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Originally Posted by sarettah
One of the key phrases (imho) in there is "in a close case". So basically, this would come in to play at the point that they have decided something could be obscene, so most of the commercials are out of it. For use in the toothpaste commercial, they would have to be looking at the product "toothpaste" as a possible obscenity before they would look at the advertisement for the toothpaste.
It is far less likely that they would look at a tube of toothpaste as a possible obscenity then it is they they would look at a site or gallery catering to the "Barely legal teens getting their asses split open" niche  |
True, but the legal definition of obscenity now comes under the Miller ruling.
One of the points of that is:
whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
A dictionary definition of "prurient" is anything "causing lascivious or lustful thoughts."
They wouldn't be looking at the toothpaste being obscene, but the way the product is promoted. A perfect case is the Paris Hilton burger king ad. They pulled that off the air pretty quickly.
The double standard is BK gets a slap on the wrist and is told to remove the ad. Their corporate offices don't get raided and no one goes to jail.