The Dialectic of Obscenity

50 Pages Posted: 24 Mar 2011 Last revised: 9 Apr 2012

See all articles by Brian L. Frye

Brian L. Frye

University of Kentucky - College of Law; Dogecoin DAO Legal Scholarship Page; Rug Radio DAO Grifting Division

Date Written: March 22, 2011


The story of Jack Smith’s film Flaming Creatures and the “Fortas Film Festival” illustrates the dialectic of obscenity. The obscenity doctrine expresses the conventional wisdom that the First Amendment actually protects art, and protects pornography only by extension. But Flaming Creatures and the Fortas Film Festival suggest that obscenity is dialectical. The obscenity doctrine provides the thesis: art protects pornography, by justifying the protection of sexual expression. Flaming Creatures and the Fortas Film Festival provide the antithesis: pornography protects art, by normalizing sexual expression. The history of obscenity law provides the synthesis: art and pornography protect each other. In other words, art transgresses and pornography reifies.

Keywords: obscenity, cinema, avant-garde, film, movie, Fortas, thurmond, Johnson, LBJ, Warren, pandering

JEL Classification: K10

Suggested Citation

Frye, Brian L., The Dialectic of Obscenity (March 22, 2011). 35 Hamline Law Review 229, Hofstra Univ. Legal Studies Research Paper No. 11-10, Available at SSRN: or

Brian L. Frye (Contact Author)

University of Kentucky - College of Law ( email )

620 S. Limestone Street
Lexington, KY 40506-0048
United States


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