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Owing money is stressful enough without the creditors suing to be paid back! We all want to pay our bills, but occasionally hard times befall us. Here is a list considerations that will help you determine if you should hire a lawyer, or if your able to handle this PRO SE (by yourself):

1. What are the first things I should look at once I know I’m being sued for Credit Card Debt?
Being served with a lawsuit, or seeing your name on a docket, can be extremely stressful. But there are a few initial considerations to take into account that can sop the suit in its tracks here and now. First of all, where do you live, and where was the suit filed? You’ll need to determine if VENUE and JURISDICTION are proper. A court must have authority over you in order to bind you to a ruling. If you file a response or appear in court, you have basically waived any jurisdictional argument, because you have ‘availed’ yourself to the court. If you, for example, live in Duval County and suit has been filed in Miami Dade, you need to raise this defense. Next, once you see you’ve been sued, determine under what CAUSE OF ACTION. Usually this will be a COUNT (I, II etc). There are time limits to bringing certain causes of action, and once they’ve passed, its too late to sue. In credit card debt cases, the two most common causes of action are BREACH OF CONTRACT and ACCOUNT STATED. The STATUTE OF LIMITATIONS on a Breach of Contract cause of action is five (5) years. For an Account stated cause of action, its four (4) years. If You have a credit card that was shut off in 2009, and someone is trying to sue you to recover on it today, they’re tough out of luck, and you should raise a STATUTE OF LIMITATIONS defense in your ANSWER (if applicable; more on this below).
The third thing to look at is the amount being sued for. There are different rules for small claims court (less than $5000) versus County and Civil Courts for higher amounts. In small claims court, you don’t have to answer the complaint once your served with it. There will be a mandatory PRE-TRIAL CONFERENCE set by the court. I’ll explain more about this later.
If the amount of the suit is more than $5000, then you need to REPLY to the complaint; one way to address this is called an ANSWER, in which you admit/ deny/ state without knowledge and raise any affirmative defenses you have. You have 20 days from the date of service to do this. If your nervous about answering incorrectly or raising appropriate affirmative defenses, then reach out to an attorney or make an appointment with your local legal aide, so that an appropriate response can be submitted with the assistance of counsel.

2. Before you file an answer or go to your pretrial conference

  • You need to be served with the suit. Simply seeing the lawsuit online on the docket is not adequate proper notice to you as a Defendant, especially if your pro se.
  • If you are sued, call the attorney or law office who signed the lawsuit. There are TONS of these cases, and they clog up the court system; most of them settle anyways, especially in small claims court at that mandatory pretrial we mentioned earlier. There is no reason to wait for the Pre-trial conference, or until a court hearing is set. Call now, be honest about what you can afford and see if they can work with you. Oftentimes, discounts are available off the balance due if paid back within a certain period of time (example, 75% of the debt if paid back within 24 months). Alternatively, many companies can extend debt repayment over up to 60 months, and there is often no interest compounding on the debt at this time.
    It is also always a good idea to request a verification of the debt (VOD). This is asking the Plaintiff to prove that the debt is in fact yours. Make sure the last four of the social security numbers for you and the debtor meant to be sued match as well. There are a lot of Jose Gonzales’ and Jane Smiths out there, and mistakes happen.

3. And Finally…
If you are unable to settle, then you’ll attend the pretrial conference (the date will usually be on the subpoena attached to the service of process) if its small claims, or file an ANSWER, MOTION TO DISMISS or other response if its in regular court.
Basis for Motions to Dismiss include the jurisdictional and statute of limitations arguments addressed earlier.

4. Closing Thoughts
Firstly, if you are summoned to a hearing and you do not show up, a DEFAULT can be entered against you. In Florida, a default has to be followed up with a Motion for FINAL default, which contains affidavits which support the Plaintiffs case. If the default is granted, then you will have a judgment against you, which can be ENFORCED. Some ways that Plaintiffs enforce judgments include garnishing you bank account or wages; not a fun surprise, so be active and involved in your legal process.
IF you know the debt is yours, but you just CANNOT pay it, tell the Plaintiff’s law firm that you would like to discuss a CONSENT JUDGEMENT. This saves the time and stress of court appearances, but it does mean you are agreeing to have the judgment entered against you. A judgment will sit on your credit report for 20 years until paid, and will continue to garner interest, albeit, it will be at the states prevailing interest rate (around 6.5% last I checked, but this changes OFTEN).
IF a judgment is entered against you for failure to appear, consenting to judgment, or losing in court at a hearing or trial, then you may be able to stave off garnishment/ enforcement of that judgment by filing a CLAIM OF EXEMPTION. This is a document, often accompanied by a fact information sheet, that tells the court that whatever money you have must remain with you, and cannot be expended on this debt because 1) Your the Head of Household 2) You have Dependents 3) You make less that $750/pay period 4) Your only income is social security or disability (ie: you income is exempt). There WILL be a hearing on the claim of exemption so be ready to prove your claims. If your head of house hold and have dependents, bring a tax return that shows the court this is accurate. If its about the amount you make, bring a pay stub, or bank statements. Its up to you to prove up any facts you allege.

Additional resources provided by the author
Your are not without the right to counter sue for violations of the FDCPA and you also have the right to report predatory collection practices to the CFPB. Creditors can only call during certain times of the day, a certain number of times per day, and must give certain disclosures to you when they call. Violations of these rules can result in money damages being awarded to you. Reach out to an Attorney or Legal aid for more information on this.


Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions is a law review article arguing against two the main points raised by the district court in the Hamdan v. Rumsfeld case in 2004. Firstly, the district court in Hamdan states that the utilization of military tribunals as ordered by President Bush after the 2001 terrorist attacks is an unconstitutional violation of civil liberties. Second, the court stated that military tribunals were in violation of the third Geneva Convention. For these reasons, the District Court in Hamdan invalidated the use of military tribunals for detainees captured in Afghanistan after the September 11, 2001 terrorist attacks.

The article begins with the history of rise of the Taliban in Afghanistan, and the subsequent formation of Al Qaeda. In 1973, the Taliban became a republic, but due to a weak government and a civil war, the Taliban gained control of the majority of Afghanistan in 1996. Al Qaeda was set into motion in 1982, and Osama Bin Laden was one of its fighters. The Taliban existed, unopposed, until the attacks on American in 2001, when America declared war on terrorism. After the September 11 terrorist attacks on the world trade centers in New York City, Congress passed a resolution allowing the sitting president, George W. Bush, to use “all appropriate force against those. Persons he determines planned, authorized, committed or aided the attacks”. Jessica Erin Tannenbaum, Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions, 11 Ann. Surv. Int’l & Comp. L. 79 (2005). The Taliban refused to turn over Al Qaeda operatives, and hence fell under violation of the Congressional order. President Bush, in his position as commander and Chief of the Armed forces, issued a military order regarding the trying of detainees (usually brought to Guantanamo Bay) while they were interned in order to prevent them from returning to arms against America. Among the details of this military order was the instruction that all detainees from the War on Terror were to be tried by military tribunals.

The article then commences to briefly describe the history and procedural requirements of military tribunals. Firstly, the President must determine that an individual is subject to the military order, at which point the “Appointing Authority may decide to bring criminal charges against” the individual. Id. The appointing authority also decides who shall make up the military tribunal panel which hears the case, of which a two thirds majority will be needed to determine guilt & assign a sentence, “with the exception of the death penalty, which can only be reached upon by unanimous agreement”; however the President has the final decision. (Jessica Erin Tannenbaum, Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions, 11 Ann. Surv. Int’l & Comp. L. 79 (2005). The President can mitigate a sentence, but cannot “change a not-guilty verdict into a guilty verdict.” Id. It should also be mentioned that the rules of evidence are different, and the death penalty sentence happens more often & more quickly.

There are pros and cons to military tribunals, which are discussed in detail in the later portion of the law review article. Arguments against military tribunals include the trampling of civil liberties and the violation of international human rights via the third Geneva Convention, which relates to the treatment of prisoners during times of war. Each of these arguments is addressed in turn, however it should be stated in advance that the district court which tried the Hamdan case did find that military tribunals were unconstitutional for the reasons that will be argued against subsequently.

First, Tannenbaum addresses the third Geneva Convention regarding the treatment of prisoners of war. Those in favor of declaring Hamdan a prisoner of war and granting him, and detainees like him, a trial by an international tribunal versus a military tribunal claim that these actions will preserve the US stance on human rights, and increase the likelihood that US soldiers that are captured will likewise be treated as Prisoners of War. The author argues that this policy does not apply to Hamdan because Hamdan is not a prisoner of war as a member of Al Qaeda because he was not captured on a war against any “state or party to the Geneva Convention” but in a war “against global terrorism”. (Jessica Erin Tannenbaum, Fighting the War on Terrorism with the Legal System: A Defense of Military Commissions, 11 Ann. Surv. Int’l & Comp. L. 79 (2005). Al Qaeda operatives do not carry arms openly, and deliberately targets civilians, exempting them from Geneva protections.

