Rosen held that the obscenity test was in fact one of tendency, and that this test was “quite as liberal as the defendant had any right to demand.” Lower courts, however, would disagree and increasingly liberalized the standards throughout the early twentieth century. The Hicklin test was used at the district and appellate levels across the United States and was formally adopted by the Supreme Court in Rosen v. Importantly, this test provided for no consideration of the merit of the work or whether it was “obscene” as a whole if the work contained any material that was obscene, the work was obscene. It is quite easy to define something as obscene when the test for whether it is obscene involves considering whether someone who is “open to such immoral influence” is likely to be immorally influenced. The Hicklin test provided significant leeway to the government to restrict and regulate speech. to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” This first test for obscenity was one of “tendency”: the focus of the test was on the likely effect the material would have on its audience, not on any particular criteria inherent to the work or on the intent of the author. Hicklin, the Queen’s Bench determined that material was obscene if it had the “tendency . . . The test for what constitutes obscenity has been through many iterations, with the first being adopted by American courts from a ruling in Great Britain. The Miller Testįor a long time, the courts have struggled with defining where exactly the dividing line is between obscenity and speech that is constitutionally immune from government suppression. Therefore, the Court should instead bring obscenity entirely under the protection of the First Amendment and use the constitutionally permissible time, place, and manner restrictions to protect vulnerable audiences from graphic material in cinema. Finally, there is no logical reason for the distinction between graphic sexual content with artistic merit and that without. Not only do judges and Justices generally lack particularized training in film and art, but whether something has artistic merit is quite subjective, rendering this kind of determination difficult even for those with formal training in these fields. State and federal courts, while well-situated to make important determinations of law, are not well-suited to the task of determining what does or does not have artistic merit. But the line dividing art from non-art is just as blurry as the line between cinema and pornography, and the courts have had no shortage of difficulty determining what is or is not art. Material that would otherwise be considered obscene may be redeemed by “serious literary, artistic, political, or scientific value.” In short, cinema is not pornography because it is art. What is it exactly that distinguishes sexually graphic cinema from obscenity? Legally, the difference is clear. Most people have at some point come across Justice Stewart’s famous description of pornography: “I know it when I see it.” Well, I’m not sure I do. Years later, I am still left wondering whether there actually is such a difference between what we were watching and pornography. We shrunk in our seats, bristling, irritated that we had been accused of watching porn when clearly this was cinema. He gasped and quickly walked back out, and before the door closed, we could hear him shout to his friends, “Dude they’re watching porn in there!” We were mortified. At some point during the screening, someone walked in not realizing the classroom was in use. So, on this particular Monday at 7:00 p.m., eleven film majors and one middle-aged professor sat together and watched Anne Severson’s Near the Big Chakra, a film consisting entirely of close-up shots of thirty-eight different vulvas. For those readers who have never studied film before, most film classes come with a “screening” component, which means that once a week the class gathers in a lecture hall and watches whatever film or films will be discussed that week. The class was “Women and Film,” and we were studying feminist avant-garde cinema. When I was a sophomore in college, my class watched a film about vaginas. Do You Know It When You See It? Cinema, Pornography, and the First Amendment
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