While I'm convinced that no one will ever read these, I still think it's fun to talk about the episode, and this is one of my favorite anecdotes about American history - and definitely my favorite about the Supreme Court. It's just too absurd - the idea that they had to view ALL the obscene material that was on trial throughout the country to determine if it was protected under the First Amendment. I also like that two of them bowed out, taking a hardline stance on free expression.
I'm not sure the test they put in place was particularly great, because it still left a whole lot of gray area. Here's what I mean - these are basically the jury guidelines setting out the Miller test for obscenity, defined by three questions:
(1) whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Nothing about that strikes me as objective criteria - it's left up to 12 strangers to determine what are (a) contemporary community standards, (b) the prurient interest, (c) what is "patently offensive," and (d) what has literary, artistic, political or scientific value. Pick three different-sized cities in three different areas of the country and show them the same work - you'll get three different answers on the above, and that's our test for whether something passes muster for a Constitutional right? Sloppy work, Burger court. But at least they didn't have to watch stag films anymore. God forbid.
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