Hard-Core Pornography: A Proposal for a Per Se Rule

Part I of this Article discusses the history and pervasiveness of the pornography problem. Part II explains the current legal test for obscenity, as evolved from Miller v. California, with an emphasis on terms commonly used in the definition of obscenity. Part III examines the problems in applying Miller that suggest that the application of a per se hard-core pornography rule may be appropriate. Finally, Part IV presents a proposal for a per se hard-core pornography rule, similar to child pornography laws existing in many jurisdictions and upheld by the Supreme Court in New York v. Ferber. This Article concludes that Congress and the state legislatures should adopt an objective definition of obscenity that would make commercial distribution of all hardcore pornography per se illegal. Such laws would remove most of the confusion regarding what material is legal or illegal, providing a clear definitional line for producers and merchants. Prosecution of violators would become more frequent and efficient. Eventually, the bulk of the illegal pornography industry’s prostitution- based trade would become unmarketable, and, like child pornography, retreat into an underground culture far from the general public.