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