Senators Call for Holder to Prosecute Porn as "Obscene"

Forty-two Senators (most of the usual suspects) have signed a letter to Attorney General Eric Holder calling for the prosecution of pornography under American obscenity laws. You might recall such a case against Evil Angel entrepreneur John Stagliano last year that sought to do the same thing, but was thrown out on technical grounds.

Declaring porn legally obscene so that it can be prosecuted brings with it a high cost to Freedom of Speech as protected by the First Amendment. If the government can define a particular form of speech as obscene for the sole purpose of having it censored, what's to stop them from declaring other forms of speech as obscene, such as speaking out against Presidential, Congressional, or Judicial actions?

Chapter 71 of Title 18 of United States Code contains various laws related to obscenity, but what constitutes obscenity is not specifically defined. And it should stay this way, although I personally believe that most of those obscenity laws should be repealed with the exception of those directly related to child pornography. Furthermore, 28 C.F.R 75 implies that adult pornography is legal with respect to obscenity laws.

Social conservatives want you to believe that the applicable test for defining "obscenity" is Justice Potter Stewart's famous "I know it when I see it" from Jacobellis v. Ohio, 378 U.S. 184 (1964). Of course, relying on such test would mean that the definition of obscenity in any given year would depend upon the make-up of the courts at the time.

The standard test for obscenity is the Miller test. Miller v. California, 413 U.S. 15 (1973) gave us a three part test to determine whether a particular form of speech is obscene. As with any other legal test, it's not perfect but it's better than no test at all.

There are three parts to the Miller test that must be considered (line breaks added for clarity):

...(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489;

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the "utterly without redeeming social value" test of Memoirs v. Massachusetts, 383 U. S., at 419;

The last part is very important with respect to pornography, as the human body is commonly considered an artistic medium. What makes pornography different from other artforms, especially in the context of the First Amendment? Is it a subjective definition of obscenity?

By the way, a few of the names that signed the letter (attached below) are somewhat surprising in that they are Senators who have a history of supporting social liberties, such as Dianne Feinstein.