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

The First Amendment was almost designed implicitly to protect obscene speech. During the time of the ratification of the Bill of Rights, only a handful of states actually bothered to define, let alone criminalize or enforce laws against obscene speech. They did this to a handful of other types of speech, namely blasphemy and profanity, two kinds of speech unquestionably within the First Amendment’s sphere of protection. To argue that obscene speech is on any different from these two is to argue against the freedom of speech and its grand and noble purpose of guaranteeing the citizenship their intellectual autonomy rights.

“Congress shall make no law…abridging the freedom of speech.”

While it can be plainly understood that not every type of utterance can be offered blanket immunity, those exceptions (child pornography, true threats, libel, ‘fighting words’) are all backed up by their intrinsic relationship with unwarranted or unjustified injury, that is, their mere utterance is either the cause of or the product of said harm or injury.

No such injury occurs, or is necessarily intrinsically related to matters dealing obscenity. Judging by the dominant rhetoric of the time, enjoined with growing anti-sex religious and Protestant or Catholic prudishness, inherent within socially conservative ideology, it is quite evident that the obscenity doctrine was nothing more than a weapon to be employed by like-minded conservative jurists in a culture war they knew couldn’t be won, nor should even be fought, rather than a good-faith determination of Constitutional precedent.

Indeed, the criticisms of the doctrine are scathing. Justices William O. Douglas had the right idea from the start. and the fact that William J. Brennan, initially a conservative, did a complete 180 on his stance, as did the late Justice John Paul Stevens, not counting the ardent dissenters in Miller, Paris, etc. it’s quite clear that the obscenity doctrine is a mistake, a barbaric and regressive invention that not only fails to conform to and even contradicts the ideals and precedents related to the First Amendment, but it fails to coexist with basic due process.

Bottom line is, morality, with respect to free speech and due process, is NOT a legitimate government interest.

The obscenity doctrine is a joke.