Obscenity Law is a Cancer

The obscenity doctrine is a cancer. It spreads and spreads, eroding away at the fabric of our rights and freedoms and the presumptive confidence in those freedoms.
It creates doubt in artists and consumers who dabble in the erotic.

The very idea that someone’s feelings come before your rights is a blatant slap in the face to the notion of freedom of speech.

The obscenity doctrine MUST be challenged and overturned!!

Conservatives consider Roe v. Wade to be “bad precedent” when it’s not. Liberals consider Roth v. US to be “bad precedent” because it is.

Pornography that does not depict or involve a real minor is harmless.

Period.

The story depicted here is one of self censorship. The manga would almost certainly have not been seen as “pornographic” any more than a typical homoerotic novel.
Whoever they consulted for legal advice was clearly wrong.
I hope they reconsider their decision not to localize and publishing.

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I only hope that the Prostasia Foundation shares my sentiment on the obscenity doctrine, as I hope the same with the Comic Book Legal Defense Fund, The Free Speech Coalition, The National Coalition Against Censorship, and the ACLU.

The obscenity doctrine is like a malignant tumor on our Constitution.
It must be removed by way of Judicial intervention. These cases cannot be tolerated or allowed to go unnoticed by watchdogs and charities who oppose arbitrary censorship. That’s what it is.

If you want any law to be overturned, there is an easy trick: Abuse them.

That is the beauty and darkness of our legal systems, and it’s universal to all countries. There are hundreds of laws that can be abused to do immoral and harmful things. There is a reason why proven child murderers and rapists get away with their crimes. Loopholes, rhetoric, manipulations and money, this is what really controls countries.

Make a case that a somewhere in your area, the depiction of a little naked baby boy, with his genitalia clearly visible, in form of a statue of a cherub (they are quite popular all over Europe, US and Australia), is “sexualization of underage boys” that “normalizes pedophilia”.

Or make a legal case, to prohibit the possession of the Bible for being obscene, for these contents:

  • Ezekiel 16:17,
  • Deuteronomy 25:11-12,
  • Ezekiel 23:18-21,
  • Proverbs 5:19,
  • Solomon’s Song of Songs,
  • Samuel 18:20-30,
  • Exodus 4:25,
  • Genesis 19:5,
  • Genesis 19:30,
  • Genesis 19:35

Themes of bestiality, rape, incest and lot more. I took those examples from this page:

But there has been way more of such parts that I have found back when I was still Catholic.

And it doesn’t matter whenever you win or not. The mere act of trying to use obscenity laws to censor something that would completely disrupt the entire country foundation of the US and the institution of the catholic church is enough to make many people decide, to simply abolish these laws, for the same reason that make you want to abolish them, fear of those laws taking away the things they love, that ultimately doesn’t hurt anybody. It’s not the Bible that harms, it’s the pseudo-Christians that do after all. And it’s the pseudo-Christians that should be punished for their crimes, not the good Christians and their favourite books.

Of course, I can already hear voiced of concern about ethics of such practice, but hear me out.

What makes such act evil isn’t the commitment of it, but how you commit it. The goal should never be rooted in hatred (the Bible is still a great historical and philosophical book after all, even if you aren’t religious, you can still derive some value from it). And it should never be to actually censor the Bible. The goal is to show by example as to why such laws are flawed.

It’s like with hacking. A lot of people already hack the laws to get away doing illegal things.

What you should strive for, is ethical hacking, to exploit the variabilities in the system to the administrators inform them about it, even before, so they can improve the system.

This is how security is achieved in IT, a constant evolution of flawed protections being exploited, and improved as a response. And the same has to happen to countries right now. Use the laws politicians push against them, abusing the flaws of those laws, to show them where they made a mistake.

The fact that it doesn’t happen, that the trolls of the internet prefer to sit on social media, rather than troll the government itself with their own weapons, is the reason why we implement hundreds of laws, without removing the previous ones.

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The idea that a country can have a law, where no one understands what it means, is utterly bizarre to me. It isn’t just the U.S. which has obscenity laws. This cancer has even squeaked into Japan, and the United Kingdom (which has it’s own obscenity standard for classifying IIOC).

IIOC, which means indecent images of children, is infamously categorized by the Home Office. So, if the Home Office decides something should be illegal, then it is. Not a Judge. Or any competent authority. Not even a vote in Parliament. Anyone who gets voted in can decide obscenity is whatever they want it to be.

