A video store is prosecuted for obscenity for selling a video that is entirely nude beach photos; The store owner defends on First Amendment grounds. The correct ruling is:

A video store is prosecuted for obscenity for selling a video that is entirely nude beach photos; The store owner defends on First Amendment grounds. The correct ruling is:

• A. Yes, because mere portrayals of nudity are insufficient to justify obscenity.
• B. No, because the sale of the video is not protected by the First Amendment.
• C. Yes, because the video is not obscene due to context.
• D. No, because nudity alone constitutes obscenity.

Answer: (A)

Obscenity isn’t determined by nudity alone. The First Amendment generally protects expressive works unless they fail the Miller test: would a average person applying contemporary community standards find that the work, taken as a whole, appeals to prurient interests; does it depict sexual conduct in a patently offensive way; and does it lack serious literary, artistic, political, or scientific value? A video consisting entirely of nude beach photos usually does not involve explicit sexual activity and can be presented in an artistic or documentary context, which means it may have value and may not appeal in a prurient way to most viewers under community standards. Therefore, it would not automatically be deemed obscene, and its sale would likely be protected by the First Amendment, supporting a defense for the store owner.

Obscenity isn’t determined by nudity alone. The First Amendment generally protects expressive works unless they fail the Miller test: would a average person applying contemporary community standards find that the work, taken as a whole, appeals to prurient interests; does it depict sexual conduct in a patently offensive way; and does it lack serious literary, artistic, political, or scientific value? A video consisting entirely of nude beach photos usually does not involve explicit sexual activity and can be presented in an artistic or documentary context, which means it may have value and may not appeal in a prurient way to most viewers under community standards. Therefore, it would not automatically be deemed obscene, and its sale would likely be protected by the First Amendment, supporting a defense for the store owner.