The district court which outlawed military tribunals in Hamdan also states that military tribunals weaken liberties because the President bypassed Congress when issuing orders. The Presidents power is at a maximum when the President acts pursuant to Congress’ express or implied desires. However, there is debate between the President’s express role as Commander and Chief of the armed forces versus the Congressional power to declare war. This is indirectly addressed by Tannenbaum, because when President Bush issued his military order, he did so with the permission of Congress via the Patriot Act, which became law on October 26, 2001. The Congress granted the President permission “to use all necessary and appropriate force” in fighting the war on terror, and this includes, Tannenbaum says, the power to create military tribunals. Comparison & Analysis

The Hamdan v. Rumsfeld1 case has a lot in common with the Hamdi vs. Rumsfeld 2 case presented in the 3rd edition of Constitutional Law by Wolters Kluwer. Both prisoners were detained after the 9-11-01 terrorist attacks for allegedly participating with Al Qaeda against American troops in a combat zone. However, the Hamdan case focuses on the validity of military tribunals as a proper exercise of executive power for detained enemy combatants, and the international repercussions of not treating Al Qaeda fighters as prisoners of war in relation to the third Geneva Convention. The Hamdi case, conversely, focuses on the rights of accused enemy combatants once they are detained, including the due process right to contest the factual basis for their captivity. Hamdan also looks to the legality of a military tribunal in trying a foreign detainee, whereas Hamdi looks to what rights are due to a citizen of the United States who disputes his enemy combatant status. Both of these cases forever changed the way Americans must treat detainees of war.

Hamdan effectively states that military tribunals are not appropriate, unbiased parties by whom detainees may be tried. Hamdi builds on this, saying that prisoners have the right to habeas corpus 3, with the exception that the request cannot validly be made while in theatre of war. 4 However, because military tribunals were declared unconstitutional in this case, Hamdan also effectively supports the holding in Hamdi; that detainees may be held indefinitely, both American and foreigners alike. Hamdan was a Afghani native, whereas Hamdi was an American citizen. However, both were treated the same once they were interned at Guantanamo Bay; as enemy combatants against the United States while the country was engaged in fighting the war on terror. The purpose of this detention is to “prevent captures individuals from returning to the field of battle and taking up arms once again”. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Congress does not dispute the validity of detention in whether case, which is not surprising as national security is the most-often cited exception to the strict scrutiny analysis. However, the strict scrutiny exception of national protection appears to end there, as expounded below.

The test to be applied is one of balance, where the courts must weigh the private interest that will be affected against the government’s asserted interest and burdens. In Hamdan, the government’s interest of security and efficiency, as well as the ability to more quickly enact the death penalty, is outweighed by Hamdan’s right to a trial by an international tribunal in the name of the Geneva Conventions and America’s reputation (and the aftermath of not complying with the convention on American P.O.W.s). Parallel this analysis with that of Hamdi, whose private right as a citizen to habeas corpus and the resulting challenge to his status as an enemy combatant outweighed the compelling government interest of ensuring that captured enemy combatants do not return to battle against the United States. Current Issues

The holdings of the Hamdan and Hamdi cases are clearly still applicable today, ten years after their respective trials, because the war in which these cases took place endures. While both human rights and the constitutional rights of American citizens, regardless of where they are in the world, is of the utmost importance, exceptions must exist to the granting of American privileges. I believe that if a person is captured in a combat zone, in a country known to harbor terrorists, while at war with the United States, after a national tragedy like September 11th, your Constitutional rights should be shelved if your captors believe you to be an enemy combatant, U.S. citizen or not. Likewise, an Al Qaeda operative who does not wear a uniform, who resorts to suicide bombing instead of openly bearing arms, and who targets citizens, like the thousands of innocents in the world trade centers and the planes that cause their collapse, should not be granted protection under the Geneva Convention and should be stripped of all rights and detained until either a trial can be had, or until the War is over, whichever occurs first. I agree with both Tannenbaum’s rationale in the law review article, as well as Justice Scalia’s dissent in the Hamdi case, that “there should be a different, special procedure for the imprisonment of an enemy combatant] accused of wrong doing by aiding the enemy in wartime.” Hamdi v. Rumsefeld, 542 U.S. 507 (2004). The compelling governmental interest of National Security should outweigh all individual rights of suspected enemy combatants. This is based on my utilitarian stance that this policy will do the most good for the most amounts of people. The prevention of another September 11th is of the utmost importance to the American people and their families, and punishment by detainment of those suspected of being enemy combatants is justified both by the punishment theories of deterrence, as well as condemnation.

I concur with Tannenbaum’s analysis of the Geneva Convention and the consequential exclusion of Al Qaeda operatives form its protections based on their exercise of war tactics. There is an opportunity cost of American life in this war, and when mothers are sending their children out to kill and fight, their sacrifice must not be in vain. The Congressional approved powers granted to the President to enact military tribunals should not have been overruled by the District Court, and the rights of both citizens and non-citizens overseas should be suspended (and the suspected combatants, tried by tribunal) in order to expeditiously and effectively win the ongoing war on terror.

Summary of: Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials.

  • Comparison and Analysis: Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials and United States v. Nixon, President of the United States v. United States.
  • Current Issues: The validity of executive privilege ion state and federal government.

Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials discusses the validity of executive privilege in a state governmental capacity as compared to the federal exercise of the same. The article opens with a brief overview and analysis of executive privilege in the traditional sense, in that it was intended to shield sensitive executive branch communications from disclosure and the “public dissemination…which may well temper their candor”. Matthew W. Warnock, Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials, 35 Cap. U.L. Rev. 983 (2007). The hypocrisy of such a privilege is that it, innately, contradicts the democratic free flow of information. The Supreme court states that there is a strong public interest in understanding the underlying basis for our elected representatives decisions. However, it cannot be denied that the sensitivity and uniqueness of public office will occasionally call for confidentiality. This public interest in fundamental understanding for elected official’s decisions, as well as the polar desire for the necessity for un-damped opinion and executive level discussion is translated across both state and federal executive positions.

Next the article briefly discusses the two subcategories of executive privilege: the chief executive communications privilege and the deliberative process privilege. The deliberative process privilege is “the most oft-cited from of executive privilege” and has two elements. The materials the government official is denying to disclose must have been created before the deliberative process, and the materials must be deliberative in and of themselves, meaning that they must reflect “the give and take of the consultative process”. Id. The chief executive privilege is broader, and applies to documents in their entirety and covers both pre deliberative & post deliberative documents. Some state courts have “spoken of both forms of executive privilege together, thereby blurring the distinctions between them. The deliberative process is a common sense privilege lacking any constitutional overtones of the separation of powers, whereas the chief executive communications privilege is rooted in the constitutional principle of the separation of powers.

The chief issue addressed by this article is the state government officials adoption of the constitutionally granted right to the President of the United States in the Constitution. Many states, such as New Jersey, Maryland, Delaware and Virginia, claim that their governor’s responsibilities and communications are analogous to those of the President of the Unites States, and therefore his need for discretion in regards to documents disclosed is to be respected. These states typically utilize the balancing test, adopted from the US v. Nixon case, which weighs the qualified privilege of confidentiality against a sufficient showing of need by the party requesting the information. While executive privilege is recognized, it can be challenged viz a vie this test, and both the government official and the party requesting the documents have high burdens to meet.

Other states take a strict interpretation view of their governor’s right to exercise executive privilege. Kentucky, California and Vermont, for example, state that executive privilege protects the deliberative process as outlined by Chief Justice John Marshall in Marbury v. Madison. The perspective sees the judicial review of executive prerogatives as meddlesome, and see the privilege as required for the healthy exercise of the executive branch as distinguished in the Constitution.

Still other state governments, such as Massachusetts’, feel that there are no situations in which a state government official may draw parallels to the President of the United States. Massachusetts point blank rejected the recognition of executive privilege on the state level. This vantage point is well explain in the dissent of the Ohio case of State ex. Rel. Dann v. Taft states “the duties present in Article II for the President that require secrecy—national security and diplomacy—simply are not part of the governor of Ohio’s responsibilities. The executive communications privilege is unique to the President alone”. State ex. Rel. Dann v. Taft, 111 Ohio St.3d 1406 (2006); Matthew W. Warnock, Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials, 35 Cap. U.L. Rev. 983 (2007).

