What I find to be so damningly wrong with the obscenity doctrine is that obscenity, by definition, is simply not a matter of fact.
It’s a matter of opinion, and opinions are simply not facts, regardless of how popular or unpopular it may be. You can’t turn an opinion into a fact. No test or criteria is capable of changing that simple truth.
Period.
What is so problematic about the Miller test is that it tries to objectively define an extremely vague, subjective, and arbitrary concept by using a string of criteria that are themselves, extremely vague, subjective, and arbitrary.
It attempts to reconcile the arbitrary nature of the criteria by beholding them to “community standards” and “reasonable person” perspectives, but that only furthers the confusion because those, too are also extremely vague and non-objective for their own various reasons.
- (1) whether the average person applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest;
- (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
- (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value
Without going into detail and deconstructing the flaws and serious discrepancies with each prong or aspect, I’ll just say this.
The only objective part about the Miller test is its focus on sex and the way it’s depicted or talked about. That’s it.
The rest are all opinions.
It is an opinion whether or not a work pertains to or appeals to an immodest or unwholesome interest.
It is an opinion whether or not something is “patently offensive” (despite the parameters being dictated by state law)
It is an opinion whether or not something has or lacks “serious” artistic or literary value.
It is an assumption whether or not these opinions are shared by your community. A vague, emotionally-charged assumption by which the interpersonal mores of a dissenting audience struggle to materialize in the form of words. The phrase “I know it when I see it” really does it no justice, but is nonetheless the only succinct way to describe the concept.
What is also vague, too, is the very term “community standards”. What does that even mean?
Am I to assume that a jury sitting in a courtroom is always truly representative of the mores, prejudices, or standards held by the population of a specific state, township, or municipality?
Do assumed majoritarian ideals or opinions suddenly carry more weight than rights and individuality if the topic of sex is involved, rather than just those specific individuals who happened to be within the jury pool and are registered voters?
What about the fact that communal diversity exists, wherein widely different cultures with differing practices, philosophies, and ideals homogenously exist in within cities, townships, and other communities?
Not even talking about race, ethnicity, or religion. Morals, ideals, interests, philosophies, and kinks exist too. Are we factoring that into the “community standard” as well or are we just going with who happens to fit the jury pool?
How am I to know that those standards are, for the sake of argument, fair and consistent with the First Amendment?? (hint: they’re not)
Is it really right that someone be put in prison for owning/selling/distributing pornography depicting interracial gay sex in a state where such things simply aren’t looked upon too fondly at the wrong point in time, in the wrong state??
I can assume most people in a community wouldn’t be personally bothered by the lack pornographic cartoons depicting fictional characters that are minors.
Or simulated rape, hardcore BDSM pornography, or any other niche fetish or interest.
But that’s just it, an assumption. I have my own feelings, experiences, and anecdotal knowledge to go by, sure. But to risk juxtaposing that assumption in a criminal law setting is beyond repugnant.
They also still aren’t facts.
Furthering my point about socially undesirable or “offensive” interests such as those of a pedophilic or offensive, shocking nature, these aren’t recordings of actual instances of, or real-life depictions of rape, abuse, or even child pornography. One could argue that they’re “immoral”, to fetishize graphic pedophilic imagery, but that point too falls flat because the immorality of speech isn’t a sufficient reason to justify censorship. While it’s true that morality may form the basis of most criminal acts, imposing morality for morals sake is not the role of the government, especially in the context of pre-established rights such as free speech.
These are films, books, and artwork created by and for consenting adults. They are artistically designed to express and titillate sexual desire in a willing audience whose right to have and express such desires are legally protected.
They do not incite, threaten, or pose a nuisance by their existence, nor are they the product of criminal acts or are in any way harmful to those who consume them.
The Constitution protects the right to have and express an opinion and tastes. The obscenity doctrine is nothing more than a bad-faith interpretation of Constitutional doctrine designed to empower zealous prosecutors and courts the ability to selectively and opportunistically cause severe, unwarranted, and unjustified injury to consumers and producers of material they simply find contentious.
Pornography is an artistic and creative form of expression that communicates and titillates sexual desire and eroticism. Whether or not it counts as “art” is a matter that’s still debated by artists and scholars.
However, as a matter of logic, pornography does fit the contemporary definition of art, therfore making it art.
The obscenity doctrine is antithetical to the Constitution and needs to be reexamined and discarded. There is no objective difference between “indecent” speech and “obscene” speech.
And if, through some argument there exists one, the law simply is not equipped to delineate it with any meaningful accuracy.
Criminal cases have always been based on objectivity and facts presented by the government to prove a defendent guilty of violating whatever law they’re being charged with. These facts are not subject to differing interpretation. They are representative of the truth, byproducts of consequence.
Opinions, such as those embodying the Miller test, simply are not that and do not belong in the courts.