1. Whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
3. Whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value (Miller v. California).
I will reserve that in this instance, the film Hands Up!, which portrays both heterosexual and homosexual couples in the act of fisting (or, sticking their entire hands into the anus and vaginas of consensual sexual partners), does qualify under the first two requirements of the test. Taken as a whole, the act of fisting is a prurient sexual interest. In addition, the act clearly depicts sexual content.
This said, the film does, in my opinion, have a clear political value—therefore, the three-prong test does not hold up. At the end of the pornography, the two actors/actresses directly address the camera and ask the viewers to actively lobby for the abolition of obscenity law...
... middle of paper ...
...pecific characteristics (race, gender, or religion) that would classify a burning of a cross as a hate crime. However, the court made it tremendously clear that a law is not valid if it places one viewpoint higher than others. Because of this, Jacobson can easily challenge his conviction in the courts.
In addition to the RAV v. St. Paul case, the court makes a compelling argument against restriction of this speech in Virginia v. Black. The court ruled that while the law doesn’t entirely persist in the realm of breaking viewpoint neutrality, the court did believe that the prima facie clause created an overbroad statue, which had the power to chill protected speech.
Jacobson has a clear case against his indictment. The law on its face is unconstitutional according to precedent. The Supreme Court has shown that they are not willing to stifle this style of speech.
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