The Lessons of Miller and Hudnut: On Proposing a Pornography Ordinance that Passes Constitutional Muster
This Note first reviews the evolution of obscenity law, concentrating on the modern obscenity test formulated in Miller v. California, including its requirement that any obscenity prosecution must be based on a state statute, not merely on the common law. It then examines the elements of the Miller test, arguing that legislatures may determine statewide “community standards” of patently offensive depictions of sexual conduct and discusses the permissibility of legislative expansion of pornography regulation beyond the present boundaries. Part II examines the federal courts’ analysis of the civil rights-based antipornography ordinance passed in Indianapolis. Part III suggests standards for antiobscenity laws. Part IV proposes a model ordinance, which should be held constitutional under existing law, designed to attack the most harmful pornographic material.