What do you think would come first? Judicial intervention? Or legislators realizing it’s a bad idea and passing a law to overturn it? I can’t really see either happening.

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It was judicial intervention that put an end to racial segregation, criminalization of abortion, sodomy laws, and marriage inequality. These were viewed as civil rights violations by a minority of jurists, but for their time, the majority of lawmakers and policyholders were willing to tolerate them as simply “the state of affairs”.
The job of the court system is to abide by the Constitution and keep the legislature in check.
Yes, the courts have made mistakes. But it’s also on them to correct them. Lawmakers are stupid and would much rather bend to the arbitrary whims and mores of their constituents than do right by their job.

My second biggest fear is that, once the obscenity doctrine is challenged and righteously overturned by the courts, the legislators will simply try to amend the Constitution.

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They wouldn’t amend the Constitution. To begin with, the rights as enumerated by the Constitution, are rigged to align to the cultural mores of the current day. Justices are rarely ever willing to go against the flow too much. You can see some of this in articles about Ruth Bader Ginsburg.

Justices are just people appointed by lawmakers. They’re ultimately going to follow their will (if really forced to), and occasionally toss out a bone to create a look of impartiality, and to create a sense of legitimacy for the current ruling government. It’s a show. Theater.

Even obscenity is just a compromise between the liberals and the conservatives in terms of morality, enshrined by the Supreme Court. If the make-up of the country changed a lot, it might vanish completely. Or a different brand of obscenity might take it’s place.

The legislature has a lot more tolerance for things, than they tend to let on, a lot of their actions is theater to perform to their electorate. They’ll pass laws they know go too far to get re-elected, and the Supreme Court will do it’s job by removing them before they cause too much damage. The legislature has also abused it’s power in the past to force the Supreme Court to keel slightly by threatening to pack the court.

Obscenity is a law on life support. It’s going to be dead letters real soon. Hopefully no one is retarded enough to revive it. Wish there was some way to easily remove dead laws on the books. There are so many weird random civil and criminal laws on the federal and state books that really have no place.

There are laws which made sense at some point in US history, but as times change, those laws no longer made any sense. Laws prohibiting collecting of rain water for example made sense when malaria and yellow fever was a fucking big issue in the US. Arguably collecting rain water in some areas prior to 1940s puts your neighbor’s lives at risk so it’s a very serious matter. But as of now, there is no fucking reason for such a law anymore since malaria is gone in the US.

As for obscenity law, I can’t find any rational justification for it to even exist. It’s not that it’s an out dated law, it’s just a pointless law to begin with. I would prefer law enforcement focus their efforts in prosecuting real criminals.

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As I’ve said numerous times on this forum, the obscenity doctrine is a pox. The precedent by which it is allowed to exist in our legal system MUST be overturned, and the doctrine discarded. It is simply not possible to reconcile moral majoritarian censorship of sexually explicit material with the First Amendment. It is antithetical to our Constitutional protections and has no place in our courts.

The Supreme Court was simply wrong.

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I wouldn’t say that it’s on ‘‘life support’’ even though obscenity laws are bullshit, the vast majority of Americans support obscenity laws.

I don’t think this is true. It’s impossible to reconcile the principle itself with the concept of free speech, and most Americans don’t even know the doctrine exists in the context of porn.
They just assume all porn that doesn’t involve real children is legal because free speech.

Enforcement of obscenity is so rare. A huge amount of available commercial pornography like BDSM could easily be considered obscene, yet it isn’t enforced. Now compare that with prosecutions for murder, which is so aggressively enforced that about half of all murder cases are solved. For obscenity, maybe 0.000000001% cases are prosecuted. Whether obscenity law exists or whether it does not has pretty much no effect on the industry or on the safety of individuals. The issue with obscenity law is that it could be revived if the law isn’t killed. So yeah I agree with some of the other posters that there are merits to destroying obscenity law. But for all intense and purposes, it is a law on life support if you consider just how rare prosecutions for this stupid law is.

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What I find to be so damningly wrong with the obscenity doctrine is that obscenity, by definition, is simply not a matter of fact.
It’s a matter of opinion, and opinions are simply not facts, regardless of how popular or unpopular it may be. You can’t turn an opinion into a fact. No test or criteria is capable of changing that simple truth.
Period.

