Why Miller v. California must be Overruled - The Viability of the Obscenity Doctrine

As anybody who browses this forum and reads my posts can infer, I’m no fan of the obscenity doctrine.
I wouldn’t call myself a critic of it, or my remarks on it criticism. A criticism is an objective analysis that’s premised on the desirability of improvement.
I do not call it that because, as a mere concept or idea, is in any way compatible with the the United States constitution or any of its provisions or clauses, namely the First, Fourth, Tenth, and Fourteenth Amendments.

The idea that the First Amendment could be read to exclude certain types of sexual or pornographic material, speech, or expression on nothing more than the way they could be received, namely their offensiveness, to an assumed “average person” under a “community standards” approach, even with the “serious value” requirement without turning the First Amendment on its head and undermining its protections and perhaps invalidating it in its entirety, is so beyond reason reproach that the First Amendment might as well not even exist in the first place.

I don’t think I can even muster up the words to describe how stupid that contention even is, yet conservative idealists and social regressivists have successfully managed to appoint bad-faith Justices who have decided just that, offering no clear reason or rationale to justify or even adequately explain their position, while subsequent appointees behave as apologists who insist on preserving a problematic and unconstitutional doctrine.

In any case, I’ve taken the liberty of compiling a list of key points, which I hope can be expanded on further. I’ve been looking into the mindsets of the obscenity doctrine proponents and it’s becoming abundantly clear that the obscenity doctrine is a byproduct of ideological tribalism.

I hope to expand these points with a bibliography of sources and citations to back up each point. Feel free to add onto whatever you guys can! I’m looking for community involvement here! I’m looking for SCOTUS caselaw to back up points about the First Amendment, along with philosophical and academic sources to back up other points. We can add a bibliography of empirical sources later, but as a matter of law, I’m more or less concerned with dispellilng the fallacy that obscene speech is excluded from the First Amendment.

Obscene Speech and the First Amendment - Where the Supreme Court got it Wrong

1.) Obscenity laws are written with the alleged intent of preserving and protecting sexual morality, yet obscenity laws cannot and do not preserve them and the availability of obscene material does not threaten or undermine these concepts.
However, they are actually written to target and persecute specific undesirable groups or classes of people, namely those with unconventional sexual preferences or desires and have been used to persecute the LGBT community by banning/criminalizing/censoring their pornography, literature, and other media.
The exclusion and suppression of materials that may cater to minority sexual interests, or tastes, regardless of how offensive or outside the norm, is a form of unacceptable viewpoint discrimination

2.) The First Amendment protects speech that is immoral, offensive, or without ‘serious’ literary, artistic, political, or scientific value, not in spite of those characteristics, but because of them.
Speech that is unpopular/immoral/offensive retains protection.
Speech that is pornographic/indecent supposedly retains protection.
Speech that is of no ‘serious’ value retains protection.
There is no justification for excluding speech that meets the criteria of the Miller Test.
There is no difference between ‘indecent’ and ‘obscene’ speech, and the First Amendment cannot adequately protect one without protecting both.
The Miller Test and the obscenity doctrine as a whole must be discarded.

3.) The purpose of the First Amendment is to ultimately protect the freedom of speech, which is to also guarantee the individual freedom of thought and conscience; these are necessary components for any free society to not only thrive, but prosper.
Imposing caveats or restrictions on a class of speech about or relevant to a specific subject (e.g. sex or sexual conduct,), no matter how narrow the criteria, that is contingent on a projected majoritarian preferences, as opposed to objective facts or provable effects related to or caused by it, will inevitably impede and undermine this function and present intolerable examples of suppression at the tyranny of insecurity.

4.) Sex, sexuality, and sexual desire are necessary and omniscient elements of human existence.
To impose arbitrary restrictions on how it is allowed to be talked about, depicted, or indulged upon, absent some intrinsic criminal or harmful element (e.g. porn made using real children) is to deny people their right to these facts about human life, and to criminalize/punish that is to deny the right to that reality, as well as impose a content-based, viewpoint-oriented discrimination and imposition and an example of compulsory speech, which is a violation of the Compelled Speech doctrine.

