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Opinions Fri, 31 Jan 2014

The Intersection of Communication and Law:

Revisiting Wadie v. the Republic of Ghana through the Lens of American Jurisprudence

Abstract

This paper examines the arrest of Mr. Omari Wadie, an activist of the opposition New Patriotic Party (NPP), by the Bureau of National Investigations (BNI) in Ghana, for posting nude pictures of the President of Ghana, John Dramani Mahama, and his supposed girlfriend in a sexual act on Facebook. The pictures were believed to have been doctored. The case is examined through the lens of American jurisprudence. The question is posed: “What would have been the outcome of the arrest and prosecution of Wadie, if it were in the United States?”

In an attempt to answer the question, this paper examined two judicial precedents: Roth v. U.S., Miller v. California, and Reno v. ACLU, in light of Wadie v. the Republic. As a preemptive effort, the paper also examined what would have happened in a libel or breach of privacy case in torts or criminal prosecution.

The result is that Wadie v. the Republic, through the lens of American jurisprudence, has more likelihood to be thrown out of court than to become a newly-established legal precedent.

Introduction

As the Internet makes its forays into fledgling democracies, its potential challenges to the traditional media and the legal ecology of such countries cannot be underestimated. This is because some of the rules and regulations that govern the media in some of those countries were designed for the traditional media; but with little modification or no review of such laws to accommodate the peculiarity of the swiftly evolving world of the Internet, these countries have to deal with some of the challenges that come with the adoption of the new technologies – examples are: defamation, spreading of obscenity, impersonation, and even threats to national security.

Nowhere are these challenges more apparent than in social media – Facebook, My Space, Twitter, etc. Whereas in the traditional media, gatekeepers – editors, journalists, and columnists – are mostly held accountable for defamation-related cases, and so could be restrained from publishing what is considered a threat to national security or be punished for defamation. The important point is that these individuals are known to have had some formal training in media and communication law and ethics. That being the case, one would expect that as professionals they would be better placed to understand the impact of decisions they make to publish or not to publish materials that could be deemed controversial.

With regard to the new media, however, individual participants, whether they are aware of the implications of what they publish or not, are publishing materials that might be considered obscene, defamatory, and even impersonating. The hyperlinks of the Internet and its exponential reach even make it difficult to track the origin of some of these publications that might be considered unwholesome and unlawful. Let us consider a situation where a Facebook user is tagged with a material which originates from a country with a different legal regime. Who then becomes liable for punishment? Is it the Facebook recipient who is tagged with the material who must be punished for the obscenity he did not engender or the originator of the material? Do countries have the ability to track down the originator who is neither located in the recipient’s country nor a citizen of the recipient’s country? These and many issues come up for discussion in this paper.

Since it is difficult to access any legal rules that govern the spreading of obscenity in Ghana over the Internet, I examine this issue under American jurisprudence to determine what could be the likely outcome were the case tried in an American court.

Case

On May 27, 2013, the Bureau of National Investigations (BNI) in Ghana, an equivalent of the Federal Bureau of Investigation (FBI) in the United States, arrested a party activist of the main opposition New Patriotic Party (NPP) in Ghana, Mr. Omari Wadie, for allegedly posting a doctored photograph of the President of Ghana, President John Dramani Mahama, in a sexual act with a woman in his office, on his Facebook wall. The BNI arrested him at Ghana’s Kotoka International airport in Accra upon his arrival from a trip to London.

Wadie was initially charged with offensive conduct by the bureau, sometimes referred to as the Secret Service of Ghana. The charge sheet was later revised, replacing the charge of offensive conduct with the spreading of obscenity about the President. As usual, the arrest, detention, and the proffering of charges against him became a political issue; with the opposition imputing government machination into the arrest, while government attempted to distance itself from the arrest and detention.