Once all perspectives and state examples are discussed, the article then turns to suggested tests for the utilization of executive privilege at the state level based on the balancing test that many states adopted from the federal courts. “This test pits the need for disclosure against the government’s interest in confidentiality. Upon a sufficient showing of need, the majority of the states require the court to conduct an in camera review”, which weighs the government’s need for confidentiality against the litigants need for protection. The author of the article then suggests amendments to this test so that it might be uniformly utilized across the states that recognize executive privilege.

Comparison & Analysis
The discussion in Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials is focused around the utilization of executive privilege on a state, whereas the case of United States v. Richard M. Nixon, President of the United States, is a case regarding the use of the privilege in federal government. Executive privilege was asserted by Nixon in order to alleviate his duty to present recorded conversations as evidence to the special prosecutor in the Watergate scandal. The court ultimately held that “the Presidents generalized interest in confidentiality, unsupported by a claim of need to protect military, diplomatic or sensitive national security secrets, could not prevail against special prosecutor’s demonstrated, specific need for the tape recordings and documents.” United States v. Nixon, 418 U.S. 683 (1974).

While Nixon argued that judicial review would interfere with decisions from the executive branch, the court ultimately stated that, absent a nationally sensitive issue, an unqualified executive privilege would interfere with the judiciary’s role, which would also be a separation of powers violation. In short, the judicial process may outweigh the president’s expectation of privacy. This is the basic foundation of the balancing test that many states have adopted in their local utilization of executive privilege. For example, in the New Jersey case of Nero v. Hyland, a governor was able to exercise executive privilege in refusing to disclose a background report. The court felt that it was more important to “protect the confidentiality of communications pertaining to the executive function” than it was to allow the release of a background investigatory report compiled for the nominees for the state lottery commission. The scale was literally tipped in the executive’s favor, hence the balancing test. This test is capable of tipping in the opposite direction, as we see with the holding in Nixon.

The Nixon court also clearly states that if executive privilege is to be exercised, there must be legitimate military, diplomatic or sensitive national security secrets. The aforementioned Ohio dissent said that this element precluded the states’ representatives from utilizing executive privilege, because these sensitive military & diplomatic situations are unique to the office of the President of the United States. It was, in fact, this lack of a situation that precluded Nixon from being able to use executive privilege in his criminal trial. However, a local governmental analogy can be drawn in some state situations. Take for example the state of New Mexico, which enforced executive privilege when the attorney general refused to hand over investigatory reports from riots in a state penitentiary. Matthew W. Warnock, Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials, 35 Cap. U.L. Rev. 983 (2007).This is the approximate state equivalent of a diplomatic and/ or military situation for the state, and therefore the communications between the attorney general and other members of the executive department were deemed to be privileged.

Not all state courts require such elements for executive privilege to be qualified. While “no state has been willing to take an unprecedented leap to declare the doctrine of executive privilege to be absolute”, Vermont did come dangerously close; while Vermont does utilize a balancing test to a minimal degree, the requesting party has a heavy burden if it wishes to be privy to the inner workings of the executive branch of the state government. Id. While policies vary from state to state, the majority of states require some burden to be met by both the party utilizing the executive privilege defense, as well as the party requesting the disclosure of the government information/ documentation, and then the court exercises an in camera review in order to determine which way the scale tips in the balancing test. While there are extremes like Vermont, which has almost absolute executive privilege, and Massachusetts, which does not recognize executive privilege on a state level at all, most of the states have followed the lead of the federal government and found some median version of the balance test to aid them in appropriately applying this privilege.

Current Issues
The exercise of executive privilege on a gubernatorial level is of great interest to me, especially due to the political climate of America today. While executive privilege is closely regulated by the checks and balances asserted within the structure of the federal government, the state government does not have such a powerful or public watchdog. When Nixon asserted executive privilege to withhold recordings from the special prosecutor ion the Watergate scandal, America knew. It was news; there were tapes in existence and Nixon didn’t feel it was America’s place to hear it. The Supreme Court examined the issue and ruled on it accordingly. While most state governments are modeled as mini-federal governments, with governors often sitting at the executive head of the table, local governments do not have the same opacity with the public that the country had in the U.S. v. Nixon trial. Governors would be able to assert executive privilege without as many checks as the federal government has. States like Vermont, that have minimal checks on their state executive privilege, exemplify this concern.

Conversely, the President must have the ability to “shield confidential, executive branch communications from disclosure”. Matthew W. Warnock, Stifling Gubernatorial Secrecy: Application of Executive Privilege to State Executive Officials, 35 Cap. U.L. Rev. 983 (2007). How can the President, as Commander and Chief, openly discuss an acceptable loss of American soldiers in war, when the mothers of those soldiers are listening to the conversation? This is an example of how executive level decisions may be tempered by a complete free flow of information and communications. The balancing test expressed in the Nixon case, shielding communications relating to sensitive diplomatic and military situations should hold and be enforced only across the executive branch of government. The state governments should not be able to exercise government privilege. The issues that affect the president, as the dissent in In State ex. Rel. Dann v. Taft expressed, do not occur within local governments to the same degree, and the risk of local corruption utilizing the use of this power is much higher. It is under this rationale, therefore, that the gubernatorial expression of executive privilege should be quashed.

Constitutional rights are a hobby and love of mine. As a general practice attorney, I occasionally get clients who are interested in trademark and copy write actions; artists, musicians and even participants in alternative entertainment industries. Sometimes, the line between legality and illegality is very grey. In such circumstances, my passions are ignited and my interests piqued. This blog post examines one such… alternative legal issue.

“William Rorsler, a cartoonist and artist…and later an adult film producer, said “Erotic films are here to stay. Eventually they will simply merge into the mainstream of motion pictures and disappear as a labeled sub division.”[1] Pornography is “printed or visual material containing the explicit description or display of sexual organs or activity, intended to stimulate erotic rather than aesthetic or emotional feelings.” [2] Art was defined[3] to be any creative medium in which the viewer has an emotional response, or feels something. While art does not always have to be aesthetically pleasing, it does have to invite these reactions, and cannot be utilitarian[4] in function. Even in the Oxford dictionaries definition of art, it is determined that while not necessarily aesthetic (although it can be), pornography elicits and erotic response. Eroticism is an emotion and a feeling; a feeling that has been painted, sculpted and celebrated since arts birth. “Malcom Budd reckons art does these things: prompts an emotional response in its viewer; gives them pleasure; grants them the satisfaction of appreciating a work well done; allows them to feel they’re communicating with the mind of the artist; and encourages them to develop an attitude towards the attitude that it asserts.”[5] Pornography may also qualify as art because it would appear to have no utilitarian use. It is only for sheer pleasure and artistic expression and/or entertainment that it exists. “Every second, $3,075.64 is being spent on pornography. Every second, 28,258 internet users are viewing pornography. Every 39 minutes, a new pornograophic movie is being created in the United States.”[6] How can something that positively affects so many be considered obscene?

“The sale and distribution of obscene materials had been prohibited in most American states since the early 19th century, and by federal law since 1873.”[7]The United States has determined that obscenity is not protected by the first amendments freedom of speech. “Obscenity is a legal term. It is the depiction of sexual conduct that appeals to the prurient[8] interest, is patently offensive, and lacks serious value. Crudely put, it is repulsive sex that lacks value. The harm in obscenity is the damage it does to the traditional ordered moral fabric of society. What is moral or repulsive and what is of value are notoriously subjective and murky concepts. Obscene speech is not protected by the First Amendment.”[9] Pornography has often been considered to violate obscenity laws since its inception, beginning with the prohibition of “Memoirs of a Women of Pleasure”[10] in 1748. Its existence is considered to be conducive to the demoralization of society. Florida happens to be the ninth largest consumer state in the United States for pornography internet downloads. Ann Eaton says that pornography is guilty of “expressing a morally dubious message undermines the value of a work of art because it requires its viewers to identify with ethical deformities, which distracts them from appreciating the works as art.”[11] If this viewpoint is recognized, then pornography is obscene, has no aesthetic value, and is not constitutionally protected because of its unappealing and ineffectual consequences on society.

The issue at hand is whether or not pornography can legally be defined as art, and therefore subject to the protections that art receives in the eyes of the courts, such as import tax exemptions and copyright protections. The following discussion is an examination of the opposing sides of the debate and the inevitable conclusion that pornography and art are in the eyes of the beholder, and the court has accepted that the beholder is likely going to have a different opinion depending on the jurisdiction in which they reside.


