I’ve been considering plausible attack vectors against the obscenity doctrine to get it overruled at the SCOTUS level. Arguments that even the most stalwart conservative would have no choice but to consider if they truly care about the state of constitutional jurisprudence.
An attack vector I’ve realized is that it’s unnecessary. I’ve probably made this claim before in the past, but here it goes.
It would be unconstitutional to ban/censor something just because it caters to sexual interests.
This would be akin to banning something just because it represents a certain ideology or interest.
Some may argue that the obscenity doctrine is necessary because certain depictions should be banned because they serve no other purpose than to appeal to those interests.
That is not the correct way to look at it.
Speech should only be excluded if the interest in its prohibition is justified by a proper balancing of interests between the right of the speaker to speak it and the rights of those who are injured by its utterance.
Obscenity law does not require such injury, thereby making it overbroad. A depiction of graphic homosexual conduct in a community sample of jurists who take deep offense to the concept of gay sexuality would put such a film at risk of being contraband.
This would be akin to banning threats of violence, but only if they were targeted towards socially undesirable persons, groups, or persons who may belong to such groups. The logic of this would be twisted, because it would presume that only those who would risk being associated with those groups should receive elevated protection from threats, because of the presumption that “nobody would dare threaten a normal person” or would take such threats seriously.
This uprooting of logic runs on the same motif as the obscenity doctrine’s assumption that such depictions can safely be suppressed because they are inherently without value and are offensive, in spite of the fact that such value is largely arbitrary and up to the individuals within a larger community to decide and that the First Amendment would prohibit legislation or exceptions premised on that for that very reason.
True threats are not protected because they seek to impose harm on others by warning them of impending physical injury.
Not because they express or impose distaste for the person or group they target.
Such hatred or disdain is protected by the First Amendment, and can be freely expressed without threatening a person.
Another comparison would be child pornography, which is wholly separate from ‘obscenity’.
CP/CSAM is excluded from protection because of an intrinsic link to sexual abuse/exploitation.
Something can be considered ‘child pornography’, and thereby be excluded for the simple fact that it is a recording of sexual conduct involving a real minor, even if such a depiction was not intended to arouse such feelings within the audience.
The mere fact that a real minor was recorded behaving sexually or provacatively, engaged in sexual conduct would suffice prohibition.
It does not matter if the film or depiction is not ‘pornographic’ or has some value.
The prohibition is based on the interest in the minor children and protecting them from sexual exploitation.
A film where young minor actresses or actors are filmed performing explicit, lewd, salacious actions, even outside of a sexual context, will still qualify because of that single explicit scene because that depiction or act she would be recorded performing would typically be associated with salacious or sexual contexts.
A film where a minor teenage actor or actress is filmed dressed in see-through lingerie in order to appeal arousing to the camera, with or without regard to whether her breasts or vaginal area are visible, would be construed as “child pornography” because such acts would typically be associated with sexual conduct.
A film where a minor teenage actor or actress is filmed appearing as though he is experiencing fellatio, even for a visual gag, could still be construed as “child pornography” because that single scene, in isolation, could and would be construed as “simulated sexual conduct” and therefore would doom the whole picture to being regarded as CSAM.
This is why films such as 21 Jump Street or others where themes or settings involve minor or high-schools, or are about sexual experiences, always employ the use of adult actors who are made to look as young as possible to fulfill these roles, especially if there are depictions such as that to be planned.
This is because the exception on child pornography is focused on whether a sexually explicit or suggestive depiction involving a real minor has happened or has been allowed to happen, rather than whether it appealed to a prurient interest.
The more I think about it, the more apparent that the obscenity doctrine does not belong in American constitutional jurisprudence.