Mark D. White
I discussed this matter to some extent in my crime and punishment seminar this semester, so it caught my eye: at Prawfsblawg, Bill Araiza discusses the recently signed Animal Crush Video Prohibition Act of 2010 and whether the obscenity standard, which is defined to cover sexual material, can or should be applied to material from which only a small minority of persons derive sexual gratification. He concludes:
There's an obvious -- if ironic -- truth here: people who have majoritarian sexual stimulants -- call it "good looking people getting naked and acting sexually" -- can expect to have the most extreme versions of their sexual "fetishes" subject to regulation (at least at the margins), while people with distinctly minority tastes -- e.g., getting turned on by uniforms -- will usually have a protected supply of material. Nobody would ever think of banning depictions of uniforms because some people find them a turn-on. The interesting question arises when there are depictions of conduct -- such as crushing animals -- that presumably has, at best, miniscule social value, but that serves as a sexual fetish. Can we appropriately think of that as obscenity? Maybe we can, but it seems we'd have to alter not just the technical aspects of Miller's holding, but our entire conception of what it means for something to be sexually obscene.