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Defining Obscenity: The Criterion of Value

NCJ Number
New England Law Review Volume: 22 Issue: 2-3 Dated: (December 1987) Pages: 315-339
R G Wright
Date Published
25 pages
This article examines the Supreme Court's standard of value for an obscenity conviction and discusses whether it is as precise and workable as it could be.
In Miller v. California, the U.S. Supreme Court established the standard for an obscenity conviction under the Constitution. A work will be found to be obscene if 'taken as a whole, (it) lacks serious literary, artistic, political, or scientific value.' However, the words of the Miller definition of obscenity raise litigable issues of interpretation. Interpretive difficulties occur with each element of the definition: what does considering the work 'as a whole' mean; what does 'lack' of value mean; and how can 'serious' ideas and 'serious' values can be defined. Additionally, the concept of artistic, literary, political and scientific value, is open to interpretation as is how these categories incorporate symbols and ideas. How pornography relates to the question of value and how a jury might interpret an expert's testimony on the absence of value in a work purporting to be literary, artistic, scientific, or political, is questionable. Cases following Miller have not resolved whether a contemporary community standards test should also be applied to the issue of 'serious value' in the Miller obscenity test. The Supreme Court should not feel obliged to adopt a more liberalized standard for obscenity because it finds the Miller test imprecise and because it thinks such action is mandated by the constitution. 118 footnotes.