Should Anything Be Held Legally “Obscene”? Two Girls One Cup and the Third Miller Factor: Miller Delendum Est

Ain't Love Grand?

Ain't Love Grand?

Since last year’s Valentine’s Day post about the film 2 Girls, 1 Cup was such a hit, we’re revisiting the “ain’t love grand” hit of the decade – Two Girls One Cup! (2G1C)

Last Valentine’s Day, I discussed obscenity risks in the specific context of 2G1C. This year, I’m going to show you how 2G1C proves that the Miller test must finally die, and the obscenity laws must be abolished.

The inspiration for this post comes from a fellow Satyriconista who sent me the following email:

As a matter of personal-professional opinion…. is there anything that you think should qualify, legally, as “obscene.”

My answer:

No, nothing.

I am not in bad company. My jurisprudential hero, Justice Brennan, called for an end to obscenity prosecutions in a scathing dissent he wrote for Paris Adult Theatre v. Slaton:

[T]he effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion. The existence of these assumptions cannot validate a statute that substantially undermines the guarantees of the First Amendment…Paris Adult Theatre v. Slaton, 413 U.S. 49, 109-110 (U.S. 1973) (Brennan, J. dissenting)

However, Brennan did not come to this mode of thought without some agony. In fact, it was Brennan’s opinion in Roth v. United States, 354 U.S. 476 (1957) that eventually evolved into the “Miller Test.” That test, currently used to determine whether or not material may be deemed “legally obscene” was what Brennan was attempting to repudiate in his dissent in Paris Adult Theatre.

According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

  1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
  2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
  3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

Click to see the full 2G1C review in all its glory

Click to see the full 2G1C review in all its glory

So lets take a look at my subject of choice for discussions about obscenity law — Two Girls, One Cup. (2G1C). If you haven’t seen the film, nor know anything about it, read this: A film review written by a college student – obviously making fun of left wing “victim studies” professors.

I do not recommend that anyone actually watch the film. I have watched the first 11 seconds of 2G1C — and after that I puke. Every time. The last time I tried to watch it, I showed it to my wife, who is an elementary school teacher. One would presume that I could out-last her. But, after five seconds, I gagged and had to turn away. She hung in for the whole thing, and she laughed most of the time. She’s sicker than I am. See why I love her?

Needless to say, it did not appeal to either of our prurient interests. But, does it lack serious literary and/or artistic, political, or scientific value? How are we to define “serious _____ value?” Does “Dancing with the Stars” have serious value? If you think so, you need to be sterilized. Does that mean that we could ban Dancing with the Stars? No freakin’ way. If freedom of expression means anything to us, then we must leave the marketplace of ideas to decide what expression should live or die. Sometimes, even often, we must pay an unfortunate price for holding on to that ethic. It means that both the evil Mein Kampf and the vacuous America’s Next Top Model get to exist, despite the damage they may do to our collective psyche.

Asking six (or 12) people who couldn’t get themselves out of jury duty to determine whether a work has “serious value” — and to not only make that decision for themselves, but for the rest of us, is horribly inconsistent with any intellectually honest theory of free expression. Nevertheless, until we can dispense completely with the Miller test, we still need to find a yardstick with which to measure “serious value,” or we need to accept the fact that that the third prong of the Miller Test actually encompasses everything - thus rendering the Miller Test functionally dead.

What alternatives do we have? Should we base “value” upon the popularity of the work? Well, if that were the case then movies about gay cowboys eating pudding would miss the mark, despite being critically acclaimed by “the experts.” On the other hand, based upon how many google searches have been conducted for “Two Girls One Cup,” I’d say that the much maligned film gives Martha Stewart a run for her money. No. Popularity wouldn’t satisfy anyone. And, as much as I am uncomfortable with six morons deciding what I can and can’t watch, I would rather have six random idiots decide than the collective idiocy that forms the American public.

My suggestion for determining “serious value,” (at least one test) would be to let the Marketplace of Ideas determine whether the third Miller factor has been met. The “value” of a work is difficult, if not impossible, to determine until we watch the cultural paint hit the societal canvas — then, and only then, should we examine what value the Marketplace assigns to the work.

[T]he ultimate good desired is better reached by free trade in ideas…that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. – Oliver Wendell Holmes

2G1C can actually make you physically ill — and it would disgust any sane juror. Nevertheless, it is impossible to say that the Marketplace of Ideas has determined that 2G1C as has no serious value. On the contrary, 2G1C launched a thousand internet memes, crawled up the pant leg of our collective psyche, and infected pop culture to such an extent that its serious value has been unquestionably proven. The Marketplace has spoken: 2G1C has serious artistic value.