What is so problematic about the Miller test is that it tries to objectively define an extremely vague, subjective, and arbitrary concept by using a string of criteria that are themselves, extremely vague, subjective, and arbitrary.
It attempts to reconcile the arbitrary nature of the criteria by beholding them to “community standards” and “reasonable person” perspectives, but that only furthers the confusion because those, too are also extremely vague and non-objective for their own various reasons.

  • (1) whether the average person applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest;
  • (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and
  • (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value

Without going into detail and deconstructing the flaws and serious discrepancies with each prong or aspect, I’ll just say this.

The only objective part about the Miller test is its focus on sex and the way it’s depicted or talked about. That’s it.

The rest are all opinions.

It is an opinion whether or not a work pertains to or appeals to an immodest or unwholesome interest.
It is an opinion whether or not something is “patently offensive” (despite the parameters being dictated by state law)
It is an opinion whether or not something has or lacks “serious” artistic or literary value.

It is an assumption whether or not these opinions are shared by your community. A vague, emotionally-charged assumption by which the interpersonal mores of a dissenting audience struggle to materialize in the form of words. The phrase “I know it when I see it” really does it no justice, but is nonetheless the only succinct way to describe the concept.

What is also vague, too, is the very term “community standards”. What does that even mean?
Am I to assume that a jury sitting in a courtroom is always truly representative of the mores, prejudices, or standards held by the population of a specific state, township, or municipality?
Do assumed majoritarian ideals or opinions suddenly carry more weight than rights and individuality if the topic of sex is involved, rather than just those specific individuals who happened to be within the jury pool and are registered voters?

What about the fact that communal diversity exists, wherein widely different cultures with differing practices, philosophies, and ideals homogenously exist in within cities, townships, and other communities?
Not even talking about race, ethnicity, or religion. Morals, ideals, interests, philosophies, and kinks exist too. Are we factoring that into the “community standard” as well or are we just going with who happens to fit the jury pool?

How am I to know that those standards are, for the sake of argument, fair and consistent with the First Amendment?? (hint: they’re not)
Is it really right that someone be put in prison for owning/selling/distributing pornography depicting interracial gay sex in a state where such things simply aren’t looked upon too fondly at the wrong point in time, in the wrong state??

I can assume most people in a community wouldn’t be personally bothered by the lack pornographic cartoons depicting fictional characters that are minors.
Or simulated rape, hardcore BDSM pornography, or any other niche fetish or interest.
But that’s just it, an assumption. I have my own feelings, experiences, and anecdotal knowledge to go by, sure. But to risk juxtaposing that assumption in a criminal law setting is beyond repugnant.
They also still aren’t facts.

Furthering my point about socially undesirable or “offensive” interests such as those of a pedophilic or offensive, shocking nature, these aren’t recordings of actual instances of, or real-life depictions of rape, abuse, or even child pornography. One could argue that they’re “immoral”, to fetishize graphic pedophilic imagery, but that point too falls flat because the immorality of speech isn’t a sufficient reason to justify censorship. While it’s true that morality may form the basis of most criminal acts, imposing morality for morals sake is not the role of the government, especially in the context of pre-established rights such as free speech.
These are films, books, and artwork created by and for consenting adults. They are artistically designed to express and titillate sexual desire in a willing audience whose right to have and express such desires are legally protected.
They do not incite, threaten, or pose a nuisance by their existence, nor are they the product of criminal acts or are in any way harmful to those who consume them.

The Constitution protects the right to have and express an opinion and tastes. The obscenity doctrine is nothing more than a bad-faith interpretation of Constitutional doctrine designed to empower zealous prosecutors and courts the ability to selectively and opportunistically cause severe, unwarranted, and unjustified injury to consumers and producers of material they simply find contentious.

Pornography is an artistic and creative form of expression that communicates and titillates sexual desire and eroticism. Whether or not it counts as “art” is a matter that’s still debated by artists and scholars.
However, as a matter of logic, pornography does fit the contemporary definition of art, therfore making it art.

The obscenity doctrine is antithetical to the Constitution and needs to be reexamined and discarded. There is no objective difference between “indecent” speech and “obscene” speech.
And if, through some argument there exists one, the law simply is not equipped to delineate it with any meaningful accuracy.

Criminal cases have always been based on objectivity and facts presented by the government to prove a defendent guilty of violating whatever law they’re being charged with. These facts are not subject to differing interpretation. They are representative of the truth, byproducts of consequence.
Opinions, such as those embodying the Miller test, simply are not that and do not belong in the courts.

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