Erotic Art - Legal Standards

Legal Standards

Whether or not an instance of erotic art is obscene depends on the standards of the community in which it is displayed.

In the United States, the 1973 ruling of the Supreme Court of the United States in Miller v. California established a three-tiered test to determine what was obscene—and thus not protected, versus what was merely erotic and thus protected by the First Amendment.

Delivering the opinion of the court, Chief Justice Warren Burger wrote,

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.

As this is still, almost by necessity, much more vague than other judicial tests within U.S. jurisprudence, it has not reduced the conflicts that often result, especially from the ambiguities concerning what the "contemporary community standards" are. Similar difficulties in distinguishing between erotica and obscenity have been found in almost every legal system in the world.