What if one day, It finally happens

Picture this:

One day, seemingly out of the blue, you see news that SCOTUS has decided to finally revisit legal area of obscenity.

The case can be anything, to a lawsuit arguing that obscenity laws were unconstitutional, to a criminal case from someone who was incarcerated for possessing manga that their state had deemed obscene in a court of law.
It really doesn’t matter for the purpose of this hypothetical.

The constitutional questions, in essence:

  • whether the High Court erred in its previous decisions in addressing the constitutionality of governmental action suppressing materials pertaining to a prurient interest in sex
    (was the majority in each case correct in its methodology, assumptions and viewpoints when arguing whether obscenity could be defined, excluded, and suppressed?)

  • whether any legitimate state interest could be soundly met without a broad, categorical defininition and exclusion
    (could public displays of graphic sexual conduct, exposure to nonconsenting adults, and exposure to minors be meaningfully addressed without also enabling the government to selectively criminalize he creation, possession, sale, distribution, importation, or receipt of porn?)

  • whether the current legal standard, in its parts or taken as a whole, runs afoul the First, Fourth, and Fourteenth Amendments
    (is the current legal climate of sexual censorship, uncertainty, and far-reaching paternalism justified consequence in the face of such scrutiny?)

  • whether there is a legitimate state interest in suppressing offensive, alternative, unpopular, or otherwise non-conventional depictions of graphic sexual conduct on the grounds that they would be offensive to the tastes, mores, or ideals of any given community
    (should i be forced to conform to the whims and tastes of those who don’t happen to share my interests? Should being different be a crime?)

  • should any relevant precedent that goes beyond what few valid interests the government may have in influencing the way materials are marketed be overturned?
    (if a law is not limited to public/unwarranted sexually graphic content to unwilling adults or minors, is it unconstitutional?)

The High Court hears arguments from both sides, with various organizations filing amicus briefs on their side of the issue and news agencies giving their spin on things.

But in the end, by a 5-4 margin and with the stroke of a pen on paper, at the deliberate expense of decades of caselaw, federal law, and the laws of 47 states…

Obscene speech is now protected speech.

No longer would the government be allowed to use “community standards” or “lack of serious value” as a cudgel to selectively persecute, humiliate, and incarcerate what would be otherwise innocent people in a court of law.

No more sleepless, sweat-filled nights plagued by an ever-present, nauseating paranoia, fear of losing everything you have, or nightmares of your mother crying.
Not because you did anything wrong, but because being yourself could one day be a crime…

We can make this vision a reality. Perhaps not as smoothly, but definitely a reality.


But we have to make sure this goes before the right court. Our current court would likely rule revert to what we had before Roth and Miller, which is to say, worse than those two precedents.

I’m about to start researching examples of civil rights “bad precedent” that was later overturned or reversed by the High Court, starting with the relatively short-lived but equally devastating precedent of Bowers v. Hardwick, a case that found “sodomy laws” to be constitutional, on the basis that homosexual sexual conduct simply enjoyed no privacy protection, despite heterosexual sexual activity having protection. Right now I’m looking for documented challenges to the law before it was overturned in Lawrence v. Texas.

On the notion of obscenity…

This tyrannical and puritanical hatred of certain ideas or opinions about sex espoused by the majorities of Roth/Miller read like passages from Mein Kampf. As I’m sure you’ve probably read me say dozens of times, it’s simply not compatible with the our First Amendment.
The very idea that materials can be denied First Amendment protection simply because of the way it might make people feel when they see it, read it, or watch it, strikes at the very heart of our identity. The First Amendment wasn’t designed to only protect speech or media that the people like nor is it limited to materials that have artistic, literary, or scientific “value”. It was designed to function exactly as it is written - to protect the freedom of speech.
The freedom to think, say, express, partake in the exchange of, patronize, consume, or otherwise indulge in whatever ideas that person may fancy, without regard to, and in many cases, in spite of what the others, including those in government, may think, is one that has carried us forward as a people. It is the freedom of freedoms. It is the freedom which allows us to understand life and ascribe for ourselves the value of happiness and the means by which we may pursue it.

