united-states contract-law
Would an obscene contract be enforceable?
<p>If an otherwise-legitimate contract was written in a way that its text was obscene under the <a href="https://en.m.wikipedia.org/wiki/Miller_test" rel="nofollow noreferrer"><em>Miller</em> test</a> would that affect the enforceability of the contract?</p>

<p>You may be mistaken about the purpose of the <em>Miller</em> test. If some content is <em>obscene</em> according to the <em>Miller</em> test, then it does not receive First Amendment protection, and could be prohibited from distribution by the government.</p>
<p>However, it says nothing about the contractual obligations that two parties can agree to.</p>
<p>To the extent that the obligations <em>themselves</em> are objectionable this analysis would fall under the doctrines of unconscionability and public policy.</p>

<blockquote>
<p>If an otherwise-legitimate contract was written in a way that its text
was obscene under the <em>Miller</em> test would that affect the enforceability
of the contract?</p>
</blockquote>
<p>It is virtually inconceivable that a contract with erotic language setting forth a legitimate set of contract terms could violate <em>Miller</em>.</p>
<p>As noted at the link:</p>
<blockquote>
<p>The <em>Miller</em> test was developed in the 1973 case <em>Miller v.
California</em>. It has three parts:</p>
<p>Whether &quot;the average person, applying contemporary community
standards&quot;, would find that the work, taken as a whole, appeals to the
prurient interest,</p>
<p>Whether the work depicts or describes, in a patently offensive way,
sexual conduct or excretory functions specifically defined by
applicable state law,</p>
<p>Whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.</p>
<p>The work is considered obscene only if <em>all three</em> conditions are
satisfied.</p>
</blockquote>
<p>A work that communicates the terms of a legitimate contract would almost necessarily not violate the third-prong. The &quot;lacks serious literary, artistic, political, or scientific value,&quot; is illustrative and not comprehensive and does not rule out some other legitimate value or purpose such as setting for a legitimate contractual obligation of the parties to a contract.</p>
<p>Also, even if the contract was somehow found to be obscene, the <em>Miller</em> test only applies to the constitutionality of a criminal prosecution for obscenity, which, in turn generally requires that the obscene matter be distributed or published in some way. Simply writing something obscene for you own desk drawer is not a crime. And, there is a privilege against prosecution for materials submitted to a court in a manner relevant to a court case (although it might need to be filed under seal, or quoted only in the pertinent parts in a pleading without its visual elements).</p>
<p>Unless the contract were published or distributed in some way, it would not be an obscenity crime and could be considered in the court case for the proper purposes of enforcing the contract.</p>
