worried about the Nazi part, naturally.)

Within hours, the police officers (without a warrant or a court order) confiscated copies of the film from six video stories and, after obtaining and using the store's customer records, tracked down the remaining copies. City officials have threatened to press criminal charges against anyone in possession of the film. The ACLU has, of course, filed lawsuits on behalf of the video store owners and the individuals who were subjected to police raids.

Wow. What if the movie had been Deep Throat? I bet the OK City cops would still be chasing tape renters through swamps, with black helicopters and packs of slavering dogs. As a lawyer, I can tell you that there are a whole lot of things wrong with what the cops did: there is a First Amendment problem in declaring materials to be obscene without a hearing, there is a Fourth Amendment problem in confiscating materials from people’s homes without a warrant. And there’s also something called the Federal Video Privacy Law, which prohibits any “video tape service provider” from releasing customer information without a court order. In other words, when the cops terrorized the store clerks they were lying (oh, don’t look so shocked.)

On one level I tend to feel that this is the price one pays for living in Oklahoma. But that feeling is overcome by outrage at the Soviet-style behavior of the cops, the priggishness of the judge, and the general disregard of civil liberties and common sense demonstrated by everybody involved. And the grimmest part is this: at one level, the fundamentalists have already won. People in Oklahoma don’t rent what they want, and don’t watch what they rent, even in the privacy of their own homes, without getting a little chill - is this scene OK with the DA’s office? Other local libraries have been quick to announce that you won’t find anything controversial or provocative on their shelves, no sirree. So for now, the cops and the fundamentalists got what they wanted.

There’s only one thing we can do about it, and that is: Exercise your constitutional rights: Make it a Blockbuster night. And be glad you live in Oregon.

(Brad Woodworth is a partner in Cobb and Woodworth, LLP, a law firm representing adult business interests in Oregon.)

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