Obscenity - Challenging the Rationale

Art and fiction
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Alright. I just wanna preface this by stating that lolicon is NOT illegal in the United States. A blanket ban on pornography depicting fictional minors would (and has been proven to) violate the First Amendment just as it would for any other pornographic material, in that it requires a court of law to find that the material be “obscene”. But that’s where any pleasantries end, I’m afraid.

After reading about imageboard 8kun’s decision to prohibit loli/shota from their platform (along with the site admin’s post detailing why, referencing US v. Eychaner), it became very clear to me that things are getting serious. The chilling effect on erotic expression is becoming increasingly more palpable, and this can only be a sign of what’s to come.

I believe the time to act is now. If we care about our rights, we should be able to defend them in a concise and persuasive manner while putting forward an equally, if not more than, satisfactory and convincing counter argument that both addresses and dispels any points raised by the other side. It’s this failure to completely rebut these claims that makes them seem more plausible, in spite of the obvious inconsistencies that lie within. But such a task for this particular subject matter arequires a group effort to sort through. That’s why I’m posting this here, so that we, as a community, can discuss, learn about, understand, and, hopefully arm someone with the knowledge necessary to formally challenge and convince an unbiased SCOTUS to retire or completely overturn the obscenity exception.

I found a document that succinctly outlines a good bit of the reasoning used by the courts for excluding what they defined as obscene from the First Amendment. In addition to this, it also includes common arguments against the obscenity exclusion followed by a few rebuttals while also following a logical progression format. Most of this is based on SCOTUS precedent and caselaw. Consider this a jumping-off point.

Obscenity Exception

Roth vs. U. S. (1956)
Miller vs. U. S. (1973)
Paris Adult Theatre (1973)

Roth vs. U. S. (1956)

Justice Brennan

Historical argument: at time of passage of First Amendment (1793), 13 of 14 states provided for criminal libel, all states made profanity or blasphemy or both a crime.
Argument from the rationale of Free Speech (a variation of Meiklejohn's democracy argument)

Obscenity doesn’t fit the rationale for Free Speech

“The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” This covers only information and education “with respect to the significant issues of the times.”

Obscenity is not the same thing as sexually explicit material

Obscene material deals with sex in a way calculated to appeal to prurient interest.
Sex depicted in art, literature and scientific works is protected.
Since obscene speech is not covered by the First Amendment, there is no need to establish a "clear and present danger" (Schenck v. U.S. 249 U. S. 47).

Community standard test

"Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."
The obscenity standard is admittedly vague: does it violate due process?

Obscenity and Vagueness

There are "reasonably ascertainable standards of guilt."
The boundaries are "sufficiently distinct for judges and juries to fairly administer the law."

Miller v. California (1973)

3 part test:

 Whether to the average person, the material appeals to the prurient interest
Whether the material depicts or describes, in a patently offensive way, sexual conduct described by applicable state law.
The material, taken as a whole, lacks serious literary, artistic, political or scientific value.

Paris Adult Theatre.(1973)

Burger’s Decision

Since obscenity is not protected by the First Amendment, the restriction must pass only minimal scrutiny under the 14th Amendment: the law must have some "rational basis."
There are "arguable correlations" between obscene material and crime, and the state has the right to protect the moral "tone of society". Right to a "decent society".
No constitutional right to privacy is involved, because the movies were shown in a place of public accomodation.
First Amendment not involved, because there was no communication of ideas involved, and no attempt to control thoughts or minds.

Brennan’s Dissent

Repudiates his own opinion in Roth (1956),
Vagueness cannot be reduced to an acceptable level.
No "sensitive tools" exist to separate obscenity from constitutionally protected speech.

Is pornography speech at all?

Is it rather a form of sexual gratification, essentially equivalent to prostitution?
It provides physical sensations, not ideas, concepts.

Do any of the rationales for the First Amendment protect pornography?

Marketplace of ideas?
Viewpoint neutrality?
Self-government?
Individual rational autonomy?

Feminist Critique of Pornography

MacKinnon and the Indianopolis ordinance

Pornography = "graphic sexually explicit subordination of women through pictures or words", a form of sexual discrimination. Sexually explicit erotica that treat women with respect, in a context of equality, are OK.
Pornography is a political act, expressing an ideology, whereby social inequalities are constructed.

MacKinnon’s arguments

MacKinnon relies on anecdotal evidence of connection to violence, scientific studies connecting pornography to the reinforcement of sexist attitudes.
Pornography does not contribute to the marketplace of ideas, because it effectively silences women, contributing to a culture in which women's speech is disvalued.

