--- Wendy Lyon <wendy.lyon at gmail.com> wrote:
> On 5/27/05, andie nachgeborenen
> <andie_nachgeborenen at yahoo.com> wrote:
>
> > Quoted, I am sure, in Beauharnais.
>
> Quoted in a lot of cases.
>
> > And a million other cases, Roth si still good law,
> > more or less.
>
> But Miller sets the current standard.
Right, but I was looking for the basis of the harm, not the current standard, no difference there. Prurient interest is still the key in Miller.
> >
> > No, you misundferstand the point of my citation,
> which
> > is not to show that the Court here holds taht
> > obscenity is unprotected -- they had decided that
> in
> > the 1940s -- but to explain why and to defione
> what is
> > obscene.
>
> I didn't misunderstand, I just disagree that they're
> explaining WHY in
> this citation. I think they'd already explained it.
Not so clear to me, but you may be right.
>
> > I wasn't trying to give the whole standard but to
> > locate what the Court thought was the harm in
> > obscenity, which I take to be its tendency to
> excite
> > lustful thoughts.
>
> Yeah. But the point, I think, is that it isn't
> primarily the harm
> which makes it bannable, as is the case in the other
> three exceptions.
> They would acknowledge that this same harm exists
> in pornographic
> material that isn't obscene. Where obscenity
> crosses the line is in
> being socially useless (according to them). I can't
> come up with any
> situation in which solicitation to murder - a
> genuine solicitation
> that is - would be excused on the grounds of
> literary value ("but,
> Your Honor, it made a good story!")
>
Good objection. However I don't think it carriews the day. The Court doesn't allow the banning of a lot of worthless stuff. I mean. People magazine. The Weekly World News. The National Review. (joke.) Pulp novels. Barbara Cartland stories. Mickey Spillane. It's worthlessness plus some other harm. Here the harm is the tendency to excite lustful thoughts, plus the fact that it's supposedly worthless. Of course some of us might think the tendency to excite lustful thoufghts is what makes it valuable . . . .
> > Didn't used to be. In the 60s and early 70s there
> were
> > tons of obscenity prosecutions.
>
> How many were upheld?
Not many, I think. There were osbscenity zoning cases
that were upheld, I think -- keep the portn theater
out of the neighborhood. Not so much the: can't sell
the dirty mags cases or show the dirty movies.
>
> > But I may misremember.
>
> Or my professor could have been letting a good
> anecdote get in the way
> of the truth :)
>
Well, we could look it up . . . .
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