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, Sixth, Ninth, 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, with or without 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 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 disturbing the doctrine 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. Nixon appointed jurists to the bench who would only uphold his partisan ideals towards culture, describing the need to appoint constructionists who would uphold an old-world conservative status quo at the expense of a fair and valid reading of the Constitution.
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 discrimination2.) 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 or communal 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. The very reason why the Court opted for a “community standards” approach rather than a national one is the same reason for why the doctrine itself is ultimately unworkable, because these matters are contingent on individual ideals, opinions, taste, and preferences.4.) Sex, sexuality, and sexual desire are necessary and omniscient elements of human existence.
To impose arbitrary or unjustified 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.
Because these matters ultimately reach the level of prejudice, they presumptively violate the First and Sixth Amendment right to a fair and impartial jury, as jurors who hold such strong beliefs towards certain types of expression, preferences, or tastes will be incapable of applying the Miller Test fairly.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, therefore they are not valid subjects within the court of law system that can be reasonably or factually reconciled with the degree of accuracy or precision warranted.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, or the “corrupting of morals”, 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 4th 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 direct infringement.
Updated for 2023.
