A History of Obscenity Legislation in Michigan
It has been said that the more things change, the more they stay the same. That statement has never been more true than it is today in our state legislature. Leaders are still more concerned about reelection than about leading. The battle cry goes something like this, "Look busy guys, but don't do anything!"
A brief review of the history of our legislature's efforts to bring our state obscenity laws up to date is a classic example of the status quo under the Capitol dome.
In 1973 the U.S. Supreme Court set forth what has become the constitutionally accepted definition of obscenity. Unlike many states the Michigan legislature did not act to bring our statutes in line with the constitutional language approved in the now famous Miller v. California case.
In two subsequent cases (People v. Bloss, 1975 and People v. Llewellyn, 1977), the Michigan Supreme Court specifically called upon the legislature "to provide a specific definition of obscenity and specific standards for the trier of fact in determining what is constitutionally obscene...." By 1978 they had still failed to act — five years after the Miller decision.
No longer content to wait on the "hurry up and wait" legislature, the Michigan Supreme Court made a definitive ruling in the case of People v. Neumayer (1978).
That ruling declared henceforth the definition of obscenity set forth in the Miller case would prevail in the state. However, because the law had not been construed to include the Miller definition at the time, the defendant in the case, Gary John Neumayer was found innocent.
Still the legislature did not act!
One legislator who saw the need to act was former Republican State Senator Alan Cropsey. Senator Cropsey lead the battle to upgrade Michigan's obscenity legislation in the early 1980's. At a time when few citizens knew much about the need for the changes, Alan Cropsey developed proposed language and brought the issue before the people in public hearings.
In stark contrast to overflowing hearing rooms for obscenity legislation today, very few came to testify back then. When MDAC Executive Director Dar VanderArk appeared to testify at a hearing in 1984, he was the only citizen to speak in favor of the bill.
Undaunted by the apathy of a public who was unaware of the threat posed by an unrestricted obscenity industry, Al Cropsey continued to fight. In 1984 he finally succeeded in getting the House Judiciary Committee to report out a compromise version of Senate Bill 899. Then, as now, the Judiciary Committee was chaired by Rep. Perry Bullard (Democrat, Ann Arbor). The bill passed both chambers that year and was signed into law by the Governor as Public Act 343 of 1984. Since it went into effect in March of 1985, it has been the obscenity law of Michigan.
The pornography industry challenged the new law even before it went into effect. On January 7, 1985, pornography distributors filed a complaint in Federal Court in Flint. The case is called 511 Detroit St. v. Kelley. U.S. District Judge Stewart Newblatt declared that part of the new law was unconstitutional. Attorney General Kelley appealed to the U.S. Sixth Court of Appeals. In December of 1986, the Appeals Court reversed Judge Newblatt's order. Michigan citizens finally had a constitutional obscenity law! Or did they?
Problems began to arise soon after the law went into effect. In the first case tried under the statute, it became apparent that the law had several weak points. The first case under the new law was brought against an "adult " bookstore in Kalamazoo County. The case ended in an acquittal for one of Michigan's more well-known porn merchants in January of 1988.
Investigations continued around the state and cases were brought to court. Most notable were prosecutions in Kent, Cheboygan, Wayne, Muskegon, Ottawa and Oakland Counties. While a husband and wife team (Gerald and Faye Marie Bond) was successfully prosecuted in both state and federal court in Kent County, that case seemed to be the exception. No doubt the fact that these people were actually producing bondage and discipline films in their basement studio made the case different from the typical obscenity distribution case.
Beyond the Bond's case and the successful action closing the infamous Studio Blue in Muskegon County, there was little success. In Cheboygan County, one of the best prepared and argued cases ended in a hung jury. Prosecutors began to doubt the effectiveness of the new law.
It became obvious that Public Act 343 needed to be changed. New legislation was introduced in the Michigan Senate. In May of 1988 Senate Bill 864 was introduced by Republican Senators Harmon Cropsey (father of Alan) and Fred Dillingham. After a series of five well-attended hearings during the summer of 1988, the Senate Local Governments Committee passed the bill. However, there was not enough time remaining in the legislative session to move the bill through the House of Representatives for final passage.
Not to be denied, Senators Dillingham and Cropsey along with Representative Pete Weeks introduced yet another package of legislation on April 14, 1989. This package contained 12 bills dealing with all aspects of the porn issue. It was hoped that with the full two year legislative session ahead of them, there would be time to get meaningful changes made before the session ended in December of 1990.
As the legislature continued to struggle to make the needed changes, Grand Rapids police began another investigation. After a six-month undercover investigation, search warrants were obtained for three "adult bookstores" in the Grand Rapids area. Three people were subsequently arrested on obscenity charges. The investigation was thorough and well done. The Kent County Prosecutor's office prepared an excellent case. It looked like the tables were beginning to turn on the pornographers. In fact, they turned on us!
After many delays, caused by the filing of many and massive motions by the pornographers' defense attorneys, prosecutors received a set back. On April 3, 1989, Kent County District Court Judge Joel Hoekstra ruled in favor of the pornography industry by finding a part of the Michigan obscenity law unconstitutional! When the appeal to Circuit Court did not reverse the decision, Prosecutor Bill Forsyth chose not to appeal to the Michigan Court of Appeals.
