John P. Frank advances the view that for trial convenience, the complainant should be required to make his prima facie case of obscenity, with the literary merit of the work as an independent affirmative defense. He applauds the recent development by the Supreme Court of the "pandering test" as an element of obscenity, but supports the view of Justices Clark and White that the question of "redeeming social value" should merge in the analysis of the dominant theme of the material—or, he suggests instead, should be an affirmative defense. He considers the functions of experts in obscenity cases, reporting the submission of a number of works to experts for experimental purposes. He concludes that under the current decisions, the standard of obscenity is so low as to make experts superfluous; they are unnecessary to identify hard-core pornography, and not much else is obscene. However, he outlines areas in which experts could be useful, and discusses what he feels are unanswered serious questions on the relationship of obscenity to social values of crime control and family life.
John P. Frank,
Obscenity: Some Problems of Values and the Use of Experts,
41 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol41/iss4/4