We’re gonna have to challenge and overturn the precedent set forth in Roth/Miller. I’ve written up college-level essays and counter arguments against the majority opinions and pointed out how the obscenity exception is, by design and effect, antithetical to the American ideal.
This isn’t just a libertarian position. Freedom of speech means freedom of speech. The right to believe and communicate ideas, to convey or impart without fear of state retaliation or suppression, regardless of their apparent or theoretical value, is something that’s become cemented in our identity pursuant to the First, Fifth, and Fourteenth Amendments. All realms of unprotected speech are justified by a degree of harm implicit in their core concepts. Libel, child pornography, “fighting words”, true threats, and to a degree commercial speech is also justified by an illustrated and tangible interest in protecting the rights and safety of the people. Why should sexually explicit materials be excluded from this? We already have time-and-place restrictions on not-yet-obscene pornographic media, in that they can’t be criminalized or suppressed but restricted to adults and consensual purveyors of such media. So long as the participants of such materials are over 18, why should it go beyond that?
When I look at adult obscenity cases, I don’t see a criminal being prosecuted. I see someone who fell victim to a deliberately laid trap. Their “crime” was being at the wrong place, at the wrong time, consuming materials that appealed to the wrong prosecutor, judge, and assumed jury. A kangaroo court, so to speak. No facts have to be established in determining whether materials depict or describe sex in a “patently offensive” way or appeal to a prurient interest, and certainly not when determining whether any ‘serious’ value can be ascertained by said materials. Value is in the eye of the single beholder, not a community and certainly not guided by their presumed subjective, arbitrary tastes and sensibilities.
As an artist by trade, I’ve had to seek out pornography from the 70s and 80s when doing commissions for reference. From old timey black and white reels of film depicting an unshaven, mature, out-of-shape couple enjoying themselves to old playboy magazines, to hardcore fetish material depicting all manner of alternative interests, to sets of images you can find on Google from popular sites. If you go by the way the Miller test is worded, these could get me in trouble with the law should I live in the wrong community, despite using them for artistic purposes!
Even Japanese fictional pornography depicting small, flat-chested and wide-eyed animated characters on imageboards like 4chan. All of this will be offensive to some. They are no different.
This toxic and arbitrary standard places a target on artists who dare look beyond the morality paradigm. These issues are not even remotely “moral” ones. They’re an imposition of taste. And that is a violation of the Constitution.
We’ve already proven that there is no link, be it a casual or correlative one, that non-child pornography causes harm or is likely to drive a person to commit sex crimes against actual minors or partake in the underground collection or trade of CSA materials.
It MUST be overturned! It will be overturned! At the risk of sounding crass, just like “separate but equal” in Plessy v. Ferguson and sodomy laws in Bowers v. Hardwick.