The Supreme Court has stated multiple times that child pornography is its own categorical exception to the First Amendment. Laws specifically targeting material depicting real minors will continue to be valid and will remain unchanged if Roth/Miller were overturned completely.
I’ve looked far and wide for what I believe most reasonable people would consider a valid argument for not overturning Miller and so far I’ve not found one. I’ve read countless legal briefs and scholarly papers discussing the issue, numerous cases and even the opinions authored by the very cases that establish or affirm precedent. It all boils down to one thing - the assumption that sex and the way people are allowed to discuss it should be regulated or suppressed simply because it is sex.
The most common arguments I’ve heard for keeping obscenity laws in place is that it’s harmful or has no constitutional value. That obscene pornographic media is harmful. Harmful to the morals and wellness of the community, harmful to the individual, to women, to children, and harmful to the family unit. My immediate response to this is always “how?”
How is the existence of graphic pornography harmful to any of this? You could argue that a low-budget film depicting the rape and murder of a woman by an unwashed vagrant is harmful. Convincingly even. You could say it’s harmful to women depicted and that if there’s a market for this, then that also creates a market for abducted orcoerced women too. The rationale for excluding child pornography follows an identical line of reasoning.
But what if it’s fictional? What if those people you saw were actually adult film actors who knowingly and willingly participated in the production of this film and were appropriately compensated for their time? What then? If you can prove to me that there’s a positive enough correlation between hardcore rape fetish pornography and sex trafficking to create an intrinsic link between the two, then that harm argument may have merit. But so far there has yet to come about any credible, peer-reviewed literature that can be read to support such a contention.
At this point the only “harm” that can be theoretically ascertained is the kind that is harmful to abstract, subjective concepts the relation to which are reaching at best. Harmful to morality, to the community, and ‘The Family’. First of all, I’d like to point out that sex and morality are not linked. It doesn’t take much thought to see this broad association between the two is just a red herring.
To put it simply, they’re not. All you have to do is ask yourself “why” and explore those reasons.