5.) “Serious” artistic or literary value are not objective concepts and they cannot be quantified or defined with enough precision to satisfy both the requirements of criminal law as well as preserve the freedom of speech; they are ultimately matters of individual opinion, not objective fact.

6.) Because of the state-by-state, case-by-case nature of the obscenity doctrine, you will never know whether or not a particular work is or isn’t obscene unless a sitting judge or jury, in a court of law, arbitrarily declares that it as such. In the majority opinion for Miller, Justice Warren Burger argues that an obscenity law is not void for vagueness if it lays out specific examples of sexual conduct that are not allowed, but only if they’re “patently offensive”.
However, in attempting to outline examples of “patently offensive” descriptions of sexual conduct, the court only created more problems.
You will never know if you’ve broken the law even if you believe otherwise.
This is a plain-as-day example of an undue burden, prior restraint, and vagueness, all implicit violations of Due Process.
The obscenity doctrine is not compatible with Due Process.

7.) The fact that people only “know it when they see it” should render the doctrine of obscenity unworkable, as that idiom highlights the inherently arbitrary and vague nature of obscenity.

8.) Deference to the hypothetical “average person’s” interpretation of “contemporary community standards” to determine whether depictions of sexual conduct are “patently offensive” is an individually-charged assumption of majority opinion and is simply not a matter of fact.
Community standards are NOT facts, cannot be proven, and are not required to be fair, reasonable, or refrain from discrimination.
Community standards may be particularly unkind to explicit LGBT-oriented material or material of foreign origin (Japanese hentai).
It is not possible to assume what the “average person” may think of something without tainting it with personal bias.
The “average person” and “community standards” deferences are fallacious attempts at abstraction designed to obscure the fact that jurors are supplanting opinions, preferences and emotions as facts. Community standards cannot be proven as matters of fact.

9.) It is unreasonable to expect jurors and judges to determine whether or not something has or lacks ‘serious artistic’ value if it’s offensive, as it is a type of applied, preferential bias which basic criminal procedure and Due Process flatly forbid; the Obscenity doctrine is not compatible with Due Process.
Judges and jurors are not art critics and the court of law is NOT an arbiter of artistic value.

10.) In Criminal law, guilt has to be proven using evidence and facts and evidence.
Juries are not allowed to speculate, invoke conjecture, or assume things that are based on opinion or preference.
Matters of obscenity are NOT matters of fact.
Obscenity is not something that can be ‘proven’, let alone beyond a shadow of a reasonable doubt.

11.) There is no empirically-sound link between the consumption of pornography of any kind (including virtual child pornography) and the subsequent commission of criminal acts, and the availability of pornography has actually been known decrease rates of sexual assault for both adults and children.

12.) Pornography is considered, by many, to be a form of art on its own, with its focus on sex, sexual conduct, the human form, and human genitalia being valid artistic subjects and the goal of elucidating a sexual response being valid goals of contemporary erotic art. Pornography meets the plain-as-day definition of art. To assume that the obscenity doctrine is capable of ensuring only material without “serious” artistic value is to deny the very apparent fact that pornography is, in its own right, a form of art with “serious artistic value”.
To discard the tastes, mores, and preferences of one citizen and enforce that of the majority against him, for the sake of doing so, is to undermine, discredit, and invalidate those of the majority as well as the value of the individual, something the First Amendment was designed to protect against.

13.) Because the obscenity doctrine is incompatible with the Due Process clause of the 5th and 14th Amendments, it cannot be sustained as a valid exception to the 1st Amendment, as other categories, like Libel, True Threats, and Child Pornography, are logically and reasonably sound.

14.) Any legitimate interests related to specific use-cases that can be met by way of enforcement of obscenity law will likely withstand Strict Scrutiny or qualify for their own exclusions from the First Amendment, namely “real rape” pornography and “obscenity as to minors” (defined as material not suited for or harmful to minors).
There is no justification or legitimate reason to restrict or infringe upon the rights of consenting adults to view, own, make, or sell to other consenting adults any material they so choose, unless actual nonconsenting adults or actual minors are involved in their production.

