Spaghetti Straps, Halter Tops, and Prurient Interests

“...the average person, applying contemporary community standards...”

Whenever I read this standard set forth by way of the “Roth test,” I think of two very different weddings I was a bridesmaid in. Both women were raised in Christian homes and attended the same Christian school growing up. The first wedding, the bride and her maids were not allowed to wear strapless, spaghetti strapped, or halter topped dresses. The reasoning behind this was that the groom did not want other men “fantasizing about his soon-to-be wife,” and he thought that those types of clothes were, shall I say, scandalous. There was no dancing and not a drop of liquor in sight.

Meet our next bride. The dresses that she hand-picked for us were short, backless, and had deep plunging necklines. The neckline on the dress was so deep that had to tape and sew mine up so as not to have a wardrobe malfunction. There was dancing, scantily clad women, and an open bar.

While both of these women would be considered “average,” their view of contemporary community standards could not be more different.

Delivering his opinion on the Miller v. California case, Justice Burger, like many of his colleagues, revised the Roth test. Justice Burger revised it to read as: [1] “whether the average person, applying contemporary community standards of the state or local community, would find that the work, taken as a whole, appeals to prurient interest; [2] whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law; and [3] whether the work lacks serious literary, artistic, political, or scientific value.”

In the same year, in his dissent, Justice Brennan argued that the “Roth test” did not work because it was vague and it had a “chilling effect” on the freedom of expression. As shown by the example above, people's definitions and views on art, obscenity, and value differ too greatly to attempt to form a law based upon them. After all, what does provoke “prurient interests?” For some it's halter tops and spaghetti straps.

Justice Brennan proposed that citizens should have the right to decide for themselves about sexual expression, “but that controls should be kept on dissemination to juveniles and to unwilling persons.”

Adopting Justice Brennan's philosophy and John Stuart Mill's “harm principle”, I would argue that words, images, and sounds that stimulate erotic or sexual thoughts be protected, with the exception of those that contain illegal content, such as children, rape, and non-consenting adults. Mill argued that if there is direct and immediate “harm to others,” then restrictions may apply. This would apply to the exceptions above because their direct harm is the content and it has already taken place. Although, I do think that, with the exception of sexual content containing children, these restrictions may be difficult to judge because of people's sexual fetishes. I would argue that the restriction apply to any real-life footage of someone being engaged in any sexual act that is non-consensual, as opposed to actors engaging in consensual S&M for instance.

Again, adopting Brennan's philosophy regarding restrictions on dissemination and Feinberg's offense principle, I would argue that varying levels of protection apply to the distribution of such speech. This is also applicable to my view on differing protections of various mediums. I think exhibits such as Mapplethorp's should be allowed but do I think that the advertisement for the exhibition should be him pulling a bull whip out of his butt, no! I think that Germany has a relatively good policy when it comes to censorship and juveniles. There are specific channels for children and there are also blocks of time in the day where “obscene” or adult content is not allowed. The restrictions basically become more lenient throughout the day and into the night, so by 11:00 pm almost anything goes. I think that this is a logical approach that is straightforward to the point where citizens know when to watch what they want and when not to. As Feinberg argued though, there is a difference between harm and offense, and the law should not be so tangled in what offends, which is much too difficult to define for a diverse and free nation.