So that’s the standard for obscenity is the US. What I am wondering is whether a successful obscenity prosecution could be brought against a person for selling materials involving either interracial or homosexual sex, when such depictions would not be considered obscene without the interracial or homosexual aspect?
Does the fact that a state cannot prohibit homosexual or interracial sex prevent “community standards” being read such as to find depictions of the same obscene?
IANAL, but I think arguing that interracial sex violates community standards would run afoul of anti-discrimination laws. Plus it would be a major PR disaster for the prosecution, so I doubt they’d try.
Homosexuality, however, is not protected in most jurisdictions and it is entirely possible that a jury might look more harshly on works featuring homosexual sex. There is also the issue of legal precedent; certain types of sexual depiction have been found not-obscene in prior cases and thus get a pass for subsequent challenges. According to Wikipedia:
So depictions of homosexual sex acts, not having been part of a case where the right to such material was established, are still subject to obscenity prosecution if the prosecutor thinks they can make a case.
I’m not sure it would run foul of antidiscrimination laws. The standard for obscenity (which is a HORRIBLE piece of judicial work, IMHO) includes community standards. And there is no doubt that a community might find interracial sex to be sufficiently contrary to the mores of the community. And while homesexuality is not a suspect class, and homosexuals are often not protected by anti-discrimination policies, the state may not criminalize homosexual sex.
Yeeees, but the prosecutor or the jury would have to come out and SAY that to have it affect a case where the work is otherwise protected. At minimum, PR disaster, like I said.
But the state can criminalize obscene depictions of homosexual sex. Works can be (and are) judged obscene for depicting acts that are perfectly legal in private. Depictions of anal sex and blowjobs are not protected even in heterosex porn, and since gay men cannot have penis-to-vagina intercourse, the only guaranteed legal form of gay porn is “simple nudity”.
How are you defining “successful prosecution”? It’s quite possible some DA in a podunk part of the country could secure a conviction, but having it upheld on appeal is another matter (particularly once it enters the federal courts).
I don’t know if this is still the case but back when I was studying obscenity law the Supreme Court hadn’t actually upheld anything as obscene for many years. It basically seemed to be a concept that most of them weren’t willing to abolish but also weren’t really willing to make use of. So they invented a definition narrow enough to make it possible to exclude just about everything from… and then they could say “obscenity is still not protected by the First Amendment, but this isn’t obscene”. Of course the makeup of the SC was a bit different then.
Anyway, even if they are finding works obscene again I doubt they would upheld a law such as the one you envisage. The fallout would be too great.
Damn it - I posted a reply yesterday that was apparently eaten up…
Absolutely it would be a PR disaster. No doubting that.
Yes the state can - but obscene depictions of any kind of sex are criminalized. The problem is, the constitutional standard for “obscene” is based on community mores. And it is at least conceivable that a community might find man on man sex to appeal to prurient interests, while female on male sex not to.
It’s a horrible standard for a constitutional issue - it allows constitutional rights to be determined by the majority of the population in an area, which is the direct opposite of the point of the Bill of Rights.
I’m not arguing that the community couldn’t find the heterosexual acts obscene in video form. I know they could - but if they choose not to, could they find the similar homosexual act obscene when depicted. From reading the precedent, I don’t see any reason they could not. But I have never worked in that field.
ruadh - to me a successful prosecution is one that survives review. If SCOTUS would overturn such a law, on what basis? As far as I can see, they would have to overturn Miller. And while SCOTUS doesn’t uphold anything as obscene, people are still prosecuted regularly under obscenity laws. The cases just don’t get that far. Serenata67 - I had to google this gentleman to have the first clue what you were talking about. That is what passes for shocking these days? Christ on a bike, I feel old.
Actually, it came to mind more as a result of a conversation with an acquaintance in a bar who is in the adult entertainment distribution industry, specializing in gay porn. He is looking into online distribution, and I said that carries with it a lot of potential legal baggage.
Not necessarily. The Miller test has three parts. Even if a work was found to meet the first, it would still have to get past the second two.
Besides, law isn’t algebra. The SC can redefine its own terms as much as it wants, and is perfectly capable of holding that “community standards” doesn’t mean community prejudices against gay or interracial sex. It’s a mistake to think that just because the court has set out a particular formula means it has to always apply it rigidly. That’s not how these things work IRL.
IIRC, doesn’t the third item the “serious artistic merit” clause sort of give a blank check? Isn’t that the reason why porno movies have the lame setups with the cable man fixing the cable or the doctor screwing his nurse so that they can claim that the movie has artistic merit?
In other words, it is not just a film of nothing but fucking, they add that other garbage to satisfy condition #3, no?
That was the case under the Roth standard, which pre-dated Miller. Roth required that a work be “utterly without redeeming social importance” (emphasis added) to be found obscene. Miller requires that the work be “taken as a whole”, so in theory the scenario you outline wouldn’t be enough to save it.
In practice, however, you’re right that the courts usually manage to find artistic or political merit in everything they’re given to examine. As I said earlier, I really think they just want to stop finding things obscene without formally bringing obscenity under the First Amendment.