Sex Discrimination

Justice Breyer’s dissent in the COPA case cites, once again, the famous Miller test for whether expression is “obscene” and thus unprotected by the Constitution. Material is considered obscene if:

”(a) … ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest…;
(b) … the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) … the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (1973)

Isn’t it high time the Court finally dumped the Miller test altogether, instead of quibbling over the boundaries of its application? In her concurring opinion, Justice O’Connor nicely knocks down, or at least bends, prongs (a) and (b). She draws attention to the tyranny of applying local community standards to a global medium, and to the inevitable ambiguity of the term “offensive.” But what I’d most like to see ditched is (c), the notion that protected speech should have “literary, artistic, political, or scientific value” – as though literature, art, politics, and science were the only valuable aspects of human life. Why not sexual value? Is not sex one of the most significant, and most sought after, components of the good life, at least for a huge chunk of humanity? “Religious value” is also missing from the list; but fortunately, religion gets separate First Amendment billing, while sex does not.