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This is the most formal definition of “obscene” we have. Some criticism of the definition is appropriate. For example, notice that the Supreme Court, despite the Court’s seeming adherence to the definition’s desirability, did not feel constrained by it. … But more discussion of the formal definition is not apparently fruitful. The Court gives a summary of the cases in which it has discussed the content of obscenity before imposing the formal definition in Kingsley Int’l Pictures Corp. v. Regents of Univ. of Cal., 354 U.S. 432 (1957). I think it more fruitful for us to see what the decisions have been, not what the Court thinks of their holdings.
In Roth v. United States, 354 U.S. 476 (1957), and Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Court imposed its definition of obscenity, and the definition then appeared in and survived the decisions of a number of other cases. The more recent cases have adopted the definition of obscenity as if it already were accepted. …
The volumes which the Court has decided contain about one thousand pages. Of this, approximately fifty-four hundred pages involve the definition. It immediately becomes clear that a definition of obscenity cannot be given in cases. The Court must be exercising power based upon a principle which, perhaps, does not exist. It is bounded by a concept which is only a model. It makes sense only as applied for specific and concrete cases. d2c66b5586