15.) The rights infringed upon by the obscenity doctrine are fundamental and recognized by long-held and long-established precedent. The obscenity doctrine enables and is responsible for their infringement.


Bumping so anybody willing to do some research can add sources, citations, or references that back up to my basic points.
I can’t do this on my own. This has to be a team effort.


People on this website are really obsessed over this non issue. Pretty much no one gets prosecuted under this. It’s a dead law like the 305922 other federal criminal laws on the books but get pretty much ignored. Who cares if a bad law exists as long as it doesn’t get used to harm the morally innocent?

Troll post but I’ll bite.

The freedom of speech is not a ‘non-issue’, just like a gay man’s right to sexual freedom prior to Lawrence v. Texas (2003) or a woman’s right to a safe, legal abortion in prior to the passage of Roe v. Wade (1973).

These are, in fact, valid issues.

The problem with this “morally innocent” idea is that morality is not something that can be squared evenly, consistently, or even objectively - at least enough to satisfy the needs of a court of law. If a person were to publish ‘obscene’ pornography that does nothing wrong or harmful aside from be perversely grotesque or offensive in its content, that’s NOT a legitimate government concern.

I’d rather a film be found criminal for breaking actual laws backed up and justified by a degree of actual harm or a relation to an actual crime, not because of how it makes people feel when they look at it or because of their inability or refusal to appreciate it without getting upset. The obscenity doctrine presumptively violates the undue burden doctrine because you can’t control how others will ultimately feel, and ‘feelings’ such as these are arbitrary and in most cases irrational, also their right to speak comes before anybody else’s feelings.


Bumping again to ensure it gets seen.

I’m working on expanding these talking points myself with citations from judicial opinions and caselaw.
Specifically, I need sources and information regarding the following areas:

  • Due Process and substantive due process
  • Undue burden doctrine
  • Compelled speech
  • Vagueness doctrine
  • Prior restraint

As stated in the OP, the obscenity doctrine violates all of these in some way, but I need caselaw and citations involving proper analogous situations or material to illustrate these facts.

Specifically, I need instances where the Undue Burden standard has been read to strike down laws or cases where a person’s fundamental rights to privacy or self-determination in matters pertaining to speech or expression.

If we want to see things change, we need to put forward some effort.
All it takes for prejudice irrationality to triumph over our rights is for the rational and logical to remain silent. Please.

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Bumping to include the following:

The obscenity doctrine is to the First Amendment what “separate but equal” was to the Fourteenth Amendment.
By extension, it is what the precedent in Bowers v. Hardwick was to the LGBT community, whereby the toxic mores and prejudices of the communities overrode the rights of same-sex consenting adults to engage in sexual activity in the privacy of their own home.

The logic by which Plessy v. Ferguson was predicated on is almost identical to that of Roth/Miller, wherein the high Court offers no plausible rationale to justify, explain, elucidate, or even rationalize their point in spite of the glaring flaws and implications it has for our civil rights.
In much the same way as Bowers, logic is deferred to irrationality and emotion, commonman tropes of “morality” that inherently undermine our rights.

To enforce morality for morality’s sake in the absence of physical harm, with the goal of accommodating and enforcing mere prejudice without an ounce of reason or consideration is to behave savagely.

It is my hope that we have a Lawrence v. Texas and Brown v. Board of Education but for the obscenity doctrine.

Please, please everyone share your thoughts on this.

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While I agree with you, do you intend to allow minors to view the no longer obscene art or would you restrict them? And, how and on what basis would you restrict them? Would you limit CP to art only with real children or visually indistinguishable from real children? At least until there is a way to conclusively prove one is CGI vs. real.

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There already exists jurisprudence that expressly prohibits the allowance of pornography exposure to minors which doesn’t violate the First Amendment.
It’s called the “Harmful to minors” doctrine, and it’s highly unlikely that if Roth/Miller were overturned that people would be allowed to distribute porn to children.

This concern was dealt with in Ashcroft v. Free Speech Coalition. The burden of proof would be on the prosecution to show that it is of a real minor or that it implicates the identity of one.
Unless it’s indistinguishable from an actual, real person who exists, then it can’t be considered CP.
Deepfaking porn of minors or splicing children’s faces onto legal pornography is the same as real CP because it implicates the identity of a real child.

