Is sending porn illegal in Pennsylvania?

When Pennsylvania Supreme Court Justice Michael Eakin was facing suspension last week for the raunchy email on his private account, he apologized, but said at a hearing his conduct was “not criminal.”

Or was it?

Attorney General Kathleen Kane named Maryland Attorney Doug Gansler as special prosecutor to review the email in the porngate scandal earlier this month, and he was asked what crimes might arise from the material.

Among other offenses, he said, “You could imagine transmission of pornographic material.”

Wait a minute, you’re thinking. There’s porn everywhere, especially on the Internet.

Could it really be illegal to transmit porn in Pennsylvania?

Well, technically yes.

It’s right there in the state crimes code; it’s a third-class misdemeanor to “sell, lend, distribute, transmit, exhibit, or give away or show any obscene materials to any person 18 years of age or older…” (There’s a separate statute prohibiting distribution of pornography to anyone younger than 18.)

How bad does it have to be?

The definition of obscenity gets tricky — you have to establish community standards, and be sure the material lacks serious literary, artistic, political, educational, or scientific value.

Which means straight obscenity prosecutions are extremely rare, according to First Amendment lawyer Terry Mutchler.

“You probably would not see a handful of cases in which this is a standalone crime,” she said. “It’s, generally speaking, an add-on crime.”

It might be thrown into a case of sexual assault, for example.

I reached Gansler, who’s just getting starting his review of more than a million emails, and asked if he thought he’d try and bring obscenity charges.

Not so likely, it seemed, but the obscenity statute could affect judgments about whether an ethical violation had been committed.

Or, he said, passing smut could be “a crime in and unto itself.”

“It really depends on the nature of the pornography, and volume, and how much the person transmits,” Gansler said, “but as a general proposition, we’re not going to be going above and beyond what are the norms in a particular jurisdiction.”

Got that?

Don’t play with snakes

One more point of interest: Pennsylvania Supreme Court Chief Justice Ron Castille wrote an opinion last year concurring in the suspension of Justice Seamus McCaffery, in part because of his offensive email.

Castille noted that McCaffery had sent “an email depicting a naked 100-year old woman as the target of a sexually explicit joke and a video of a woman in sexual congress with a snake that is clearly obscene and may violate the Crimes Code section on obscenity.”

Maybe that suggests the relevance of the porn statute in the law: McCaffery wasn’t charged with violating the obscenity provision, but it provided a standard that helped to propel disciplinary action.