The designation of obscenity has been fluid throughout the justice system, historically, beginning liberally, growing stringent, and then relaxing yet again. Tabatha Legget states “only when we stop confusing artistic merit with ethical deformity [obscenity] can we start having interesting conversations about what constitutes “artistic” pornography and whether there’s a market for it.”[12] However, most American courts now consider obscenity to be determined by the jurisdiction in which the subject matter was created, as opposed to a national definition. This would prima facie seem hypocritical, because it leaves to the opinion of the population in which the art was created the determination of artistic merit. To exemplify this contradiction, consider the example of “an ancient Greek vase with erotic paintings of nudes that depict sodomy and masturbation might be considered pornographic today by certain religious groups, but clearly was celebrated and approved in that culture.”[13] Similarly, “When Pompeii was unearthed in the 1860s, vast stores of erotic art were found, and the Victorians promptly did what Victorians were known to do: They hid it away, pretending it didn’t exist.”[14] In order to decipher how this ambiguous and incongruous application of the title of obscenity is utilized, the history of the courts determination of obscenity must be examined via the landmark cases that have shaped America’s conflicting perspectives on pornography.

In England in 1663, a boisterous, nude, drunk on a balcony offended a passerby, and was charged with the common law crime of obscenity. This was the first time that flagrant nudity was now, legally, punishable. Less than a century later, Fanny Hill (Memoires of a woman of Pleasure) was published and credited with being the first, modern, erotic novel. Fanny Hill is a novel about a young woman whose parent’s death eventually leads her to a life of prostitution. Her clients and companions teach her all about the world of sex, and she graphically recounts her experiences with masturbation, seduction, homosexuality and drag. “It was published in American in 1963, and was immediately banned for being obscene…In a landmark decision in 1966, the United States Supreme Court ruled in Memoirs v. Massachusetts[15] that Fanny Hill did not meet the standard for obscenity.”[16] (Several illustrations of this novel were created by Édouard-Henri Avril and will be discussed in a later section of this paper.)

The standard at the time of the Memoirs case was the Roth standard; however, its predecessor was the Wepplo[17] standard, and Wepplo’s predecessor was the British case of Hicklin. These were the basis upon which works were determined to be obscene, or valid expression of art.

In 1867 Hicklin, a man was selling pamphlets entitled “The Confessional Unmasked; shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession;” he sold between two and three thousand copies at the price he gave for them.”[18] The Court asked, “Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall.[19]” There were three factors to consider under the Hicklin standard. The first was whether the material could be seen by a child, the second was whether one of the books parts was obscene, and the third was that the court did not have to consider the social value of the work. As a result, the Hicklin standard left a wide range of expression unprotected.id.

The first “adult” film, probably the second film ever made, was made in England in 1897. The film shows a woman getting dressed down to her underwear, exposing her ankles, and stepping into a metal paddling pool and having a dark powder poured over her. Ankles became downright innocent when, thirty years later, “The Surprise of the Knight” was produced, which focused exclusively on homosexual intercourse, predating “anti-sodomy” laws by over 70 years. [20]

In 1947, the case of Wepplo,” the defendants were prosecuted and found guilty by a jury on a charge that they did “wilfully and unlawfully and lewdly, in the City of Los Angeles, sell, distribute and keep for sale an obscene and indecent book”. The court claimed that if material has a substantial tendency to ‘deprave or corrupt its readers’ by inciting lascivious thoughts or arousing lustful desires” (People v. Wepplo,)[21] then it was considered obscene.

Following Wepplo came the Roth standard in 1957, which was utilized in the Fanny Hill Supreme Court case. In this case, the defendant “Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales.”[22] According to Roth v. United States[23], a work is obscene if “the dominant theme of the material taken as a whole appeals to a prurient interest in sex, the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters, and if the material is utterly without redeeming social value.”[24]

In 1972 came the film ‘Deep Throat’ starring Linda Lovelass, which has made over $600 million to date. “These films show explicit, non-simulated, penetrative sex that was presented as part of a reasonable plot with respectable production values. Some state authorities issued injunctions against such films to protect “local community standards”; in New York the print of Deep Throat was seized mid-run, and the film’s exhibitors were found guilty of promoting obscenity[25]. This is the textbook example of the Roth standard & the Supreme Court’s aforementioned ambiguous definition of obscenity as defined by the jurisdiction in which the work is being exhibited.

Finally, in 1973 came the Miller case which overturned the Roth standard 20 years later. In Miller v. California, the ddefendant was convicted of mailing unsolicited sexually explicit material in violation of a California statute [26]. “The Supreme Court ruled that materials were obscene if they appealed, “to a prurient interest”, showed “patently offensive sexual conduct” that was specifically defined by a state obscenity law, and “lacked serious artistic, literary, political, or scientific value.” Decisions regarding whether material was obscene should be based on local, not national, standard.”[27]

The Miller test offers no detail as to how one can determine whether the materials lacked serious artistic value. “As philosopher and legal scholar Frederick Schauer points out in his 1976 treatise on American obscenity law, “There has been extremely little case law on what in fact constitutes serious literary [or] artistic value.[28]” … Schauer makes two suggestions about what the courts might mean by the requirement that literary and artistic value be serious. He suggests that to count as serious a work must have “the purpose of stimulating the mind, and…[have] this effect on a significant number of people.[29]” He states that, to determine whether a work is more offensive than it needs to be to achieve its aim, one must first determine whether the work has any value, and then identify the contribution (if any) that the offending portion of the work makes towards (or against) that value.id.

The legal history of pornography’s entrance into the market, and the standards used to declare whether these works are obscene or has artistic merit justifying their classification as art, are the basis upon which the courts now must draw their conclusions. When looking at any particular work & trying to declare whether it may be classified as a work of art, the court must consider whether the prurient interest (too interested in sex) is existing, whether the conduct is patently offensive sexual conduct, and whether the work lacks artistic value. In further determining the work’s classification, the work must be able to meet the definition of art, meaning it must appeal to emotion and not be utilitarian in value. Finally, it must be determined if the work has value and whether or not the work’s values contribute towards or take away from that value.

Argument for Legally Classifying Pornography as Obscene

“ In the pornographic state, the very notion of a fundamewntal right to free speech is an occasion for unabashed dancing in the streets or topless dancing on bar tables. It is a cauyse for celebration, for waving flags or even burning them. It is a right to turn ideas into images, silence into sound, and even the right to turn nouns into verbs. It is, above all else, a constitutional license to porn the world and evertything in it.”[30]On one side of the debate, there is an assemblage of people who oppose pornography’s consideration as an art form. Their rationales are varied, but there are three focal reasons that continuously and repeatedly arise. Remarkably, “of the top ten states in Internet pornography consumption, eight voted Republican in 2008.”[31] Apparently, the quick to consider rational of conservatism as a soapbox for porn opposition does not hold water. Instead, he first addresses the Miller standards or prurient interest, patent offensiveness and a lack of artistic value. It questions whether a handful of sexual positions that have been captured numerous times can be considered to hold creative value? [32] The second rationale appeals to the satisfaction of an emotion requirement for art, stating that porn is made for money first, whereas art is created for the message first. Finally, Schauer’s value of pornography is addressed, and many feel the overall value of pornography is detracted from because of the claim that pornography increases violence against women and child abuse.

First are the satisfaction of the Miller standards; prurient interest, patent offensiveness and a lack of artistic value. Prurient interest can be described as an over interest in sexual intercourse; “unusually or morbidly interested in sexual thoughts or practices; exciting or encouraging lustfulness.”[33] This prurient standard is hard to define, because there is no hard and fast rule as to what is or is not too much interest in sex. A basis of comparison may be subjective. Would a juror ever admit to being prurient in order to create a standard of comparison, or is the famously ambiguous quote by Supreme Court Justice Potter Stewart, “I’ll know it when I see it” the standard? An example of prurient interest, patent offensiveness and a lack of artistic value is the woodcut design of Japanese artist Hokusai entitled “The Dream of the Fisherman’s Wife.”[34] The print depicts a woman engaged in seemingly consensual intercourse with a pair of octopus, which most would consider an unusual or morbid interest in sexual thoughts and practices. In Japan it is the piece that inspired an entire movement of erotic artwork known as tentacle porn “which became a large part of Japanese hentai pornographic movement after depictions of male genitalia were banned in the country. Works derived from the print have sparked debate over pornography, art, and obscenity in Australia,[35]” and in America many would consider the subject matter to be bestiality, which is “sex between a person and an animal,[36]” and is illegal and deemed obscene in most states. In California, for example, “Bestiality [is] a felony, punishable by up to five years in prison and a $10,000 fine. …the measure also says that anyone videotaping could be convicted under animal-cruelty laws. People who allow bestiality on their property also could face prosecution.”[37] “Art is art and pornography is pornography. Art can have pornographic or obscene subject-matter, but art never becomes pornography – nor pornography art, for that matter. When representation of the sexual and/or erotic is designed purely to channel sexuality for the purpose of commerce, this is pornography properly so called. And, because such a representation is functional, it will be design, not art properly so called: as much design as any advertisement is.”[38]

The second rationale addresses the emotional requirement of artwork, arguing that pornography does not inspire and deep emotional feelings; that porn is made for money and art is made for the message, and therefore the two are mutually exclusive. While artwork may draw inspiration from eroticism, the line that separates pornography from eroticism is black and white, and while on can be art, the other simply goes too far. There is also the utilization of subject matter in art versus porn; “pornography is explicit and represents people as objects, while art invites us into the subjectivity of the represented person and relies on suggestion.”[39] Art is multilayered and make the viewer feel something, whereas porn is one dimensional and actually simplifies as opposed to adding depth to its images. People become things in porn, devoid of emotion and instead grasping at hedonism.

