There is a disturbing trial being held in Zambia where the news editor of The Post, Chansa Kabwela, sent photos of a woman giving birth in a hospital car park without assistance to highlight the costs of a nursing strike and poor government policies. She was right. The officials, including Zambia’s President, Rupiah Banda, were horrified. They immediately arrested Kabwela for distributing pornography.

The baby died from suffocation and the pictures were quite graphic. No one at the trial seems quite as appalled by the lack of medical care that led to the death. It is taboo in the country to show a woman in labor.

Sharon Zulu, the arresting officer, told the court and jury “[w]e are all Zambian here. We all know this is not allowed in our culture.” Now that is a novel form of testimony — cultural lessons from a police officer. However, our community-based definition of obscenity is not much better given Former Justice Potter Stewart’s opinion that “I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it . . .” One of the most ridiculous legal standards ever uttered.

Under the Court’s decision in Miller v. California the Court uses a standard that is rife with local community bias. Chief Justice Warren Burger crafted the standard:

The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Of course, in the Zambian case, the photos may be offensive but they are hardly the most offensive thing in this case.

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