First, let me say that any definition of obscene must take into account context. In most cases, the line of decision falls along these lines:
- (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489;
- (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
- (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
Note that part (a) does employ community standards. However, all three parts must be met for a work to be deemed obscene, and part (c), as the Court has held elsewhere, is a national threshold, not a community test.
Deliberately vague, but deal with it.
As far as (a) above, it's all about context. A gynecology texbook is in a different context than the hardbound Hustler collection, even though there is similar content. The vagueness is deliberate because it forces each case to be judged on it's own merits, which is necessary because not everyone finds the same things arousing. It is why we have such cases as Mapplethorpe, Jock Sturges, and the like. The problem is defining the community-- in a case like the superbowl, it's the entire country.
With (b), I find it difficult to believe that in the purest sense, the breast has anything to do with sexual conduct. It is a secondary sexual characteristic, and does not have any direct function in the "sex act". Yes, there is a general association between the female breast and hetero/lesbo zex, but it is purely societal and again must be taken in context.
In the case of Janet and the Superbowl, you would have a hard time convincing me that the mere baring of a breast was in any way a sex act, let alone offensive. The only offensive thing about the whole mess is the belief that we'll swallow the story that it was accidental. Come on:
- Janet's brother is in the news in a bad way. This takes some heat off of him.
- Janet has a new album out.
- Janet needs a career boost.
Look what the smut video did for Paris Hilton's career (it boosted it, significantly).
But even so, it was just a breast. And not even a good one really, though the jewelry was cool. SO BLOODY WHAT? At most it was a novelty, a blip on the radar of events that we should perhaps be paying more attention to.
But back to the point: Why do we consider the woman's breast as anything other than a miraculous symbol of life and nurturing, of comfort and bounty? Why do we insist that it be covered and hidden away instead of adorned and revered?
What does that say about us?
Now in order to bring about change, we have to start somewhere. So I say here! Ladies, show me your breasts in protest!
Pictures are fine.