Easterbrook’s opinion in American Booksellers

Relies on neutrality theory.
The Indianopolis statute is not viewpoint-neutral: erotica expressing approved views is legal, that expresses disapproved views is not.
Evidence of harm (effects on attitudes and behavior) are irrelevant, since they only confirm the power of pornography as speech. (Compare Scanlon's theory).
Rejects the "unanswerable speech" argument: a repudiation of the marketplace of ideas rationale?

Dworkin’s Critique of MacKinnon

If accepted, the feminist theory would justify banning all speech offensive to minorities, such as the Skokie Nazi march.
Taken to its logical conclusion, it would justify taking away from racists, sexists the right to vote or run for office.
Central meaning of First Amendment: everyone must have the equal opportunity to shape the political and moral environment. [This would apply to more than speech -- actions can also shape that environment.]
In the long run, feminism benefits from this principle of equality. For example, in Canada some feminist books have been banned as practicing "sex discrimination".

Feminist Rebuttals

Pornography is analogous to segregation.
    Just as racial equality justified some limitations on freedom of association & trade, so sexual equality justifies some restriction on expression.
    Both segregation and pornography operate on a symbolic level, yet they effect subordination. 
Pornography vs. discussion, debate
    There is a distinction between pornography and the promotion of sexist ideas through discussion and debate.
    Pornography manipulates its consumers psychologically, conditioning them by linking sexual release and the abuse of women.

Implications of Feminist Theory

Feminist theory would justify further restrictions on speech, such as racist speech (banned by UK race relations law).
Overturn Collins v. Smith (Nazi march in Skokie)?

Collins v. Smith (1978)

"No such thing as a false idea" under the First Amendment.
Any speech can offend or disturb.
Could there be a distinction between attempts to persuade and attempts to humiliate, shock or demean?
Could the public display of certain symbols (swastika) be banned without limiting the freedom of discussion?

Campus Speech codes

Is the possible connection to violent acts relevant? O. W. Holmes: "every idea is an incitement to action."
Do these codes have a chilling effect on freedom of discussion of controversial issues?
Is there a slippery slope? Would it ban feminist speech, e.g., claims that all heterosexual acts are rape?

University of Texas – Austin

“Racial harrassment² is defined as extreme or outrageous acts or communications intedned to harass, intimidate, or humiliate a student or student on account of race, color, or national origin and that cause them to suffer severe emotional distress.”

“Racial harassment of students is expressly prohibited, and any student, faculty or non-faculty employee who engages in such conduct is subject to appropriate disciplinary action whether the harassment takes place on or off the campus.”

Appendix E, General Information Catalog

Does the “fighting words” exception apply?

In UMW Post (1991), the circuit court ruled that the fighting words exception is “limited to speech which by its very utterance tends to incite an immediate breach of the peace.”

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I’ll start with some of the points I find the most egregious.

I find this rationale to be particularly offensive. These kinds of speech being illegal in 13/14 states during the ratification of the Bill of Rights seems to have a tenuous relationship with whether or not it was in the Framers intentions, or even modern-day caselaw. It’s safe to assume that laws against blasphemy and profanity would likely not pass any constitutional scrutiny today or even during the 1960s, considering they’re both violations of prior restraint and were around before the 14th Amendment, which applied the Constitution to the states. There was no mention of pornography or obscenity not being included in the Bill of Rights, nor is it mentioned anywhere else in any relevant documents to the US’ founding.

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and

To put it simply, this position is wrong. By declaring matters pertaining to sex in this specific context as excluded from the marketplace of ideas, they are effectively going against the free-market-of-ideas principle by taking what is, in essence, a politically and socially charged viewpoint and imposing it on the populace as a whole, undermining the validity of said marketplace principle and much to the very real detriment of its people.

But how, and why?
As many of you will probably already know, the marketplace of ideas isn’t just a metaphor for valuable communication. It’s an actual, observable thing that occurs in any instance where people are able to communicate, and serves as the primary rationale behind groundbreaking and defining concepts like freedom of speech, freedom of religion, and freedom of thought. It encapsulates ideas, tastes, and opinions of all sorts of things, like arts and literature, politics, religion, and whatever else needs to be communicated.
In a country where freedom of speech, thought, and expression are normally protected on that merit alone, most people feel they shouldn’t have to justify ‘taste’ to the government, at least in the absence of some intrinsic level or degree of ‘harm’ or ‘injury’ to the rights of others. Someone telling you that your idea is lame simply because they think it is lame isn’t an argument anymore, it’s just “I have my opinion I think is the right one and you have your opinion” The government telling you that your interest in a piece of erotic artwork is designed to titillate, rather than conform to a set of pre-approved criteria, is enough to warrant prosecution and incarceration is a slap in the face to this principle.
The marketplace of ideas principle cannot perform it’s proper purpose if it is guided by prejudice.

