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 HISTORY OF PORNOGRAPHY IN THE JUSTICE SYSTEM
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’.
Conclusion
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.
Lauren
[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).
[49] Cheryl Blum. THE PLACE OF ART IN CATHARINE MACKINNON’S FEMINIST LEGAL THEORY. 19 J. Contemp. L. 445. (1993).
[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