Equal Protection in the World of Art and Obscenity: The Art Photographer's Latent Struggle with Obscenity Standards in Contemporary America


In the realm of obscenity law in the United States, photography as an art form is not on equal footing with more traditional art forms such as painting, drawing, and sculpture. This is a latent dilemma for artistic photographers because the law itself – in the form of state obscenity laws and the Supreme Court’s three-pronged test in Miller v. California – does not explicitly set forth varied standards of obscenity based on artistic medium. However, given the marginalization of photography in art history, there exists a bias against photography as “serious art.” Furthermore, evidence of the differential treatment of photography in areas of the law outside of obscenity affect the law’s approach to photography within the realm of obscenity. Finally, the nature of photography as a multi-functional medium that is perceived as capturing objective truth is more readily offensive to the viewer because sexually explicit images seem inherently more “real.” As a result, the photographer as artist seems to be more restricted than the painter or sculptor when it comes to creating sexually explicit artwork. Yet if photography is indeed a valid art form, the photographer, simply because he or she photographs rather than paints or sculpts, should not be subjected to a higher tendency of courts and audiences to deem a sexually explicit photograph more readily obscene than a sexually explicit painting, drawing, or sculpture. With respect to obscenity standards, there should be equal treatment across all artistic media.


Constitutional Law | Entertainment, Arts, and Sports Law

Date of this Version

February 2006