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The Miller Test is a three part judicial test for prosecutable obscenity in the national Free Speech Zone that is the United States.
Under this test, for something to rise to the legal level of “obscene,” it must be something that:
"the average person, applying contemporary community standards,"1 would find that the work, taken as a whole, appeals to the prurient interest,
depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
taken as a whole, lacks serious literary, artistic, political, or scientific value
Anything that doesn’t meet all those criteria can’t be outlawed in the United States.
Prurient interest…that’s an interesting phrase, isn’t it? “Prurience” is from the Latin for “itch.” A “prurient” interest is obsessive curiosity (often, though not always, concerned with sex and/or other taboo subjects). Pornography is legal, even though it appeals to the prurient interest, because it either doesn’t violate “community standards,” isn’t “patently offensive,”2 or it has some kind of serious artistic, scientific, political, or literary value.3
This is fantastic news for writers, because without that protection, we would all be—let’s face it—roundly and soundly fucked. We would be—I can say without a hint of exaggeration—stuck in the position of a hamster without duct tape.4
That’s because of the great secret of the word trade that nobody wants to talk about, but that I’ll tell you for free:
We are all pornographers.
I don’t just mean that “most writers who ever made a living did so by writing erotica and/or exploitation fiction at one point or another” (even though this is true),5 I mean that “the entire business of writing is dedicated to the cultivation and exploitation of prurient interests.”
We are competing for your attention. Whether we’re writing political commentary, educational content, fiction, erotica, agitprop, or comedy, we have to hold your attention—and, if we’re not being supported by grants from NGOs funded by your tax dollars and mine, we are chasing your beer money.
You could spend your money on Netflix, or beer, or coffee, or OnlyFans, or premium hand-knit costumes for your chihuahua. In order for us (writers) to get you (the paying public) to keep our mouths fed and our lights on, we have to give you something that those other things can’t give you (because, let’s face it, all of those other things are cheaper-per-hit than a novel, an issue of a magazine, or a monthly Substack or Patreon subscription).
So those of us who are able to hang in the game long enough become experts at manipulating your attention, and directing your curiosity. We are mind controllers, cult leaders, dreamweavers, and web-spinners.
But we don’t just do these things for you, our audiences.
We do them for the gatekeepers.
The foolish among us do it for artificial gatekeepers—social approval, agents, the so-called “tastemakers.”
The wiser among us do it for real gatekeepers: the parties who really control access to money and markets. Acquisitions editors. Textbook buyers.
And, now, algorithms.
On Gatekeepers
Gatekeepers are a subspecies of that most reprehensible breed of human: the middleman. These are the characters who, possessing no particular talent for doing the dirty work in an industry (whether that “dirty work” involves actually writing things, or piloting a ship to secure trade goods to far-off land, or building products, or wiring buildings for electricity), find a way to make themselves useful by positioning themselves between the producer and the buyer: bankers, brokers, insurance speculators, editors, publishers, and hustlers of all sorts.
Everyone hates a gatekeeper.
When you’re new in an industry, they represent opportunity hogs that stand in your way to keep you from having a fair shot at the market.
When you’re established, they’re getting in your way and taking a slice of the profits that you, the producer, should be making—and would be, if only you had direct access to your customers.
When you’re a customer, they’re the reason that you have to pay between two-and-five times as much for a product as it cost the producer to make it and get it to market with a decent profit margin.
Everyone hates gatekeepers, all the time, and for some pretty good reasons:
They don’t produce anything obvious, but they take a cut of the money anyway.
They use their position in the stream of commerce to control what gets to market—both the choices of the consumer and the innovation latitude of the producer are constrained by the tastes, priorities, and agendas of the gatekeepers.
Middlemen rule the world (and always have done, any time that an economy grows complex enough to generate them).
Everyone hates gatekeepers so much that many of the technological, financial, and political revolutions in modern history (as well as all of the pogroms against Jews, Gypsies, and Catholics over the past five hundred years) have been premised more-or-less entirely on disintermediation (a polite term for eliminating gatekeepers—either from the market, or from the face of the Earth).