The Kent County decision began a landslide of similar rulings by other courts across the state as the pornography industry had their attorneys trot out the Kent County decision. In the politics of the judicial system, most (not all, but most) judges take the easy way out and follow the leader — the leader being the first one to decide. Most prosecutors felt they could not justify further attempts to enforce the statute until the allegedly flawed portion of the law was corrected by the legislature.
While Judge Hoekstra's decision was devastating, it was sure to motivate the legislature to take quick action to fix the law. Right?
WRONG!
While the Republican leaders of the Senate appeared ready to move the bills quickly, the Democratic leadership in the House of Representatives took little or no action. Political ideologies still controlled the process.
A most blatant example of politicking was the treatment of the legislation by Democrat Perry Bullard, Chairman of the House Judiciary Committee. Rather than treat the bills in an up-front, expeditious manner, he established a special subcommittee to study the legislation. He named the committee the "Censorship Subcommittee." An unbiased group to be sure!
Three public hearings were supposed to be held by the "Censorship Committee." Only two ever took place. Both were held on very short notice. The first was held on July 25, 1990, at the National Guard Armory at Camp Grayling. The second was held in a hotel meeting room in Coldwater, Michigan, on October 3rd. Official notice on the Coldwater meeting was not sent until seven days before the hearing. Despite the remote locations and the short notice given, the preponderance of the attendees at both hearings supported the bills, much to the chagrin of Representative Bullard, to be sure.
The Democrat-controlled committee never did return the bill to the full committee. Like Senate Bill 864, this needed obscenity law reform died in committee on December 31, 1990.
Refusing to give up the fight for decency, two more leaders in Lansing decided to take up the fight. Representative Tim Walberg and Senator Jack Welborn, both Republicans, introduced identical bills in the House and Senate, respectively, in June of 1991. The Senate version, S.B. 399, was assigned to the Family Law, Criminal Law and Corrections Committee where it received prompt attention. A hearing was held before an overflow crowd on July 18, 1991.
Meanwhile, Representative Walberg's bill, H.B. 4987, was assigned by Speaker Louis Dodak, Democrat from Birch Run, to the Judiciary Committee, chaired by Rep. Perry Bullard. Rep. Bullard you will remember appointed the infamous "Censorship Subcommittee" in the previous legislative session.
With no action being taken by the Judiciary Committee, Rep. Walberg introduced another bill, H.B. 5148, which Speaker Louis Dodak promised to support. Introduced in September of 1991, this new version did not correct all of the problems; however, it did address the most significant issues. With the support of the Democratic leadership, Rep. Walberg felt that the bill would move through the House in a reasonably speedy fashion.
H.B. 5148 was assigned to the House Towns and Counties Committee, chaired by Democrat Roland Niederstadt. Rep. Niederstadt scheduled a public hearing on January 15, 1992. Again, a standing-room-only crowd packed the hearing room. There was a strong feeling among some on the committee and others involved with the legislation that Rep. Niederstadt would call for a vote on the bill at that hearing. Wrong again!
Supporters of the legislation began to sense another attempt to let the legislation die. Serving as a point man for supporters, Bill Johnson, Executive Director of the American Family Association of Michigan, met with the Speaker, Rep. Niederstadt and Rep. Walberg to discern what the future held.
It appeared that the future held more politics! At that point citizens were alerted that they needed to call and/or write to Speaker Dodak and Rep. Niederstadt to express their opinion on what was or was not happening.
With political pressure building, the legislation was finally brought to a vote in the Towns and Counties Committee and passed. But wait! Even that process was messed up!
Suspecting that Rep. Niederstadt might bring the bill up for a vote at a scheduled meeting of his committee on June 9, supporters contacted the clerk of the committee on June 8, asking if H.B. 5148 was on the agenda for the next day. They were told that it was not.
In a surprise move at that meeting, Rep Niederstadt brought up a substitute version of the bill. Within minutes, the substitute bill was adopted and a vote was taken to send it to the full House. In a move that Rep. Walberg says has never happened to him in his ten years in the House, the committee chairman never notified him that his bill was going to be brought up, much less substituted.
The substitute bill removed two key portions of H.B.5148: the local community standards change and the felony status and penalties. It was in that form that the bill was sent to the floor for a vote.
The substituted version of H.B.5148 passed the House on June 10, 1992. This watered-down version was then sent to the Senate. In the Senate the bill was assigned to Senator Jack Welborn's Family Law, Criminal Law and Corrections Committee. That committee scheduled hearing in July of 1992 and presently is scheduled to move the bill out of committee on September 15, 1992. Hopefully that committee will have restored some of the critical language needed to make this a sound law. Only time will tell.
It may seem that the sad story of the obscenity law in Michigan is a Republican versus Democrat battle. We did not intend to make it that way. In reporting the facts it is apparent that party politics have played a role. Just how significant a role we leave to the opinion of the reader.
As politicians bristle under discussions of term limitation and other anti-incumbent proposals, maybe they should review the story we have just told. Why did it take 12 years after the Miller decision to bring our law into conformity with that decision? Why are we still struggling almost 20 years later with a law that had to be amended in order to be usable?
As in every field, there are some who get things done and others who don't. As citizens it is our duty to discern who is who.
Note: On October 8, 1992 Governor John Engler signed Public Act 216 of 1992, Enrolled House Bill 5148, into law. That bill was the first legislation to pass since 1984 dealing with obscenity in Michigan. The amended law became effective on April 1, 1993.