There is nothing of benefit from the obscenity doctrine. It offers nothing, it helps nothing, and it punishes people for what is, in its own terms, nothing. yet the consequences aren’t nothing. The consequences are very real and very damaging to those affected by the obscenity doctrine.
The obscenity doctrine is literally Orwellian doublespeak. It goes against sheer fact in order to push forward an idealistic agenda that cannot be accomplished so long as human beings maintain “free will”. It demands conformity, but offers no consistency. It causes harm to creators and consumers alike and attempts to supplant opinions and ideals as if they’re objective facts.
Matters of obscenity are not matters of fact. They simply aren’t. The doctrine must be overturned. It simply cannot be allowed to exist any further, I want it challenged. And I want it gone.
You cannot justify the suppression of speech simply because it offends or upsets. That’s a simple fact.
I want it challenged. I want it gone. There is no way you can reconcile a violation with a principle. The freedom of speech was not conceived in a vacuum, it is a natural, necessary consequence to humanity’s long history of ideological repression.
This is undermined, trivialized and bastardized by the obscenity doctrine.
I am mostly concerned with private obscenity. The context of privacy invalidates and neutralizes the notion of “obscenity” entirely.
With public obscenity, I can understand why obscenity laws would exist; to prevent people from running around in publicly owned places around other people while naked or exposing others to things that are explicit.
I am a firm believer that unless a private activity involves a person being harmed in its production or consumption, whatever goes on within a home should be lawless. To me, this includes dolls of any kind for any purpose, responsible drug-use, and prostitution between consenting adults. To impose law on any of these is a direct attack on both privacy and freedom. There is no point to life if you cannot do what you desire within reason.
The only gray areas for me would be topics of suicide and abortion. Those are tough because they involve death, and death is a complete unknowable. Regardless, law would be better if it kept its nose out of gray areas entirely. We cannot formulate law around what we do not fully understand, and we cannot place law around what is not consistently a bad result for everyone that the law is designed to protect.
Pretty much this. As long as nobody is infringing on the rights of other REAL people, what they do in the privacy of their homes is their own business. But obscenity allows the government to criminalize wrong thoughts…
Even when considered free speech they just slap “No, it’s obscene speech! We can’t explain why!” as a loophole around free speech. Loopholes that can get people who haven’t hurt anyone in our reality sent to prison should not exist in countries based around free speech.
For example, an author in China was arrested on obscenity charges… For a book. America wants to become more like China, that is not a good thing by any stretch of the word.
Well that’s just it, really. We already have public decency statutes that prohibit those things because they are considered ‘nuisance’ acts, but that’s okay because they’re not banned entirely, as is the objective of obscenity laws. Obscenity laws are wholly and completely without justified reason for existing.
Obscenity, as a legal concept, is fundamentally and applicably meaningless. It literally only exists to accommodate the tastes, mores, fears, and prejudices of those who would otherwise not partake in the material. The doctrine is not designed to protect morality, nor is it really designed to enforce it.
The main problem is that the United States’ idea of free speech is literally antithetical to the very concept of obscenity. It is designed specifically to ensure that all ideas, regardless of their offensive or thought-provoking nature, can be expressed. That’s why when you look thru court cases, the defendant will always plead a First Amendment defense, because its primary purpose is to prevent the government from imposing arbitrary viewpoints on the populace, as well as prohibit content-based regulations of speech.
If you go ahead and dissect the Miller test, the concept that something could be “without serious…value” while being designed to invoke sexual, ‘prurient’ thoughts is plainly oxymoronic. There is a lot of dispute within artistic scholarly circles over whether or not pornography can even be considered a form of art, with pro-art philosophers arguing that it fits because it meets the literal definition of “art” while also expressively conveying a message to an audience, while anti-arts will concoct these arbitrary definitions and long-winded explanations for why it can’t be considered art, all of which fail even the most surface-level scrutiny.
The very idea that “contemporary community standards” could come before the individual right to consume and express, even behind the closed doors of an adult movie theater or their home internet connection, let alone substitute as “fact” in a court of law, is jaw-droppingly preposterous. Matters of obscenity are not matters of fact, not in the slightest. The illusion that simply having a 3-part test that draws on the ideals and mores of a jury and judge in the absence of a possble fact is a prime example of a “kangaroo court”.
There is no justice. There isn’t even a crime unless the jury or judge says so, and that ‘crime’ is contingent upon their willingness to appreciate the appreciate the artistic and expressive nature of the work itself.
It should be noted that First Amendment exceptions aren’t new, but they’re usually justified by some level of ‘harm’ or relation to a crime. Child pornography is criminalized even if it has ‘serious artistic value’, simply because a child was being exploited sexually in order to make it.
