Because of it's limitations, I find it troubling when the term is used in obscenity cases. Here's an example:
One of the Miller prongs asks how the work would seem to “the average person, applying contemporary community standards.” So what, King asked the jury, would your neighbors think of Hollywood Scat Amateurs #10? Would they find it “normal”?
As a documentary filmmaker, I’m essentially a First Amendment absolutist. I believe that Isaacs should have the right to distribute his films, just as the Los Angeles Times has the right to run photos of soldiers playing with body parts. But based on the testimony, the evidence and the language of the law, it would have been hard for me to vote to acquit.
Obviously Hollywood Scat Amateurs #10 was never intended to be art, and that’s the real problem with the art argument: it covers up what’s truly valuable about these films, which is that they allow us to critique of the notion of obscenity itself.
The California obscenity statute defines “prurience” as “a morbid, degrading, unhealthy interest in sex.” But this sells all sexual minorities down the river. Is it more degrading to see a representation of your desire, or be deemed “perverted” by the state? In 2012, should the state still be passing judgment on the consensual sex lives of others?
In the end, the jury pronounced Isaacs guilty on all counts and got home before rush hour. That’s not surprising, given that they’d been instructed not to consider what “a deviant subset” might find normal, or even what they themselves might find normal, but instead to imagine the values of the community at large. Even in Central District of California—the home not only of the nation’s porn industry, but also of bedroom communities from San Luis Obispo to Orange County—that leaves a lot of room for sexual missteps.
This is the community standard that we should be fighting for: a standard that proclaims the “deviant subset” has the same right to watch what it wants as does any average member of the community, as long as the production itself is not crime. It's a recognition that sexual speech is covered by the First Amendment, regardless of whether we think it has “serious” value.
I'm completely with the author of the article. Why does it matter if the community (however you're defining that) thinks it's normal or not? What if they thought every sex act aside from that depicting a married man and woman was not normal and displayed a morbid, degrading, unhealthy interest in sex? In this christianist country it wouldn't surprise me at all if there were "communities" that would think that.
Why, in the age of internet porn where porn is as private as it can be, is the ability of someone to buy something and enjoy it in the privacy in their own home without harming anyone else determined by some group of people in a community? And even if that were a good idea, how in the hell is a jury supposed to figure out what the "community" thinks regarding the topic at hand? Beyond the sample size problem, how are these people supposed to know what type of porn qualifies as normal and thus not obscene and what doesn't?
Aside from the merits of the ridiculous standard the supreme court has set out for determining obscenity, the feasibility of using the standard in practice seems almost as ridiculous as the merits of it. And I haven't even gotten to the first prong of the Miller test, which says the thing in question must have “serious literary, artistic, political or scientific value” to be immune from prosecution. The word serious carries more of a value judgement than normal does. But unlike normal, which can be quantified, serious has some subjectivity about it. I think Batman is a serious literary character. A literature professor might disagree with me. I can relate anything to politics, probably even to science.
I'm starting to ramble and I'm having trouble wrapping this up. I think that's because the topic of obscenity is interesting to me and I just find myself asking so many questions because I can't find good answers. I guess I'll end by saying that this country has a hang up on sex when there are more serious things out there that should be up for debate regarding censorship and being deemed obscene. Though to me, even things that can genuinely do harm, such as real life depictions of violence, shouldn't be censored. And even though people screwing on camera isn't as "serious" or "normal" as violence is, it shouldn't be treated the way it is in our courts and in our society.