These are valid points and I’m thankful for some participation!


I wholeheartedly agree that obscenity is something that can’t be defined in objective terms and the only good part of Miller V California is the test allows some limited guidance on what is or is not obscene. Certainly better than Justice Potter’s “I know it when I see” scheisse. It’s that I just don’t see the “great unwashed” being ready to accept such a ruling. Every little old lady of all ages and genders, will be out in force. Which tends to mean SCOTUS is unlikely to make it.

Given that there seems to be little proof that consuming pornography harms adults, the “Harmful to minors” doctrine seems precarious. I had my hands on porno when I was a kid, and that wasn’t easy in the 60s, and I think I am reasonably unharmed by it. I am an axe murderer, not a smut purveyor. :rofl:

I don’t think it’s written that way. Especially since they say:

Virtual and drawn pornographic depictions of minors may still be found illegal under U.S. federal obscenity law. The obscenity law further states in section C "It is not a required element of any offense under this section that the minor depicted actually exist.

Also: Section 1466A of Title 18, United State Code, makes it illegal for any person to knowingly produce, distribute, receive, or possess with intent to transfer or distribute visual representations, such as drawings, cartoons, or paintings that appear to depict minors engaged in sexually explicit conduct and are deemed obscene. This statute offers an alternative 2-pronged test for obscenity with a lower threshold than the Miller test. The matter involving minors can be deemed obscene if it (i) depicts an image that is, or appears to be a minor engaged in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse and (ii) if the image lacks serious literary, artistic, political, or scientific value.

This is the current statue in the Federal Register. And this was written to conform to Ashcroft, Miller, etc.

All that being said, you have my help if a way can be found. :+1:


I disagree.
Yeah, sure, you’ll have some karens and concerned conservatives dissenting, but so long as the existing prohibitions on real child pornography remain, I doubt we would see much outrage or even attention from society at large.
The only people I would see out in droves over this would be conservatives and politicians. They may try to get things banned, but they would have literally no rebuttal to the phrase “It’s just a drawing”.

If anything, the obscenity doctrine’s death would be an overall boost to morale, as it would allow artists and other purveyors of alternative content to really let loose their creative energy.
The culture would only change for the better.

Ehh… no not true either. It’s not even relevant to the discussion, aside from expediting the discardment of the obscenity doctrine.

What you’ve quoted is an obscenity law, not a child pornography law. CP and obscenity are two completely separate categories of speech.
The reason why loli is considered legal in the United States is because obscenity was drafted to attack adult porn, not child pornography. By requiring loli to meet the same standards as adult material, it becomes much harder to “ban” it due to how the obscenity doctrine works.

Even then - if we review the relevant precedent…

Ashcroft v. Free Speech Coalition (2002)
By prohibiting child pornography that does not depict an actual child, the statute goes beyond New York v. Ferber, 458 U.S. 747 (1982), which distinguished child pornography from other sexually explicit speech because of the State’s interest in protecting the children exploited by the production process. See id., at 758. As a general rule, pornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California, 413 U.S. 15 (1973). Ferber recognized that “[t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children.” 458 U.S., at 761.

US v. Williams (2008)
But an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means “a protected category of expression [will] inevitably be suppressed,” post,at 13. Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography.

…we can still see that the law you cited still has issues that do not conform to prior SCOTUS precedent, aside from the fact that sections A(2) and B(2) were ruled unconstitutional as applied to fictional pornography in US v. Handley.

Loli is legal, but technically in a grey area since all the rules about obscenity put normal adult material at risk of prosecution as well.

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I very much disagree. Obviously there are differences, but clearly they are related. And both quotes are from CP law, because obscenity is a major justification along with harm to minors. And it does matter:

This is an excerpt of a seizure letter from Customs and Border Patrol. The government is clearly not above using laws, such as obscenity, to stop activities they don’t approve of. Obviously a sex doll, even a child sex doll, cannot be obscene by itself, but that did not stop CBP.

