Justice Potter Stewart,who did not mean to be funny, said he could not defineobscenity but "I know it when I see it." The Supreme Court flip-flopped for decades, continually redefining obscenity, until, in 1973, it settled on the so-calledMiller standard,according to which obscenity is the subset of pornography which is prurient, patently offensive, and lacking insignificant scientific, literary, artistic, or political("SLAP") value.Therefore, obscenity is defined as a subset ofsomething which cannot itself be defined. This definition, constantly in use in the more than twenty yearssinceMiller, betrays a weakness in the rulebook,or rather, in the Supreme Court's implementation of the Americanversion of the rulebook.
A good Supreme Court rule is internally consistent, logical, and fair. TheMiller rule is none of these. It is a machine which gets its work done in a way that doesn't makeany sense.
Miller, like the case law before it, presupposes that obscenityis not speech and therefore not protected by the First Amendment.Note that this was not a necessary step to ban or regulate pornography;the courts could just as easily have determined that pornographywas less-valued speech. By holding it not to be speech at all,the courts laid the ground forMiller's most obviousillogicality.Miller defines expression as "not-speech" ifit is prurient and patently offensive, then throws logic to the windswith the SLAP standard. Since anything with SLAP value is, bydefinition, First Amendment protected speech, theMillerstandard really states as follows:
"Anything which is prurient, patently offensive, and not speech isnot speech."
Or you might try to save the standard by phrasing it like this:
"Anything which is prurient and patently offensive is not speech,unless it has SLAP value, in which case it is speech."
Even this definition would be somewhat like defining a bird as"any animal with wings except insects or mammals". It completely fails to define obscenity in terms ofwhat it is, rather thanwhatit is not.
Procedurally, the material being evaluated for obscenity becomes a sortof football. The prosecutor, claiming it is prurient and patently offensive, throws it out of bounds. The defense attorney, showing ithas SLAP value, throws it back in. Since under our system, everyoneis innocent until proven guilty, placing the burden on the defendantto show SLAP value denies due process of law. Proving the accused material to be "not speech" is a key element of the crime. The onusshould therefore be on the prosecutor to prove there is no SLAPvalue, not on the defendant to show that there is.
Another gross defect in theMiller standard is thatobscenity, rather than being defined in terms of some objective,internal qualities, is defined entirely in terms of how we react to it. We are otherwise left clueless as towhat it is.Prurience has been paraphrased as meaning that the material"turns us on", whilepatent offensiveness means that it also"grosses us out". Of course, how I feel about something may tell you nothing about it. A humorous example is the scene in Woody Allen'sManhattan where he states that two men are anti-Semites becausehe overheard one saying to the other "Jew eat?" and the other reply,"No, Jew?" The comment gives us insight into Allen's personage, butnone whatever into the intentions of the men he overheard. Obscenitylaw means that someone--the speaker of the illicit speech--can goto prison for the listener'sreaction or evenover-reaction,largely divorced from any actualintention of the speech itself. In a recent case, a student was convicted of ordering a videotape which portrayedclothed adolescent girls dancing. Since prurience and patent offensivenessare determined by the local standards of the community in whichthe prosecution takes place, nothing inMiller legally orlogically prevents a prosecutor from charging, or a jury from finding, that the kissing scenes inGone With the Wind are obscene.
Prosecutors have run into unusual difficulties in cases where thebehavior being described is so kinky that jurors do not find it a turn-on and therefore cannot satisfy prong one ofMiller. Forexample, shoe fetishism is something to which the average jurorcannot relate. Therefore, the prosecutor calls an expert witness to explain to the jury that someone--the intended listener--finds the speech in question prurient. This raises the insane paradox that speech can be held obscene if someone other thanthe jurors finds it prurient, but can never be found legal if someone other than the jurors finds it not to be prurient. Inother words, we will bring in the standards of others to persuade thejury to convict, but never to allow them to acquit (though thedefense is permitted, sometimes, to introduce experts to convince the jury thattheir own standards are other than what theythink they are.)
The free speech rule-book, as embodied in our First Amendment,avoids any content-based regulation of speech. If you are allowedto burn a flagor a cross, you are allowed to do so for all purposes. We don't havelaws saying that you can burn a flag to express something else but not to criticiseour country. The basic tenet of the rule-book, "there is no suchthing as an evil idea," means that we will not inquire into the contentsof speech. Obscenity laws flagrantly contradict this rule, making ourimplementation of the rule-book flawed. Why is sexual speech considered "not speech", while violent speech is protected? Thecontemporary form of cinema I call thegun play is prurient in its own way, appealing to our violentimpulses and even (in a lightly disguised way) to our sexuality. It isalso patently offensive by my standards. Why is it presumed to haveSLAP value, while sexual speech is presumed not to unless proven otherwise? Some inflammatory political speech also panders to baseinstincts and is patently offensive.The Turner Diaries, in whichpeople exactly like me are strung up from trees, might be termed political "obscenity", but is universally considered to be First Amendment protected. The American implementation of the free speechrule-book adapts the basic tenet to say "There is no such thing asan evil idea, unless it is sexual."
In software terms,Miller was a kluge, a bad hack. (Its application of community standards, whichI have dealt with elsewhere, is also senseless in an era of global networks andmass media.) An honest implementation of the free speech rulebook wouldlead us to the inescapable conclusion that obscenity, like pornography,cannot be defined. Then we could turn our attention to the only issue that makes sense: how to make sure that our children do not see material which,in our personal opinion, is hurtful for them. When the sole consequence of a community standard isthat parents and communities can decide what speech to listen to,and no-one goes to prison as a result, the rulebook will be functioning in its full glory.