If a film depicting the real rape and abuse of an adult is to be denied First Amendment protection, then carve out a category of speech which targets that. Let it go through Congress.
We don’t need a ‘moral value judgement’ to discern reality from fiction. If an actual crime is being depicted and exploited by this film, and there exists a demand for this material which trumps what demand might be there for said material, then the interests have been balanced and the exclusion could be permissible.
The problem with exploiting “morals” is that morality isn’t static.
It constantly adapts and changes as a person lives their life. It’s perfectly moral to allow fictional pornographic material to exist which depicts and glorifies the rape and torture of a fictional character, as opposed to an actual person. The mere fact that a sanctioned delineation between the fiction and the real variants of the material would tell purveyors of such material “hey. this is what you want. not this”, that way their right to free speech and expression is well-preserved, and the laws focus on material that actually matters.
The obscenity doctrine makes no attempt to conform to any semblance of logic or reason. It was a weapon designed to be employed by like-minded combatants in a culture war, as opposed to a good-faith determination of Constitutional precedent.
This isn’t a matter of fact or logic, but purely philosophy. And to impose that philosophy on the American people by way of censorship is precisely what the First Amendment was written to prohibit.
I hope to see it obliterated within our lifetime. No amount of “bad precedent” can change the fact that the Supreme Court was simply wrong in every possible way. They were wrong in deciding the history, they were wrong in determining the philosophy of moral reinforcement (see Ashcroft v. Free Speech Coalition, Lawrence v. Texas, Obergefell v. Hodges) and they were dead wrong in their assumption that it was never a “constitutional concern” prior to Roth.
It’s time for the Supreme Court to do right by the American people and readdress the bad precedent behind the obscenity doctrine, and this time, discard it, in all of its forms.
The mere fact that the same pornographic material can be used to convict a person for selling it in his business and declared “obscene” by one jury, then have that same film be cleared of obscenity charges by a different jury, in the same state, within months of each other, is an observation of the tyranny, futility, callousness, and cruelty inherent in the doctrine.
The obscenity doctrine is nothing more than a vehicle for enabling social and cultural repression, thinly veiled by biased, pessimistic assumptions of social harm and delusions of moral grandeur, furthered and explained with logic so confounding and inconsistent with the American concept of free speech that it is anything but ‘American’.
It simply has no place in American free speech jurisprudence and matters of taste and opinion have no business being fallaciously and deludedly as matters of ‘fact’.
It is unjustified. It is repressive. It is vague. It is illogical. It is unreasonable. It is cruel.
It is precisely what the First Amendment was drafted to prevent the State from becoming.
The phrase “I know it when I see it” is perhaps one of the most farcical statements a person could make, as different people can have different opinions, and the First Amendment protects what is disagreeable, unpopular, the offensive, the outrageous, the immoral, the hateful, and the blasphemous, just as much as it would protect that which is agreeable, popular, inoffensive, delightful, moral, lovable, and faithful.
This understanding of American free speech presumably protects the obscene, as obscenity, like the others, is a matter of preferential taste and opinion.
The idea that a country that strives to go so far in establishing its free speech doctrine will allow an innocent man or woman to be arrested and prosecuted for merely having different tastes in erotic material is physically nauseating.
It matters not that the material depicts nauseating, infuriating depictions of sex, sexual functions, or sexual depictions of non-existent, fictionalized child characters.
What matters is their right to create, possess, view, and distribute this material remains unfettered by the State, for any such violation would compromise the individual’s right to their freedom of speech, expression, and conscience, for if we are not free to simply think and express our truest, most innermost desires in the fullest capacity possible without the cold, bitter hands of the State controlling your thoughts, then what freedom do we have? What’s the point? Why even have a First Amendment if this is what it could permit?
The State acting in such a way that limits or restricts a person’s right to these materials without a proper intrinsic link to actual, real-life harm to the rights or welfare of another person, or even a legitimate reason, is a violation of one’s civil rights.
Child pornography/CSAM prohibition is backed by a legitimate interest in the welfare and safety of children, and to drown out a market for criminal material which harms real children via its very creation and existence. The “harm” here is understood to be that of the children depicted, as well as any future victims who may be exploited by this material.
Child pornography is not banned because of anything to do with obscenity. The Supreme Court plainly and flatly admitted that the obscenity doctrine was not designed with the interests of children, or even victims. It was plainly designed to protect what Warren Burger called “a social interest in order and morality”.
One could contend that obscene material may be the product of the actual harm, such as that of non-consenting adults, or perhaps even animals.
The main issue here, though, is that these materials can be eradicated without touching on the issue of obscenity, the sexual exploitation of non-consenting adults and animals are already crimes which are heavily and thoroughly investigated without touching upon the issue of obscenity, as obscenity laws weren’t designed to punish or prevent harmful acts, nor are they limited to such harm.