Part I of this article describes the initial hurdles that all visual art forms, including photography, face with respect to First Amendment protection given the power of visual imagery and the three-pronged test for obscenity set forth in Miller v. California. Of particular relevance is the "serious artistic value" prong of the Miller test and the problems inherent in determining who is to judge as well as how one might judge whether a work, particularly a photograph that may be construed to have a non-artistic function, possesses "serious artistic value."
Part II addresses the overall approach to photography in three distinct areas of the law outside of obscenity: copyright, privacy, and child pornography. In each of these areas, courts and parties to disputes have demonstrated a bias against photography based on its visual and mechanical nature. This biased approach to photography in other areas of the law translates into the tendency of courts to view photography differently within the scope of obscenity law. Part III expands upon the obstacles inherent in photography by exploring the multi-functional nature of photography and its marginalization in art history. The emergence of photography as an art form is a relatively modern phenomenon that effectuates a higher standard for proving that a photograph possesses "serious artistic value" for purposes of the Miller test.
Further exploring the complexity of photography as an artistic medium, Part IV focuses on the effect of photography as a means of capturing objective truth. Because a photograph is perceived as more real than a painting or sculpture, courts and audiences are more likely to find provocative photographs to be obscene. A sexually explicit photograph that is perceived as accurately depicting a real subject or action that took place in an actual moment of time may have a higher probability of appealing to the "prurient interest" or of being "patently offensive." Combined with the problems in proving that photography has "serious artistic value," these tendencies render photography more easily perceived as "obscene" than other forms of art. Finally, Part V anticipates the need to apply effectively an equal standard for what constitutes obscenity across all art forms in recognition of photography's value as an artistic medium.
Equal Protection in the World of Art and Obscenity: The Art Photographer's Latent Struggle with Obscenity Standards in Contemporary America,
9 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol9/iss1/2