Law's Gaze

55 Pages Posted: 6 Nov 2020

Date Written: September 15, 2020

Abstract

When looking at a sexualized image the viewer is both subject and object of the artwork because the gaze of the viewer is turned back on themselves. Thus, the Supreme Court's jurisprudence on obscene speech tells us more about the viewer of an image than we do about the image itself. The existence of the gaze is revealed in the Court’s obscenity jurisprudence and its inability to settle on a definition of obscenity for most of the 20th century. In all of these instances the court looks upon pornographic materials as the object upon which the court gazes, but in reality the nature of these materials flips the view so the Court becomes the object on which pornography gazes At the same time the fixation on criminalizing obscenity has led to the silencing of the models who appear in sexual images. Drawing on social theories, this article argues that the failure of obscenity law was inevitable because at the heart of obscenity lies unending subjectivity. This subjectivity means that obscenity should be protected under the First Amendment. But it also proposes changes to the law that will continue to protect children and give voice to models.

Keywords: First Amendment, Obscenity, Models, Subaltern Studies, Post-Modernism

Suggested Citation

Acevedo, John, Law's Gaze (September 15, 2020). U of Alabama Legal Studies Research Paper No. 3694579, Available at SSRN: https://ssrn.com/abstract=3694579 or http://dx.doi.org/10.2139/ssrn.3694579

John Acevedo (Contact Author)

Alabama Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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