Pornography DOES have "serious artistic value"

One of the major flaws I find with the obscenity doctrine is its “serious” value requirement, or requirement of a lack thereof. Serious scientific and political value are fairly objective standards, but “serious artistic” or “serious literary” value seem to be problematic, to the point where the term becomes conflicting and oxymoronic.

Artistic value, as we’ve come to define the phrase, in addition to the word “art” have become so vague and subjective that it’s almost completely arbitrary, and that’s a good thing. Whether or not it has that appeal is completely up to the person viewing or making the material. Art is expressive, art is both material and immaterial. To attempt to define it objectively is an exercise in futility.

That being said, there is no rule which states pornography, for its own sake, isn’t or cannot be a form of art. There are plenty of biased, prudish arguments which claim that it isn’t or can’t be, but these arguments all make the mistake of attempting to objectively quantify or define “art” with the deliberate goal of carving out an arbitrary exception to the rule, for the sake of satisfying an arbitrary distaste for the subject matter.
Pornography, by its very definition, IS a form of art. It may be raunchy and crude, it may even be crass, low-effort low-grade gutter trash or something horrid and decrepit. But the mere fact that it’s an audiovisual or text-based work designed to communicate, excite, human sexual desire precludes it from being discounted as a form of art.

“Serious” artistic value is a vague and problematic invention, but one we have to tackle for the sake of argument. Am I to assume that the visual aesthetic of an Andy Warhol painting constitutes “serious” value, as opposed to an erotic Japanese comic book or cartoon simply because somebody else said so? Such a heavy-handed application of a one-sided concept only demeans and undermines the very concept of art and artistic value.
In any case, pornography on its own does meet the requirements for “serious” value on the fact that it is a deliberate and eloquent form of expression. Whether it appeals to a restricted, narrow interest in sex or sexual activity for the sake of gratification or excitement does not preclude it from having that serious value, rather, it is because of that it acquires it.

As far as paraphrasing goes, I think it’s safe to say that nothing good has come from the obscenity doctrine. The way it tries to supplant facts and truths with mere opinions and conjecture, turning our First Amendment into a game of semantics, only further necessitates the need for more dialogs on the issue. What’s already been said can just as easily be said again or expanded upon, and the fallacious idea that pornography lacks artistic value is a fine example.

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One could argue if Warhol’s Soup Can has artistic value.

Or those Saw movies…

And if yes, why?

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A specific point of contention I’d like to bring up is this unsettling excerpt from the dissenting opinion by Justice Breyer in Ashcroft v. ACLU (2004), a case dealing with the constitutionality of COPA, an unconstitutional law which sought to force pornographic websites to apply age verification filters to keep out minors that was ping-ponged between the US court system before being finally laid to rest in 2008.

Both definitions define the relevant material through use of the critical terms “prurient interest” and “lacks serious literary, artistic, political, or scientific value.” Insofar as material appeals to, or panders to, “the prurient interest,” it simply seeks a sexual response. Insofar as “patently offensive” material with “no serious value” simply seeks that response, it does not seek to educate, it does not seek to elucidate views about sex, it is not artistic, and it is not literary.

What Mr. Breyer gets wrong in this summary is that it explains exactly why pornography is artistic and literary, especially with his point about ‘eludication’.
Pornography, whether it’s a page from a Hustler magazine or a grainy, low-resolution 2 minute video depicting sexual intercourse between a man and a woman, or a text-based erotic story or visual cartoon, is that it perfectly elucidates views about sex by way of visual illustration or text-based description. Clearly, this media does ‘pander’ to an interest in sex, which is just another way of saying sexual desire or sexual interest. It is quite literally an illustration of it.
The purpose of art is to express or communicate something via human creativity or skill, typically in the form of an audio-visual or text-based work with which an audience can engage with. By Justice Breyer’s own summary, he explains why pornography IS a form of art.

The terms ‘prurient interest’, ‘patently offensive’, and ‘no serious value’ are also not critical. They all suffer from the same fatal flaws, in that their vagueness and subjective, almost arbitrary nature render them functionally meaningless as a matter of policy and jurisprudence, which are supposed to be objective, clear, and well-understood. Deferring to ‘community standards’ is equally problematic because, as I’ve stated previously, ‘community standards’ cannot be articulated or understood with the level of precision and objectivity necessary to satisfy the requirements of the law. Community standards are also not required to be consistent, or even reasonable, as LGBT-oriented pornography depicting same-sex participants has been observed to be offensive to said standards, as we’ve also seen with interracial pornography, ‘Satanic’ themed material, and simulated pedophilic material. all of which are things the Constitution protects.

Pornography IS art. The mere fact that it panders to an interest in sex makes it art. Nothing about sex or sexual desire precludes it from being a valid artistic subject.

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My problem with the whole aspect of ‘‘does it have artistic value’’ is the question ‘‘who determines if something has artistic value?’’

Art is a human construct as is value and thus artistic value is not based on objective truth, therefore no one has the right to dictate whether or not something has artistic value and laws should not be based on such a weak and hollow concept.

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I was looking up Quora posts discussing the art-porn debacle, and I found one that I found particularly agreeable.

As I’ve said so many times (and will keep saying it), just because something is geared towards stimulating sexual feelings or urges does not make it not art, but is what makes it art. Pornography is creative. Pornography is about an idealized aesthetic, bringing to light what appeals most, artists who create lewd content put emphasis on anatomical references and here is where the creativity comes in - they not only emphasis anatomy but artists idealize and even stylize it to complement the form of the figure depending on what they’re trying to achieve whether it be a warm ambience with soft light embracing a smooth clean skin tone with highlights or brutish tones with clear cut corners. Different forms have different appeals for example circular, spherical and oval shaped forms compliment the feminine while corners, squares and box forms compliment the masculine.

If that isn’t art, then nothing is art. There has to be objectivity and consistency with how these terms are defined and applied. I’m not saying th Oxford dictionary is wrong, I’m simply saying that you’re misusing it. Art, as a concept, is transcendent.

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