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Part 2: Pornography

Even more pervasive and controversial than prostitution is the issue of pornography. As we will see pornography is, among other things, controversial, big business, and difficult to define. In this section we will touch upon several issues relating to pornography. Most notably:

  • What is pornography?
  • Is pornography harmful to others?
  • What restrictions, if any, ought society to place upon pornography? 

What is Pornography?

This is an especially difficult question. One answer we know to be insufficient, but common, was given by Supreme Court Justice Potter Stewart, who declined to define hard core Potter Stewartpornography but added, "I know it when I see it." The law has struggled to define pornography, and many different standards have evolved.

The problem of defining pornography has led to several odd legal cases such as the mother arrested for violating "child pornography" statutes by possessing nude photos of her own 3- and 4-year-old children playing in the backyard pool. (The Wal-Mart photocenter turned in the pictures when she had them developed.) Or the case of the man who wrote short stories (which were never published) involving minors engaged in sexual acts who was arrested for child pornography. Ultimately the law, through Supreme Court decision, has settled on what is known as "the Miller test."

Miller v. California

WEBLINK: Click here to read Miller v. California .

In 1973 the Supreme Court handed down a decision in Miller v. California which has since served as the governing legal definition of pornography. The decision holds that pornography was a form of obscenity (specifically obscenity of a sexual nature). As we have seen, free speech rulings indicated that obscenity is not protected under the first amendment; therefore, the Miller decision gave the law the authority to regulate it. To be considered obscenity by the court:

. . . a publication must, taken as a whole, appeal to the prurient interest, must contain patently offensive depictions or descriptions of specified sexual conduct, and on the whole have no serious literary, artistic, political, or scientific value.

The court ruled that we can determine what is offensive by an appeal to the community standards . Obscenity goes beyond "normal, healthy sexual desires."

Thus the Miller decision sets forth a three-pronged definition of pornography:

  1. An average person using contemporary community standards would find it to appeal to an " arousing and unwholesome " interest in sex.

  2. It must depict or describe sexual conduct in an offensive way.

  3. It must lack serious literary, artistic, political, or scientific value.

It is important to note that this definition encompasses all media, from drawings to pictures to written stories. Anything that meets these criteria would be considered pornography under the Court's decision. Still this definition in practice is not clear cut as it involves ideas of " offense " and " community standards ."

Thought Question: Ex Post Facto ?

One of the issues brought up in by the dissenting Justices in the Miller decision is the issue of " ex post facto " or after-the-fact laws. Prior to this decision, the "Miller test" was not law and therefore how could the defendant (Miller) have known his actions violated a legal standard that didn't exist when he acted? The court effectively allowed Miller to be punished under a standard that Miller could not have known when he acted. Was this justice?

Thought Question:
Can pornography have serious literary, artistic, political, or scientific value?

In one case a city sought to close down all strip clubs in the city using the argument that nude dancing had none of these values. In response one club owner had his nude dancers modify their "acts." They would still dance nude but would recite Shakespeare while they danced. Since Shakespeare has serious literary value, the club claimed that its dancers' performance could not be prevented.

Since the decision in Miller, pornography has changed dramatically. When the court decided Miller in 1973 pornography was limited to adult movie theatres, adult book stores, and published magazines. This meant that consumers of pornography had to risk exposure by walking into adult businesses or having magazines delivered in their mail. Such exposure deterred many would-be consumers. Technology has fundamentally altered the market of pornography. From the home VCR to the Internet, pornography is now easily accessible and consumable without risk of public exposure. This led to an explosion of the pornography market which in turn has turned pornography into a huge multi-billion dollar business such that even major American corporations are involved in it. These and other issues are brought to light in the following PBS video "American Porn"

VIDEO: Click here to watch American Porn .


The video mentions the "Cambria List" which aims to provide rules to the porn industry to avoid obscenity prosecution. The list is graphic, but if you are interested in it here is a link to it as presented on the PBS "American Porn" website.

WEBLINK: Click here to read the "Cambria List."