Beyond the partisan interpretation of the event, questions of the law and its interpretation came into focus. Since Ghana’s laws regarding communication and freedom of speech are still based on frameworks designed to regulate the traditional media (I am unaware of any recent promulgations or rulings of the Supreme Court and its appendage lower courts with regard to obscenity on the Internet) , the challenges posed by the Internet and its new media environment become very glaring. Wadie claims he did not produce the photoshop-doctored nude picture of the President and his supposed partner, but he was only tagged with the material. What if the material had originated from outside the political borders of Ghana and had traversed multiple jurisdictions in cyberspace before finally landing on the Facebook wall of Wadie? Would the security services have the capacity to track the path the material had traversed and punish all those who participated in spreading obscenity about the President of Ghana? What if the material is a product of Wadie’s prurient imagination? Would this then have made him responsible for spreading obscenity? Would the security services go out there in pursuit of all the nude pictures of public figures, including the opposition leaders whose nude pictures have made it to cyberspace, too? What measures will be applied in treating this case in ways that ensure that fairness and reasonableness (especially in the face of developments in new media are concerned) are established as precedent for future interpretation, so that regardless of the government in power, one can pick up the law books and make interpretations and predictions with some level of precision until a precedent is set?

As it were, the law on the Internet is not clear in Ghana. My understanding is that the regulations that governed the traditional media in conjunction with cultural edicts on obscenity might be handy in disposing of this case. But for the purpose of this paper, I wish to view this case in light of American media law to examine how this case would have been determined under American jurisprudence.

Analysis of Case

If there is any word in U.S. law books that has generated controversies throughout U.S. legal history – from colonial times to contemporary times – then it is the term “obscenity” and its interpretation in law since its appearance in the legal codes of the federation. The word made its foray into the legal lexicon of the North American colonies as early as 1712. The Massachusetts colonial edict banning the publication of “any filthy, obscene, or profane song, pamphlet, libel or mock sermon” is precisely a historical document in understanding the history of obscenity from its colonial origin of British common law (Belmas and Overbeck, 2012, p. 420 – 421). But the word has been shrouded in controversies of definition and interpretation, making its application an onerous one for the courts throughout the history of the federation.

Decades after independence, edicts against obscenity were firmly rooted in the legal codes of the United States. The Tariff Act of 1842, “designed to restrict the flow of obscenity, expanded in 1857 to include prints, paintings, lithographs, engraving and transparencies; and a 1873 law which empowered the U.S. Post Office to banish from mails any “obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publications of an indecent character” were early attempts to prohibit obscenity in the U.S. (Belmas and Overbeck, 2012, p. 412).

Roth v. U.S. (354 U.S. 476, 1957) is, however, seen as a landmark ruling for the important reason that the Supreme Court attempted a definition of obscenity on this occasion and also upheld the conviction of Samuel Roth by a lower court. Roth was convicted under federal law for mailing various erotic materials and nude images that federal prosecutors found to be obscene (p. 422).

In the ensuing ruling, the Supreme Court held that obscenity falls within the purview of community standards. To this end, the question is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest” (p.423). In the same ruling, the court made it explicit that obscene materials are not protected by the First Amendment.

If we are to place the case of Wadie spreading doctored pictures of the President John Mahama under the precedent setting case of Roth v. U.S., it is clear that the prosecution would achieve a conviction, considering the precedent of Roth v. U.S. at its face value. But as we begin to consider the dimensions of the Internet, the definition of obscenity and its application through time would differ depending on the person who is affected by such doctored images or obscenity.

The definition, interpretation, and the subsequent application of the law in obscenity cases from the landmark Roth v. U.S., have been problematic. Belmas and Overbeck (2012) point out that the case produced the first series of dissenting opinions with regard to obscenity. Justice Hugo Black and William O. Douglas took an absolutist position about the First Amendment. They argued that the First Amendment protects even obscenity. “Thus, criminal prosecutions based on the content of the materials – or the bad thoughts they allegedly inspire – should be unconstitutional” (p. 423). The implication of this dissenting opinion on the obscenity edict was the reversal of obscenity convictions, leaving the courts and the nation in a limbo with regard to the constitutionality of obscenity. In a nutshell, there were many Supreme Court reversals as there were convictions of the lower courts. In this regard, even if Wadie was convicted per the precedent of Roth v. U.S., it is obvious that the Supreme Court would have overturned the judgment.

