This article argues that a failure inherent in obscenity law itself explains why art is increasingly on trial.

In recent years, we have witnessed a stunning assault on sexually explicit contemporary art in this country. Waged in Congressional funding debates, in political campaigns, and in the courts, this assault has raised a recurring question: What is obscenity and what is art? The question has sent artists, museums, galleries, judges and lawyers scrambling to decipher the constitutional law of obscenity, a hotly disputed and peculiarly anachronistic area of law. Over the past two years, the legal definition of the obscene has gained center stage, not only because we have just seen the first obscenity trial against a visual artist's work in the history of this country, the Mapplethorpe obscenity prosecution in Cincinnati, but also because the constitutional definition of obscenity has come to play a role in National Endowment for the Arts funding standards. In 1990 legislation, for example, art which met the legal definition of obscenity could no longer receive federal funds.

CONTENTS
The constitutional law of obscenity.
The Miller Test Defining the indefinable.
Postmodernism in the arts and its implications for obscenity law.
An overview.
Themes of Postmodernism and their implications for Miller.
The end of originality and the avant garde No new tale to tell - Love and Rockets.
Defiance of serious artistic value.
The death of the artist: Sincerity and intent.
The Intersection of art and obscenity.
Conclusion.

This article argues that a failure inherent in obscenity law itself explains why art is increasingly on trial. In recent years, we have witnessed a stunning assault on sexually explicit contemporary art in this country. Waged in Congressional funding debates, in political campaigns, and in the courts, this assault has raised a recurring question: What is obscenity and what is art? The question has sent artists, museums, galleries, judges and lawyers scrambling to decipher the constitutional law of obscenity, a hotly disputed and peculiarly anachronistic area of law. Over the past two years, the legal definition of the obscene has gained center stage, not only because we have just seen the first obscenity trial against a visual artist's work in the history of this country, the Mapplethorpe obscenity prosecution in Cincinnati, but also because the constitutional definition of obscenity has come to play a role in National Endowment for the Arts funding standards. In 1990 legislation, for example, art which met the legal definition of obscenity could no longer receive federal funds.