There’s no such thing as ‘serious’ artistic value. It’s either art, or it isn’t. It was literally invented by the majority in Miller v. California as a means to present the illusion that the test was capable of being objective. I think both common sense and an objective understanding of the facts surrounding these things should have been enough to warrant the SCOTUS recognizing both the futility and the patent wrongness of trying to objectify that which is arbitrary.
Art and artistic value DO have a serious, objective definition. And that objectivity revolves around the dictionary definition of ‘art’.
the expression or application of human creative skill and imagination, typically in a visual form such as painting or sculpture, producing works to be appreciated primarily for their beauty or emotional power.
Basically, if it’s a deliberate, tangible work of creative expression, it’s art. It could be a sketch of a tree, a photograph of a naked woman posing lasciviously, or a cartoon depicting acts or things that would be exploitative and abusive for the sake of expressing or satisfying sexual feelings. It’s art, and these aspects are what give it “serious” artistic value.
It’s a known fact that many people, namely conservatives will evade dignifying that which they take offense to or simply do not take seriously by regarding them as “art”, but that decision to do so does not change the fact that it is, objectively, art. The fact that it generates such a visceral reaction from them may even be indicative of an artistic function.
The big issue with the obscenity doctrine is that, unlike other forms of speech not protected by the First Amendment which are based on some tangible harm or effect that justifies or necessitates their exclusion from the marketplace of ideas, obscenity is based solely on an ideological or preferential position, and that fact alone is, if anything, what warrants obscene speech being PROTECTED!
If the First Amendment means anything, it means that it doesn’t pick favorites in the marketplace of ideas. It allows all ideas to stand and exist on their merits, regardless of their social value.
There is no meaningful difference between obscene speech and indecent speech.
I agree, I don’t the criterion for obscenity can ever be objective, and I also don’t think it matters. Obscenity doesn’t need to be reformed, it needs to be thrown in the dustbin.
The notion that your outrage over the mere existence (laws already exist against public display) of media that you find offensive somehow supercedes the constitutional rights those who produce and consume it is absurd. And it could not be more contrary to at least the spirit of the first amendment.
So basically all art is legal. Is that what you are saying?
It seems like the Miller test was a way to make obscenity legal without being explicit about it. “It’s illegal, but it isn’t. We don’t care. The courts can decide that locally and case by case”.
Pretty much, prosecutions under miller or PROTECT are very very rare. In that I can only think of a short list of documented cases in the 40+ years the former has been law. There may be more, but I admittedly don’t know.
The subjective nature of it does mean that it can very much be weaponized provided sufficient motivation and werewithall. And It’s mostly high profile hoster’s of online fiction that got on their municipalities shitlist that that get hit with Miller.
I personally don’t think our rights, or in fact anyone’s rights should be secure only by virtue of lack of motivation from the government. Because with how volatile things are in the states currently, that’s something I could very easily see changing.
But why isn’t there a lot of motivation? The way I see it: the police will go after you if they they think you broke the law. They will take any chance they get to punish someone.
I agree with everything you said. I think it’s patently obvious to me now that the Miller test is bullshit of the first degree. It is essentially the supreme court saying porn is legal, but it isn’t, and that they don’t care.
“Mehhh… idk, might be art or literature. Next!”
What are good books and authors that talk about porn as an art form? Please suggest?
There is no such thing as serious artistic value. And postmodern art vindicates that. If a banana pinned to the wall is art, if a toilet is serious art, then a cartoon of a dog inserting his dick inside a female 4 year old’s vagina is serious art.