By 1964, it became even more difficult to delineate the meaning of obscenity in clear terms, as the judges continued to take divergent positions on the constitutionality or otherwise of obscenity. In Jacobellis v. Ohio (378 U.S. 184), the definition, interpretation, and application of obscenity law produced further dissention. First, the Supreme Court Justice, Potter Stewart’s famous phrase, “I know it when I see it,” following which he refrained from defining in explicit terms what constituted obscenity only goes to underscore the difficulty even for the judiciary in defining what is deemed to be obscene. There are no doubts whatsoever about the lack of agreeable definitive parameters within which he could convey the term to win the consensus of his colleagues. On the back of that, one can argue that his own subjectivities in determining what constitutes the obscene cannot be ruled out of any interpretations, based on what he alone sees as obscene. Although many hailed it as a famous opinion in the legal battle to define obscenity by the Supreme Court, I argue that it rather underscores the inability of the highest court of the land to reach consensus on the term on which prosecutions would be based.

Second, the Supreme Court’s attempt to address the issue of community standards using Jacobellis v Ohio only deepened the crisis of agreeable definitional parameters for interpretation and application. While Justice Breman, writing for the Court’s plurality, argues for national standards on obscenity, saying, “The federal Constitution would not permit the concept of obscenity to have a varying meaning from county to county,” Chief Justice Earl Warren argued that local community standards are precisely what was intended in Roth. “Communities through the nation are in fact diverse, and it must be remembered that, in cases such as this one, the Court is confronted with the task of reconciling conflicting rights of the diverse communities within our society,” he pointed out (p.424). Nico Jacobellis was a theater manager convicted of violating an Ohio law by showing an allegedly obscene French film, Les Amants. The Supreme Court reversed the conviction, ruling the film non-obscene. To the extent that the Supreme Court failed to reach consensus on the definition, interpretation, and application of obscenity, one can argue that its enforceability was problematic and unworkable in securing convictions.

For a brief period, the problem of definition, interpretation, and application seemed resolved under a new legal test, Miller v. California (413 U.S. 15). The case arose when Marvin Miller conducted a mass mail campaign to sell “adult” materials. Five of his brochures were sent to a Newport Beach restaurant, California, and recipients complained to the police. Miller was convicted for violating California obscenity law and he appealed to the U.S. Supreme Court. The Supreme Court took the occasion to write a specific new test for obscenity, bringing the period of ambiguous definition, interpretation, and application to a closure, but only for a time.

The new test stipulated the following for interpretation and application in cases of obscenity:

1. An average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest;

2. The work depicts or describes, in a patently offensive way, sexual conduct, and the applicable state law specifically defines what depictions or descriptions are prohibited; and

3. The work, taken as a whole, lacks serious literary, artistic, political or specific value.

By the foregoing test, the high court must have overcome the period of ambiguity that characterized the interpretation of obscenity. The issue of national standards was also addressed. In abandoning national standards test, Chief Justice Warren Burger pointed out that “It is neither realistic nor constitutionally necessary to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City” (Belmas and Overbeck, 2012, p 428).

Viewing Wadie v. the Republic from this three-prong test, the case is not unlikely to attract a conviction on the first two requirements—the test of state standards and the prurient test—if we are to place this incident in the historical context of Miller v. California. On the third part of the requirement, however, prosecution is most likely to fail the test of “political value” even within the historical context of Miller v. California. Even if the alleged materials pass the first two requirements of being classified obscene, its satirical characteristic underscores its political value. In this regard, the following questions of public interest and of political value may arise:

1. Does the sexual history of the president provide ammunition to Wadie and any other

curious citizen to depict him in such a manner?

2. Taken even as obscene, does the material suggest an extra marital affair on the part of

the President? If it does, can the President deny it?

3. If he does deny it, what does his history suggest? Being a public figure of the first

order, it is unlikely that a U.S. court would hand a conviction in this case.

The problem only became more complicated with the advent of the Internet. While earlier attempts – colonial and postcolonial – to punish obscenity involved the U.S. Postal Services, the borderless nature of the Internet makes it even more difficult to track the origin of materials that might be considered obscene emanating from foreign countries. It would be an onerous task in securing the cooperation of some foreign countries in punishing culprits who spread such materials.

