How Serious is the War on Fictional Content in the US?

Art and fiction
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Not true.

Stanley v. Georgia unanimously recognized a right to lawfully possess obscene material in the privacy of one’s home, but later cases found that such a right did not exist for receipt.
Thankfully, what counts as ‘obscene’ is not objective and is decided on a case-by-case, state-by-state basis, even at the Federal level, according to a combination of the consideration of individual state law and community standards.

It’s certainly not perfect, nor is it in any way ideal, but things will be changing in that regard within the coming years. There is no value in retaining the obscenity doctrine, and inquiry into the bipartisan legal scholar consensus will reveal how indefensible the obscenity doctrine truly is, both from a perspective of its practical application in terms of obscenity law enforcement, as well as the very concepts by which the obscenity doctrine is founded, to the precedent that shaped it, as well as the core question as to whether the First Amendment could be reasonably interpreted to delineate protected ‘indecent’ expression and exclude ‘obscene’ pornography from its scope of protection, as well as the way the landscape has changed over the years.

There is simply no value in the obscenity doctrine.
From a philosophical standpoint, it seems to contradict the First Amendment at every possible angle while, from a practical standpoint, it actively undermines, if not wholly invalidates the core function and purpose of the First Amendment by taking an ideological, preferential position on certain types of speech and depriving those who do not share those ideals or preferences their right to express themselves or partake in the marketplace of ideas, all the while imposing draconian penalties on those who commit the heinous and unforgivable crime of having a different opinion, all the while fallaciously passing off matters of opinion and conjecture as though they are that of fact.

If a particular state legislature or Congress were to enact a law that essentially targeted the sale and distribution of child pornography, but defined child pornography as any type of material that catered to pedophilic interests, such a law, despite having valid intentions, would be unconstitutional because such interests are matters of taste or preference, and the First Amendment, as a general rule, prevents the use of such things as a justification for speech regulation or censorship, and such a regulation would not fail strict scrutiny. It’s happened before, and it’s called “viewpoint discrimination” and “content-based proscriptions”, which the First Amendment prevents against.

The obscenity doctrine has all the signs of bad precedent. It’s vague, unjustified, originates from a flawed, dated understanding of facts, and even had its own initial proponents (Justices William Brennan, Thurgood Marshall, and Potter Stewart) turn against it after seeing what type of problem it would come to be, especially in the dawning of the information age.

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23

It seems relevant that shortly after the Stanley decision, Congress authorized the president’s commision on obscenity and pornography. The research submitted findings after Nixon took office. Nixon and Congress rejected the findings of the scientifically conducted research.

The Roth decision made obscenity very difficult to prosecute. Nixon appointed Justice Burger who wrote the Miller decision.

They rejected evidence and further widened the scope of what could be found legally obscene.

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24

Yep… It was all crooked.

It’s actually going to be a major talking point, should the issue be submitted again in the coming years, since the obscenity doctrine was HARDLY a good-faith determination of Constitutional precedent, and not an ideologically-charged contingency which blatantly undermined basic free speech principles for their own sake.

It was a weapon to be employed by like-minded belligerents in a culture war.

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25

That is true, but I can’t imagine that any potential legislation would be worded in such a way, especially considering that it’s completely feasible if not trivial to accomplish the exact the same thing without an explicit appeal to “pedophilic interests”. The UK and Australia have layed the groundwork in that regard with prohibitions on fictional material depicting fictional minors, or pornography wherein a subject has… Small breasts.

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26

There are 2 threats. One is obviously those who want to take it away, but the other is a bit more insidious, such as changing things for “social progress” and other disgusting modern-day excuses:

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27

This is just my understanding, others are far more knowledgeable than I.
It largely depends on the state, some states, such as California, have made loli/shota explicitly legal. However, Utah has explicitly banned it. Federally, it’s sort of in a gray area. A lot of people will cite the PROTECT Act as evidence of such content being illegal, though that was deemed unconstitutional in a court ruling.

Again, this is just my understanding.

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28

The Supreme Court has upheld the Protect Act every time parts of it have been ruled unconstitutional by a lower court, but the Protect Act doesn’t make such content illegal unless it’s deemed to be obscene.

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Isn’t that a low bar anyway?

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31

depends on who’s judging

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32

Thank you for linking, this is the case I was thinking of.

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33

No case has made PROTECT unconstitutional. The only time a part of PROTECT was ruled unconstitutional was in the Handley case from 2008-2010. The problem was that a part of the law did not use the full Miller test, but instead used a trucated version requiring sexual intercourse, graphic bestiality or sadomasochistic abuse, and also a lack of serious value (note this part of the law did not include masturbation or lascivious displays). However, the part using the full Miller test was upheld. Furthermore, this means that loli is legal depending on what picture you are talking about. And even some pictures ruled obscene could be ruled non-obscene tomorrow.

The 2002 court case was in response to the 1996 CPPA, which banned any form or virtual CP, regardless of whether it met Miller or not. So the court thought that was overbroad and struck it down. Congress then amended the law in 2003 through protect, and explicitly excluded drawings and cartoons from CP law, and added an affirmative defense that an image was either not involving any actual minors, or used adults. The obscenity law was basically just a way to add more potential punishment should someone get charged.

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I know people say that loli is protected under the 1st (I’m not American, so I’m guessing 1st)…

…but considering their recent stance on abortion, I guess anything is possible.

Even banning drawings.

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35

Even banning drawings of adults, or writings about adults. It’s up for grabs at this point.

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The greatest problem with obscenity is defying “obscene.” One famous comment on this was “I can’t define it, but I know it when I see it.” If you can’t define it, how can you ban it? People have to have a clear statement of exactly what it is that is illegal. Without that, how can anyone know in advance that they are breaking a law?

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Obscenity is clearly contrary to the fundamental principles of criminal justice, and more broadly contrary to the principles of freedom of expression underlying the first amendment. This fact unfortunately isn’t any kind of knockout blow against such legislation because your average person/lawmaker gives exactly zero shits about the principle of anything. In their ideal world, the law would simply be one and the same with their preferences and prejudices.

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38

That will be true until the powers that be enact legislation that bow affects the interests of these people. Then they will begin to care once you go the way of Kangarooland and you narely have freedom of speech.

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40

Sounds like a badass epithet.

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41

Sadly, obscenity law isn’t going to be repealed, anytime soon. On March 2nd, 2023, 18 U.S.C. § 1462 will be 150 years old. This is the law prohibiting the importation or transport of any “obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character…”

Today, it is primarily used against online publication or transfer of ‘obscene’ materials. This is the law that was used to prosecute and convict both Frank McCoy and Thomas Alan Arthur (Mr. Double). It is worthy of note that the Court of Appeal upheld Arthur’s conviction for 5 counts of transferring obscene materials – 4 of these counts referred to stories for which he received the maximum sentence of 5 years each, to be served consecutively.

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42

Dissenting opinion in Miller v. California (1973)

In this case, the Supreme Court created “guidelines” for jurors in obscenity cases, establishing what came to be known as “the Miller test.” This test was designed to make it easier for prosecutors to pursue obscenity charges.

Douglas dissented, articulating his view that there should be no obscenity exception under the First Amendment. He viewed the Miller test concepts of “prurient interest,” “patently offensive” and “no serious value” — under which material could be declared obscene — as inherently vague.

“Obscenity — which even we cannot define with precision — is a hodge-podge,” he concluded. “To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.”

n his book A Living Bill of Rights, Douglas wrote: “The argument against censorship is clear: no person should dictate our tastes, ideas, or beliefs. No official has the right to say what is trash or what has value.”

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