Yeah, you read that right. I’ve been neck deep in literature about the doctrine and there seems to be a subset of scholars who think that the doctrine ought to be kept in place, but heavily modified to prevent the undue or unjustified punishment of sexual minorities, focused only on materials that are intrinsically linked to instances of real-world sexual exploitation or non-consenting adults and minors, like many states have already done.
Another reason why these scholars may voice their discomfort with it is because of certain types of speech that caters specifically to certain interests, like fiction depicting rape of adults or non-existent children. Material which glorifies and beckons the indulgence of immoral thoughts and acts of plain evil, so to speak.
And finally, we have a subgroup who is simply uncomfortable with the implications surrounding the SCOTUS throwing out decades of precedent and caselaw and what it means for confidence and consistency within the courts, as well as the secondary effects this might have for similar, yet unrelated precedent or precedent that can be seen as a dependency.
I disagree with this approach. To assume that the doctrine of obscenity, as a mere concept, furthered by its tortured history of heinous, unjustified, and nauseating acts of punitive censorship, is somehow tolerable or consistent with the First, Fourth, Fifth, Tenth, and Fourteenth Amendments of the United States constitution, is simply nonsensical.
We already have “actionable indecency” whereby the prohibition of public or nonconsenting exposure to depictions or instances of sexually explicit conduct to unwilling audiences can and does survive strict scrutiny.
We already have a “harmful to minors” doctrine, whereby the act of knowingly sharing or distributing pornography to minors by adults is criminal without touching the concept of obscenity.
Materials that bear an intrinsic relationship with real-life acts of sexual exploitation of adults or minors can be dealt with and punished without touching the concept of obscenity.
As a mere concept, the idea that “community standards” and “serious value”, two arbitrary and unquantifiable concepts that no body, be it a judge, jury, etc. can be answered without implicating their own personal biases is nothing short of an idealistic fantasy.
They are not charged with preventing or punishing acts of harm, but rather the sating of a bloodthirst against the producers and consumers of content they happen to take offense to masquerading as “morality” or “decency”.
If they truly were concerned with morality, then those who seek to preserve their moral ideals would understand that by imposing one’s own moral views for the sake of doing so only undermines and devalues those views, and is inherently immoral.
We’ve seen the dangers of morals-backed legislation before. Lest we forget the rationales used to justify:
- indentured servitude/slavery
- racial segregation and discrimination
- blasphemy laws
- anti-miscegnation laws (anti-interracial marriage and sexual relations)
- prohibitions on teaching evolution
- laws prohibiting sex out of marriage
- laws prohibiting cohabitation outside of marriage
- laws prohibiting the sale and marketing of birth control to adults and minors
- laws prohibiting a woman’s right to an abortion
- sodomy laws
- anti-LGBTQ laws
- marriage inequality
Many people don’t realize that interracial relations were once seen as “gross” and “immoral” because many communities believed in racial purity and distinction. They strongly believed in the concept of “separate but equal”, and that interracial relations and cohabitation were immoral, often invoking both religious language and racial supremacist rhetoric cement these views and community standards.
White fathers would chastise and punish their daughters for flirting with black colleagues, and white boys would face similar punishment, in addition to the shame and humiliation that came with that type of activity.
States where interracial marriage was a crime would not recognize lawfully-wed unions from out-of-state, and as such would not be considered legally married within that jurisdiction.
And should these states also have and enforce anti-cohabitation laws, the lives of these parties would be in jeopardy.
Nowadays, we look at that period and those laws as racist and prejudiced, but during those times, they were simply enforcing their own morals grounded by the standards of their community.
Obscenity laws are no different than that laundry list of things. Millions of people have been forced to endure undue suffering and injury as a result of these heinous, un-American laws and legal doctrines, some of which took decades to be addressed by the Supreme Court and laid to rest.
Enforcing morality at the expense of one’s rights is patently un-American. Sure, one could counter this by pointing out the moral aspect of just about any criminal or civil law, or by referencing anti-bigamy, anti-bestiality, anti-animal abuse laws, or laws prohibiting corpse desecration.
But the issue here is that those laws, and many, many others one might cite, are not simply grounded in “community standards” or the imposition of morality or moral ideals for their own sake, nor do they infringe upon established rights or freedoms inherent in one’s liberty, such as obscenity law with free speech and privacy. Laws regarding animal abuse can be punished out of a vested interest in the safety and humane treatment of the animals in question. Laws regarding corpse desecration or defacement are grounded by an interest in the estate of the deceased and their wishes.
What these laws have in common is a moral stance furthered by a meaningful, tangible application to something aside from the moral ideals themselves.
No.
The Supreme Court was plainly, provably, and patently wrong in their attempt to define and decision to exclude “obscene” speech from the First Amendment.
This is why leaving it in place, even in a weakened state, is simply too dangerous, and any attacks levied against it ought to be focused on killing it off entirely.
It is both inherently vague and overly broad at the same time.
It is arbitrary.
It seeks to impose a viewpoint.
It places an undue burden on the accused.
It is antithetical to the First Amendment.
It is incompatible with Due Process.
It is confounding to legal scholars.
It serves no legitimate purpose or valid government interests.
It impedes progress.
It instills fear and doubt.
It has an innate chilling effect.
It is precisely what the First Amendment was designed to protect against.