The Catholic Church were the gatekeepers of heaven, and they sold access to salvation for money. The Reformation aimed to change that (you’re not still expected to pay, but that payment is now usually considered a matter of “conscience” rather than having a fixed price tag).
The Jews (well, a couple very enterprising Jewish families that found a way to get around the anti-Jewish commercial restrictions in the late middle ages, but hey, they’re Jews, so who cares—they’re all related anyway, right?) controlled banking and international trade and made a bundle funding the wars that wiped out generations of Europeans and Americans, so for socialism to work, they had to go (it wasn’t just the Nazis who made a hobby of hunting them).
Craftsmen were gatekeepers of production—manufacturing and automation disintermediated them. Their products were instead made by machines, and they themselves nearly disappeared before their crafts were revived for reasons of artisinal sentimentality
Movie studios (and the mafiosos and corporate giants who owned them) controlled filmmaking…until the rise cheap digital technology, invented and commercialized by some very pissed-off independent filmmakers from the 1970s (George Lucas and Francis Ford Coppola) who decided to wreck the film industry to get revenge for the way the film industry tried to wreck them.
Bookstores, magazines, publishers, distributors, trucking companies, and editors had a stranglehold on writers, until the Internet came along.
But as surely as a new commercial paradigm sets in, gatekeepers find a way to make themselves important, and it always works, for two reasons:
Only fools look for gold in a gold rush. Smart people sell shovels to those fools rather than doing the risky thing. People who are doing the risky thing will spend like the idiots they are in order to buy the illusion of security in their risky endeavor.
Any time there’s any kind of fertile creative ground, both customers and producers are quickly overwhelmed. It takes work to pick what you want, and it takes work to find your customers, and it’s work that most people frankly don’t have the knack for. Gatekeepers, cursed be their twisted loathsome chiseling little hearts, actually do often bring real value to the table, because they bring order to chaotic marketplaces.
In the digital world, the algorithm does job #2, and “here’s how to hack the algorithm” gurus do job #1.6
Surfing the Algorithmic Waves
Where authors (and other artists) are concerned, middlemen are often a necessary evil. It is in the interests of those middlemen to make us as irrelevant as possible, or, failing that, to seek to control us as much as possible, up to and including terms that border on proper professional slavery-in-all-but-name.7
On the other hand, it is in our interests as writers to build as loyal a following as we possibly can, and to be able to keep in contact with those readers even when we move publishers, change genres, and do independent projects. Most readers are very loyal to the authors they love…assuming they can find those authors.
Now, in the online world, things are very different—and also, no different at all.
Instead of a human editor putting his or her thumb on the scale for reasons of personal taste, personal politics, personal vendettas, or opportunism,8 we now have algorithms and AIs which, in accordance with their directives received from their corporate overlords on high, direct the spotlight either toward or away from our work.
And, just as with human editors, they aren’t primarily concerned with serving their audience—they are, instead, concerned with serving their own power. They want to capture the eyeballs, because the eyeballs give them a tap to information which other companies (and, especially, governments) will pay for, in order to run their own programs to capture attention and mindshare. If the AI and the algorithm can figure out how to hold a reader’s attention, then they might be able to ultimately dispense with the talent (i.e. authors and other artists) altogether.
This is why disintermediation is appealing for authors. We know what the endgame of depending on a middleman is, be that middleman is a retailer like Amazon, a publisher like the hundreds of now-defunct-or-acquired-and-rebranded publishing houses that dominated in the 1980s and 1990s, the pulp market, Hollywood studios, the radio drama market, the soft-core highbrow magazines, the slicks, social media giants (Facebook, Myspace, Geocities), or web hosts. The middleman’s function is to control the nexus point where authors and readers meet—and, eventually, those middlemen either go tits-up, or they decide it would be easier to solidify their status by vertical integration (i.e. owning everything from the source to the street).
Consider the food industry as a parallel case. The food industry once depended upon the work of farmers, bakers, and chefs. But, after a hundred years of careful work by some very savvy and far-sighted capitalists, they managed to weave a web of regulations and corporate conglomerates that pushed farmers more-or-less off the map, that replaced bakers and chefs with food chemists, and that hacked the human taste-and-flavor system so that they can deliver to you prepared foods that fill your belly, but do not satisfy your hunger...so you always want more.
