Law's Gaze
25 J. Gender, Race & Just. 45 (2022)
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 it says about the image itself. The existence of this gaze is revealed in the Court’s obscenity jurisprudence and its inability to settle on a definition of obscenity for most of the twentieth 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 this article also proposes changes to the law which will continue to protect children and give voice to models.