Publishers are feeling the effect of Apple’s review

Eric Pfanner, writing for The New York Times, shares the views of several German publishers who are less than pleased with Apple’s restrictions on nudity and its rejection of content some individuals find objectionable.

“What is obscene?” is a loaded question, and one that’s answered in different ways in different communities. What has come to be known as the Miller standard (from Miller v. California, 413 U.S. 15 (1973)) involves a three-pronged analysis to determine whether a particular work is obscene:

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

There’s a lot of wiggle room in those three prongs: “the average person,” “community standards,” “patently offensive,” “serious literary, artistic… value.” Clearly, what may meet the standard easily in one community may not meet the standard in another community. While driving cross-country last summer I was surprised at what magazine covers were largely blocked from view on some supermarket newsstands, covers that would not garner a second glance in Los Angeles, Chicago, New York, or dozens (hundreds? thousands?) of other cities across the U.S. So what happens when you make the entire world (via the internet) your newsstand? That’s the question we’re facing now.

I share this not to suggest that what Apple is doing is prohibited by law. Apple is a private actor, and there’s no constitutional guarantee of having one’s application or other creative work offered for sale in the App Store or the forthcoming iBookstore. If anything it’s a reminder that in the discussion of when and why to restrict access because of sexual (or sensual) content there aren’t a lot of bright lines.

Apple is opening itself to much-deserved criticism by applying standards in a way that seems capricious or motivated by the market power of the developer/publisher submitting content for review and sale. If a seller of bathing suits has their application booted for showing too much skin, how can Apple continue to offer the Sports Illustrated app with pics from its swimsuit issue, where girls are pouring out of their bikinis? The din’s going to get much louder…

Curious about Miller v. California? Information, including .mp3 files of the oral arguments and links to the Court’s opinion are available at Oyez, an excellent resource for information from and about the U.S. Supreme Court.