Once upon a time, every house had at least one pretty-damn-good-cook (and felt ashamed if it didn’t), and many families had several. Now, it’s more common to find good shoppers. Vertical integration in the food industry has turned the luxuries of snack foods and dining out into the necessity of spending 1/3-1/2 of one’s income on food cooked by others, because ignorance and time pressure make cooking for oneself a rare luxury.
Just like a good book.
The Audience Question
Or course, if you successfully build an audience, you have a whole other problem:
The audience develops a parasocial relationship with your work based on how they first encounter you. Take an author whom I have studied extensively (and published two—soon to be three—books on),9 Robert A. Heinlein.
Heinlein is infamous among his fans (and always has been) for taking what seems like a hard right turn (or left turn, depending on your politics) in the middle of his career. He started out writing very sharp, tightly plotted stories featuring thought-provoking puzzles and archetypal characters (who also managed to be startlingly complex and well-drawn). His creative partnership with his second wife Leslyn—a 1930s Hollywood screenwriter—helped him refine his naturally rambling, conversational style10 into something that fit the strict demands of the pulp market. He learned this suite of techniques so well that he went from unpublished and impoverished to the hottest thing in pulp Science Fiction (a status he retained for the next two and a half decades) in a few short months.
But Heinlein was so good at this style of writing that he grew to hate it. By the mid-1960s he was publishing extreme, almost satirical revisits of premises he played with in in his early fiction, pushing the tight-plot formula to an apex unrivaled in literary history with a time travel story (“—All You Zombies—”) which features a grandfather paradox in which the main character is his own father, mother, and lover in a perfectly self-consistent tale, packaged as existential horror, that is as haunting as it is brain-twisting.11
And at that point, he simply stopped. He rarely wrote another short story. His early thrillers, young adult adventure novels, and science fiction puzzlers gave way to a more literary style that gave him the latitude to play with his personal obsessions: social mores, existential horror, interpersonal responsibility, individualism, left-hand-path spirituality, and the way that all these things interact with sex and science.
From a literary standpoint, his writing continued to improve, and his audience continued to grow, throughout his life. But as he mastered skills that he’d learned for market reasons, he quickly bored of them, and he drifted back to his native format: the long conversation.
As a consequence, those who encountered him through his early work often felt betrayed by his pivot into more adult and esoteric territory, while those who first encountered his later work often found themselves intrigued enough to seek out and also fall in love with his early stories. As his life went on, he soured on his early fame, because the Heinlein that so many aspiring young engineers adopted as a surrogate father was not the “real” Heinlein; the parasocial image his stories created did not match the genuine concerns of the artist behind those stories.
Heinlein, like all other writers who manage to build an audience, suffered from the problem of audience capture—the feeling of being creatively and/or personally constrained by the demands and reactions of the audience, which disincentivizes growth on the part of the writer.
Some writers—like Lester Dent (who wrote the Doc Savage stories) or Earle Stanley Gardener (creator of Perry Mason)—get around this problem by never being interested in art or expression in the first place. They write to earn a crust and to enjoy themselves, and don’t care much about the product.
Others, like C.S. Lewis and Piers Anthony, develop in response to the feedback they receive from their audiences, and stay firmly rooted in the audience/artist dialectic, eventually failing to play the leading role in that relationship.
Others, like JRR Tolkien, Robert A. Heinlein, Frank Herbert, Roald Dahl, and Joseph Conrad, just write whatever holds their attention and publish once they’re satisfied, letting the market decide whether or not to buy it.
And, perhaps most commonly, writers who feel the hand of audience capture solve the problem by developing multiple personalities. They write for their main audience under their public name, and write for other audiences under pen names. This way the writer of inspirational and chaste Christian fiction doesn’t have to risk losing her audience when she feels the need to write BDSM erotica, the children’s author doesn’t offend parents with his political screeds, and the literary author doesn’t risk credibility by writing commercial fiction.12
That last option gets employed even by some of the names in the “publish anything and let the market decide” list. Every one of those I listed (with the exception of Tolkien) published pieces they considered to be “off brand” or “of lower than average quality” or “upsetting to the audience” under pen names from time-to-time, as have I, as have almost every writer I’ve known. No matter how pugnacious the personality behind the keyboard, sooner or later we all come to grips with the raw reality of the parasocial life:
To your readers, you are part of their life, not an actual personage with your own independent existence.
