If the SCOTUS is expanded from 9 Justices to 13 Justices and packed with liberal minds, not unlike those of Justices Thurgood Marshall, William O. Douglas, Potter Stewart, and even William J. Brennan, we could perhaps see our First Amendment finally repaired.
There is no justification why obscene speech should be excluded, let alone could it be defined, or have laws punishing crimes relating to it be justified.
Any concerns regarding the effects of pornography on crime, violence, etc. are consistently unfounded. Anything resembling a causal relationship between any kind of non-pornography availability and consumption has been deduced to a negligible correlation only observable in high-risk individuals who are predisposed to aggression.
We have valid, reliable science to back up these points.
The obscenity doctrine is to free speech what “separate but equal” was to civil rights. It NEEDS to go.
The obscenity doctrine is not compatible with reality. It is, quite literally, an enforcement and imposition of a perceived majority viewpoint on the minority. You can argue that erotic/pornographic material that depicts or describes unpopular, grotesque, or even “unwholesome” acts for sexual purposes are “unpopular”, but the idea of free speech isn’t contingent on what is or isn’t popular, rather, it was designed specifically to protect and preserve that which is unpopular. It is a preference, and people are entitled to have them, in addition to express and indulge in them, even if they’re pedophilic yet fictional.
We have a myriad of scientific data which supports the contention that they’re harmless, and no different than violent video games or movies. It’s time for the SCOTUS to finally accept reality and do right by the American public. We’re a pluralistic society. It is our strength.
I have a hard time believing any reasonable person could read the Constitution and believe it to differentiate “obscene” from “indecent” speech.
I never said the obscenity doctrine was good, you don’t need to explain to me why its bad. I agree with you on the fact that obscenity laws are stupid but regardless of this stupidity, the majority of the population has been thoroughly brainwashed into supporting them for the next century at least, purely because most people want ‘‘inappropriate stuff’’ to be censored regardless of the fact that it causes no real harm.
No reasonable person would support obscenity laws but the majority of modern people are not reasonable and therefore until the population becomes reasonable, obscenity laws will continue to exist.
I’d like to hope that they will be abolished this century, or perhaps in the next 50 years but I think your claim that they will be abolished in this decade is a little too hopeful.
If the SCOTUS was willing to overturn sodomy laws and bring about marriage equality, I feel like the obscenity doctrine is next.
Public morality is not a legitimate government interest that can be satisfied by excluding speech.
You are right, the majority of the population may not be willing to see reason on this. But the same could be said about flag burning and all the other things I’ve mentioned.
I disagree unfortunately mostly because I recently learned that some states even still treat hentai as real CP by their state criminal codes. I don’t think people will really ‘care’ that much about changing these laws. As one person has said, it seems people tend to think unreasonably when it comes these types of issues and just believe whatever the legislature tells them about such things. Just as a general question, does anyone know how common it is for the states or federal govt to monitor for these types of materials? I have seen responses all over the place for this question. Another reason these laws may not be going anywhere is if they are rarely used they may want to keep them in place just to bring the hammer down on certain people they want to get in trouble. I say this because you see people talking about, promoting, and posting this type of material everywhere in the US. I definitely do not agree with the legislature if they just want to keep it to cherry pick who they want to get in trouble, and still think it’s wrong, but it may be a reason these laws aren’t going anywhere soon.
It’s unconstitutional to treat fictional material as CP/CSAM when, by definition, it is not. Ashcroft v. Free Speech Coalition ruled that such material was not capable of being CP and is protected by the First Amendment (unless ruled obscene).
One only needs to turn the clock back 20 years to see that the same logic existed before Lawrence v. Texas in the context of consensual, private homosexual intercourse, wherein only a handful of states even had sodomy laws on the books and even fewer actually enforced them. A lot of people merely assumed that if it were illegal, it had to be justified in spite of how cruel and harmful the laws were. Morality was also a big part of it, given many people saw it as against their moral code or religious values. This was also the case with racial segregation and miscegenation (interracial marriage) and with LGBT rights.
