I did some digging into the history of the statute 18 USC 1462; it appears it was very hotly debated, and passed by a narrow margin. There was some controversy at that time over whether Congress had a quorum when it was passed, but this was never pursued, unfortunately.
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.
Indeed. The most recent proposal by Senator Mike Lee (R-UT) is to expand the definition of obscenity to cover everything related to sex. That would kill the legal porn industry.
Senator Mike Lee (R-Utah) has introduced a bill that would redefine the federal definition of “obscenity” in order to target anyone who makes or transmits sexual images.
Opponents of the bill say that it would essentially ban pornography while also endangering sex workers and giving Republicans a strong weapon for targeting sexual education materials and LGBTQ-inclusive content.
On Wednesday, Lee introduced the Interstate Obscenity Definition Act (IODA), a bill that would remove the current federal definition of obscenity’s requirement of applying “contemporary adult community standards” when determining something’s obscenity. It would also remove a provision in the Communications Act that only banned the transmission of obscene materials when sent “with intent to annoy, abuse, threaten, or harass another.”
“If passed, any American who knowingly ‘makes, creates, or solicits, and initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent’ via the internet would be fined or imprisoned under federal law, as it is ‘a channel or instrumentality’ of interstate commerce,” The Mary Sue noted.
The only safeguard would be the value prong, but then it eliminates the requirement that the work is taken as a whole and evaluated by a reasonable person. So prosecutors could manipulate the extent of what part of the work could be taken as artistic to suit their purposes. Unless judges take this to comport with the “taken as a whole” requirement of Miller, but this statute is meant to supercede Miller.
If this passes (which I doubt it), it will be declared unconstitutional if enforced consistently. The only way that unconstitutional laws remain in the books is through sporadic or selective enforcement: prosecutors choose cases where judges have no choice but to convict given the facts of the case.
And again, IF this passes, there is a chance the obscenity exception would be abolished. And this is why I doubt it will pass. The obscenity exception is valuable for prosecutors since they use it as a tool of oppression.
I’ve been giving this a lot of thought lately. The original Comstock Act was passed on March 3rd, 1873, meaning that this Act, which essentially setup 18 USC 1462, will be 150 years old in less than a month. That’s almost 60% of the time that the United States has existed as a nation-state. The Roth decision, which carved out obscenity from First Amendment protection, was in 1957, some 66 years ago. Miller has been the law of the land for a half-century now. None of these are at all likely to change in our lifetimes.
Just in the last 15-20 years, we’ve seen the Fletcher, McCoy and Arthur prosecutions. Fletcher plea-bargained, so it wasn’t precedential, but the McCoy and Arthur cases went to trial, both were found guilty, and both verdicts were upheld on appeal. I believe McCoy’s lawyers applied for cert, or Supreme Court review, which was denied, meaning that the lower-court rulings stand.
N.B.: Count 1 in the Arthur case (which attracted a 20 year sentence), was reversed on Appeal, but Counts 2. 3, 4 and 5 were all upheld. These four stories each got Arthur a 5 year sentence, the sentences to be served consecutively, for a total of 20 years. Arthur is currently 66, and is due to be released in 31 years, when he will be 97 (if he lives that long), after which he will be on probation.
It will.
They said the same thing about gay marriage and gay rights, racial segregation, etc. Laws and legal precedents based on nothing but moral viewpoints are impossible to defend, they are not based on anything remotely justified.
Even among conservatives, it’s impossible to defend. The main issue with the Miller Test is that it wrongly asserts that pornography and sexual expression cannot be deemed a form of art, while also acknowledging that it can. The law is not designed to be interpreted with this degree of vagueness, regardless of the material.
Moreover, the matters of obscenity cannot be shown to be harmful or promote acts that lead to, nor are they the product of harm.
Constitutional scholars on both sides of the political spectrum have conceded that denying First Amendment protection to sexually explicit expression that does not rise to the level of child pornography runs afoul of the basic principles of the First Amendment. Prudeness and sensitivity over sexual expression has been rooted in religious morality and has no value in a secular community.
The mere concept of obscenity law constitutes a violation of the Establishment and the Free Exercise Clauses in that it imposes a religious ideal and is devoid of secular purpose.
Please understand, I’m not saying I agree with the obscenity laws, just that I don’t think they will be overturned in our lifetimes. (Nothing would make me happier than to be proven wrong.)
You may indeed have a point – no one foresaw the collapse of the Soviet Union, or the fall of East Germany. I sincerely hope that you’re right. IMO the best course of action is to hope for the best, prepare for the worst, and try to use technology to protect yourself, so that you don’t end up in a courtroom in the meantime.
There are adult novelty shops selling child-like sex toys and Japanese fleshlights with explicit lolicon artwork on the packaging. There are numerous websites, hosted within the United States, that host loli/shota content, including several companies that license and distribute what is essentially virtual child pornography.
I agree that being careful is the focal point, but by bending the knee and validating these prejudices, you do more damage because you present the illusion that these violations of our civil liberties are tolerable or rational.
The whole focus of obscenity law was to ensure that the tastes and prejudices of an assumed majority will be adhered to, just like laws designed to censor/ban books and writings critical of religion. Obscenity is just blasphemy but with regard to sex. These laws were pitched as a means to address ‘social harm’, without any actual evidence to support it, under the masquerade of ‘morality’.
Their goal was to preserve a vague and arbitrary status quo and control people’s thoughts, ideas, and minds. Nowadays, people are smart and have gotten wise to this. It only takes a simple observation to deduce that the harm is not commensurate to level needed to justify censorship.
I argue that laws regulating the ‘time and place’ of indecent materials should be enough. Outside of that? No.
I honestly doubt it. How old is the war on drugs now? I don’t refer to weed only, which is still not completely legal in all states, but all drugs. Something that many people illegaly consume, all over the world with a much lower stigma than anything remotely associated with pedophilia. It would take centuries, many centuries.
How do you expect any progress when attempts to study this topic is either not financed, or even tried out of fear of being canceled? So many countries still criminalize words and stick figures with no scientific evidence. Countries that call themselves democracies and liberal. Even if obscenity would be abolished in the US it will most definetly not be in the rest of the world. Mastercard, PayPal & co. make the rules what big platforms can host (eg. Pixiv) and any defense will be met with your reputation being fucked.
I don’t think it’s remotely reasonable to compare it to the war on drugs. Yeah, things like cannabis you could probably argue that, in the sense that it was played up mostly so conservatives could target countercultural minorities, but for things like hard drugs it’s not really comparable. Those substances can actually cause long-term damage and some interest in keeping them off the streets is warranted.
It would inevitably follow with regard to that, since most of these punitive stances towards certain contents are made specifically to accommodate the laws and practices of countries that are not the US.