In Miller v. California (413 U.S. 14 [1973]) the U.S. Supreme Court established a three-pronged test for obscenity prohibitions which would not violate the First Amendment:
(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Although much debated, this standard remains the law of the land, and elements of this language have been included in both the authorizing legislation for the National Endowment for the Arts (20 U.S.C. 95 et seq.) and the Communications Decency Act prohibiting "obscenity" and "indecency" on the Internet. The Communications Decency Act was struck down as unconstitutional by the U.S. Supreme Court in June 1997. The NEA legislation was been struck down as unconstitutional by lower courts but was upheld by the U.S. Supreme Court in 1998 (NEA v. Finley, No. 97-371, 1998).
One controversy over this exception to free speech is whether obscenity causes real harm sufficient to justify suppression of free speech. Does viewing obscenity make it more likely that a man will later commit rape, or other acts of violence against women, obviously real harm to another person? Does reading about war make it more likely that someone will start a war? Even if there is some evidence of such causal relationships, however tenuous or strong, is it sufficient to justify this exception to free speech? Alternatively, could the prohibition on obscenity be a reflection of moral values and societal standards which should more properly be handled in the private sector through moral education, not government censorship?
Another problem area is determining what counts as "obscenity". In Miller, the court tried to fashion a standard which could be adapted to different communities, so that what counts as obscenity in rural Mississippi might not count as obscenity in Atlanta or New York City. Is this fair? Do the people in those areas themselves agree on community standards? What is the "community" for art that is displayed on-line on the Internet?
[The above material via California State University, Long Beach]
...Further, the most critical issue to my view is the content of (c) in the Miller test, which seems to directly address the assumption which drives a spirit of concern in Jesse Helms' quote cited in the Haacke post below, the assumption being that Helms’ taste matches or surpasses that of a contemporary art curator/director ["No tax fund shall be used for garbage just because some self-appointed 'experts' have been foolish enough to call it 'art'." Italics within the quote administered by Diran Lyons]. The use of the term “self-appointed” is curious, particularly whenever a situation similar to the censorship imposed upon the Brooklyn Museum and its director, Arnold Lehman, occurs. Given that Lehman’s credentials as a scholar of art history [Ph.D. at Yale University, MA and BA at John Hopkins University, Director of The Baltimore Museum of Art for nearly two decades, Director of the Parks Council of New York, and Director of the Urban Improvements Program of the City of New York prior to his involvement in Brooklyn] speak to the fact that his training in the philosophy of aesthetics, art history, and art theory faced rigorous critique from some of the strongest in the field, Helms’ term “self-appointed” is in poor word choice. That Helms refuses to take the issue deeper - into the very content of the artwork itself, the artist’s intention, and the taking place of an overall social critique - is egregious at best.
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