MOKGORO J [47] The United States and the Canadian experiences illustrate how difficult it is for a Court to delimit the scope of constitutionally protected sexually explicit materials. The Miller test has been subjected to trenchant criticism both from within the United States Supreme Court, 78 and from academic commentators.79 The Canadian experiment, based upon the “harm principle” rather than upon morality per se, may offer a more promising route, although we are not called upon for purposes of this matter to adopt any particular approach. I would note that the Butler decision’s willingness to posit the harmful effect of certain classes of sexually explicit material, notwithstanding that this effect was not, as the Court conceded “susceptible to exact proof”, but 78 See, e.g., Pope v Illinois, 481 U.S. 497, 504-05 (1987) (“[I]t is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can. Since ratiocination has little to do with esthetics, the fabled ‘reasonable man; . . . would have to be replaced with, perhaps, ‘the man of tolerably good taste’ -- a description that betrays the lack of an ascertainable standard . . . Just as there is no arguing about taste, there is no use litigating about it”) (Scalia, J., concurring)); Smith v United States, 431 U.S. 291, 316 (“[I]n my judgement, the line between communications which ‘offend’ and those which do not is too blurred [t]o delimit the protections of the first amendment.”) (Stevens. J., dissenting)); Paris Adult Theatre v Slaton, 413 U.S. 49, 87, 103 (1973) (“even the most painstaking efforts to determining in advance whether certain sexually oriented expression is obscene must inevitably prove unavailing . . . I am forced to conclude that the concept of “obscenity” cannot be defined with sufficient specificity and clarity to provide fair notice”) (Brennan, J., dissenting)); Interstate Circuit, Inc. v Dallas, 390 U.S. 676, 704 n. 1 (1968) (“The subject of obscenity has produced a variety of views among the members of the court unmatched in any other course of constitutional adjudication”); Ginzburg v United States, 383 U.S. 463, 480-81 (1968) (“no person, not even the most learned judge much less a layman, is capable of knowing in advance of an ultimate decision in his particular case by this court whether certain material come within the area of ‘obscenity’”) (Black, J., dissenting). See also Abraham & Perry Freedom and the Court (1994), at 200, n. 239 ( quoting Stevens, J., as opining that the Court’s “thinking on obscenity is intolerably vague and makes evenhanded enforcement virtually impossible”) (landmark decisions “did not settle -- for they really could not -the basic problem of just what “obscene” means.”) 79 See, e.g., Using Racketeering Laws to Control Obscenity, 36 Boston College L. Rev. 553, 581 (1995) (“The Supreme Court has encountered difficulty defining obscenity, and even the current Miller definition is vague”); Edward de Grazia, Girls Lean Back Everywhere, 11 Cardozo Arts & Ent. L. J. 777, 805 (1993) (“even the narrow definition of obscenity set forth in Miller is unconstitutionally vague and overbroad”); Jeff Rosen, Miller Time, 203 The New Republic, Oct. 1, 1990, 14 (“if art can’t be cleanly distinguished from obscenity, as more than 30 years of failed Supreme Court tests make clear, then private consumption of obscenity must be endured so that art can be protected.”) One influential study found that the Miller test had little effect on the regulation of obscene materials; this was attributed, inter alia, to the fact that the test “requires law enforcement officials to make “largely subjective evaluations of sexually explicit materials.” Harold Leventhal, An Empirical Study into the Effects of Miller v California on the Control of Obscenity, 52 N.Y.U.L. Rev. 810 (1977). Judge Didcott (as he then was) , wrote in Anchor Publishing Co. v P.A.B. 1987 (4) SA 708 (N), that he doubted various attempts to define indecency and obscenity “have done much more in the end but replace some adjectives with others more or less synonymous but equally imprecise.” Id. 713. 26