Is there any way this can be expanded? I want to establish a level of discussion so that way our arguments can be bulletproof. As I stated in the OP, the goal is to incorporate these points into an attack on the obscenity doctrine and finally end this era of majoritarian cruelty and thought-crime.

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You can convey political ideas with obscene material.

For instance, there are political cartoons involving politicians and one which made fun of the crime rates being lower in Japan, while the U.K. was screaming at them to ban the “child abuse cartoons” (while having a cartoon illustration of many children being raped in the background on their side).

This may be considered obscene, but it is also in the realm of politics.

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This is a great critique on the absurdity of “obscenity law”.

In a country where freedom of speech, thought, and expression are normally protected on that merit alone, most people feel they shouldn’t have to justify ‘taste’ to the government, at least in the absence of some intrinsic level or degree of ‘harm’ or ‘injury’ to the rights of others.

This is what I’ve been thinking for a while. I can understand why some may view fictional CP of non-existing minors disgusting and certain sex acts between consenting adults are beyond disgusting; While I hold these views, these reasons are not valid reasons for a ban on their distribution. If adults wish to distribute these things between adults and only adults, these things ought to be constitutionally protected.

Harm needs to be the basis to banning things. We prohibit importations of fish from slave ships because purchase and importation of such materials fuels the slave market. But we do not ban the existing of that type of fish if it were farmed or fished ethically. This standard should be extended to photography and art. Under this reason, real child pornography or “CSAM” is rightfully banned. But the same reasoning cannot be argued for extreme adult pornography between consenting adults, nor cannot it argued towards mangas.

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People tend to overestimate how pointless and mass-incarcerating it is to create what are essentially “information crimes”. That is sentencing someone for holding or sending a certain set of bytes.

You’re not going to be hitting someone “evil” in many cases, it ruins people’s lives and it ultimately does not better society. There is also risk of contagion by being involved with it which pushes people to distance themselves far.

Creating crimes for the sake of creating crimes is meaningless, and quite frankly, a waste of resources. This isn’t money in particular, but human resources, and for what, so you can virtue signal harder?

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Thankfully I don’t have obscenity laws in my jurisdiction.

There’s another problem: fictional CP is illegal if it’s “realistic”. Lolicon and shotacon is not realistic to me, but what if I come across something like 3D CGI? Where will the police draw the line? I can’t tell, because they can’t show me.

The police owes the people a clear definition of “realistic” and “pornographic” images of children. Even then, people will be worried about browsing the internet because they might stumble across illegal images of children.

You can argue that distribution of CP of real people can cause harm. Production certainly can. However, watching and possessing CP with real people cannot.

  • Watching CP does not encourage its production. CP producers are risking jail. Most won’t take the risk of sharing evidence. A minority trade CP for CP with people they trust. Rarely do they trade it for money. They don’t want a large audience. A big number on a view counter does not encourage them in any way.

  • Telepathy does not exist. The only way you can harm the victim is by informing them of the event.

Looking up CP is rude, but it’s not a cause of harm.

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3DCG is nightmare fuel. The first time I stumbled upon it, it gave me a bit of a panic attack as a glimpse at a thumbnail makes you think the thing is real, until you check and it’s just 3DCG. I do not like going anywhere near it as my brain automatically associates that with prison (simply from the appearance of it being too close) and it is too often uncanny. I much prefer being able to sleep without nightmares of the police busting down my door.

Some people like it very much and it isn’t really fair to throw them behind bars over it. I don’t think there has ever been a precedent over it, so it is hard to tell what may or may not be obscene.

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CP Detection AIs have heart attacks over 3DCG too. They go wee woo wee weoo, we found some CP, even though it isn’t that realistic. It is the reason Google gives for blacklisting any page with it. Some people call that AI, CSAI, I think.

All that AI did was teach people how to better hide their 3DCG in such a way that Google can’t find it and I presume the CP folks too.

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Some people like it very much and it isn’t really fair to throw them behind bars over it. I don’t think there has ever been a precedent over it, so it is hard to tell what may or may not be obscene.

The only 1466A fictional precedences involve cartoon works to the best of my knowledge. I have never seen a case involving 3DCG in the United States. I also do not know of any 2552A precedences that involve 3DCG. Yet anyways. 2552A is a great law as it deals with real minors, real victims.

