The plaintiffs are arguing a number of things, salient among them that the victimization by the FCC impinges on rights guaranteed by the First Amendment. There are collateral complaints, among them the inconsistency of the FCC's actions, which introduces arbitrariness, injustice, and other unpleasant things.
It has been a very long struggle, the attempt to salvage the very idea of indecency. A famous Supreme Court ruling, Miller v. California in 1973, held that obscenity laws could be used against acts patently appealing to prurient interest upon applying contemporary community standards.
Miller led to wonderful fiascos. Those eager to make the Supreme Court ruling active decided it would be a good idea to prosecute all those involved in producing and distributing "Deep Throat." When it was shown in Memphis, Tenn., the local prosecutor struck. His job appeared easy. "Deep Throat" is hard pornography, and Memphis is not a municipal brothel.
It is easiest to compress the story by recording simply that the anti-obscenity people failed. Defenders pleaded everything in the books, among them that there was, in "Deep Throat," material not obscene that was of independent and redeeming interest, causing a ruling against the whole movie to be a licentious singularization of one part, at the expense of all parts. If your impulse is to laugh, cool it, and remember that laughter is ultra vires in legal argument.
But the most illuminating judicial impasse was about to happen. In nearby Cincinnati, the museum put on an exhibit of the photographs of the late Robert Mapplethorpe. Several of the photos featured activities that engrossed the artist, who had died of AIDS, and an obscenity suit was brought against the museum.
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