Document Type

Article

Publication Title

Yale Law Journal

Abstract

In 1973, in Miller v. California,' the Supreme Court wrested from the "tortured history" of its obscenity doctrine the modern constitutional definition of "obscenity." Miller set forth a new test to distinguish sexually explicit art from obscenity, protecting such art only if it demonstrates "serious . . . artistic . . . value."" Yet Miller was drafted at a radical turning point in the history of art, and the new art that has arisen since Miller has rendered standards such as "serious artistic value" obsolete. This new art-Post-Modern art'-rebels against the demand that a work of art be 'serious, or that it have any traditional "value" at all. Miller, then, evaluates contemporary art by the very standard which that art seeks to defy. Section I of the Note explores the Miller test, its critics, and the Court's recent reexamination of the test in Pope v. Illinois. Section II articulates three major themes of Post-Modern art and traces their implications for the Miller standard. After demonstrating the inadequacy of the Miller test for protecting contemporary art, this Note, in Section III, examines other standards that might offer more protection for art than Miller does. Nonetheless, even these standards fail to provide sufficient protection for artistic expression, for, as the Note concludes, the two basic goals of obscenity law-protecting art while controlling obscenity-lie in a state of irreconcilable conflict due to the nature of contemporary art.

First Page

1359

DOI

https://doi.org/10.2307/796739

Volume

99

Publication Date

1990

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