It must be precisely the difficulty of seeking international cooperation in prosecuting obscene cases, the technological ease of duplicating and doctoring of images, and wider issues of free speech that conjointly killed the Congressional Act that sought to control obscenity on the Internet. As a byproduct of the Telecommunications Act of 1996, the Communications Decency Act of 1996 banned obscenity on the Internet. It also outlawed the availability of indecent materials on the Internet to minors. However, amidst a worldwide online protest of government censorship, Reno v. ACLU (1997) struck down the CDA Act of 1996 as unconstitutional, endorsing the principle of self-regulation for the Internet. The CDA Act of 1996 was quickly replaced with the Child Online Protection Act (COPA), which could be said to be narrower in focus, targeting obscenity on the Internet which might affect minors. But this law never took effect, as it suffered three separate rounds of litigation leading to a permanent injunction against it (Huffman et al., 2007, p. 99).

An interesting observation by Huffman et al. (2007) was that in striking down the law, there was a return to “the laws that apply to obscenity in traditional media to be applied to obscenity on the Internet” (p.99). The implication, having examined the edicts on obscenity right up to the advent of the Internet, is that Wadie’s alleged posting of President Mahama’s nude pictures on Facebook would again come under the interpretation and application of obscenity laws that prevailed before the advent of the Internet, precisely Miller v. California. However, based on an overview of the interpretations and applications of obscene laws by the Supreme Court in this discussion, it would mean a return to the three-prong requirement test for prosecution.

According to Fee (2008), this only leads to new challenges of whether the community standard test would stand the test of the Internet. Would it be fair to hold publishers on the World Wide Web [Internet] to the most restrictive community standards in the nation? Or it is necessary for every community connected to the Web to lower its standards to those of the most tolerant locations? Fee (2008) poses the questions of geographical interpretation, cultural relativism or uniformity, a return to the contentions before Miller v. California and the advent of the Internet (Fee, 2008, p. 1693).

I will introduce three important assumptions into this discussion. First, if we work with the assumption that Wadie’s claim was true, that he was not the originator of the photo but was only tagged with it on Facebook, the question of responsibility is introduced into the equation. Even if the material originated from the same jurisdiction, tracking it back to its originator might be an onerous task for a security agency whose operatives lack the knowhow on these issues. Assuming that the originator, aware of the obscene nature of what he or she was about to unleash on the network, chooses to send it from a library or an obscure Internet café in a street corner somewhere, where his or her identity cannot be verified. With the material traversing myriad of sites before finally landing on the Facebook wall of the accused, it would be a daunting task to locate the originator and to bring him or her to justice.

In another scenario, whereby the material originated from a foreign country, it would again be difficult to proceed with a prosecution without the cooperation of the country of origin of the material. Assuming the material originated from Iran, Venezuela, or even Britain, with different laws on obscenity coupled with traditional hostilities between the US and some of these countries, it would be difficult to proceed with a prosecution (Huffman et al. 2007).

Under the second assumption, let us posit that Wadie self-doctored the image of President Mahama and his alleged partner with traces left on his computer memory and Internet cache, a clear indication that he is responsible for publishing the material. Even with this postulation, the Supreme Court 2002 precedent suggests that Wadie would have been acquitted and discharged. A quick jaunt on the Internet reveals all manner of bubblehead dolls depicting various public officials, including George W. Bush, Bill Clinton, Hillary Clinton and John Kerry, among others. President Barack Obama is even portrayed in an act of sodomy with Osama Bin Laden and David Cameron. This is, perhaps, in reaction to his endorsement of same-sex marriage. What could be more insulting to the image of Obama than this?

In 2002 the U.S. Supreme Court reversed the provision of the Child Pornography Prevention Act that banned computer-generated images and other images that “appear to” depict a minor engaged in a sex act. Ruling in Ashcroft v. Free Speech Coalition (535 U.S. 234), the court voted 6 – 3 to overturn that part of the law. Writing for the majority, Justice Anthony Kennedy agreed that, “the child Pornography Prevention Act was overly broad and vague. Congress had tried to justify the ban on computer simulations on the ground that while no actual children were exploited in the creation of such images, real children could be harmed because the images could feed the prurient appetites of pedophiles. But Kennedy’s majority opinion upheld [supported] a lower court’s conclusion that the government had failed to show a link between computer-generated images and the exploitation of children” (Belmas and Overbeck, 2012, p. 432).