So, even when a writer is so successful as to effectively disintermediate his relationship with his readers, he’s still likely to have to knock on the keepers’ gate from time to time; his creativity and concerns eventually scatter in more directions than any one market segment can reasonably handle.
The Judo of Wordsmithing
To disintermediate the gatekeepers (including the algorithms), one must first cultivate an audience (there are several steps after that, but this is the one everyone trips over). To cultivate an audience, one must somehow please the gatekeepers and dance with the algorithms.
A writer’s job is to dream out-loud. Persuasion, mythmaking, think-pieces, propaganda, advocacy, commentary, memoir, and fiction are all different styles of storytelling, and all stories (no matter how factual or truthful) are dreams. You read squiggles on a page, and you hear words in your head. You see images, hear sounds, and smell odors (unless you’re aphantasic). You experience emotions and the ghost-touch of imagined textures, caresses, and impacts. Until you put the book down, your mind is under the control of a wizard with a keyboard or pen who might have lived half a world away and a thousand years ago. When you read, you are dreaming your version of their dream.
When the gatekeeper, or the algorithm, or the audience has a hard-on for politics, we talk about politics. When they goes gooey for westerns, we write westerns. When they wants analysis and education, we teach.
When those are the things we really wanted to do, we go hog-wild, and we produce like mad, and we maybe produce what we think are our masterworks.
But when the audience/editors/algorithms want the things we hate talking about, we talk about them anyway, and we do it well…because if we do it well, nobody—not the audience, not the algorithm, and not the editors—will notice that a good writer can deliver the story we want to deliver while pretending to give you what you’re asking for. We can, and do, often tell the same story as erotica, as adventure, as comedy, as commentary, and as news.
And—though we all hate to admit it—we grow most, and sometimes do our best work, when we are limited to writing things we don’t want to write, because we are then forced to be creative enough to say what we want to say while using words, tropes, topics, and genres that we don’t care for at all.13
A master builder can build a weight-bearing cathedral out of toothpicks, given enough motivation.
Writers—at least, writers who stick with it long enough to get really good at it—can’t not write. The practice becomes part of how we think. If we don’t write, our minds get jumbled. Sitting down at the desk when you’re not in the zone can be tortuous, arduous, horrific, and screamingly difficult, but it’s also like lancing a boil and draining off the pressure.
So we have to find a way to grab your attention—which means we have to please the gatekeepers.
And we have to find a way to hold your attention, so you’ll come back for more.
Because, in the end, it’s better than screaming into the void.
And because some of you really do value us more than a glass of beer…which means that our families can make rent because our dreams make your lives better.
If you’re looking for tales to transfix your imagination, you can find my novels, short stories, visions, and dreams (along with some how-to books and literary studies) by clicking here.
When not haunting your Substack client, I write novels, literary studies, and how-to books. If you’re feeling adventurous click here to find a ridiculous number of fiction and nonfiction podcasts for which I will eventually have to accept responsibility.
This column is a big part of how I make my living—bigger now due to recent exciting events which you can read about here. Because of this, I’m offering a 20% lifetime discount off the annual subscription rate. If you’re finding these articles valuable, I’d be honored to count you among my supporters!
The Miller Test was formulated in the post-War era. Notice how, even then, the local community’s attitudes were seen as THE standard by which laws were judged, and not vice versa. Localism has both its perils and its positives, but the biggest positive is that it allows people to vote with their feet rather than requiring them to always fight for supremacy.
Fortunately for you, my editor forced me to delete a pun about copyrightable offenses on the grounds that it was patently offensive.
The justices who formulated The Miller Test fortunately didn’t notice that anything which is patently offensive is inherently political, which is why absolutely nothing can qualify as “obscene” under the Miller test. As a result, aside from things that directly threaten and abuse children, the only things that ever do get thusly prosecuted are things which are (ironically) politically dangerous.
Old music industry joke (I warn you, this is brutal): “Q: Why should you duct tape your hamster? A: So it doesn’t explode when you fuck it.”
