Defining Obscenity: The Criterion of Value
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Abstract
The states, and the federal government, are constitutionally permit- ted to restrict or prohibit the sale of sexually explicit materials, at least within limits. The most significant limitation on the government's restrictive power is that material cannot be condemned as obscene if the material is found by the trier of fact to possess "value" of a certain kind. It is the purpose of this Article to sort out and seek to resolve the out- standing problems associated with value standards. If such problems can be satisfactorily resolved, this would provide a reason not to decriminalize all otherwise obscene materials out of sheer jurisprudential frustration, rather than conviction. The standards advocated below would not constitutionally protect some materials, but would remain faithful to the underlying value logic of the free speech and free press clauses.