18 USC 1466A says : §1466A. Obscene visual representations of the sexual abuse of children
(a) In General.-Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that-

(1)(A) depicts a minor engaging in sexually explicit conduct; and

(B) is obscene; or …

I don’t wish to argue, since we agree censorship of obscenity is unacceptable in a free society, but this is what is happening. Government officials will misuse these laws to get their way. It’s been well over a year and I still don’t have my doll.


No, they’re not and that’s not from CP law, that’s obscenity law. Federal CP laws start at 18 USC 2251 et seq. and are further clarified and defined under 2256.

For the purposes of this chapter, the term—


minor” means any person under the age of eighteen years;


(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—


sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;






sadistic or masochistic abuse; or


lascivious exhibition of the anus, genitals, or pubic area of any person;

(B) For purposes of subsection 8(B) [1] of this section, “sexually explicit conduct” means—


graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, or lascivious simulated sexual intercourse where the genitals, breast, or pubic area of any person is exhibited;

(ii) graphic or lascivious simulated;




masturbation; or


sadistic or masochistic abuse; or


graphic or simulated lascivious exhibition of the anus, genitals, or pubic area of any person;


producing” means producing, directing, manufacturing, issuing, publishing, or advertising;


organization” means a person other than an individual;


visual depiction” includes undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image, and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format;


computer” has the meaning given that term in section 1030 of this title;


custody or control” includes temporary supervision over or responsibility for a minor whether legally or illegally obtained;

(8) “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—


the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;


such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or


such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

(9) “identifiable minor”—

(A) means a person—



who was a minor at the time the visual depiction was created, adapted, or modified; or


whose image as a minor was used in creating, adapting, or modifying the visual depiction; and


who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and


shall not be construed to require proof of the actual identity of the identifiable minor.


“graphic”, when used with respect to a depiction of sexually explicit conduct, means that a viewer can observe any part of the genitals or pubic area of any depicted person or animal during any part of the time that the sexually explicit conduct is being depicted; and


the term “indistinguishable” used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.

They are different categories of speech.
“Harm to minors” is not a plausible rationale behind the obscenity doctrine, as outlined in Ashcroft.

I’m well-aware of the types of tactics used by CBP to seize items in the mail. To my knowledge, Hawaii is a no-porn state so of course they’d seize it. Customs has processing and consignment centers in Hawaii, California, Washington, and Oregon, so what comes in and goes out may be based on which one it shows up in. Talk about “community standards…”

My heart goes out to you. Just know that Prostasia and it’s community will help out however we can. Child sex dolls are still legal in the United States, with websites like Catdoll and others still seeming to operate normally or with minimal issues from Customs.
It’s very discouraging when they go up missing in the mail like this since they’re NOT illegal.

It’s very likely that your doll may have been destroyed before it reached the mainland, like most things do if not claimed.


Bumping for interest.

I’m still compiling sources on things. Right now I’m looking into the history and applications of the due process rules and their justifications and how they relate to matters of speech. This is to illustrate that the obscenity doctrine undermines and contravenes due process in the courts, since it’s not justified, is not fact-based, is wholly and functionally vague, and places an undue burden on defendants due to its arbitrary nature, in addition to all the ways it undermines the freedom of speech and right to privacy under the First, Fourth, and Fourteenth Amendments.
It’s simply incompatible with the US Constitution, both in concept and in practice. It’s un-American and unconstitutional to impose restrictions based on nothing more than emotion and assumptions of morality.

I also just want to point out that these dolls and loli ARE in fact still legal. I don’t think a doll is prosecutable under obscenity law and no prosecutions have occurred regarding dolls.
Obscenity, not in spite of its issues, but because of them, is unworkable since it applies on a state-by-state, case‐by-case basis according to the laws and customs of that state.
That is why loli and other porn is legal in places like California and Oregon.
That is why so many websites (4chan, baraag) services (Steam, JastUSA, HH) and publishers (Steam, Fakku) are able to license, sell, and distribute loli hentai products in addition to dolls and loli-themed onaholes (Amazon, ToyDemon).

This is not a defense of the obscenity doctrine, but rather a reminder that an injustice, no matter how infrequent or rare, is an injustice nonetheless.

