This one is for Tony Comstock
I’m gearing up to teaching my “Law And Society” (POL 203 at Mercer County Community College — there are still seats left for those in the Trenton/Princeton vicinity) course for the Spring ’11. We study, among other things, obscenity standards and the Miller v. California case.
Last time I taught the course, as a supplement, I showed the following clip from the Mike Douglas Show discussing Deep Throat with Rex Reed for whom I have the profoundest respect as a social critic.
There is also a formidable pro-Comstock laws advocate — indeed a professional censor — on the other side who I understand was a legend in her own right.
I recently had the good fortune of exchanging e-mail with a fellow who clerked for Justice Stewart when Miller was decided, and was privy to the regular movie screenings the court found itself involved in at the time.
Watching movies and deciding what is and is not obscene on a case by case basis is not a very good use of the high court’s time and Miller is best understood as a case crafted to get the court out of the business of making obscenity judgements.
Viewed this way, Miller has been a tremendous success. Since Miller, the court found itself called upon to make an obscenity decision only one more time, in Jenkins v Georgia, and only because the cause was underway before the Miller decission.
Jenkins was aquitted, which is to say the court found Mike Nichols Carnal Knowledge not to be obscene. This is the last time the court would render such a decision. Miller’s construction renders this question a local concern.Report
Miller’s effect is no doubt a strangely fascinating compromise that advanced the free speech of pornographers. It’s like three steps forward, two steps back. Miller holds “obscenity” to be not constitutionally protected but then gives governments these hard to jump thru hoops in order to prove something “obscene.”Report
I’d argue that Miller is actually a lower threshold for the government to prove than in Roth (“utterly without redeeming social value”) which preceded Miller.Report
I inherited a Law and Policy course and taught it twice, but I could never figure out what the concept “law and policy” actually entailed, so I eliminated it. But I also have taught an art and politics course twice, and I discussed censorship and obscenity law, as well as issues of government funding of allegedly obscene/offensive art. It’s one topic where there’s no difficulty in finding good books and articles for students to read–the problem is selecting among the cornucopia of good writings.Report
“but I could never figure out what the concept “law and policy” actually entailed,…”
The perils of interdisciplinary.Report
Ooop, that should have been “law and society” that I could never figure out. Law and policy–which isn’t a course I’ve ever taught–would be vastly easier for me to define clearly enough to design a course around.Report
Also, a note to Jason:
After my exchange with Justice Stewart’s former clerk, I have to conclude that your, my, and your law professor friend’s interpretation of “I know it when I see it” was wishful thinking on our parts.Report