The Obscenity Doctrine - Too dangerous to be left alive?

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.

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.


But does it actually get enforced? Or is it just dead letters. In the UK, our obscenity laws pretty much don’t get enforced, but hardly anyone has the appetite to remove them from the books. They are really just dead letters.

Our obscenity laws are used as the fallback to pin something on an undesirable person who hasn’t actually committed a crime. They could quite easily be utilised against law abiding paedophiles who are deemed “dangerous”.

While they’re rarely used their existence is still a problem, especially when they are as broad and overreaching as they are here.


US still has sodomy laws, none of them are enforced though. Recently though the obscenity doctrine was enforced upon someone who wrote stories about underage sex. I cant remember exactly though.


Because they’re unconstitutional. There are also many states that have laws against gay marriage and abortion on the books - many of which were signed into law as both a means of protest against the Judicial precedents that disallow them, and as hopeful calling cards to be employed should those precedents someday be stricken down or overruled.
We’ve already seen this happen with women’s reproductive healthcare, such as abortion, many of the laws being scientifically impossible, such as the reimplantation of an ectopic pregnancy.

(An ectopic pregnancy occurs when an egg is fertilized outside of the uterus, typically within the vaginal canal, and are a common cause of death as they cause internal bleeding, infection, etc.)

Many other laws such as these are still on the books in these states simply because their legislatures never got around to removing them and were never really enforced to begin with.

Abortion is pretty disconnected since its one of the number one political points of contention but, gay marriage will probably be legal i a few decades, most people who object to homosexuality have resigned to only holding that view on a personal not governmental level.

The frequent excuse for leaving sodomy (and “perverted practice”) laws in place is that they are sometimes used as extra charges in prostitution, rape, and child molestation cases.

Gay marriage IS legal. This was decided by the US Supreme Court in the 2015 case Obergefell v. Hodges, which overturned decades of caselaw and invalidated the state laws prohibiting gay marriage across the board.

I get that, and that’s a common thing proponents of said laws like to say, along with obscenity prosecutions. That still doesn’t justify an otherwise unjustified law.


Thats good, I thought it was still state by state, america has strange sex laws, like sodomy being illegal in 20 or so states but zoophiliiac porn only bieng illegal in oregon.

I propose the complete and total discardment of the obscenity doctrine.
Even if a legitimate application could be mustered, it still fails the overbroadeth check. It still fails the vagueness check.

Laws have to be based on and justified by facts. Feelings and preferences are simply not facts.


I doubt the supreme court will overturn the obscenity doctrine any time soon. There are enough people on booth sides that support it, It would be too unpopular to overturn. It will probably exist for at least a decade, mostly unenforced though,

The reality might surprise you. It’s been notoriously controversial among civil liberties groups as well as many of the nation’s most respected legal scholars and jurists.
There is fundamentally no difference between “indecent” speech and “obscene” speech. The First Amendment cannot accurately or meaningfully delineate the two without infringing on inherent and defining principles, in addition to others.

As a matter of simple fact, it’s plainly and simply unconstitutional. The way it supplants matters of fact with that of arbitrary preference using vague, unknowable standards as a pathetic excuse to instill a false sense of moral preservation, creating a post-hoc First Amendment constitutionalism which sidesteps and undermines those protections all at the expense of the rights of the free people, should be enough.
It’s a joke, and no respectable jurist would dare deny these facts should they entertain a fair debate.

I remain convinced that they only hold onto it as a formal adherence to stare decisis, in addition to the fact that no cases have appeared to formally ask the question whether they were simply wrong and should it be overruled.

If the SCOTUS was willing to overrule Bowers v. Hardwick, a prior ruling that found private, consensual acts of homosexual sodomy between adults to be unprotected on the fact that it was between gay men, a case which was decried as an act of cruelty by civil libertarians and hailed as an act of moral righteousness under long-standing common law by conservatives, by subsequent precedent in Lawrence v. Texas in 2003 while also stating that “morality is not a government interest”, then that right there ought to kill the precedent in Roth/Miller.

The obscenity doctrine must be discarded.

It is fundamentally incompatible with the very ideals that a liberal society stands for.
It was wrong.
It is wrong.
It has to go.


It’s super dumb too since it is defined as something that hurts the morality of the current time. This basically means that things that were seen as obscene could not be in 10 years. Morality changes and that’s why laws should be founded on empirical evidence, because you could end up ruining a lot of peoples lives and regret it afterwards (homosexuals anyone?).


Reminds me of “make kodocon illegal so it can be used as an extra charge/excuse to search in CSAM cases.” Just another instance of law enforcement being lazy asses and violating our human rights while also not actually getting shit done.