This is true even for greats like Gardener, Bradbury, Asimov, Crichton, Follett, and pretty much anyone else that became a name writer during the 19th and 20th centuries (and almost everyone who didn’t become a name writer). Usually they wrote under pen names—Forrest J. Ackerman amassed a great deal of his power in the world of genre fiction and film by publishing erotica collections by high-end writers working under pen names in order to pay rent, and he held onto the manuscripts long afterwards as a silent guarantor of his access to the corridors of publishing power (what respectable literary writer of genre giant would want his name associated with the lesbian prison fiction that kept his family fed during fallow years?).
Some very rare characters bucked this trend (at least as far as I’ve been able to ascertain)—those that did either worked as journalists (Hemmingway, Orwell), came from or married into money (Chandler et.al.), worked for the Hollywood machine (Goldman, Chandler, Hammet, Caine), or wrote as a hobby while having a main gig as an academic (Goldman, Tolkien, Lewis). And, of course, most of the writers who did write exploitation erotica also worked in one or more of these other fields.
I should take a moment to sincerely thank my own personal algorithm guru, who taught me the ways of the force so I could pull my career out of a nosedive occasioned by a long illness that made me lose touch with what was going on in gatekeeper-land. I did not, however, find her through an ad—she was a friend who figured that shit out on her own and was kind enough to coach me.
I’m not kidding. You would not believe the kinds of contracts that I’ve seen writers and other artists sign. One that publishers started pushing about ten years ago required that, for the privilege of entry-level publication, a writer would give the publisher exclusive, lifetime rights to the author’s name, story-worlds, and options on all their future works. They put this in their boilerplate, hoping the writers wouldn't notice—and many authors did not.
For the record, the best editors are opportunists-with-taste, and here “taste” means “an optimal combination of preferences that both align with current popular appetites and also value the literary tradition they’re participating in." These are the editors that reliably discover and cultivate talent that finds a solid audience (and often endures for at least two generations).
The books are: The Secrets of the Heinlein Juvenile (which studies his books for children and the role they played in creating 20th century Young Adult fiction), and Robert’s Rules of Writing (which examines his business protocols and creative process and their applications in today’s market). The third book, which will hopefully see print late this year, is The Secrets of the Heinlein Epic (which examines the more occultic, conversational, literary, and Jungian works in his later corpus).
You can see this style in his first novel, For Us, The Living (published posthumously). It is a riff on Edward Bellamy’s Looking Backward (arguably the single most influential book of the 20th century), combining the story mechanics of Rip Van Winkel with a boatload of speculative politics into a novel that unfolds as a series of conversations that explore a socialist utopia and project a future history. There isn’t a lot in terms of plot or character, but there are a lot of interesting ideas, half-glimpsed, which formed the seeds of a dozen or more stories and novels later in his career.
—All You Zombies— is the acknowledged inspiration for the paradoxes in the Back to the Future Trilogy, and was adapted directly into the excellent Ethan Hawk/Sarah Snook vehicle Predestination.
Yes, these are all real examples. No, I’m not blowing anyone’s private pen name here.
This is why, for example, some of the films produced under the heavy censorship of the Hayes’ Code era in Hollywood are more perverse, erotic, gripping, and horrifying than similar films produced after the grip of censorship loosened. Squeeze a good talent the right way, you can get great results—it takes much greater talent to produce brilliance without external constraints. For more on this, see Rebel Without a Crew by Robert Rodriguez.
It's a conundrum. People tend to pay to have their beliefs reinforced, rather than to have them challenged. You can make good money preaching to the choir. Not so much with being an observer of essential truths.
I really enjoyed this. What you are explaining is exactly why I fought so hard to get my son into a live-in liberal arts high school for creative writing only for him to stop writing at age 20. He can't (won't) write for an audience. I think he still writes for himself, but that's it. He doesn't even let me read. He felt boxed in and then suffocated, and as I'm sure you are aware, writers tend to have some mental struggles. Anxiety happens to be his. I can't imagine how hard it must be, but it is really a testament to your creativity that you are very good at your work. I don't mind disagreeing and still reading so you don't ever have to worry about me on that front.