Vol. 1, No. 7 (September, 1991), pp. 96-98

THE POLITICS OF OBSCENITY: GROUP LITIGATION IN A TIME OF LEGAL CHANGE by Joseph F. Kobylka. Westport: Greenwood Press, 1991. 224 pp. Cloth $45.00.

Reviewed by Donald A. Downs, Department of Political Science, University of Wisconsin, Madison

Controversy over the status of sexually explicit materials has been intense since the Supreme Court ruled that obscenity was not protected by the First Amendment in 1957. The debate has pivoted around three distinct periods of constitutional doctrine: the late 1950s, when a largely conservative approach to obscenity prevailed; the 1960s, when Supreme Court doctrine turned decidedly liberal; the 1970s and 80s, when revived conservative doctrine (established in MILLER V. CALIFORNIA in 1973) wrestled with the liberal suppositions of general First Amendment law to a standoff. MILLER rendered obscenity doctrine somewhat more responsive to local community values, thereby increasing the importance of trial courts in the determination of the obscene.

The doctrinal patterns of this struggle are well known. Less known are the specific patterns of interest group politics and litigation that affected (and, in turn, were affected by) the constitutional developments in this area. In THE POLITICS OF OBSCENITY: GROUP LITIGATION IN A TIME OF LEGAL CHANGE, Joseph F. Kobylka casts light on these patterns, especially the ways in which major changes in the law engendered changes in group legal and political strategy. More ambitiously, Kobylka hopes to inaugurate a new research agenda that goes beyond the now ample empirical literature on group litigation and the politicization of law to establish the foundation for a more theoretically coherent approach to the study of the group process as it reacts to legal change. This is accomplished through an unusual longitudinal study of the political and legal activities of the major groups in obscenity litigation over a thirty year period. Key legal activities include initiating or defending lawsuits, filing amicus curiae, and providing information about obscenity law and prosecutions. By focusing on the major groups' reactions to the MILLER decision, which radically altered the constitutional landscape, Kobylka hopes to provide a "natural experiment in which the behavioral effects of the interaction between group specific and environmental factors can be assessed." (xiii) The study "indicates that the litigation behavior of groups, the development of law, and group theory concepts can be woven into a framework that provides a more generalized basis for explaining the size and flexibility of the group system, especially as it incorporates litigation." (xiv).

Drawing on prevailing group theory, Kobylka depicts two basic types of groups: "purposive," which are dedicated to broad philosophical social policy goals, and "material," which exist to promote the narrower professional or monetary interests of their members (Ch. 1). In the obscenity field, two types of groups prevail: "libertarian" groups, who want to restrict censorship, and "proscriptionist" groups, who strive to limit the spread of sexually explicit materials. (Ch. 2) The major libertarian group is the American Civil Liberties Union, which is purposive; other libertarian groups are material, including the American Booksellers Association, the Media Coalition, and the Association of American Publishers. All proscriptionist groups are

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purposive, including Citizens for Decency through Law and Morality in Media. By comparing the legal activities of these and related groups before and after MILLER, Kobylka unsurprisingly finds that organizational adaptation was influenced by such factors as the internal dynamics of the organization (including the relationships between leaders and members) and the goals of the organization in relation to litigation opportunities. (Chs. 3-5)

For example, the ACLU was by far the major libertarian actor in the 1960s, mainly because the Supreme Court was busy vindicating libertarian principle, making the expenditure of litigation resources well worth the effort. In addition, members and leaders believed in the "classical" liberty model, which emphasized basic civil liberties and freedom of expression. After MILLER, however, the ACLU largely "exited" the field. The reasons are interesting. Membership and leadership became more politically aware and ideologically Leftist in orientation during the 1970s, as indicated by the Union's pronouncements against the Vietnam war and President Nixon, and the membership's revolt during the Skokie litigation. This orientation downplayed the classical approach to freedom of expression. Second, the Supreme Court's unwillingness to overrule the basic MILLER framework meant that only expensive victories at the margin (in trial courts) could be won, which the ACLU found less enticing in an organizational environment replete with new, competing priorities. Because material groups' interests were less philosophical and more affected by decisions at the margin of obscenity doctrine, they took over the ACLU's leadership role (what Kobylka calls "mobilization").

Though the constitutional environment was inhospitable in the 1960s, proscriptionist groups were active in obscenity cases. After MILLER, such groups not only remained active (what Kobylka calls "continuance"), but they have also collectively marshalled resources to litigate more intensely at the local level, the new domain of action. First, they have striven to apply the Miller formula wherever feasible. Second, they have fought against the weakening of MILLER in cases involving its application to specific areas. Furthermore, the new conservative political environment provided incentives for continued mobilization, and the Supreme Court's ambivalence about obscenity law (despite continued adherence to MILLER) forced these organizations to remain vigilant.

Kobylka draws several conclusions from his findings. (Ch. 6) Most broadly, the evidence indicates that groups adapt their litigation strategies to deal with changing cues in the legal environment, and to facilitate the interests of their members. More specifically, group litigation is becoming more centralized and professional in nature, like the group political process in general. In addition, seminal Supreme Court decisions may lead to a shift in the litigation burden shared by relevant groups, the distribution of intensity among groups, and in the density of litigation (the number of groups involved in litigation). MILLER affected each of these factors. "This increased density was a direct result of MILLER and suggests that judicial decisions are significant forces shaping the contours and dynamics of the group litigation system." (p. 162).

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Kobylka's conclusions are interesting and insightful, but at times their obviousness flirts with the banal. Despite his broader ambition, the most interesting aspect of his book is the information it provides about the group process in obscenity litigation. And he augments group litigation studies by showing that the promulgation of constitutional doctrine can affect groups as much as they can affect doctrine's framing. Whether a broader theory of this direction of impact is possible or even interesting is not answered by Kobylka's useful book.