3DCG is nightmare fuel. The first time I stumbled upon it, it gave me a bit of a panic attack as a glimpse at a thumbnail makes you think the thing is real, until you check and it’s just 3DCG. I do not like going anywhere near it as my brain automatically associates that with prison (simply from the appearance of it being too close) and it is too often uncanny. I much prefer being able to sleep without nightmares of the police busting down my door.

I’ve seen 3DCG adult porn and it’s uncanny valley, though not out of fear of cops, but because it’s creepy as hell. But for fictional 3DCG CP, yeah, even if 1466A were to be modified to exempt fictional representations, it would still be quite terrifying to stumble across this.

In the hypothetical scenario that 1466A and ALL obscenity law were in a future date to be modified to exempt fictional representations: Distributors and creators of cartoon or 3DCG of any pornographic representations of fictional minors should take up several responsibilities:

  • Keep 3DCG and cartoon materials separated from each other as to not horrify or traumatize those seeking cartoon fictional representations.

  • Keep the degenerate 3DCG crap off the open web. Even those who stumble across such might find it traumatizing. Additionally, those responsible for cartoon fictional representations should also keep their stuff off the open web. In a number of countries, fictional CP that does not represent any minors is treated almost as seriously as recordings of actual child abuse.

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Tagging could help there. Someone could specify what sort of content they’re willing to see and the search engine / site could respond to that.

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For the record, I’d like to keep any and all discussion of CSAM tightly limited. Child pornography is a completely different area of speech that the Supreme Court has repeatedly clarified as such, with an genuine and reasonable rationale backed up by a legitimate interest.

That being said, I STRONGLY disagree with your assessment that simply “watching or possessing” CP doesn’t harm children.

The previling rationale behind criminalizing all instances relating to CP, including the viewing and possession of such material is an interesting, but ultimately justified. It doesn’t matter if people hoard it in private or keep to specific material - the fact that it exists, in somebody’s possession, is enough to imply a “market” connection which can affirmatively be read to enable the proliferation and further creation of said material in that there is a demand therefore someone will bring about the supply, thus putting children at risk.

This strong and deliberate exemption from the marketplace of ideas wasn’t an emotionally charged knee-jerk reaction by the Justices of the court. Rather, it was after a thoughtful, objective review of the material based on factors which can be broken down and logically analyzed. CSAM, the market for it, its production, the victims affected by it, and the risk it poses to more children. One must have a firm understanding of this.

Children, as you may already know, are distinct from adults. They’re considered by law to be “dependents” and are not afforded nearly half as many rights as adults. Consider the physiological makeup of a child, with much of their persons not capable of unsupervised independence. They’re uneducated, inexperienced, and lack the overall mental fortitude necessary to properly provide for themselves both physically and emotionally. By their instinctive nature they will depend on an adult or guardian to accommodate for them certain needs, like food, clothing, shelter, and protection from danger. This is also extended to their psychology, where they will seek guidance, knowledge, discipline, and affection. From how they should conduct themselves publicly and privately in their day to day life, to how they should feel about events or things or what opinions and customs should be revered or respected, regardless of the logic or reason (if any) to simple concepts relevant to their understanding of the world, to grasping human concepts like emotion. A child’s impressionable nature cannot be understated. But this also makes them extremely vulnerable to forms of abuse, like grooming, where children are conditioned by people they trust to perceive acts of sexual assault, coercion, molestation, or any other type of intolerable as typical, tolerable, or normal.
Child sexual abuse has a very grim reputation in our society. Its pervasive nature can allow even the most abhorrent and egregious crimes to go undetected by law enforcement. The taboo nature of it all and the legal and societal ramifications of even being associated with it has been shown to discourage people from going forward. This is further complicated by the very nature of children, as in most cases they’ve been observed to be unlikely or reluctant to come forward and name their abuser because they may feel guilty, or that their moments of abuse aren’t worth a relative or family friend going to prison, and sometimes - especially in religious groups or communities - these notions may actually be corroborated by older family members if the abuser is a religious authority figure or some other person of importance.

The First Amendment cannot be read to protect materials that endanger children.

The unfortunate reality that an underground market for material which thrives on the real exploitation of children, the damage it causes to those depicted, and the further danger it all poses to other children, it’s safe to say that it’s perfectly justified to outright ban it.