In two other important cases: Oregon v. Barger (247 P.3d 309) and People v. Gerber (196. Cal. App. 4th 368, 2011), the decisions of lowers courts in convicting individuals accused of obscenity in relation to computer-generated images were overturned. In the case of the former, Barry Lowell Barger was convicted for possession of child pornography by a lower court when investigators found eight child porn images in the cache of Barger’s computer. But the state Supreme Court overturned the ruling, arguing that “navigating to a website and bringing the images that the site contains to a computer screen are not acts that the legislature intended to criminalize (Belmas and Overbeck, 2012, p.443). In case of the latter, Gerber photo-edited and altered pictures of women he had collected from the Internet by replacing a woman’s head with his girlfriend’s daughter’s head and was convicted by a lower court. But the decision was overturned by an appeal court because the image of the head was merely pasted onto another body (Belmas and Overbeck, 2012, p. 449).

Leading from the above, a third assumption, of double-prong significance, may arise. In the first instance, assuming the photos were undistorted (so they carry some truth at the insistence of the publisher), a journalist might invoke a reporter’s privilege, “a concept that a journalist should be exempt from being forced to testify about his source of information” in a breach of privacy or libel suit, should the affected individual sue for either of the two (Belmas and Overbeck, 2007, p.132). In this instance, however, Wadie is not a journalist who could claim such protections under the law. This first part of the third assumption then dovetails into wider social, political, economic, and cultural restructuring of our lives around the virtual network, an issue that will dominate the media and the legal scene in the foreseeable future.

As the Internet and computer technologies become more and more integrated into our lives, their impact—through social networks such as Facebook, My Space among others—is evolving, posing challenges to our traditional understanding of media laws and regulations. But as the law currently stands, Wadie would still have been acquitted and discharged. In Finkel v. Dauber (906 N.Y.S. 2d 697), Denise Finkel brought a case against officers/administrators of a Facebook page who posted a prurient message Finkel considered as referring to her. In the court’s opinion, “the statements can only be read as puerile attempts by adolescents to outdo each other… and do not constitute statements of facts” (Belmas and Overbeck, p. 142).

Integrating the foregoing with “public figure” and statement of “opinion defense,” a libel or breach of privacy case might even be weaker, if President Mahama and his lawyers decide to pursue that line of action. This is due to the fact that President Mahama, as President, is a public figure of the first order, and must bear the burden of proof to prove “actual malice.” Belmas and Overbeck (2012), however, point out that “proving actual malice is usually so difficult that a few libel cases are won by public officials or public figures, the people who must prove actual malice to win any libel case that involves an issue of public concern” (p.153). In its statement of opinion, the Supreme Court in Gertz’s decision said, “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Closely following that is the case of Philadelphia Newspaper v. Hepps. In this case “the Supreme Court held that libel plaintiffs must prove the falsity of any allegedly libelous statement, at least in matters of public concern. And because opinions by their nature cannot be proven to be true or false, an expression of opinion cannot be the basis for a successful libel suit” (Belmas and Overbeck, 2012, p. 138).

It must be noted that since the birth of the Internet with its burst of social media—with Facebook in particular—we have been inundated with all manner of image—the good, the bad, and the ugly. These images caricature the rich and the poor, high and low profile individuals, and public figures as well as private citizens. In this regard, there are nude and prurient photos of both the President John Dramani Mahama and the main opposition NPP leader, Nana Addo Dankwa Akuffo-Addo, and many other public figures circulating in social media. This being the case, this case might simply be regarded as a puerile attempt by political activists of both parties to disparage each other’s political figure or standard-bearer to score cheap political goals. This finds similarity in Finkel v. Dauber (2010 NY Slip Op 20292) with attempts by adolescents to outdo each other in the game of puerility. Furthermore, if the sexual life of the President is considered a matter of public interest, then a statement of opinion could be injected into the argument, should Wadie be found to have “photo-shopped” those photos.

