The police in Fairfax and Arlington, apparently having nothing better to do, have taken to visiting video tape centers that sell or rent X-rated tapes and forcing them off the shelves. They consider the tapes dirty and obscene which, assuming you get what you pay for, is what they are, and a violation of community standards, which is what they cannot be. In your own home, you are your own community.
The authorities in the Virginia suburbs feel otherwise. For years, especially in Fairfax, the police have had an unhealthy interest in sex. They have managed to drive out of business so-called adult bookstores, and Arlington may be the only county in the nation guilty of violating the Mann Act by luring women into its jurisdiction for the purposes of prostitution--to be followed, of course, by arrest.
Even the most staunch civil libertarian would have to concede that adult bookstores and theaters create a problem for the communities they are in. Some people find them downright offensive while others, more tolerant, wonder about the impact on children. Whatever your feelings about the First Amendment, it is likely you would not want an adult bookstore in your neighborhood--or your children peeking through its windows.
But stores that stock video tapes are a different matter. The X-rated tapes are only a minor part of their business and not, as is the case with adult movie theaters, the reason they exist in the first place. And the tapes themselves are packaged innocuously enough--in some case more modestly than R-rated films that promise far more than they deliver.
The X-rated tapes are meant for home viewing. Nevertheless, Robert Horan, the Commonwealth's Attorney in Fairfax, applied the doctrine of community standards: "The rule of thumb we use is to send two police officers out, and if they consider it obscene, normally it will convince a jury."
No doubt. But so what? The tapes are being shown in the privacy of a home where the police, the law says, cannot go. Nor can they go into a car that can be used to drive to an area where the tapes are sold. So what is the point of this massive police attempt to cleanse the shelves of tapes that can offend no one--certainly not the people who choose to rent or buy them.
Well, other than proving to the voters that the authorities are unremittingly hostile to smut in any form, none whatsoever. As a way to pander for votes, the policy makes some sense, but it does so only by doing violence to the spirit of the First Amendment.
Technically, the authorities can use the doctrine of community standards, but it is something of a stretch. What offends them most is not that the tapes are on the shelves, (what if they were displayed with pictures of Kate Smith on them?), but being viewed--maybe even that they exist. They suspect, to paraphrase H.L. Mencken, that someone somewhere is having a good time.
The tendency when talking about pornography is to say "who cares?" We are not, after all, talking about art, but about smut. But content has nothing to do with the principle that in this case not only concerns First Amendment guarantees, but the use of the coercive power of the police to limit access to tapes--certifiably raunchy ones in this case, but someday maybe others or even books.
When it comes to the tapes, the cops are not responding to some howl from the community, but to their own sense of what should be sold. And they are not taking cases to courts, putting themselves and their evidence before judge or jury, but coercing merchants into cleansing their shelves by threatening legal action. Since none of the merchants do enough business in X-rated tapes to make a fight worthwhile, they have capitulated.
But while there is a hazy community standard when it comes to pornography, there is a firmer one when it comes to the coercive use of police power to tell people what they may see--or, by extension, read. The authorities in both Fairfax and Arlington have been so busy enforcing the former, they have violated the latter. That, and not the tapes, is the greater obscenity.