Should Pornographers Challenge the Miller Test?

Obscenity is illegal in America and pornography can only be sold in the US if it can’t be defined as obscene. Obscene material has no first amendment protection.

The legal definition of obscenity dates to Miller vs California (1973). The three pronged definition of obscenity that court gave rise to is known as the ‘Miller Test’.

Miller asks:

(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 applicable state law.
(c) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The porn industry has embraced Miller. It was the first ruling which allowed some pornography to be defined as legal in the US, and for thirty years has been used to successfully defend pornography from being classed as obscene. However, each prong of Miller has serious flaws which are making it increasingly likely that it’ll be successfully used to bring obscenity charges against sexual material and put the legal production of porn in the US in jeopardy.

1. The use of ‘community standards’ means material can be legal in some places and illegal in others. Transporting obscene material carries a 10-year jail term and a $250,000 fine and, thanks to clause (a), the only way to test material for obscenity is in court. This allows any prosecutor to go after any pornographer at any time, with the consequence that most porn companies choose not to ship to states who might litigate. The ‘community standards’ clause has imposed self-censorship on pornographers and made all explicit material potentially obscene in any community. If you win in court in Tennessee you can still be obscene in Arkansas. For pornographers they only know their material is not obscene where they’ve been to court and won.
2. Asking a jury to decide if material’s ‘patently offensive’ is to require them call on their own standards. Many people find many things ‘offensive’, and each jury will have a different take on what’s ‘patently offensive’ (not a problem with crimes like car-jacking, burglary and tax evasion which are all pretty clear-cut and juries tend to agree on). Offensiveness is a moving target which limits pornographers ability to confidently produce legal sexually explicit material because they can’t guess what a jury might be offended by.
3. Most porn fails to clear Miller’s first two hurdles when tested, and relies on (c) to keep producers out of jail. Exploiting the ’serious… value when taken as a whole’ phrasing is why Hustler is a good place to keep up with the writing of Greg Palast, and why the big porn movies continue to shoehorn plot, dialogue and music into their movies between the sex scenes. Clause (c) is also why the rise of ultra-violent porn is making conservatives confident they can win an obscenity case. Producers of plotless, music, dialogue and perspective-free porn will have a great deal of difficulty proving ’serious literary, artistic, political or scientific value’ and the violence that accompanies the sex is easy to class as obscene.

For thirty years Miller has served the porn industry well, but thinking Miller will never succeed in proving any pornography obscene is wishful thinking. A 3 minute downloadable clip on a webpage is easy to ‘take as a whole’ and is increasingly likely to show an apparently distressed women being deliberately hurt by a sexually violent man. The government are confident the public won’t view downloadable clips the same way they did movies like Deep Throat in the seventies. They also know that if one judgment goes against porn it’ll put the industry in the same position as the once unassailable tobacco industry - paying fines and under constant, successful assault (the difference being that pornographers will do serious jailtime.)

As some pornography becomes deliberately violent, should people who believe in the right of adults to consume explicit sexual material be forced to defend all material which includes explicit sex in any context? If not - should the porn industry seek to replace Miller with a better, more specific, law which allows the successful prosecution of obscenely violent material and leaves pornographers safe to shoot sex legally?

Looking to other countries for guidance proves interesting. Europe hasn’t decided on how to integrate its sex law - depending on where you travel the age of consent moves between 11 and 18, prostitution is legal - or not, and porn is either freely available or only sold under license. Then there’s Canada.

In 1962 Regina vs. Dominion News & Gifts (Regina’s the state/crown - not a lady who hates porn) established that standards of obscenity in Canada must be national - you can’t be obscene in Toronto and legal in Montreal. Thirty years later, Canada’s equivalent of Miller arrived in Regina vs. Butler (1992).

Butler saw Canadian courts split porn into three categories:

1. Explicit sex with violence
2. Explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing
3. Explicit sex without violence that is neither degrading nor dehumanizing

Material falling into category 1 is almost always found to be obscene, category 2 is considered obscene if the court finds ’substantial risk or harm to society by viewing the material in question’ (a test also applied to material in category 1), and category 3 is almost never obscene (with the exception of material which features children). In Canada an emphasis on freedom of speech means that in cases of doubt, material is found non-obscene.

Butler doesn’t ask jurors to make judgments based on their own opinions. It doesn’t ask if the material offends the jury, or their ‘community standards’, and doesn’t ask pornographers to pretend their producing serious work, its sole focus is the harm that arises from the production or viewing of the material. While leaving ample room for debate Butler recognizes that sex and violence aren’t natural bedfellows and should be considered separately.

With a body in place to ensure porn performers safety (as there are in Hollywood for stunt performers, animals and children) a US law similar to Butler would allow anything to be portrayed in porn (including violent scenes as long as the violence was simulated) and allow pornographers the freedom to produce sexually explicit material, saleable in any state, without fear of arbitrary legal persecution. It would write into law that there’s nothing obscene about consensual sexual activity, and draw a line between porn and exccessively violent material of the kind that already exists between porn and child-porn.

Is something more like Butler the kind of obscenity test pornographers in the US should be lobbying for before Miller inevitably fails us? Would American pornographers embrace the chance to protect performers from material that can only be produced by hurting them? Is Canada wrong and can sex itself (lacking violence) be obscene?

(thanks to my readers for inspiring this post and Paul Kent-Snowsell of AVN Online for providing the facts to flesh it out with. Paul - Yo fo’evah ma nigga.)