Saturday, July 19, 2014

Obscenity on Trial Part VI

This is Part VI in a series on One, Inc. v. Olesen, which dealt with obscenity laws.

Click here for Part IPart IIPart IIIPart IV, Part V

In this part I will be focusing on the modern jurisprudence in relation to obscenity. In the United States, court turn to the Miller Test to define whether or not a work is to be considered obscene. 

Prior to the Miller Test, the definition of obscenity more or less was non-existent as there were over 30 obscenity trials between 1966-1972, all with different standards. As previously discussed, the Roth Test had the most weight to it; however it was a deeply flawed test due to its incompleteness.

The effect of the Miller Test are that it clarified obscenity, liberalized obscenity laws, and reduced the number of obscenity cases.

To understand the effects of the Miller Test, it's necessary to under what it is.The Miller Test on obscenity can be found in the holding of Miller v. California, 413 U.S. 15 (1973):

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. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.

For a material to be obscene it must fail all of the three prongs of the test.

The first prong of the Miller Test is the Roth Test verbatim. It establishes who determines obscenity (average person), which standards (contemporary community), what material (ones with the purpose of giving a man a stiffy.)  My Black's Law Dictionary  is away from me at the moment, but a common definition of prurient is "that which incites lasciviousness or lust."

The second prong of the Test establishes that the obscene material must depict or describe sexual content as defined by the appropriate state law.

And thirdly it establishes that the material must be taken as a whole, and whether the material has relevant redeeming factor such as artistic, political or scientific value. The third prong is interesting as it is a check on the second prong, as it  makes sure that the state law isn't overly stringent.

Prong three is where the test becomes revolutionary.

The Miller Test, as it is stated, makes it easy enough for the adult film industry to tailor their material to fit the test. Films and naughty magazines simply need to mascaraed as art. I think the pizza delivery man's penis was a metaphor for the internal conflict of modern social conditions and  between the internal, animalistic drives of a rugged individualist with lube.

I posted the following video to YouTube which goes further into the circumstances of Miller v. California. It's perhaps a bit cheeky and the production quality isn't the greatest, but I recommend watching it if you are still interested in the matter.

I want to reemphasize that I am not a apologist for the Miller Court. I think obscenity generally is an unwarranted burden on free speech. What I respect about the Miller Test is that it improved the situation, and hopefully our legal structure will continue to protect artist from obscenity charges. But every once in a while a trigger-happy prosecutor will still unjustly target a pornographer on obscenity charges in a wave of conservative fervor.

Liam '14

Click here for Part IPart IIPart IIIPart IVPart V

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