In any case, I’m still committed to this. I believe that if we can lay it all out in detail, it may be enough to help inspire change and the overruling of the obscenity doctrine in its entirety.

I will let you know how my case comes out. It may have a bearing on your crusade. So far, it’s Customs 4 and me 0 and we are in the bottom of the ninth. I did ask, they don’t destroy it until the forfeiture is finalized. I am still in the seizure phase. @terminus has been a great help in my quixotic campaign. As near as I can figure, this is the only place in the US that believes there is nothing wrong with child sex dolls. Even the US based sex doll companies won’t even consider them. Not to mention the several states that have banned them. Do you think if I win my case against the US government, I should drive around with my companion to the various stages and challenge the laws? :grin:


Unfortunately, Amazon has started banning things, though. Not sex dolls, though, just literally perfectly clothed figurines.

if I’m not mistaken, they’ve gone back and reassessed that since even Gundam figures were being taken down.

I’ve seen other places that are sympathetic to them. I think the ACLU has an article somewhere acknowledging the issues with banning them
There was a politician from Florida, Margaret Good, who changed their vote from “yes” to “no” on the law banning them, and when this was exposed and held against her, her campaign manager came out and was like “oh no it was a mistake!”
I could believe it, but at the same time, she’s really high up with the ACLU who’ve been avant supporters of writers and creators of pedophilic fiction and simulated child pornography, in addition to lobbying against obscenity laws. I think just about every liberal-minded person tends to see the issues with banning or criminalizing these dolls, but may be reluctant to speak out because of stigma.

The justifications offered by proponents of these laws are spurious and unfounded. They retract to biased studies on the pornography habits of mixed offenders in the penal system that have no external validity to them and try to use that as a springboard to say that pornographic stimulation causes child sex abuse, but the reality of the situation there is that it doesn’t and there are plenty of studies that actually find the opposite conclusion.
And when those tactics are scrutinized, they pull up the dome of “legal moralism”, claiming that they’re immorality warrants punishment, which is another dated, unfounded, and cruel legal ideal.


The First Amendment was specifically designed to protect that which is provocative, offensive, and obscene from repression or punishment.

To argue otherwise is to argue against the principle itself.

Other exceptions to the First Amendment, as I’ve pointed out at least a dozen times by now, are all built around and justified by their intrinsic relationship to actual harm or some form of injustice or injury that would warrant a criminal deterrent or regulation.
Whatever moralist or arbitrary rationale could be used to justify or hold up the obscenity exception do not fall into that sphere.

The obscenity doctrine must be and will be, at some point in time, abolished. There is simply no reason to assume that it wouldn’t be. I want that time to be sooner. It is no different than Racial Segregation, Sodomy Laws, and other examples of dead/overturned mistakes in the SCOTUS’ history.


I think it might be hard to persuade the Supreme Court to overrule Miiler v. California because in Paris Adult Theatre I v. Slaton (1973) the petitioner argued that “there are no scientific data which conclusively demonstrate that exposure to obscene material adversely affects men and women or their society”, but it was rejected by the Supreme Court:

But, it is argued, there are no scientific data which conclusively demonstrate that exposure to obscene material adversely affects men and women or their society. It is urged on behalf of the petitioners that, absent such a demonstration, any kind of state regulation is “impermissible.” We reject this argument. It is not for us to resolve empirical uncertainties underlying state legislation, save in the exceptional case where that legislation plainly impinges upon rights protected by the Constitution itself. [Footnote 11] MR. JUSTICE BRENNAN, speaking for the Court in Ginsberg v. New York, 390 U. S. 629, 390 U. S. 642-643 (1968), said: "We do not demand of legislatures scientifically certain criteria of legislation.’ Noble State Bank v. Haskell, 219 U. S. 104, 219 U. S. 110." Although there is no conclusive proof of a connection between antisocial behavior and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist. In deciding Roth, this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect “the social interest in order and morality.” Roth v. United States, 354 U.S. at 354 U. S. 485, quoting Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 572 (1942)

From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs. See Ferguson v. Skrupa, 372 U. S. 726, 372 U. S. 730 (1963); Breard v. Alexandria, 341 U.S. at 341 U. S. 632-633, 341 U. S. 641-645; Lincoln Federal Labor Union v. Northwestern Iron Metal Co., 335 U. S. 525, 335 U. S. 536-537 (1949). The same is true of the federal securities and antitrust laws and a host of federal regulations.