Returning to the Internet, Section 230 of the Telecommunications Act of 1996 exempt third parties from liability for materials considered to be obscene posted by others on their network/blog, etc. “Under Barrett v. Rosenthal, Internet providers and users are exempt from liability for republications. Under cases like this one, the Internet remains a wide-open forum where messages can be freely forwarded to others, regardless of whether they may be libelous” (Belmas and Overbeck, 2012, p. 165 - 166). In this regard, Facebook owners cannot be prosecuted for tags considered obscene posted to their Facebook walls by a third party. Therefore, on the probability that the material was not originated by Wadie, the case of libel or invasion of privacy becomes weaker and weaker.

Finally, since neither President Mahama nor any of his personal assistants, acting on his behalf, are on record to have filed any suit in his name contesting the actions of Wadie in libel or breach of privacy suit, the final analysis of this paper rests with a brief discussion of the action of the agents of the state—the Bureau of National Investigation (BNI)—acting in the name of the state. In this regard, the case stands as a criminal prosecution in which the state must prove beyond reasonable doubt that Wadie’s action was criminal and culpable than would have been required in a torts case.

If this case is viewed as a criminal libel through the lens of American jurisprudence, it would even elicit the simplest and the most succinct discussion. According to Belmas and Overbeck (2012), although some states still have criminal libel laws on the books, they have rarely been enforced since the 1960s. In Garrison v. Louisiana (379 U.S. 64) and Ashton v. Kentucky (384 U.S. 195), the Supreme Court dealt serious blows to criminal libel. In the first instance, New Orleans prosecutor Jim Garrison severely criticized a group of judges, calling them sympathetic with “racketeer influences” and “vacationed-minded.” Garrison was prosecuted under a Louisiana law that made it a crime to defame public officials. The Supreme Court overturned the decision arguing “it was not permitted under the First Amendment unless it could be proved that he made false statements either knowingly or with reckless disregard for the truth” (p. 177).

In the second instance, Ashton circulated a pamphlet that attacked various local officials. He was prosecuted for criminal libel because the pamphlet allegedly threatened to cause a breach of the peace. The Supreme Court unanimously overturned the conviction, ruling the law overboard and in violation of the First Amendment (Belmas and Overbeck, 2012). It would, therefore, be difficult for criminal libel to withstand a constitutional challenge at this point in the history of the United States. In this regard, Wadie v. the Republic would have failed the legal test as a criminal libel in the United States.

From the foregoing analysis—based on precedents preceding the advent of the Internet and in the Internet era on obscenity, libel or breach of privacy—evidence suggest that, under the jurisprudence of the United States, Wadie would have been acquitted and discharged by the courts.

Socio-Cultural and Political Values and their Influence

While the analysis of obscenity, libel and breach of privacy are matters of law, obscenity has never escaped the socio-cultural and political values prevalent in society at each historical epoch. To the extent that its interpretation is influenced by the socio-cultural and political environment, its definition, interpretation, and application has not escaped the turbulence that characterized communication policymaking, implementation, and enforcement processes.

From the political perspective, we cannot insulate the definitions, interpretations and application of obscenity from the ambit and gambit of politics. Belmas and Overbeck (2012) informs us that “the Clinton administration generally did not make obscenity enforcement a priority.” Evidently, we can see a reflection of the political ideologies of each government reflected in these interpretations and applications. For example, “In 2005, a Justice Department official told the Associated Press that 40 people and businesses had been convicted in pornography cases in the first four years of George W. Bush’s presidency, with 20 more cases pending.” In comparison, there were only four such prosecutions in eight years of the Clinton administration (p.429). The implication is that, to some extent, the conservative and liberal views—per the ideological leanings of the Republican Party and the Democratic Party respectively—impact on the definition, interpretation, and application of obscenity. As the government of the day in Ghana, the National Democratic Congress (NDC) distanced itself from the arrest of Wadie, the question of its policy on obscenity remains unanswered.

