Tuesday, January 09, 2007

Obscene? This community thinks so.

In studying for the New York bar exam, I have been thrust back into a strange land full of archaic legal thoeries, strange words, and post traumatic stress disorder from the last time I did this, for the California bar exam. But it does make for the occasional blog entry, so I guess I got that going for me.

For instance, I need to memorize the "tests" for what kind of "speech" constitutes obscenity that can legally be restricted or prohibited. The Miller Test (flowing from a 1973 California obscenity case, in fact) holds as follows:

"The basic guidelines for the trier of fact must be:
(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

I was having trouble figuring out how this application of "contemporary community standards" would play itself out, in practice, until we stopped for gas yesterday and I came across this at the local gas station. In front of each of the magazines- and I mean each because nearly every magazine that is for sale these days, it seems, has some racey cover- was a little homemade cardboard cutout square, attempting to mask the (apparently obscene) image behind it.

Take a good look at what the cardboard is hiding, though. It's Maxim magazine, which is just a men's magazine like GQ. Sure, it has sexy covers, but it's not a Hustler or Penthouse with really graphic nudity inside (and out). Maxim is just appealing to its target demographic to move product, and, strangely, is not even as sexy as some of the Cosmopolitan covers I've seen, aimed at women buyers!

Binghamton is known for being pretty conservative- it was birthplace of IBM, which had a no-drinking policy for its employees, and also birthplace of a particularly virulent strain of Catholic-fueled, anti-abortion sentiment in the 1980s. I think these little cardboard cutouts are a good example of applying "community standards" to material that is deemed (locally) to be "obscene."

The only problem is, if they keep up that level of censorship, they aren't going to sell any magazines! Ah, the local marketing minds hard at work once again, to drive the economy further into the ground- we can't even freely peddle smut!

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