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The goal here isn’t to carve out what we consider “reasonable exceptions” to current obscenity laws. All obscenity laws are facially invalid on the fact that they punish speech for thoughts invoked. It doesn’t matter how grotesque or disturbing the imagery is, you can find that quality in all manner of CGI works that don’t involve sexual depictions.

While I agree with this sentiment, it’s not really fair to require creators or purveyors of such materials to bend to the whims of those who don’t share the same interest, especially on the Internet where the markets for such things are usually relegated to other materials in the same content sphere.

It should also be worth noting that non-obscene pornographic works, like the one’s you see in generic sex shops or adult-oriented films and magazines that depict it but typically aren’t pornographic CAN be subject to time and place restrictions that would otherwise criminalize or prohibit the open-ended advertising and sale of such materials without invoking obscenity laws. This is to otherwise accommodate those who would rather not see or know of such materials while purveying a public market during the day. Anti-indecency statutes exist in the United States and vary by locale. So the argument that obscenity laws serve a legitimate purpose is moot (unless there’s something I’m not right about)

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The goal here isn’t to carve out what we consider “reasonable exceptions” to current obscenity laws. All obscenity laws are facially invalid on the fact that they punish speech for thoughts invoked. It doesn’t matter how grotesque or disturbing the imagery is, you can find that quality in all manner of CGI works that don’t involve sexual depictions.

This isn’t something I disagree with.

While I agree with this sentiment, it’s not really fair to require creators or purveyors of such materials to bend to the whims of those who don’t share the same interest, especially on the Internet where the markets for such things are usually relegated to other materials in the same content sphere.

How do we protect people who live in countries where accessing then legal material in the US but illegal in countries where foreigners live? I don’t need nor want a law requiring them to take up those responsibilities. But if they are going to create extremely obscene works of art, they should realize some countries consider accessing even fictional materials a serious crime, in some cases as severely as actual recordings of abuse, punishable with 5 figure fines, probation, suspended sentences or even prison. Those foreigners should not be placed into a situation where they will have a panic attack. If 1466A were to exempt fictional depictions or obscenity were to be repealed all together, either moves would be good, but it does not make it acceptable for one to spam it on a euro forum or make it easily available to those who are browsing unrelated material. If I’m looking for images of Japan, I don’t want to see any drawn of CGI obscene representations to end up in the search.

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I see this line of reasoning come up a lot in debates about free speech on the internet, considering the internet’s a global service and different countries have different laws and legal standards regarding what is legally allowed to be communicated. But this discussion isn’t about that, it’s mostly about the US and the way our government is able to treat it and how we can challenge and quash the rationale used by the Courts to justify defining and excluding “obscene speech” from our First Amendment.

And to answer the second half of your statement, to put it simply, we can’t.
One of the risks of free speech is that people will use it to say things we don’t like. It can be nasty opinions about things we like, political viewpoints we disagree with, etc.
Besides, I find it highly unlikely that lolicon hentai or explicit CGI would show up in an internet search query for “Images of Japan”. Search engines are designed to fetch data that’s limited to that specific query, that kind of material would only show up if someone deliberately sought out that content.
And you’re right. I don’t think very many people would disagree that it isn’t right to spam ANY kind of offensive or off-topic or illegal material in forums or content spaces where such material would be unwelcome. At that point it isn’t the speech that’s at fault, but the person using it as a tool to deliberately antagonize other people. And even then, such acts aren’t the responsibility of the government or the courts to prevent, but the owners or operators of said internet forum or platform to moderate.

This, however, does create an interesting dilemma worthy of analysis, and one we’ll more than likely have to play by the rules of the courts when analyzing. There’s already precedent that allows permissible “time and place” restrictions on sexually explicit but non-obscene (or not yet determined to be obscene) pornographic media geared towards keeping it out of view from the offending public and children.
It’s already been confirmed that the internet is different from real life in this regard. I believe it was Ashcroft v. ACLU, a case which challenged the constitutionality of federally mandated ‘porn blockers’ on private, consumer Internet services that specifically sought to eliminate run-of-the-mill internet porn in the Communications Decency Act.

Would it be reasonable to reconstruct our argument to only overturn obscenity for adults? Or would that jeopardize our previous arguments regarding freedom of speech, in that minors are also entitled to the First Amendment?

This is an interesting case that really needs to be analyzed.

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Like that one drawing of the hypocritical U.N. employee having sex with a minor saying that “Japanese drawings lead to vice?”

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I’d like to see more participants in this thread. Please don’t be afraid to comment your opinions and ideas - it’s all helpful and we absolutely need to discuss things.

https://plato.stanford.edu/entries/pornography-censorship/