Miller dead after Lawrence?
s-gerber at onu.edu
Tue Jun 14 09:37:25 PDT 2005
Thanks for the sophisticated analysis, Eugene.
You're parenthetical about the production issue was especially helpful,
given that the Bush Administration is trying to prosecute that part of
it (at least during the Ashcroft regime).
Volokh, Eugene wrote:
> I can imagine (at least) three readings of Lawrence:
> 1. Lawrence secures a right to sexual autonomy as such, then
>the case for protecting porn becomes considerably stronger. Some people
>get the most pleasure from oral sex, some from anal sex, some from using
>sexual devices, some from consensual sex with handcuffs, some from
>consensual whipping, some from looking at sexual pictures with a sex
>partner, some from looking at sexual pictures by themselves. Under a
>pure sexual autonomy reading of Lawrence, all these would be protected;
>and the distribution of material necessary for them to operate would be
>protected, too, at least unless the government shows a strong enough
>reason to restrict them (which I take it wouldn't be easy for
>pornography in general).
> 2. Lawrence secures a right to sexual autonomy in the service
>of human relationships, possibly even relatively emotionally serious
>human relationships. If this is so, then restrictions that don't
>materially burden the ability to develop those relationships might well
>be permissible. Unless we think quite a few people really need porn for
>their relationship with another person -- not impossible, but I know of
>no evidence that this is so -- then a ban on distributing porn would be
> Query, though, how far this would go. Say the government bans
>anal sex on the grounds that anyone (gay or straight) can at least
>engage in oral sex instead, and still have a sexual relationship that
>for most people would presumably be at least modestly gratifying. Would
>that be categorically permissible (with no need for any strict scrutiny
>analysis; I set aside the question whether anal sex could be banned on
>the grounds that it's disproportionately likely to spread disease)? Is
>one possible distinction that most gay men would find the limitation to
>be quite burdensome, even if it doesn't completely eliminate their
>sexual options in the contexts of the emotional and sexual relationships
>that work for them? What if 4% of the male population found that sex
>with their partners just isn't exciting without porn?
> 3. Lawrence secures a right to sexual autonomy in the service
>of human relationships, but for dignitary and practical reasons
>precludes the government from inquiring into just what kind of sex
>people really need. If that's so, then distribution of porn should be
>protected, because some couples use porn for sexual gratification.
>Should it matter that most porn is used solo (if that is indeed so)? I
>presume not, at least if the question is whether we have heightened
>scrutiny, rather than whether heightened scrutiny is passed. The
>question under this approach would be whether a considerable number of
>couples use porn as part of their sex acts within a relationship, just
>like they use their mouths or anuses as parts of their sex acts; if so,
>then heightened scrutiny would be required.
> (Note that none of this deals with limits on the *production* of
>porn using human actors, which might be justified on the grounds of
>preventing sexually transmitted diseases, preventing the exchange of sex
>for money -- which is involved in the making of porn with professional
>actors -- and so on. Such limits might well not much burden any "right
>to sex," since even if new porn were entirely banned, there'd be a vast
>reservoir of preexisting porn that should satisfy the tastes of most
>people. [I set aside here a couple's self-produced sexually themed
>movies aimed at their own gratification; query whether they'd be
>protected in any event under Stanley v. Georgia.] On the other hand,
>especially these days, porn can be computer-produced without any human
>beings at all, and the actor-protection rationale wouldn't justify bans
>on such material.)
> So the case for a right to porn as part of a right to sex (even
>setting aside a right to free speech) seems plausible but far from
>open-and-shut. I would expect that the Supreme Court would limit
>Lawrence using some version of rationale 2, if the issue came up now.
>But I also suspect that many people, including lawyers, will interalize
>Lawrence as a broad right to sex case, and adopt rationale 1 as their
>interpretation; and over time, that (mis?)interpretation may affect
>legal norms to the point that Miller may indeed be overturned on
>> -----Original Message-----
>> From: conlawprof-bounces at lists.ucla.edu
>> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scott Gerber
>> Sent: Tuesday, June 14, 2005 6:36 AM
>> Cc: Conlawprof at lists.ucla.edu
>> Subject: Miller dead after Lawrence?
>> Dear Colleagues:
>> Does the list think that Miller v. California is dead after
>> Lawrence v.
>> Texas? As I'm sure most folks know, a federal trial judge in
>> PA pretty
>> much said as much earlier this year (at least in the Internet
>> I found a couple of passing statements in the law reviews that Miller
>> is dead after Lawrence (e.g., Prof. Tribe's Harvard comment on
>> Lawrence--the Lawrence dissent said it too), but I wonder if that's
>> really true.
>> Any thoughts would be much appreciated, especially from 1st Amendment
>> experts (e.g., Eugene Volokh).
>> Scott Gerber
>> Law College
>> Ohio Northern University
>> Ada, OH 45810
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Ohio Northern University
Ada, OH 45810
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