Closely related to the political is the socio-cultural milieu within which obscenity is defined, interpreted, and applied. Two important postulations underscore the socio-cultural influence. First, there is always the attempt to safeguard socio-cultural values, an attempt that pitches free speech groups and conservative groups in a tango. Second, the protection of children from obscenity, itself a socio-cultural tenet, has also been a driving principle in obscenity cases. For example, in the case of protecting children from obscenity, a 1957 Supreme Court ruling overturned a Michigan Law in Butler v. Michigan (352 U.S. 380), which prohibited the sale of any book that might incite minors to commit depraved acts or corrupt their morals. In overturning the law, the Supreme Court noted that “States cannot quarantine the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence.” If that were allowed, the court opined that would “reduce the adult population of Michigan to reading what is only fit for children” (p. 424).

In the case of the general socio-cultural milieu, in 1958 and 1959 alone, the high court overturned obscenity rulings involving a collection of nudist and art student publications, a gay magazine and another magazine that contained nudity. The court also overturned a state statute prohibiting movies depicting adultery, a clear move toward liberalism. While the 1958 and 1959 decisions are clear indications that obscenity cannot be employed as a shield to stymied artistic work and adult discussions on adultery, etc., the prohibition by the lower courts exhibit what was feasible at the time as cultural artifacts of a communicative society (p. 424). Today, even images of President Obama, in acts of sodomy, are floating over the Internet, demonstrating the technological ease and the socio-cultural relaxation on matters of obscenity.

In the case of Butler v. Michigan (352 U.S. 380), a 2007 declaration of COPA as unconstitutional by Judge Lowell Reed Jr. in Philadelphia underscores why society should not be stymied completely from obscenity due to unfounded suspicions that obscenity would destroy the moral fiber of a section of its members—minors. Both Judge Lowell Reed Jr. and Justice Anthony Kennedy concur that the employment of filtering software may be a less restrictive way to keep harmful materials away from minors than censoring material at its sources, a situation that might burden the First Amendment. This is a pointer to the constant difficulty “to regulate the worst forms of obscenity for public welfare which does not at the same time deter speech of actual value to society” (Fee, 2008, p. 1693).

Conclusion

From the discussion thus far, evidence suggests that the definition of obscenity, its interpretation and application have been a contentious undertaking for the courts since the advent of the word in legal history. From the landmark Roth v. US through Miller v. California and Reno v. ACLU, it is clear that defining, interpreting, and applying obscenity edicts have been a difficult task for the courts. The result is that there have been as many acquittals as there were convictions by the lower courts.

Based on the aforementioned landmark cases and the preemption of a libel or breach of privacy suit, Wadie v the Republic was tested through the lens of the major legal precedents in the United States. It, however, failed the test of meeting the requirements to warrant a conviction. In this regard, Wadie would have to be acquitted and discharged or be used to set a new precedent in matters of obscenity by clearly setting its definition, interpretation, and application, if the action had taken place on a U.S soil.

Questions

1. What has been the outcome of Wadie v. the Republic in Ghana?

2. If the case is in a limbo, does it mean that we will wake up to it again someday when some government wants to use similar tactics to punish its adversaries?

3. Can we set precedents that can stand the test of time?

Bibliography

Appiah, E. (2013, May 28). This case will end nowhere, my client is innocent –

Omari Wadie’s lawyer. Joy FM. Available at:

http://edition.myjoyonline.com/pages/news/201305/106765.php

Belmas, G. & Overbeck, W. (2012). Major principles of media law. Boston, M.A.:

Wadsworth, Cengage Learning.

Fee, J. (2008). Obscenity and the world wide web. Brigham Young University Law Review,

6, pp. 1691 – 1720.

Heins, M. (200). Not in my backyard: The Internet threatens to make US obscenity law

unworkable. Index on Censorship, 38 (1), pp. 96 -03.

Huffman, J.L., Trauth, D.M., and Samoriski, J.H. (2007). Global Communication Law. In Y.R. Kamalipour (Ed.) Global Communication (pp. 201 – 224). Belmont, CA: Wadsworth.

Columnist: Tsikata, Prosper Yao