This freedom is not absolute, as anybody could reasonably assume. Restrictions on speech have been formulated based on how they effect the rights and interests of others. Exclusions such as libel/defamation, child pornography, true threats, and deliberate incitations of violence all posses a rationale that can be reasonably deduced simply based on their definition and effects.
Libel/defamation is defined as deliberate untruths designed to cause real harm a person’s reputation or identity, the results of which can be shown to impact a person socially, financially, and in some instances criminally. The harm here isn’t quantified by any action taken against said person, but because it was done so under false pretenses.
Child pornography is excluded because it is intrinsically related to the sexual exploitation of children, in that the material in question would not exist without the direct involvement and recorded participation of an actual minor engaged in sexually explicit conduct. The rationale here lies not with the content but the means by which it was created, whereby a simulated, non-existent or fictional minor engaged in sexually explicit conduct would suffice because it doesn’t contribute to an economy that thrives on the sexual exploitation of children. We can reasonably assume that minors are exploited during the production process because children do not possess any understanding of sex or sexual traits that would otherwise justify an adult taking advantage of them for any reason that could put them at risk. This, combined with a legitimate interest in protecting them from abuse and wiping out a market for such abuse, more than explains the harm.
Threats of violence are excluded because they are declarations of planned action with intent to commit an unlawful act of harm against somebody. Those are crimes and, like CP, in a real-life context are read as undeniably linked to the commission of said crimes and can be excluded with a vested interest in the safety and well-being of the people and the community.
Incitations of violent action or “fighting words” are a bit of an oddity but the phrase “shouting ‘FIRE!’ in a crowded theater” sums it up best. Humans, like any other creature in the animal kingdom, are prone to take action when they feel afraid for their lives or well-being. Despite the plainly obvious differences between man and beast, we’re not above acting according to instinct, the consequences of which can be dire especially in instances where “reason” may come at the immediate expense of your life. To deliberately trigger such a response for where it is neither warranted, nor justified puts both the individual and the community at risk of injury.

What separates “obscenity” from these narrowly drawn and easily justified exclusions of free speech is that they are founded in reason, with a rationale built around the prevention of harm. Not just half-baked idealized assumptions of possible harm to other ideas or concepts, but their intrinsic relationship with actual case-and-effect instances or occurrences of crimes founded on harm to the rights or well-being of others.

Sure you can deduce “obscene” speech to the exploitation of natural desire to fulfill momentary gratification at the expense of morality and decency, but such an assumption is merely an opinion colored by one’s own tastes and ideas, rather than a meaningful, non-biased observation. Rather than explain how appealing to such interests in a communally unpopular or offensive way may be harmful to the morals of a community (or where such notions come from) or why such notions even matter to begin with, it tries to assert the idea that they are intangibly linked on the basis that they are offensive in a circular facade.
To place matters pertaining to sex on such a pedestal which rests on the basis of such a lousy argument that fallaciously attempts at appealing to morality and naturalism at the deliberate expense of reason in such an incredulous way should have been deduced as the tools of combatants in a culture war! Just about every single argument I’ve found that favors excluding hardcore pornography from the First Amendment rests on the assumption that it isn’t speech because speech can’t what excites or tantalizes the natural sexual instincts of man, when, in reality it IS speech. These are materials that communicate desire and tantalize the senses in a way that appeals to the individual tastes of the consumer using imagery and literary methodology. They are crafted to excite this, with varying degrees of quality and polish. To deny that this is art because it’s designed to get you off is to be disingenuous and intellectually dishonest.
The mere fact that these “obscene” materials even exist without breaking some law or violating another person’s rights in its production process and that there is a demand for it should be enough to dispel this.

It is my opinion they would avoid this scenario no matter what, as the deterrent effect of placing it in a grey area far outweighs any gain they could get from risking a legal precedent in a higher court.

Completely stopping information flows is impossible and it is harmful to try. Non-consensual pornography (I am going to step around the elephant) is certainly a problem. But, I can’t see how you would make it disappear from the web, and how would you even identify or find it? How would you tell the difference between that and any other piece of pornography?

There are many forms of non-consensual pornography. In one case, the women were misinformed about what audience their content would be shown to. They thought it would be for a small audience. But in reality, it was uploaded to Pornhub to be shown to millions of people throughout the world. They granted consent for it to be distributed. But, they did not intend for it to be used in that way.

There is so much nuance about scope, subtlety and nuance around consent it would be impossible to legislate on it all. Even if it were possible to regulate information flows effectively, which I have serious doubts about.

You may want to read the EFF’s (and others) rationale against the PACT Act. It is always preferable to let unlawful speech to slip through, than to inadvertently censor lawful speech.

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