Larry Flynt, The Sequel

By Joel Stein

You can't blame the guy. If the choice were to go down as either the publisher of cheap porn or a First Amendment activist, you'd be trying to get arrested too. So Larry Flynt returned to Cincinnati to martyr himself again. The Ohio city, where Flynt was arrested on obscenity charges in 1977, is called Censornati by free-speech crusaders, and is one of the few smut-free zones in the country. Enforcement is so strict that residents had to drive to Kentucky to see Paula Jones naked in Penthouse. Trying to catch the eye of the Cincinnati police, Flynt handed out free copies of Hustler on the street last year. No luck. Then he opened up a store selling his magazine, soft-core porn and sex toys. Nada. So he shipped in the hard stuff. Almost immediately the city redrew its zoning laws to make his store illegal. But before he got nailed for that violation, the county prosecutor sent in a 14-year-old kid to buy armloads of videos. Now Flynt is facing 15 counts of pandering obscenity and up to 24 years in jail. And he looks happy.

Flynt wants to prove that the obscenity exception to the First Amendment, as defined in the Supreme Court decision in Miller v. California, is bogus. The 1973 case allows local communities to determine what is acceptable. Flynt argues that even in Cincinnati, Americans no longer find much of anything to be obscene. In a society where anything can be downloaded on the Internet, where Bernard Shaw uses the F word on CNN and where one of Jerry Springer's most popular returning guests is a porn star famous for having sex with 300 people in one day, what can possibly be obscene?

Joe Deters, the young Hamilton County prosecutor who scored the indictment against Flynt last Tuesday, thinks he knows an obscene film when he sees one. "There's no pretense of a plot here; there's not even any music," he says. Citing one of Flynt's legal arguments that these videos are used as marital aids, he laughs and says: "Couples use these as marital aids? Yeah, right. Bring them in. Because we'd like to ask them some questions."

"There has been a change in attitude across the board," Flynt argues. "If you looked in the dresser drawers of Middle America, you'd be surprised what you'd find." Case in point: one of the videos purchased by the prosecution is Pam & Tommy Lee--Hardcore & Uncensored, which has sold more than 200,000 copies, making it the most popular adult video in history. But there was more than Pam and Tommy's honeymoon in Deters' shopping cart. "Pick up Rocco or whatever the hell that thing was, and you'll understand," Deters says. The tape, Rocco More than Ever, includes hair pulling, implied urination and a woman crawling around in pig feces, snorting. Flynt may not find that obscene, but he's a guy who decorated his driveway with a statue of an angel urinating into the mouth of a frog. Rocco may not go over as well with a jury that will have to sit through all 16 films, most likely without popcorn.

The A.C.L.U., which is supporting Flynt again, thinks even Rocco might be tolerated. "Look at what's going on in the White House and how tolerant people are," says A.C.L.U. president Nadine Strossen. "It indicates that the populace has become much more tolerant of sex between consenting adults and less willing to spend public resources in investigating that activity." Gary Bauer, president of the Family Research Council, a lobbying group with links to the Christian right, doesn't buy that. "Ask the average American whether they want somebody handing their kids birth control pills, and they'll still say no. Ask a wife if she wants her husband having easy access to pornography, and she'll say no way. People know this stuff is the equivalent of cultural pollution," he says. "I must admit my theory on this is questioned when I see CBS offering Howard Stern his own show. Maybe Larry Flynt should stay by the phone."

Flynt's lawyer, Alan Isaacman, who won the case celebrated in the movie The People vs. Larry Flynt, is more interested in eliminating the obscenity exception to the First Amendment than in proving that Cincinnatians can handle bestiality. "The whole notion of community standards is a contradiction of the rights the Constitution guarantees to all Americans," he argues. "How can you have the right to watch something in Los Angeles and not in Cincinnati?" Isaacman says Justice Potter Stewart's definition of obscenity--"I know it when I see it"--reveals the ruling's flaw: "If you don't have Stewart in front of you, what good does that do? No law should put anyone in the position of having to guess what's legal and what isn't."

Burt Neuborne, a constitutional law professor at New York University who played Jerry Falwell's lawyer in The People vs. Larry Flynt, thinks this won't be the case to challenge Miller: the charge of selling to juveniles muddies it too much. But Neuborne expects Flynt to bring up more cases in his effort. "He would like in the latter part of his life to become an admired figure, not simply a pitied figure," he says, reflecting on Flynt's paralysis after being shot by a right-wing extremist. "I'm not sure it will work. There's nothing wrong with people trying to be heroes. But I think it's going to be hard for him to make the grade."