The current Supreme Court is far too conservative as well, that it is willing to behave irrationally to refuse to block the Texas abortion law and gut Roe v. Wade. Even if they indeed overrule Miller v. California based on vagueness and due process issues, I am afraid they may go in the opposite direction and have a clearer but much broader definition of obscenity.


I personally don’t think they’ll be able to gut Roe v. Wade. They have zero reason to do so. Them upholding the Texas abortion statute, even in their own letter explaining the majority’s decision, makes no call on the Constitutionality of the statute in question.
I have faith that they will retain the precedent in Roe.

In any case…

The big issue with Burger’s argument in Paris was that it was simply wrong and cannot withstand adequate scrutiny.

My belief on the matter is that it was wrong on three counts:

1.) The states supposed interest in preserving “social order and morality” is not a valid state interest as far as the First, Fourth, and Fourteenth Amendments are concerned, and such an interest is one that has been rejected in other cases where sexual expression was concerned, namely laws barring the sale or advertising of contraceptives, laws criminalizing acts of sodomy, laws banning virtual child pornography, and even with marriage equality/gay marriage.
These all suffered from the fatal flaw of such an interest being at odds with established Constitutional rights and liberties and found wanting, but therein lies a different question that deserves to be asked, and that question is whether such things even affect the such an interest in the first place.

One could argue that homosexuals engaging in sexual activity just as a heterosexual couple would is not a moral affront just as one could argue that it is one, but under what grounds would one argue it is?
Why not ask the same question with respect to gay marriage, contraceptives bans, or even simulated/virtual child pornography?

If we peel back these layers of abstraction, we find a grotesque and disturbing degree of religious sentiment conjoined with cultural and social prejudice, two things that the First, Fourth. and Fourteenth Amendments directly shield people from as a matter of enforcement rationale. A law that seeks to enforce or impose a religious or prejudiced viewpoint or preference, or twist or intimidate those within the crosshairs, to practically or ideologically conform to said religious or prejudiced standards, for the sole purpose of doing so, by its very concept, causes injury and is fundamentally incompatible with those said Amendments.

All of these are implicated by obscenity law, wherein the rights and interests of speakers, writers, artists, and creators, along with their respective listeners, readers, admirers, and consumers.
Their First Amendment rights are infringed because obscenity law, through the vehicle of the Miller Test, seeks to enforce those very viewpoints and ideas under threat of severe and draconian penalties that are immensely disproportionate to whatever interests that may lie therein, and by extension infringes upon people’s Fourth Amendment rights because it seeks to restrain and control a personal aspect about oneself, their sexuality, and this infringes the Fourteenth Amendment because, by relegating definitions to an ad-hoc understanding of community standards and state law on a state-by-state, case-by-case basis, the doctrine fails to conform with the function of applying the First Amendment equally to each state while also sidestepping basic Due Process principles.

One could argue that one’s perverted tastes or interests in pornography do not meet the threshold of “value” necessary to preclude enforcement, citing moral contention.
But that “value” argument was dispelled when the SCOTUS ruled that sodomy laws were invalid because in Lawrence v. Texas, the majority implicitly addressed and rejected the arguments spearheaded by the majority of Bowers v. Hardwick, who ruled that the same privacy and liberty interests recognized for heterosexual couples, even for non-reproductive purposes, was rooted in both tradition and morality and that, as a matter of principle, such an interest simply did not exist for homosexuals, who could have only sought to engage in such, amoral and offensive practices for reasons that could not include procreation or familial purposes.
This sentiment could also be seen in Obergefell v. Hodges, which established that marriage between same-sex partners are valid, and that marriage licenses must be granted and respected by all states.

