Do You Know It When You See It? Cinema, Pornography, and the First Amendment.

The current state of obscenity law is muddled, to say the least. The test itself is clear, laid out in the seminal case Miller v. California. However, the vagueness of the prongs of this test has resulted in varied and confusing application that leaves the actual standard for obscenity difficult to discern in practice. And unlike the many other types of expression that have been found by the Supreme Court to fall under the First Amendment, obscenity remains just taboo enough to stay beyond the scope of free speech protection. While Americans have proven themselves willing to tolerate greater and greater amounts of sexual content in movies and television, it remains the law of the land that there is a "too much," and bumping up against the line of "too much" can have serious legal repercussions such as seizure of property, fines, and even imprisonment. American society has become increasingly sexually liberated over the last century, but there is a growing resistance to that trend. The continued availability of the Miller test could lead to a renewed era of obscenity prosecution and sexual repression. The inherent subjectivity of the "artistic merit" prong in particular allows art to be censored by those who do not understand it based on personal values rather than an objective legal standard. In this Note, I discuss the history and development of current obscenity doctrine and criticize the Court's current test primarily through the lens of cinema, focusing on the prong that measures the "artistic merit" of the allegedly obscene work. My discussion contains both actual, historical application of the Miller test, as well as its theoretical application to films that blur the line between obscenity and non-obscenity, to highlight the vagueness and inconsistency of the Miller standard. Ultimately, I hope to highlight that while "obscene" works can pose some additional problems for society not typically presented by other types of media, the current test is simply untenable, and neither properly remedies those problems nor ensures that only such problematic works will be censored. [ABSTRACT FROM AUTHOR]