Go to YouTube and search for “Two Girls, One Cup.” (or just click here). Trust me, you won’t find anything pornographic nor even likely unsafe to watch at work. Working with the raw material of this disturbing film, amateurs have put it on their screens and created an entire genre of work known as the Two Girls, One Cup Reaction Video. People, usually just-past-adolescence boys, love to put unsuspecting friends in front of webcams while making them watch 2G,1C. One guy had his grandmother watch it. (click here to see it). In fact, there appears to be an entire sub-genre of grandma reactions to 2G1C.

I have yet to see a 2G1C reaction video that is not utterly hilarious. “Serious value?” There is no serious value to oil as it bubbles out of the ground, but mill it about in a refinery for a little while and it becomes gasoline. You may watch 2G1C and react with disgust (like I did) or dismiss it as “stupid,” (like my wife did). However, I challenge you to not get lost in the reaction videos. They will make you laugh, make your day, and without 2G1C as their raw material, this entire class of expression would have never existed in the first place. The same can be said of Tubgirl, Goatse, Meatspin, Lemon Party, and every other disturbing porn image that later became an internet meme.

I really don’t need another 2G1C to be produced. However, after watching the reaction videos, I can honestly say that 2G1C has contributed mightily to the American artistic landscape. It formed the raw material for this hilarious Family Guy clip, this one with Kermit the Frog, or … well I’ve made my point.

Nevertheless, your Department of Justice (well rather, George W. Bush’s Department of Justice) decided that you couldn’t handle 2G1C, and that its distributor should be prosecuted as a criminal. He eventually accepted a plea bargain and was sentenced to three years probation and a $98,000 fine. I’m not shedding any tears for him, but I do resent the fact that some dickwad vetted by Monica Goodling decided for me that the work has no “serious value.” I am even more offended that said dickwad did so despite the clear voice of the Marketplace of Ideas screaming at us that 2G1C has serious value.

And frankly, if 2G1C has serious value, then everything does. Miller delendum est.

Happy Valentine’s Day.

16 Responses to Should Anything Be Held Legally “Obscene”? Two Girls One Cup and the Third Miller Factor: Miller Delendum Est

  1. Tara says:

    Nice post. I love the Muppets video.

  2. jordan says:

    why would you ever give a student 0%? he might as well never have written the assignment!

  3. huh? Oh, you mean the “review?” Ummm, I’m pretty sure that was supposed to be satire.

  4. seanmickley says:

    What about “Brokeback Mountain?” This is a story about two homosexual cowboys falling in love and having sex in the Mountains of Wyoming. To some people that could be considered obscene, especially to Right Wing conservatives. They consider homosexuals to be “immoral,” yet they seem to accept and acknowledge Brokeback Mountain as a piece of literary art. Although not in the same realm as 2G1C, to some BM could be a stomach churner. Is this obscene? Does every branch of the Miller test need to be fulfilled to be considered obscene? If so, even though BM is considered by some to be literary art, there are plenty of religious “Polk” county areas of the world that believe homosexuality will send you to Hell.

    Obscenity is a fine-line and gives too much power to the judicial branch to determine how far speech can extend. This is in direct opposition to the structure of the First Amendment. Should we allow a panel of judges to determine what the American public can and cannot watch? Absolutely not. Let the people decide what to watch and eventually the public majority will weed out the “obscene” or unpopular.

    Sean Out!!!

  5. Well, to answer your question: Yes, all three prongs of Miller must be met for a film to be deemed “obscene.” However, I could certainly see Brokeback Mountain being deemed legally obscene, if a prosecution were brought in the wrong jurisdiction.

    Now, if Brokeback Mountain had more pudding in it… then it would be safe. :)

  6. jfischer1975 says:

    While I agree wholeheartedly with the idea that almost anything can be argued to fall outside the third Miller prong, I see two weak points that someone who disagrees could hit on pretty effectively:

    1) If we are considering works that are inspired by 2G1C, is that really taking the work “as a whole”? Taking something as a whole would seem to indicate, not only that small portions should not be considered in isolation, but also that the boundaries lie at the edges of the work itself. This potentially precludes as irrelevant consideration of any reaction video.

    2) Do these reaction videos truly have “serious” value? Shame on the High Court for proposing such a mushy standard. The modifier “serious” can have no legal definition and demands a subjective determination – one that can only be made by a jury. Unfortunately, I have sat through the whole thing, and I don’t think there is any jury who would not declare 2G1C, on its face, to be without serious artistic/literary value.