The Kama Sutra is an excellent example of this lack of emotional depth. The Kama Sutra is readily recognized as one of the foremost manuals on lovemaking positions in the world. It has existed for centuries, and is an ancient Hindu text written by Vātsyāyana. While a portion of the text focuses on the roles that Hindu husbands and wives are to play within the marriage, there are graphic pages that illustrate practical advice on sexual intercourse. The word practical is essential when looking at the Kama sutra, because while lust may certainly be triggered, there is no hidden meaning or different interpretation of the images portrayed. It is a simple, graphic depiction of multiple ways to achieve coitus. This can be contrasted with the water color painting by Achille Devéria’s “libertine watercolor”. While the scene is explicit and erotic, with a gentleman shown on his knees orally stimulating a women beneath the folds of her dresses, the “scene is taking place clandestinely against the background of a “respectable” party seen at the back.” This indicates a deeper story than the image itself represents. Who are these lovers engaged in a tryst whilst a party takes place in the background? Devéria is readily accepted as an artist, and “most of his work consisted of “pseudo-historical, pious, sentimental or erotic scenes.”[40] Since he rarely depicted tragic or grave themes, he appears less Romantic than many other artists of the time. His paintings were mainly done using watercolors. The French poet and critic Charles Baudelaire referred to his portrait series as showing “all the morals and aesthetics of the age.”[41]

The third and final rationalization for dis-including pornography from the art categorization goes to the point of value of pornography as exemplified in Schauer’s theory. If the value of pornography is to evoke feelings of sexuality and lust, then the value is detracted from due to the underpinnings of violence against women and child abuse per child pornography. To illustrate this differentiation, scholars often utilize the Latin root (etymology) of the word ‘eroticism’ to that or ‘pornography’. “For while ‘erotic art’ ultimately derives from ‘Eros’ (the Greek word for love or passion), indicating an integrated sexuality based on mutual affection, the term ‘pornography’(whose etymological root is ‘porne,’ meaning prostitute) reflects a dehumanized sexuality based on the exploitation of women.”[42]

Many feminist philosophers have agreed with this sentiment, and state that pornography subjugates and silences women. They state that the message delivered by pornography is in conflict with the desired context included within art. There is also a strong but related argument by feminists that pornography serves to increase and objectify violence towards women in society. “The Commission concludes that category (1) pornography causes an increase in aggressive attitudes, particularly toward women, and that this results in an increase in violent sex crimes.”[43] This stance is challenged by the statistics offered by the Department of Justice, however, which state that “where adult pornography is widely available, all forms of adult rape go way down. [In fact] rape has been declining for many years.”[44]

Take for example the more recently written 50 Shades of Grey, which many feminists and advocate groups claim is an instruction manual for violating and abusing vulnerable women. “”It really is about a domestic violence perpetrator, taking someone who is less powerful, inexperienced, not entirely confident about the area of life she is being led into, and then spinning her a yarn. Then he starts doing absolutely horrific sexual things to her … He gradually moves her boundaries, normalizing the violence against her. It’s the whole mythology that women want to be hurt. The story’s “subliminal message”… is the classic narrative of domestic violence – “that you can heal this broken man, that if you just love him enough and take his shit enough, he will get better.”[45] Another instance can be found in “Chrétien de Troyes’s Lancelot , Francesco Petrarch’s Sonnets to Laura the female is represented as an object of passion to be possessed, and her own autonomy and point of view are completely disregarded.”[46]

This argument extends to child abuse as well, with many scholars stating the value of pornography is completely undermined by the consequences of the less morally stringent population. Child pornography is an inevitable result and subsection of fetishism, much like bestiality. “Child pornography is not entitled to First Amendment protection provided the conduct to be prohibited is adequately defined by applicable state law, as written or authoritatively construed.”[47] The line between what is considered art and what crosses the boundary into obscenity is extremely thin. There are several examples of artists who have been accused of dancing the line between art and pornography, sometimes landing on the consequential side of the latter. The Blue Lagoon is a film that revolves around two children who are shipwrecked, unsupervised, on an island. Throughout the film, there are shadows of genitalia depicted while swimming in the ocean, and moments of self-discovery and sex which commonly arise in phases of adolescence. This film was deemed not to be “There was no force or coercion involved, and the work in question has social value or serious artistic merit.

Conversely, it could be opined that “the growth of child pornongraphy law has startling and unappreciated doctrinal importance… child pornography law has introduced into the First Amendment a radical view of speech- how it works and why we restrict it. We are so horrified of the crime of child pornography that, to combat it, we have inverted the First Amendment, disrupting established categories and assumptions. Child pornography law … has widespread implications for all free speech.”[48] Think of the effect the aversion to child pornography has had on the legitimate photographical artwork of Jock Sturgis, shoes black and white nudes cover a gambit of ages and sexes indiscriminately. This merely illustrates the severity of the black and white starkness on the issue; there is no grey area when the word child pornography arises, despite it’s implications on the art world.

Catharine MacKinnon, a law professor and legal feminist, shares the view that pornograohy discriminates against women. She “feels that using labels such as “art” to protect pornography is merely a device to legitimize harmful material.”[49] Her arguments state “the inability of the judicial mind to distinguish harmful sexually explicit material from harmless expression attest to the difficulty of distinguishing a discriminatory practice from a liberating artistic expression.” Id.

The Supreme Court has ruled on the matter several times, and consistently finds in favor of the artist so long as they can prove they were producing a serious work of art, and not something meant to simply appeal to prurient desires… The Blue Lagoon can be reasonably viewed as a serious artistic work and the nude images are an integral part of it, so they’re not illegal [despite being underage].” [50] For many teenagers in the eighties, this film was a gateway into soft core pornography. Another example is a series of photos in 1995 for Calvin Klein, which showed youthful-looking models posing for underwear. “This 1995 ad campaign shot by Steven Meisel was one of the most controversial in the brand’s history. The ad… featured models in what seemed like a wood-paneled basement. Parent groups, child welfare authorities, leads of the Catholic League, and the American Family Association felt that the images looked like child porn. The investigation was eventually dropped, but only when Calvin Klein was able to prove that all the models were adults. And even then, the brand still pulled the ads.”[51]

Argument for Legally Classifying Pornography as Art

“There is no fact (even death?) that cannot be equated with fantasy, and truth resides only in the subjective eye. The refusal to define pornography might lead some to believe that First Amendment freedoms are the same liberty interests under the Fifth and Fourteenth amendments. Quite to the contrary. The two may otherwise be difficult to distinguish, but the defenders of pornotopia must label free speech as seminal, indeed as an essential to the good life. The may not be able to define speech, but they know it when they see it[emphasis added].”[52]On the other side of the debate, there is an assemblage of people who concur with the inclusion of pornography as a classification of art. Their main rationales can also be simplified into three main viewpoints. The first rationale appeals to the satisfaction of an emotion requirement for art, stating that pornography stimulates erotic emotions (an emotional power), and defines Erotic as relating to, or tending to arouse sexual desire or excitement. If art is appreciated and defined by its evocation of emotion, then sexual excitement is a valid emotional response. The second rationale is that pornography is a visual application of human creativity, and while it is an industry that needs to be closely monitored to avoid the exploitation of its subjects, none of these things mean porn can’t be considered art. Finally, the final rational for pornography’s inclusion as art is that it is a cherished representation of cultural artistic expression, and that it is propelled by cultural motivation.

