In particular, I'd like to discuss the case of Jacobellis v. Ohio (378 U.S. 184 (1964)). So divisive was this case that six of the nine Justices wrote their own opinion. The opinions seemed to be (roughly) divided along positivist / natural law lines. The positivist side can be best represented by Justice Hugo Black, who thought that the First Amendment allowed for no censorship whatsoever. The natural law theorist side may be best represented by Justice Potter Stewart. Stewart's opinions on the matter can be summarized by the quote:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
It seems to me that Justice Black's opinion comes from a strict reading of what the law plainly is. Justice Stewart's opinion, by suggesting that defining the threshold of obscenity might be impossible, is implying that the threshold is defined by the individual.
Do you guys think it is possible to define obscenity? Or will it always be something that must be regarded in a more holistic, natural law-kind-of way?
I feel that obscenity laws are very difficult to define. I feel that the Miller Test, which is the current test being implemented today in these cases serves as a less than quality measure of what constitutes obscenity. This test which was derived from the Supreme Court’s decision in Miller v. California states that material is deemed obscene if :
ReplyDelete(a) "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, [Roth, supra, at 489,]
(b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) 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.
The problem with this test lies within the first prong when “applying contemporary community standards.” A recently decided case involving Paul Little aka “Max Hardcore” was decided in Tampa, Florida. Paul Little resided in California where he filmed and produced all of his pornographic videos and actually had never even been to Tampa, Florida before this trial. However, prosecutors were able to try Little in Tampa, a place that is obviously much more conservative than areas in California where Little produced his work. This is a direct example of prosecutors forum shopping in order to assure a conviction. This is the main reason I feel it is very difficult to define obscenity using the current test and feel that this practice of forum shopping should be regulated when trying these cases.
I think that
ReplyDelete(a) "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, [Roth, supra, at 489,]
is a reasonable way to define obscurity. On the other hand... the "average person" is a rough middle between two extremes that will never be satisfied. Have you even been to Spencer's Gifts? If people are offended they should avoid it. On the subject of advertisement and more public things, to wear less and less seams to be more and more acceptable. Censorship will forever fluctuate.
When it comes to the Tamp case, i think that is unfair. When it comes to obscurity and/or morality, you should be tried in the region that the "Crime" effected.