Yeah… I’ve been looking at various historical legal precedents, and the obscenity doctrine has all the markers of ‘bad precedent’.
Especially when judged against the criteria set out in this CRS report on the matter (dated 2018).
Quality of Reasoning. When determining whether to reaffirm or overrule a prior decision, the Supreme Court may consider the quality of the decision’s reasoning.
The precedents which ground the obscenity doctrine are anything but reasoned, if the term ‘quality’ could even be applied. The assertion that the First Amendment does not protect things as a matter of subjective, arbitrary viewpoint is beyond senseless, but moreover, the fact that definitions can’t even be agreed upon and are decided on a case-by-case basis, and have to leverage what are basically opinions, many of which are emphatically incompatible with the definitions of what counts as ‘serious’ artistic, literary, or scientific value, is a mark none should ever let go, no matter how many of its defenders would argue otherwise.
Workability. Another factor that the Supreme Court may consider when determining whether to overrule a precedent is whether the precedent’s rules or standards are too difficult for lower federal courts or other interpreters to apply and are thus “unworkable.”
The fact that they’re so under-prosecuted in relation to matters pertaining to child pornography or child exploitation means that the definition of ‘obscenity’ is unworkable, even with matters pertaining to virtual/simulated child pornography and other contents.
Inconsistency with Related Decisions. A third factor the Supreme Court may consider is whether the precedent departs from the Court’s other decisions on similar constitutional questions, either because the precedent’s reasoning has been eroded by later decisions or because the precedent is a recent outlier when compared to other decisions.
@Obin has been very thorough in comparing Roth, Miller, and other precedents with other First Amendment precedents. Even the more recent one, Counterman v. Colorado, which dealt with true threats, couldn’t even agree on the logic of obscenity in that it couldn’t apply to other matters of First Amendment exceptions, cementing the fact that it’s so anomalous that it could be safely and reliably severed like the malignant tumor it is.
Changed Understanding of Relevant Facts. The Supreme Court has also indicated that changes in how the Justices and society understand a decision’s underlying facts may undermine a precedent’s authoritativeness, leading the Court to overrule it.
The obscenity doctrine was brought about during a time right before the beginning of the Information Age, when the Internet was yet to reach its conception as a primary means of sharing/exchanging information. Had they known what the world would become they would have likely spared the courts the headache and just said “no” and let hardcore pornography remain unregulated unless it involved the use of a real child.
Reliance. Finally, the Supreme Court may consider whether it should retain a precedent, even if flawed, because overruling the decision would injure individuals, companies, or organizations; society as a whole; or legislative, executive, or judicial branch officers, who had relied on the decision.
I’m no formal lawyer, but I’d be willing to bet that the doctrine could be dispensed with without any reliance on other precedent, even those like Ashcroft and Williams which may reference it.
Matters of obscenity are not matters of fact, merely that of conjecture, viewpoint, and raw intuition. “I know it when I see it” was not just mere wordplay, but a stark warning against the very concept of categorizing a whole range of speech based on something that is, objectively, a matter of subjective opinion. I’d argue that the obscenity doctrine has been detrimental to society at large, forestalling a large array of discussion that we could have, contributing to the repression and marginalization of social minorities (the LGBT community, non-offending MAPs), and has been a staple talking point in the moralization of prejudice and preferencial offense in our laws and legal systems.
It has no value as a legal doctrine. Any and all applications which may have value as a means to enable the government to pursue its valid interests will need to live up to Strict Scrutiny (which they likely will), or will simply need to abide by the ‘time, manner, and place’ doctrine which guides the regulation of ‘indecency’. It does not make society safer, it does not enable the government to put away dangerous individuals, and it actually impedes progress, both in practice and by virtue of existence.
It reduces our courts to ‘kangaroo courts’ where matters of fact are not present and juries and judges face so very little constraints that they have to be told after the fact what is or isn’t obscene, with no fair warning as to what could/couldn’t be obscene, while also maintaining a botched and objectively incorrect definition of what counts as ‘artistic’ or ‘literary’ value. Pornography, for its own sake, is art with artistic value. Appealing to the ‘prurient interest’ in an artistic way is, in itself, artistic value. It’s expressive, and to argue that just because something appeals to that interest as a valid reason for suppressing it is to undermine the Freedom of Speech as a concept.
It will be challenged, it will be reconsidered, and eventually, it will be done away with. All it takes is the SCOTUS on the right day, just as it were with segregation, sodomy laws, and gay marriage/marriage equality.
FIRE just wrote to New York University over its apparent investigation of a student who reacted to Hamas’s attack by saying, “Israel bears full responsibility for this tremendous loss of life.”