The first argument is that the legal definition of what is art includes a requirement for the evocation of emotion and non-utilitarianism. Non utilitarianism means that art cannot be a window or chair; something that serves a purpose above and beyond its aesthetic existence. Pornography serves no purpose beyond seduction and excitement regarding the sex act, and so the discussion relating to that will end here. However, the evocation of emotion is a debatable point. Those in favor of including pornography as a subsection of artwork encourage the acceptance of sexual arousal and excitement as a valid emotional response, thereby satisfying this requirement for inclusion as artwork.

Novels like The Story of O … are profound explorations of extreme states of human feeling and consciousness. Published in French by Jean-Jacques Pauvert, Story of O is a tale of female submission, who is taught to be constantly available for oral, vaginal, and anal intercourse. O spends several days being sexually abused by several men and whipped until she is ready to return to Rene. Then he shares O with his older step-brother Sir Stephen until Rene finally gives O to him. Meanwhile, O and Sir Stephen fall in love with each other.”[53] While the plot of the novel, which was later turned into a film, has a severe focus circulating around sex, domination, abuse and arousal, the artistic merit is to be found within the underlying love story and strength of survival in the main character. While this is undoubtedly pornographic in nature, the novel is also hailed for its artistic merit.

Another example of pornographic mediums that are readily included as works of art is the novel Fanny Hill and its accompanying illustrations by Édouard-Henri Avril. “Avril was a French painter and commercial artist… he was an illustrator of erotic literature. His reputation was soon established and he received many commissions to illustrate both major authors and the so-called “galante literature” of the day, a form of erotica”[54]. His Illustration Les charmes de Fanny exposés and plate XVIII from De Figuris Veneris exhibit everything from orgies to oral sex, and yet he is considered one of the great fine art illustrators from France in the 1900’s. Because his works impose feelings of eroticism does not make them any less substantial works of art, nor are the feelings of eroticism that coincide with his works less effective in marking the works as art than, say, the feelings of panic or sympathy that coincide with Picasso’s Guernica. Judges have stated that eroticism does not necessarily mean a work is obscene; remember, “Material may be deemed “obscene” if the dominant theme of the material taken as a whole appeals to prurient interest in sex, if it is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters, and if the material is utterly without redeeming social value”. The story of O and the novel Fanny Hill serve important purposes of providing feelings enlightenment and encouragement of perseverance. This would most certainly serve to prove that these pieces are worthy of being deemed ‘art’. “Robert Mapplethorpe [ when asked how to distibguish hard core pornography from art in culture] answered playfully: “pornography is fine with me. If its good it transcends what it is.” Evidentally, Frederick Schauer agreed: an “artist” is entitled to depict arms stretching into anuses or to represent one person urinating into another’s mouth. Can that “speech” be abridged? “Absolutely not.””[55]

The second rationale is that pornography is a visual application of human creativity, and while it is an industry that needs to be closely monitored to avoid the exploitation of its subjects, none of these things mean porn can’t be considered art. “Only when we stop confusing artistic merit with ethical deformity can we start having interesting conversations about what constitutes “artistic” pornography and whether there’s a market for it.”[56] An excellent exemplification of this point is the photography of Jock Sturges[57]. Jock is a black and white photographer whose work centers on a myriad of nude subjects. The inclusion of children amongst these subject has led to accusations of child pornography and “his work has been the subject of controversy in the United States. In 1990, his San Francisco studio was raided by FBI officers and his equipment seized. A grand jury subsequently declined to bring an indictment against him. In 1998 unsuccessful attempts were made to have his books The Last Day of Summer [58] and Radiant Identities classed as child pornography.”[59] Jock Sturges’ photographs have been hailed for their visual application of human creativity, and his exclusivity of work with black and white photographs and shadows has brought him a strong reputation for fine art photography in California and nationwide. Courts are hesitant to state that a creative work in question is not in fact art, especially if it can be shown that the piece has social value or serious artistic merit. Jock Struges was able to show that his photographs carried the requisite artistic merit.

Another excellent example of pornography that is included in the category of art due to its visual application of human creativity is Jeff Koon’s Made in Heaven[60], a series of sculptures and paintings depicting the artist, Koon’s, and his wife in positions ranging from intercourse to ejaculation. “In 1997, Koon’s twice postponed and ultimately canceled his show of this work at the Guggenheim. In those years, Koons was still very raw from the divorce and the child-custody issues. Nevertheless, he has always maintained that this is his most important body of work, the most radical, the most risky and the most sincere.”[61] “His work explores contemporary obsessions with sex and desire; race and gender; and celebrity, media, commerce, and fame. [He is] A self-proclaimed “idea man” [62] and one of the most successful artists in the world. His visual application of human creativity made a sculpture of a balloon dog a million dollar acquisition, and his reflection on sexual intercourse and his manifestation of pornographic representations is no less a triumph merely because it could also be deemed pornographic.

The final rational for pornography’s inclusion as art is that it is a cherished representation of cultural artistic expression, and that it is propelled by cultural motivation. From histories beginnings, the cultural aspects of a community could be determined by the artistic expression utilized in that cultures art. In 510 B.C., Greek and Roman cylix would depict erotic scenes of mass orgies and oral sex[63]. The city of Pompeii, forever destroyed by volcanic ash in 79 A.D., lives on through its artwork, known for typically being both beautiful and erotic[64], and including sculptures of bestiality, paintings of ventro-dorsal sex, retro copulation and fondling . “In the 1840’s, it was cheaper to purchase a prostitute for the sex act than it was to pay two models to hold a sexual position for the weeks’ worth of time it took to paint them, and therefore pornographic pictures were a sign of wealth in the upper echelons[65], yet another example of cultural motivation for the existence of pornography. The eroticism of the pieces does not negate the artistic effort, emotion or cultural significance which combine to make them art. The time and place of these pieces has no bearing on their artistic merit except to exemplify the enduring cultural obsession with pornography through time. However, because f when and where they were created, they are not necessarily excluded from the title of ‘work of art’.


The Miller rule currently utilized by courts of the United States have deemed obscenity to consist of superfluous obsessions with sex (known as prurient) that are patently offensive and serve no societal purpose. In accordance with the rule, almost anything could be considered obscene and denied protection under the first amendment, and simultaneously nothing could be considered obscene, due to the presumed existence of subjectivity. The courts recognize this and now suggest that obscenity is to be defined by individual districts in which the cases come up. What may be considered obscene in a conservative rural of Utah may not be considered obscene in the liberal city of Miami. Ultimately, the famous quote by Justice Potter Stewart was accurate. If you are on a jury for a case in which a piece of art, film, sculpture or other typically artistic medium is on trial for its validity in the art world and constitutional protection, what you see when you view the piece, be it a pornographic obscenity or an artistic masterpiece, is what it is. The designation of obscenity or art is, exclusively, in the eye of the beholder.


[1] John Wesley Hall. Obscenity Laws? Whats the Point Anymore (Not That There Was)? 47- FALL Ark. Law. 16. (2012).

[2] Oxford Dictionaries, pornography, (March 4, 2014), http://www.oxforddictionaries.com/us/definition/american_english/pornography

[3] Professor Levy’s art law seminar evening class (January 2014)

[4] Dictionary.com, utilitarian, (March 4, 2014), http://dictionary.reference.com/browse/utilitarian

[5] Ninna Galas, Barefoot, jock sturges, (March 4, 2014) http://soko-barefoot.blogspot.com/2012/08/jock-sturges.html

[6] John Wesley Hall. Obscenity Laws? Whats the Point Anymore (Not That There Was)? 47- FALL Ark. Law. 16. (2012).

[7] United States Obscenity law. Wikipedia.

[8] Miriam Webster, prurient, (March 4, 2014), http://www.merriam-webster.com/dictionary/prurient

[9] Nicholas Wolfson, Eroticism, Obscenity, Pornography and Free Speech, 60 Brook. L. Rev. 1037, 1038 (1994)

[10] Wikipedia, fanny hill, (March 4, 2014), http://en.wikipedia.org/wiki/The_Life_and_Adventures_of_Miss_Fanny_Hill

[11] Tabatha Leggett, NewStatesman, can pornography be art, (March 4, 2014), http://www.newstatesman.com/culture/2013/06/can-pornography-be-art

[12] Tabatha Leggett, Clippings.me, Tabatha Leggett, (March 4, 2014), http://www.clippings.me/users/tabathaleggett

[13] Nicholas Wolfson, Eroticism, Obscenity, Pornography and Free Speech, 60 Brook. L. Rev. 1037, 1039-40 (1994)

[14] John Wesley Hall, Obscenity Laws? What’s the Point Anymore (Not That There Was)?, Ark. Law., Fall 2012, at 16

[15] A Book Named “John Clevland’s Memoirs of a Woman of Pleasure” v. Attorney Gen. of Com. of Mass., 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966)

14 Wikipedia, fanny hill, (March 4, 2014), http://en.wikipedia.org/wiki/The_Life_and_Adventures_of_Miss_Fanny_Hill

[17] L.R. 3 Q.B. 360 (1868). Court of the Queen’s Bench.

