A video store sells a video consisting entirely of nude sunbathers in a country where nude sunbathing is common. Should the store owner prevail on a First Amendment defense?

A video store sells a video consisting entirely of nude sunbathers in a country where nude sunbathing is common. Should the store owner prevail on a First Amendment defense?

• A. No, because the store owner is engaged in commercial sale of the video, which is not protected by the First and Fourteenth Amendments.
• B. No, because the video consists entirely of portrayals of nudity, appeals to the prurient interest of viewers, and lacks serious social value as a whole.
• C. Yes, because mere portrayals of nudity are insufficient to justify a finding that the video is obscene as a matter of constitutional law.
• D. Yes, because the portrayals of nude sunbathers were obtained in a country where nude sunbathing is common.

Answer: (C)

The key idea is that obscenity isn’t protected by the First Amendment, but a work isn’t deemed obscene unless it fails the Miller test: taken as a whole, and judged by the community standards where it’s sold, the work must (1) appeal to prurient interests, (2) be patently offensive in its depiction of sexual conduct, and (3) lack serious literary, artistic, political, or scientific value. Merely showing nudity does not automatically satisfy these elements. In this scenario, the video is entirely nude sunbathers, but nude imagery by itself doesn’t prove it’s obscene. If, under the local community standards, it doesn’t sharply appeal to prurient interests and it could be said to have some serious value, then it would not fail the Miller test. The fact that nude sunbathing is common in the country further supports that it may not be considered prurient or lacking in value. Therefore, the store owner would prevail because mere portrayals of nudity are not enough to conclude obscenity under constitutional law. The other views are off the mark because the First Amendment can cover commercial materials that aren’t obscene; community standards matter and nudity isn’t per se obscene; and where the material originated or the country’s norms don’t automatically determine obscenity.

The key idea is that obscenity isn’t protected by the First Amendment, but a work isn’t deemed obscene unless it fails the Miller test: taken as a whole, and judged by the community standards where it’s sold, the work must (1) appeal to prurient interests, (2) be patently offensive in its depiction of sexual conduct, and (3) lack serious literary, artistic, political, or scientific value. Merely showing nudity does not automatically satisfy these elements.

In this scenario, the video is entirely nude sunbathers, but nude imagery by itself doesn’t prove it’s obscene. If, under the local community standards, it doesn’t sharply appeal to prurient interests and it could be said to have some serious value, then it would not fail the Miller test. The fact that nude sunbathing is common in the country further supports that it may not be considered prurient or lacking in value. Therefore, the store owner would prevail because mere portrayals of nudity are not enough to conclude obscenity under constitutional law.

The other views are off the mark because the First Amendment can cover commercial materials that aren’t obscene; community standards matter and nudity isn’t per se obscene; and where the material originated or the country’s norms don’t automatically determine obscenity.