What doll bans are doing and will do...add nothing to keeping children safe

There are many sites advertising “dolls” that don’t call them sex dolls. But they frequently show the “operative features” and discuss how to warm them for use and how to clean them afterwards. Whether or not they are called sex dolls, it is clear they are made to be a sexual appliance. No one lists a childlike sex doll as such, they use euphemisms such as flat chested, mini doll, etc. It does not matter. It is obvious that their primary purpose is for “intimate companionship.” Now if someone uses them for another purpose, that’s fine. But if you say they shouldn’t be banned because they have other uses, you cede the argument to the Karens, busybodies, do-gooders, and so forth that the primary reason for the sex dolls is bad. Then there will be a balancing of the good and bad of sex dolls. Since they CANNNOT be bad, they are just a sex toy after all, don’t let them have any advantage.

I don’t know if this is all too relevant, but I had a dream last night about the obscenity doctrine, and this is what I was able to piece together from it before the dream’s contents faded from my memory.

The following is most of what I was able to recall where the obscenity exception to the First Amendment was discarded, and all laws based on it were found unconstitutional, absent of some real-world harm, such as the grooming or enticement of minors.

Guess it was my subconscious kicking me a bit. :grin: but it did give me hope for the future.

The obscenity doctrine is to the First Amendment what ‘separate but equal’ was to the Fourteenth Amendment.
It supplants what is ultimately an ideological position over a fact-based one, at the expense of individual civil liberties. In the same way that ‘separate but equal’ allowed for racial segregation but asserted that the practice could be reconcilable with preserving equality, the obscenity doctrine fails to conform to the First Amendment’s guarantees of free speech while also failing to adequately preserve morality.

The obscenity doctrine conflates what are matters of viewpoint, preference, opinion, or ideology with those of objective fact, and is fundamentally incompatible with the First, Fourth, and Fourteenth Amendments, which guarantee each individual the right to be free from censorship and the imposition of presumed majoritarian prejudices.

Regardless of how repugnant or offensive something is, if it seeks to titillate sexual feelings, it has artistic value. If it serves no purpose other than to offend, then it has artistic value. And even if an argument can be made to the contrary, the First, Fourth, and Fourteenth Amendments cannot and do not condone that, as those are ultimately and fundamentally matters of preference and viewpoint, not fact.

States may pass laws to protect minors and non-consenting adults from unwanted exposure to explicit material, and they have. But the impetus on these laws has never been to limit the exposure to consenting adults in private, or occluded settings, but rather via ‘public nuisance’ ordinances. With regard to the classification of ‘obscenity as to minors’, laws can be passed to limit the deliberate exposure of such materials to minors by adults, and may survive strict scrutiny via ‘enticement’ standards.

“The First Amendment was not fashioned as a vehicle for the dispensation of tranquilizers to the people”, nor does it empower the government, by way of its courts, to act as de facto arbiters of what people may say, read, watch, or think, especially if it’s done in a private setting and away from public view. Such a vague, innocuous standard is fundamentally unworkable, as it splits the First Amendment into a confounding puzzle with how it regards speech related to sex, and lends itself no justifiable function beyond the preservation and enforcement of morality, a function that this Court has, in the past, ruled is not, in itself, a valid legitimate interest, in the absence of some quantifiable, objective harm.

To what end would a man punished three decades ago for the production, distribution, and sale of something that is no longer ‘obscene’ be rehabilitated as he observes his peers indulge in the very same material that landed him behind bars?
Or to another man, forced to endure undue humiliation at the hand of the courts, be deprived of his home and property, because of a jury’s failure, or perhaps refusal, to recognize the artistic and literary value of his work?
Or to another man, forced to live with sexual interests that he can only reconcile with the reality that they not be acted on beyond the context of personal fantasy, punished for his mere thoughts?

The obscenity doctrine did not entertain, nor enshroud, the concept of ‘good law’. It is high time that we embrace the reality that not only justified, but necessitated the proper recognition of our First Amendment rights.
Indeed, the First Amendment has never been interpreted to give clearance to each and every utterance, and the court has recognized some key exceptions. But those exceptions are all grounded by something tangible, objective, concrete, meaningful, virtually inarguable, such as exclusions based on sexual content where real children were used or depicted, true threats, and criminal speech integral to the perpetration of criminal conduct. Obscenity does not have this, it is anomalous and its tortured history is a living testament to that affect.

Many who would protest against the decision to recognize obscenity laws as invalid would assert that they do have meaning, that they do seek to punish very real societal harms, such as the normalization of sexual deviance or the sexualization and abuse of children, and these people would likely look towards science as validating their views.
Laws against the production, sale, and distribution of child pornography (now called child sex abuse material by many) already serves as a valid deterrant against that, and so long as the rules are made clear, then society will act in accordance with these standards. As for the rest, society is more than capable of defending these mores, viewpoints, and values, just as they’ve done throughout the decades with regard to other matters.
They will continue to stand on their own merits, and those merits will continue to stand based on the reality by which they are grounded by.

