“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”
- First amendment to the US Constitution
Our constitution, unlike many others, is remarkably vague. While the first amendment protects speech, it left the definition of what speech is to the Courts.
Do citizens have the right to protest by writing letters urging people to resist the draft?
No, as the court ruled in Shenk v. US
Do citizens have the right to symbolic speech
Yes, as the Court ruled in Texas v. Johnson (it is legal to burn a US Flag)
Is obscene speech protected speech?
No, as the court ruled in Roth v. US.
So what, exactly, is obscene speech?
In 1973, the Court, although ambiguous as usual, answered that question. They devised a three-pronged test that judged whether speech/expression could be censored by the state. The “Miller Test” is as follows:
In order for a work to be legitimately subject to state regulation:
· the average person, applying contemporary community standards (not national standards, as some prior tests required), must find that the work, taken as a whole, appeals to the prurient interest;
· the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law and
· the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
As most high school students know, Abercrombie & Fitch has earned a reputation for its risqué catalogues and promotional photography featuring scantily clothed models. A Virginia Beach A & F has recently been cited by police for violating an obscenity law for displaying a picture of three shirtless young men walking through a field.
Take a look at the picture. Does it pass the Miller Test? Should the court do more, less, or nothing at all to protect “obscene” speech or expression?
posted by CitizenPatriot at 10:36:00 AM
5 Comments:
To further the ambiguity of the Supreme Court in this area, in 1964, in the case of Jacobellis v. Ohio, Justice Potter Stewart tried to explain "hard-core" pornography, which is therefore obscene and not protected under the First Amendment, by declaring "I shall not today attempt further to define the kinds of material I understand to be embraced ... but I know it when I see it."
Are we therefore to believe that there is no single definition of 'obscene,' but rather, a moving, variable definition depending on which Supreme Court Justice or federal judge happens to hear the case? Is it fair or realistic to say that when two Justices see "it," they will both agree that "it" is obscene? It would go without saying that Justice John Paul Stevens, perhaps the most liberal on the Supreme Court bench, and now pushing 90 years old, would have a drastically different definition of "obscene" than would our new Chief Justice John Roberts, who is only 53 years old and one of the more conservative Justices.
Nonetheless, until further clarification, we are left to work with Miller's 3 prong-test, and the Justice's gut instinct of "it" being obscene.
10:55 AM
I definitely think A&F can get pretty suggestive at times--it can be ridiculous. But the specific picture presented is actually pretty tame compared to some of the other stuff that they've done. (More specifically, "they" is Bruce Weber, a renowned photographer--he does tons of photos like this, most sexually suggestive in nature, most MUCH worse than this one.)
So, as for each condition:
1) Does the community find it obscene?
Yes, clearly this is true, since it was brought up in the first place.
2) Sexual conduct/excretory functions displayed?
Ummm no. Unless there are sexual functions I am not yet aware of.
3) Does it lack artistic, political, etc. value?
I actually think this one is not true. To begin, the courts dealing with this case need to understand a lot about photography.
When it boils down to it, photography is an art; this Bruce Weber guy is really well know for his stuff. So much goes into a good photo--composition, color, etc. (I am no expert but I am slightly versed in the difficulty of the technique that must be acted out to create a single photo.)
What may look like a simple photo of men running through a meadow half-naked actually takes work. And even though it seems stupid there is actually an artistic concept behind the set-up--some would even argue it is creative.
If a photograph emits a sense of environment, of tone--if it gives you a feeling, has its own mood, its own moment--then I think it is artistic. Even though I think that A&F's advertising campaign is ridiculous and it disgusts me that this campaign is successful for them, the truth is that this photograph is not valueless art-wise.
So the only condition it breaks would be the "is the community offended?" condition. Which obviously merits it being taken down.
Although I definitely think this Virginia community is very conservative if they decide that THIS is the photograph that should be taken down out of all others.
--Michael Lipkowitz
8:53 PM
Considering this is A&F, I don't think this is as bad as it could be. Whoever brought this to court for obscenity has older opinions on life, and needs a reality check. You can walk down the street and see pictures of half naked women for victoria's secret and not call that obscene. But when three dudes with no shirts on walk through a field in a picture is called obscene, where do you draw the line?
9:15 PM
It is socially acceptable for men to have their shirts off, so I really don't think that this specific picture should be considered obscene. A&F IS known for putting worse things out there, so I'm not sure why this picture was chosen for the case. If a child saw this picture, they wouldn't go up to their parents and say mommy daddy look! I'd say this is a perfectly acceptable picture to put out there.
9:37 PM
This has nothing to do with the post...
BUT let me just say this
ELBAUM=Stevenson's Next Top Model
4:37 PM
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