2.) The High Court’s rejection of empirical validation is a stark example of judicial abuse, whereby they failed to properly or consistently uphold their own rationales on empirical science in terms of how they affect law.
In Ashcroft v. Free Speech Coalition, the government argued that virtual child pornography would “whet the sexual appetites” of would-be sex offenders and thereby cause sexual abuse. They cited statistics on pedophilic child rapists and molesters who were also avid child pornography consumers, as well as excerpts from the Meese Commission report on obscenity and pornography.
This was rejected by the SCOTUS, in that they ruled the government failed to show more than a surface-level connection between the tastes of sex offenders, and that the rationale presented was contingent on some “unquantified potential for abuse” rather than the materials they consume, while also correctly observing that the materials presented failed to illustrate a causal link between pornography consumption and subsequent sexual offending, but posited that with “Without a significantly stronger, more direct connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to engage in illegal conduct”.

This could also be seen with regard to violent media and children, whereby in Brown v. Entertainment Merchants Association, the state of California backed up their law barring stores from selling violent video games to children with studies on aggression and violent media consumption, claiming that exposure to and prolonged engagement with violent imagery would cause children and teens to behave aggressively.
These studies were summarily reviewed and rejected as showing no more than a minor correlation among a very small sample size, wherein the effects of violent media exposure and their recorded acts of aggression were not understood well enough to warrant the conclusions made by their authors.
(Yes, Alito and Breyer go into detail about obscenity law, but my critiques still stand and they do a poor, lazy job explaining or justifying the rationale of obscenity law)

I find it strange how one would only need to look at Ashcroft and understand where the issues with suppressing obscene speech become problematic.

3.) It’s simply wrong.
There is no logical reason why “obscene speech” would be excluded from Constitutional protection. It stands out to the average person as a relic of a different time, an aged and dated concept built on regressivist thinking with no real reason to exist.
The fact that the writer of the majority in Roth changed his stance after he saw what sort of hell he’d helped unleash should be very telling of the doctrine’s legitimacy as a principle. It is wrong, just like “separate but equal” and sodomy laws were.

  • It’s arbitrary.
  • It’s vague.
  • It’s subjective.
  • It’s overbroad.
  • It’s unjustified.
  • It’s functionally unworkable.
  • It’s antithetical to the First Amendment.
  • It places an undue burden on the accused to appeal to the arbitrary whims and mores of a group of biased, dissenting actors.
  • Matters of obscenity are not matters of fact, merely opinion and conjecture masquerading as morality, whether something appeals to the prurient interest can be regarded as a fact, but whether such a thing is “patently offensive” under community standards or even state law is not, that’s conjecture, an assumption built on emotion, not fact, and whether that thing has “serious artistic” or “serious literary” value is entirely arbitrary, not objective or even remotely factual.
  • It attempts to quantify and define that which is definitively and patently unquantifiable and undefinable.
  • No man, woman, child, animal, or computer can successfully, objectively, as a matter of fact, define what is and isn’t artistic or literarily significant, and such determinations are functionally individualistic.
  • Because no injury occurs with respect to obscene speech, no real harm is caused.
  • Certain areas of interest tackled by obscenity law (exposure to minors or non-consenting adults) can be achieved without invoking obscenity law, such as “actionable indecency” or thru strict scrutiny analysis.
  • Assuming that such objective determinations are even possible to be made, it would be unreasonable for a judge or jury to be lead to accept that something that “appeals to the prurient interest” and is “patently offensive” could believe it to have “serious value” because you’d be asking them to overcome a preferential bias that is not feasible for one to overcome if they have that negative bias, especially in a court of law setting.
  • Even if obscenity law could be evenly and consistently enforced, nothing is considered obscene unless ruled as such by a ruling judge, in which case, the criminality of the material in question is only applicable to that specific case, in that specific locale, in that specific US state, and at that particular moment in time.

And perhaps the most damning point…

  • Obscene speech does not harm, or even affect, whatever interests the government may have in “order and morality”.

I’d argue that when the most depraved, nauseating, or infuriating pornographic drawing, line of text, photograph or moving image, regardless what it depicts or what interests it caters to, is more morally upstanding than the tyranny that is the obscenity doctrine, on the sole fact that the obscenity doctrine is designed to intimidate people into denying their own interests and self-censoring.