[18] Wikiource, regina v. hicklin, (March 4, 2014), http://en.wikisource.org/wiki/Regina_v._Hicklin#Decision

[19] Artemus Ward, The Boundaries of Free Expression, obscenity regina v. hicklin, (March 4, 2014), http://shrdocs.com/presentations/53871/index.html

[20] Entertainment.ie, Lovelace: 10 adult movies that changed the future of pornography, (March 4, 2014) http://entertainment.ie/cinema/news/Lovelace-10-adult-movies-that-changed-the-future-of-pornography-NSFW-obvz/206808.htm

[21] People v. Wepplo, 78 Cal. App.2d Supp. 959, 178 P.2d 853.

[22] Roth v. United States, 354 U.S. 476, 480, 77 S. Ct. 1304, 1306, 1 L. Ed. 2d 1498 (1957)

[19] Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957)

[20] Wikia, “Roth Standard”, (March 4, 2014), http://itlaw.wikia.com/wiki/%22Roth%22_standard

[21] Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973)

[22] Wikipedia, obscenity, (March 4, 2014),http://en.wikipedia.org/wiki/Obscene

[23] http://predoc.org/docs/index-7321.html?page=3

[24] People v. Mature Enterprises, Inc., 73 Misc. 2d 749, 750, 343 N.Y.S.2d 911, 912 aff’d, 76 Misc. 2d 660, 352 N.Y.S.2d 346 (App. Term 1974) order modified and remanded, 35 N.Y.2d 520, 323 N.E.2d 704 (1974) and supplemented, 73 Misc. 2d 773, 343 N.Y.S.2d 934 (Crim. Ct. 1973)

[29] F Schauer (1976) 144-45

[30] Ronald Collins & David Skover. THE PORNOGRAPHIC STATE. 107 Harv. L. Rev. 1374 (1994).

[31] John Wesley Hall. Obscenity Laws? Whats the Point Anymore (Not That There Was)? 47- FALL Ark. Law. 16. (2012).

[32] Matthew Roe, Examiner.com, Is pornography art?, (March 4, 2014), http://www.examiner.com/article/is-pornography-art

[33] Dictionary.com, prurient, (March 4, 2014), http://dictionary.reference.com/browse/prurient

[34] Lee Jay Walker, Modern Tokyo Times, Hokusai and the dream of the fisherman’s wife: erotic or hidden meaning, (March 4, 2014), http://www.moderntokyotimes.com/2012/05/16/hokusai-and-the-dream-of-the-fishermans-wife-erotic-or-hidden-meaning/

[35] Wikipedia, User:Bearhugsrbest/sandbox, (March 4, 2014), http://en.wikipedia.org/wiki/User:Bearhugsrbest/sandbox

[36] Merriam-Webster, bestiality, (March 4, 2014), http://www.merriam-webster.com/dictionary/bestiality

[37] Jennifer Sullivan, The Seattle Times Local News, Lawmakers vote to make bestiality illegal in this state, (March 4, 2014), http://seattletimes.com/html/localnews/2002838346_bestiality02m.html

[38] Donalad Richardson, Donald Art, when does art become pornography?, (March 5, 2014), http://www.donaldart.com.au/Writings2/ArtPorn.html

[39] Hans Maes, Academia.edu, Drawing the Line: Art versus Pornography, (March 5, 2014), http://www.academia.edu/2313865/Drawing_the_Line_Art_versus_Pornography

[40] Stephen Bann, ‘Achille Deveria and French Illustration in the Romantic Period’, Print Quarterly, vol. XXIX, no. 3, September 2012, pp. 288-299.

[41] Wikipedia, Achille Deveria, (March 5, 2014), http://en.wikipedia.org/wiki/Achille_Dev%C3%A9ria

[42] Webb, Peter. The Erotic Arts. London: Secker & Warburg, 1975.

[42] Michael S. Van Dyke, Regulation of Pornography: Is Erotica Self-Expression Deserving of Protection?, 33 Loy. L. Rev. 445, 451-52 (1987)

[44] Todd Kendall, “Pornograohy, Rape, and the Internet,” Stanford Law School, law and Econopmics Seminar (Fall 2006), and republished Clemson Dept. of Economics (Jult 2007).

[45] Alison Flood, The Guardian, Fifty Shades of Grey condemned as ‘manual for sexual torture’, (March 5, 2014), http://www.theguardian.com/books/2012/aug/24/fifty-shades-grey-domestic-violence-campaigners

[46] Kieran, Matthew.‘Pornographic Art.’ Philosophy and Literature 25 (2001): 31-45.

[46] New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982)

[48] Amy Adler. INVERTING THE FIRST AMENDMENT. 149 U. Pa. L. Rev. 921. (2001).


[50] Andi, Yahoo Answers, How is the Blue Lagoon Not Considered Child Pornography?, (March 5,2014), http://answers.yahoo.com/question/index?qid=20080729223609AA8o8JH

[51] Karen Sanchez, Complex Style, The most controversial Calvin Klein ads, (March 5, 2014), http://www.complex.com/style/2013/09/controversial-calvin-klein-ads/child-pornography

[52] Ronald Collins & David Skover. THE PORNOGRAPHIC STATE. 107 Harv. L. Rev. 1374. (1994).

[53] IMDb, The Story of O plot summary, (March 5, 2014), http://www.imdb.com/title/tt0073115/plotsummary?ref_=tt_ov_pl

[54] “Paul Eduard Henry Avril – Biography and Offers – Retrieved 01 August 2012

[55] EDWARD DE GRAZIA, GIRLS LEAN BACK EVERYWHERE: the law of obscenity and the assault on genius 626 (1992) (quoting Robert Mapplethorpe).

[56] Tabatha Leggett, NewStatesman, can pornography be art, (March 5, 2014), http://www.newstatesman.com/culture/2013/06/can-pornography-be-art

[57] Ninna Galas, Barefoot, jock sturges, (March 5, 2014) http://soko-barefoot.blogspot.com/2012/08/jock-sturges.html

[58] Online Browsing, Jock Sturges, (March 5, 2014), http://onlinebrowsing.blogspot.com/2010/03/jock-sturges-danny-lyon-and-sturges-was.html

[59] Wikipedia, Jock Sturges, (March 5, 2014), http://en.wikipedia.org/wiki/Jock_Sturges

[60] Google Image, Made In Heaven Koons, (March 5, 2014), https://www.google.com/search?q=Made+in+Heaven%E2%80%99&source=lnms&tbm=isch&sa=X&ei=UFgXU4mtNMu9qAGk4oC4CQ&ved=0CAgQ_AUoAg&biw=1402&bih=773#q=Made+in+Heaven+Koon&tbm=isch

[61] Et Cetera: Publick and Privat Curiosities, jeff koons: the infamous ‘made in heaven’ series, (March 5, 2014, https://disembedded.wordpress.com/2010/10/03/jeff-koons-the-infamous-made-in-heaven-series/

[62] Gagosian Gallery, Jeff Koons, (March 5, 2014), http://www.gagosian.com/artists/jeff-koons

[63] Clarke, John R. (April 2003). Roman Sex: 100 B.C. to A.D. 250. New York: Harry N. Abrams. p. 168

[64] Google Images, art of pompeii, (March 5, 2014), https://www.google.com/search?q=art+of+pompeii&tbm=isch&tbo=u&source=univ&sa=X&ei=AV0XU7m5E8i1qwHJj4CwDw&ved=0CDEQsAQ&biw=1402&bih=773

[65] Wikipedia, Erotic Art of Agostino Carracci, (March 5, 2014), http://en.wikipedia.org/wiki/Erotic_art_of_Agostino_Carracci

Criminal Law is always of great interest to me, especially since so much of my time is focused on criminal litigation for misdemeanors and DUI/DWIs. DUI law often affects juveniles and young adults; most charges are applied to males between the ages of 18 and 28, and many have multiple convictions for the same or similar charge.

