NCJ Number
115853
Journal
Journal of Law Reform Volume: 21 Issue: 1 and 2 Dated: (Fall 1987, Winter 1988) Pages: 255-282
Date Published
1988
Length
28 pages
Annotation
Arguing that the current legal test for obscenity is too complex, this article proposes a per se rule against hard-core pornography similar to that used in addressing child pornography.
Abstract
After discussing the history and pervasiveness of the pornography problem, this article explains the current legal test for obscenity, as evolved from Miller v. California, with an emphasis on terms commonly used in defining obscenity. It then examines problems in applying 'Miller' which suggest that the application of a per se hard-core pornography rule may be appropriate. The proposed statue or ordinance would prohibit the distribution or exhibition of 'any material or performance that explicitly depicts ultimate sexual acts, including vaginal or anal intercourse, fellatio, cunnilingus, analingus, and masturbation, where penetration, manipulation, or ejaculation of the genitals is clearly visible.' The article concludes that Congress and the State legislatures should adopt an objective definition of obscenity that would make commercial distribution of all hard-core pornography per se illegal. The article projects that under such a rule, hard-core pornography, like child pornography, would retreat underground and not be exposed to the general public. 282 footnotes.