As history has routinely observed, morality is not a legitimate government interest and our high courts have an obligation to do right by the people and correct the mistake by overturning Miller v. California. It’s simply bad precedent.
This leads me to my next point. Obscenity laws have no purpose. It is simply not possible to enforce obscenity laws in a meaningful way, nor is it possible to delineate “obscene” material from “indecent” material, especially in the context of willing, consenting adults.
Sure, you can argue that material which depicts and glorifies graphic sexual violence or is pedophilic may not sit well with some people, but that failure to conform to the standards of a pluralistic society which values individual freedom and intellectual autonomy is not something that the justice system is capable of doing in a meaningful way consistent with the rule of law. And employing these laws specifically for the government to arbitrarily attack certain groups without respect for any rights they may have is a slap in the face to both the people and the concept of justice.
That’s like keeping Jim Crow era laws on the books just to control BLM.
As far as the point about people all over freely promoting or possessing this material, that only further illustrates the futility of the obscenity doctrine. Different states have different laws and definitions, as well as diverse communities. You can’t impose the ideals and mores of a projected majority without imposing on the rights of all, and you can’t rightfully or meaningfully subvert those rights by arbitrarily declaring what those rights entail without nullifying or trivializing the rights of all.
Lolicon manga may be legal in Oregon but illegal in Missouri.
My argument is that the obscenity doctrine is both fundamentally and affirmatively incompatible with the First, Fourth, Tenth, and Fourteenth Amendments.
Laws based on enforcing arbitrary morality at the cost of individual freedom are no different than the sodomy laws which were struck down in Lawrence v. Texas (2003) or the laws mandating marriage inequality before Obergefell v. Hodges (2015).
Rights are not contingent upon whether or not they’re popular with the majority, as they affect and are to be enjoyed by all.
The problem is, most people already agree with that point. They just don’t know they do and are blinded by a sense of moral coercion. It’s only a matter of convincing them that the overall positive net benefits inherent with preserving interests in unfettered free speech and expression are damaged by allowing arbitrary, emotion-fueled exemption.
“Do you believe in free speech that’s not hindered by the emotions or mores of those who disagree, dissent, or simply dislike the speech?”
It represents a failure on our SCOTUS to think logically, to think objectively and rule on jurisprudence that is consistent.
They attempted to quantify the indefinable, to objectively define that which is ultimately arbitrary, and to juxtapose facts with mere opinion, much to the detriment of our rights and freedoms.
Whether they know it or not, the First Amendment was designed almost specifically to protect that which is offensive or obscene, that the freedom of thought and conscience which, by extension, includes the freedom of speech and expression. Whether utterances depict nauseating, infuriating, or grotesque imagery all for sexual appeal is the speaker’s right.
To carve out an arbitrary exception to this rule, furthered by perceived majority offense and disgust, narrow appeal, and a failure to properly appreciate it for its artistic value, is to gut the First Amendment of its true meaning and undermine its purpose.
The obscenity doctrine has to go. It has no purpose. It is confoundingly vague, impermissibly overbroad, and it serves to legitimate interest.
Any and all arguments made defending the doctrine all suffer from the same fatal flaw - they fail to properly rebut or even address the impracticality of supplanting mere opinions and tastes as fact, and the imposition of tastes and morality in the context of speech.
An impracticality that would be struck as doctrinally impermissible.
This unfounded and unjustified arbitrary and preferential double-standard in the context of matters pertaining to sex has no place guiding free speech jurisprudence.
It must go.
I can’t think of anything more ridiculous than being able to look at a painting, drawing, or story and deny them their right to be called art or literature.
Pedophilic erotic fiction, lolicon/shotacon pornography, and other alternative forms of sexual or erotic expression which do not involve any real abuse are protected by the First Amendment, unless ruled to be obscene. SCOTUS has already acknowledged that obscenity laws weren’t designed to tackle sex trafficking or crimes against people, but rather to enforce morality.
They’ve also acknowledged that such a goal is, in and of itself, unconstitutional on its face.
Will they overturn decades of precedent in one simple ruling? Stranger things have happened.