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Because I mentioned United States v. Stevens in this thread and used Meta AI, I feel that I should update, since I received a different reply from Perplexity. The reply coincides with the decision. Maybe, exploring this more is warranted.

The balancing test proposed in the struck down law included the idea that low value speech deserves reduced protection. In the decision, Justice Roberts explains that low value has no bearing. Obviously, any speech someone doesn’t like could fall prey to such a weak guarantee of protection. If serious value plays no role, obscenity law has no standing.

When I first read the text, this caught my attention.

The Government’s proposed test would broadly balance the value of the speech against its societal costs to determine whether the First Amendment even applies. But the First Amendment’s free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits"
United States v. Stevens :: 559 U.S. 460 (2010) :: Justia US Supreme Court Center

Question

Describe the Stevens Test that was established by the United States v. Stevens (2010) case.

Sources

britannica.com favicon

law.cornell.edu favicon

View 2 more

References:

https://www.animallaw.info/article/perplexing-precedent-united-states-v-stevens-confounds-century-supreme-court-conventionalism

https://www.law.cornell.edu/supct/html/08-769.ZS.html

Answer

The Supreme Court in United States v. Stevens did not establish a new legal test. Instead, the Court rejected the government’s proposed “balancing test” that would weigh the value of speech against its societal costs to determine if it is protected by the First Amendment.

The key points from the Court’s decision are:

  • The Court refused to recognize a new categorical exception to First Amendment protection for depictions of animal cruelty. It held that such depictions are not categorically unprotected like obscenity or child pornography. ¹ ²

  • The Court applied existing First Amendment doctrine, including the requirement that content-based speech restrictions be narrowly tailored to serve a compelling government interest. ¹ ²

  • The Court found that 18 U.S.C. § 48, which criminalized depictions of animal cruelty, was substantially overbroad and thus facially invalid under the First Amendment. ¹ ² ⁴

  • The Court criticized the government’s proposed “balancing test” as a “simple cost-benefit analysis” that departs from longstanding First Amendment principles. ¹

  • The Court held that the exceptions clause in § 48 for depictions with serious value did not sufficiently narrow the statute’s reach. ¹ ²

So in summary, rather than establishing a new test, the Stevens decision reaffirmed existing First Amendment principles and rejected the government’s proposed balancing approach for identifying new categories of unprotected speech.

Link https://www.perplexity.ai/search/Describe-the-Stevens-a6PPApMsQZmhHGJ4VQCfVw

This link shows an interesting write-up.

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This, combined with your prior research on sex dolls being incapable of being obscene due to merely being naked, creates a very tough argument. Ashcroft also presents a very compelling argument because virtual child pornography enjoys the same presumption of innocence (and therefore value) as adult material.

All that needs to happen is for obscenity law to be decapitated, just like ‘separate but equal’, sodomy laws, etc.

The very concept of low-value speech is riddled with problems too. Overturn Roth/Miller/etc.

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What if we ban unconstitutional laws? Why not make a law that punishes with jail time any congress person who proposes an unconstitutional law which passes and leads to innocent people being jailed?

That’s what the Supreme Court is supposed to do, I think? Seems they pass unconstitutional laws and wait for someone to challenge it once they’re caught up in it!
Congress should KNOW the Constitution!

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Because sadly, congresspersons and state legislators enjoy complete immunity for stuff like that, even civil liability.

Like if a state were to pass legislation making it a criminal offense, with jail time, for government officials to validate/sign marriage licenses between gay couples, knowing that the law would be unconstitutional if tried in court, then officials affected by this (and even gay couples who would be disenfranchised by this) could sue the state and establish caselaw that would render the law unenforceable, even if police tried to enforce it and actually arrested someone for it.

But those affected by this wouldn’t be able to sue the individual legislators and governor who collectively drafted, wrote, and signed it into law.

Sadly, even I can’t get behind putting the whole of a state’s legislature in jeopardy for such things, though, I wouldn’t mind there being an exception exclusively for those policymakers who may have drafted and presented it.

Imagine if an extremely anti-gay lawmaker submitted legislation that would make sodomy a capital offense, with provisions instructing the state’s prosecutors and police to ignore precedents that would render it unenforceable, and somehow got passed (like if it was added into a larger bill at the very last-minute and nobody noticed).
Then, for something egregious like that, I feel like that specific lawmaker (or few lawmakers) who drafted and submitted it should be singled out and made an example out of by subjecting them to civil liability by those who were successfully able to sue and render it unenforceable. They’re already able to sue the state for relief, so why not take it a step further?

It would be counterintuitive to expect that an entire legislature be liable for simply passing it.
But a narrower version of it would force these ravenous, bloodthirsty jackals to think twice and really consider the practicality, ethics, and morals of their laws and who they could harm. In a civilized world, that would be a rational expectation, but you have people who genuinely think that putting people in prison over owning a child-like sex doll isn’t a violation of the First Amendment.

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Yes, I was thinking of individual lawmakers as opposed to the whole of congress. It would make sense for that to be some kind of amendment, as I doubt that congress would want to pass a law making them potentially liable for their jackaseries.

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