The latest edition of the Florida Bar News, Volume 43, Number 12 discussed one of the most interesting topics in Florida law; juvenile sentencing. Especially in light of the Florida Court systems groundbreaking sentencing decisions in cases such as Lionel Tate (Broward County) and Nathaniel Brazil(Palm Beach County), it is groundbreaking that “the justices unanimously agreed that juveniles tried as adults for non-homicide crimes cannot be sentenced with no chance of release to “non-life” prison terms that will likely exceed natural lifespans. Applying retroactively in Florida was the US Supreme Courts decision in Miller holding that juveniles convicted of murder cannot be sentenced to life without any “meaningful” sentence review The overarching theme of those cases is that kids are different and the state cannot treat them like adults with extreme sentences [0].

The United States cannot impose cumulative penalties above and beyond those specified by state law for infractions of state’s criminal code by its own citizens.[1]

The supremacy of federal law over state law only applies if Congress is acting in conformance with its enumerated powers [2]; the power to decide criminal sanctions is not one of those listed.

Alexander Hamilton explains in The Federalist Papers that any powers not specifically given to the federal government in the Constitution is reserved for the states.[3] In U.S. v. Constantine[4] the Court held that “Congress, since repeal of Eighteenth Amendment, has no power to ordain penalty for violation of state liquor laws.”[5] This case articulated the rule that is propounded in the Tenth Amendment of the United States Constitution; that the states [have a] right to enact legislation defining what conduct constitutes a crime and fixing the sentence to be imposed upon conviction therefor and the manner in which sentence shall be served[6].

The contention that Falcon is no longer good law is incorrect and contradictory to the Supreme Court’s holding in Miller and Witt.

In Miller v. Alabama the Supreme Court held that “mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishments.”[7] Retroactivity of the Miller holding was hinted at by the majority opinion written by Justice Kagan, who stated in dicta, “given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate sentencing for juveniles to this harshest possible penalty will be uncommon.”[8] However the lack of explicit Court ruling regarding retroactive application of the holding ultimately set the stage for Falcon v. State.

Falcon was convicted of first-degree murder and sentenced to life imprisonment without the possibility of parole.[9] Subsequently, in August 2012, Falcon filed a motion for post conviction relief and to correct an illegal sentence, asserting that her mandatory sentence of life imprisonment without the possibility of parole is unconstitutional under Miller and that she was therefore entitled to be resentenced.[10] The Florida Supreme Court ultimately found that Miller should be applied retroactively, under the rationale put forth in Witt v State.[11]

In Witt, the court propounded that the “Doctrine of finality should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications.”[12] The court decided that to deny Falcon of her right to a resentencing after the U.S. Supreme Court’s decision in Miller would have been materially unfair and a violation of her proscribed rights.

The balancing test, which weighs the constitutional rights of juvenile offenders with more deference than the doctrine of finality, is a state’s consideration. To this end, Witt recognized that changes in the law that “drastically alter the substantive or procedural underpinnings of a final conviction and sentence” outweigh the State’s interest in finality of litigation.[13] Without question, Miller is a substantial and substantive change in the law because it requires consideration of the nature of the offense committed and the juvenile’s individual attendant circumstances as part of the application of the Eighth Amendment’s prohibition against cruel and unusual punishment.

“Teague recognizes that new rules of criminal law should apply retroactively in some situations.[14] Specifically, Teague articulates two narrow exceptions to its presumption against retroactivity.[15] The first exception applied to new rules that place “certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe.”[16] This rule, applied by the Court, distinguishes substantive rules that apply retroactively from procedural rules that do not.[17]”[18]

In deciding whether a new rule or law should be applied retroactively, are: purpose to be served by the new rule; the extent of reliance on the old rule; and the effect of retroactive application of the rule on the administration of justice.[19]

The purpose of the new rule, as expressed in Miller, was to prevent the unjust application of life in prison to juveniles as though they were adults, as this is tantamount to a death sentence and a violation to a juveniles 8th amendment right against cruel and unusual punishment. The Miller rationale explained that a juvenile spending life in prison would be there longer than an adult (i.e. that more of their life would be spent in prison); and that juveniles are immature and inexperienced and rationalize differently than adults. Because of these natural and implicit differences between children and adults, the utilization of mandatory sentencing is unjust. Children are constitutionally different from adults for purposes of sentencing, and because juveniles have diminished culpability and greater prospects for reform, they are less deserving of the most severe punishments.[20]

The extent of reliance on the old rule however cannot be understated. The States have a legitimate government interest in the doctrine of finality, and not crowding courts retrying criminal cases that were already decided. However, when Florida decided the Falcon case, it commenced this examination of the options and alternatives and made its decision that Miller could and should be applied retroactively. Florida decided that this rule had a substantive impact on the administration of justice, more so than procedural.

To summate, in Miller, the Court went to great lengths to describe all of the various personal characteristics that differentiate juvenile offenders from adult offenders, including youth and immaturity among others. This evaluation of specific facts on a case by case basis is more substantive than procedural, so Miller is presumptively retroactive. This means that the application of Miller by the State of Florida in Falcon is also retroactive.

[0] Pudlow, Jan, ‘Whitney Untiedt’s ‘Big Idea’. The Florida Bar News, Volume 43, Number 12. June 15, 2016.

[1] United States v. Constantine, 296 U.S. 287, 294, 56 S. Ct. 223, 227, 80 L. Ed. 233 (1935). See, also, U.S. v. Kesterson, 1935, 56 S.Ct. 229, 296 U.S. 299, 80 L.Ed. 241; 147 U.S.C.A. §1983 (West 2012).

[2] Bosek et al., §14. Powers as between state and federal government; application of laws, 48A Fla. Jur 2nd

[3] Alden v. State, 1999 WL 83928 (U.S.), 8 (U.S.Amicus.Brief,1999) (“It merits particular attention …, that the laws of the confederacy as to the enumerated and legitimate objects of its jurisdiction will become the supreme law of the land; to the observance of which all officers, legislative, executive and judicial in each state will be bound by the sanctity of an oath. Thus, the legislators, courts, and magistrates, of the respective members will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws.”) The Federalist, No. 27, (Alexander Hamilton).

[4] Id.

[5] United States v. Constantine at 223

[6] Rose v. Haskins, C.A.6 (Ohio) 1968, 388 F.2d 91, 18 Ohio Misc. 81, 45 O.O.2d 395, certiorari denied 88 S.Ct. 2300, 392 U.S. 946, 20 L.Ed.2d 1408.

[7] Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)

[8] Lauren Kinell, Answering the Unanswered Questions: How States Can Comport with Miller v. Alabama, 13 Conn. Pub, int. L.J. 143 (2013).

[10] Id.

[11] Witt v. State, 387 So. 2d 922 (Fla. 1980)

[12] Id.

[13] Id.

[14] Teague v. Lane , 489 U.S. 288 (1989).

[15] Id.

[16] Id.

[17] Id.

[18] William W. Berry III, The Retroactivity Roadmap. How Montgomery Exposes Challenges to LWOP Mandatory Sentences, NYU Journal of Law and Liberty (2015).

[19] Hughes v. State, 901 So. 2d 837 (Fla. 2005)

[20] Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)

In Florida, you can be convicted of Driving Under the Influence (DUI) if you drive a motor vehicle with an unlawful blood alcohol level (BAL) .08% or above.
Penalties for a first DUI offense can include:

  • Between $500 and $1,000 fine (with a BAL of .015% higher or minor in the vehicle, fine between $1,000 and $2,000).
  • Driver’s license revocation for 180 days to 1 year.
  • DUI school
  • Mandatory 50 hours of community service, or an additional fine of $10 for each hour of community service required by the court.
  • Probation – not to exceed one year.
  • Not more than 6 months in jail (with a BAL of .015% or higher or minor in the vehicle, up to 9 months in jail).
  • Impoundment of immobilization of vehicle for 10 days, unless the defendant’s family has no other means of transportation.

DUI Diversion Programs: An Alternative To Going To Jail
Were you aware there are ways you can dismiss DUI charges? Florida offers several different DUI diversion programs designed to help certain types of DUI offenders avoid permanent marks on their record. One program includes the “DUI Pretrial Diversion” and is a great way to avoid going to trial for your DUI case. If you are eligible to attend this program and successfully complete it, your DUI case will be dismissed.

While DUI diversion programs can be more costly than other types of diversion programs, you can have your record expunged of your DUI case upon the completion of said program.

The DUI diversion program includes various steps including:

  • Community Service Hours
  • DUI Level 1 School
  • Treatment / Counseling Recommended by the Program
  • Completion of Victim Impact Class
  • Random Urine Screenings
  • 10 Day Vehicle Impoundment

Even though the program sounds complicated, it is worth completing. This way, you do not have DUI charges on your permanent record for employers and banks to see.