DN Editorial: OUTSIDER'S APPEAL

WITH ANY LUCK, we may never hear from Attorney General Kathleen Kane on Porngate ever again.

Yesterday, Kane took to the stage of the National Constitution Center to announce she is appointing a special prosecutor to investigate emails containing offensive and pornographic images that were sent and received among judges, lawyers and law-enforcement officials.

There has been no question that some kind of independent investigation is sorely needed - not just because of the disturbing nature of the emails, but because "Porngate" has been inextricably linked with Kane's own battle to stay in office. She has been widely considered to be using the emails as a political tool in her personal fight, releasing some and refusing to release others over what feels like the longest year in history.

The choice of Douglas Gansler, former attorney general of Maryland, is the right one, at least from the standpoint of his lack of a Pennsylvania address. Given the interlinked relationships among the emailers, it was important to appoint an outsider with no apparent agenda other than getting at the truth. Presumably that truth includes how large the email chain is, and whether other inappropriate communication has occurred among judges, lawyers and prosecutors.

The announcement yesterday not only introduced Gansler, but also introduced two new potential strategies for pursuing Porngate. Both Kane and Gansler made reference to potential constitutional offenses. If judges, lawyers and prosecutors are colluding and communicating beyond their shared interest in pictures of naked women and people having sex, that's a big problem in ensuring people the right to a fair trial.

Gansler also made explicit reference to the fact that he'd be pursuing potential ethical and criminal violations. The criminal aspect of sending pornographic emails is where it could get interesting. A state statute governs the legality of selling, distributing or transmitting obscene material.

With the exception of child pornography, though, pornography-related obscenity prosecutions are rare - colliding with censorship and the First Amendment. Materials are subject to the "Miller test," so named for a 1973 U.S. Supreme Court ruling. The Miller test has three standards: 1.) Whether the average person, applying contemporary adult community standards, finds that the matter, taken as a whole, appeals to prurient interests; 2.) Whether the matter depicts or describes sexual conduct in a patently offensive way; and 3.) Whether a reasonable person finds that the matter lacks serious literary, artistic, political or scientific value.

Material that satisfies this test may be found obscene and not protected by the First Amendment.

If this special prosecutor pursues the criminality of the emails in question, that will give rise to a host of complicated questions: What are "contemporary adult community standards"? Who decides? Are pornographic emails more problematic when they're shared among law-enforcement officials - even Supreme Court justices - or should community standards apply to all? We hope Gansler works as transparently as possible so that the public can be part of this discussion, and these questions aren't relegated to a dark, seedy corner somewhere.