    And BTW: As much as I am disturbed by the butsecks scenes in Brokeback, I can’t argue with anyone who comments that Ang Lee did an amazing job picking the scenery and shooting a beautiful piece of cinematography.

  7. 1) — an interesting take I haven’t considered. Kind of an “inverted taken as a whole” logic. If you must evaluate the work as a whole, then you must evaluate it also standing on its own? Perhaps… but I don’t necessarily agree that “taken as a whole” *also* means “standing on its own.” It *might* … but it isn’t a given.

    2) In all fairness to the Supreme Court, I think they were at least *trying* to create a predictable standard as the Miller test evolved. But, shame should be heaped upon the subsequent Court for not tossing it out. You made it through the whole thing? You’re a stronger man than I.

  8. Russ says:

    I would argue that the reaction video is not an entirely new genre, and actually an adaptation of the genre from stills to video. The video 2G1C was preceded by still-image Shock Sites (http://en.wikipedia.org/wiki/Shock_site), most notably “Goatse.” Before 2G1C was even filmed, there were people busily recording the discomfort of their friends and relatives and posting the results to Flickr (http://flickr.com/search/?q=first%20goatse&w=all)and (http://flickr.com/search/?ss=2&w=all&q=first+tubgirl&m=text). Incidentally, a reaction photo of Marco’s “first tubgirl” would probably feature enough projectile vomit to spawn an internet sub-meme of its own.

  9. I can’t even talk about Tubgirl without gagging.

    Speaking of Goatse… I’m sure you’ve done a web search for “Unintentional Goatse” ??? Hilarious.

  10. jessica says:

    I don’t think you can view the phrase “taken as a whole” as being exclusive of anything outside the work itself, since the other terms in that prong of the test include “lacks serious literary and/or artistic, political, or scientific value.” So, “taken as a whole” is in relation to “serious ____ value.”

    And, that’s been my point when we Satyriconistas have discussed this amongst ourselves – context matters. Taking, for example, the concept of “political value” – whether or not an image is of political value depends entirely on context, and the farther away from “community standards” the work strays, the richer the political discourse it engages. A dominatrix video, by its own terms, is a commentary on contemporary gender roles. Now, I can’t really fashion quite that lofty a commentary-effect for 2G1C, but, I would feel confortable making the argument that the reaction videos produced by the work are a commentary on what a culture views as humorous, and that has both artistic and political value.

    Without getting to post-mod about it, art, literature, politics, etc. are as much about how they are experienced as they are about the creator’s intention.

  11. blueollie says:

    Ok, I have an amateur/rookie question: in 2G1C, they showed the defecation scene. Then they showed the two women eating from the filled cup, but they never showed the cup from the time it was filled up to the time the women started to eat from it.

    For all I know, they could have obtained another cup and filled it with chocolate frozen yogurt.

    If the producer had done that, would the rest of the clip been rightly classified as obscene?

  12. I am pretty sure it actually is frozen yogurt.

    However, that wouldn’t change the Miller analysis.

  13. Sandra S. says:

    I’m told by my husband that 2G1C is simply a clip from a longer porn dvd- Hungry Bitches. So when you say that the distributor was fined, do you mean MFX-Media? The public interest is mostly stirred by the internet dissemination of the clip, but if the clip comes from a larger work, what does that say about taking the piece as a whole?

  14. Russ h. says:

    I am so glad to have google. It is amazing the difference one letter can make if for example, you are evaluating the Goatse image against Miller’s section (c) as written (and highlighted)here:

    http://tinyurl.com/ahrhjz

  15. Brian says:

    I wonder if though the two girls aren’t sex slaves. Sex slavery is a problem and as gross or funny anyone finds the video there is a sickening feeling that the two girls are not choosing this behavior on their own. I see the need for the government to be excluded from most things in life especially art, but if the art in question is actually hurting a group of people or individuals isn’t that obscene? If Hitler were alive today I think his propaganda would be on the internet as free speech just as his followers are today. I’ve heard the argument “What about all porn then?” Look I’m not saying no porn but when a girl gets “raped” by a donkey and a one legged “little person” ( I have to be politically correct) maybe the government should at least keep tabs on those social butterflies and those whose made the film. PS.to those who think its frozen icecream there is a different video by the same people and lets just say it is not frozen icecream.

  16. Pete says:

    To be accurate, believe that your jurisprudential hero Brennan only called for an end to obscenity prosecutions as to materials distributed to consenting adults. He didn’t go so far in Paris Adult as to advocate for the end of obscenity prosecutions involving exposure to unconsenting/unsuspecting adults or minors. In his later concurrence in NY v. Ferber, he reiterated this view.

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