With Alberto Gonzales channeling the spirit of John Ashcroft in order to engage in a War on Pornography, there's some question as to what "pornography" is. Justice Potter Stewart, in the 1964 case Jacobellis v. Ohio (378 U.S. 184), famously opined, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." Stewart said the comment followed him for the rest of his days on the court.

But there is no legal standard for "pornography." The million-dollar word is obscenity. Current case law regarding obscenity was defined in Miller v. California, 413 U.S. 15 (1973). Appellant Miller conducted a mass-mailing campaign to advertise "adult" material and was convicted by a jury for "knowingly distributing obscene matter." The U.S. Supreme Court upheld his conviction and, after twenty years of obscenity cases, created a standard for determining what is "obscene."

Like most Supreme Court tests, the Miller test has three prongs. To be deemed "obscene," a work must meet all of the following criteria:

1. The average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to the prurient interest (i.e., having to do with sex).
2. The work must describe, in a patently offensive way, sexual conduct specifically defined by applicable law. ("Patently offensive" means that it must be overt; it's not enough that sexual conduct is suggested or described in a roundabout way.)
3. The work must lack "serious literary, artistic, political, or scientific value." This prong is often called the SLAPS test.

Thus, most of the stuff that we would today call "pornography" is classified as "obscene" and is not protected by the First Amendment. Of course, if "applicable law" doesn't prohibit particular sexual conduct, then there's no legal issue. Also, the Miller test takes into account "contemporary community standards" instead of creating a blanket standard for the entire nation, since community standards of obscenity may vary from city to city or state to state.

So, Gonazles' War on Porn is legally permissible. Does that mean the Justice Department should spend its time worrying whether or not consenting adults watch other consenting adults do obscene things? I think there was another war going on, a war on ... ah yes, terrorism! And yet, our neo-con friends in the Bush administration have decided that it's just as important to prevent consenting adults from becoming morally corrupted (as defined by the Bush administration, which is populated by evangelical Protestants) as it is to prevent terrorists from killing us! But "adult pornography is a threat to families and children," possibly a bigger threat than terrorism.

"I guess this means we've won the war on terror," said one exasperated FBI agent, speaking on the condition of anonymity because poking fun at headquarters is not regarded as career-enhancing. "We must not need any more resources for espionage." [Source.]

The world is a safer place. Mission accomplished.