Obscenity, morality, and harm

[Howard M. Wasserman]

Not sure if this post went through the first time.  My apologies for the
repetition if it did:  --HMW



All of those harms are based on the way in which the speech affects ideas,
thoughts, and attitudes.  This ordinarily is not a permissible basis for
regulating even sexual expression (as courts have held in striking down
MacKinnon/Dworkin bans on non-obscene profanity).  And it is not the
basis for the definitional balancing that pulls some categories outside of
the First Amendment.  Most unprotected categories (fighting words,
incitement,
to a lesser extent true threats) are based on physical or mental harm
arising without the opportunity or possibility of more speech.  And courts
have
refused to recognize new unprotected categories (racist speech comes to
mind) when the targeted tangible harms are based on the expression's
effects on ideas and attitudes.

Obscenity as an unprotected category still seems based on the visceral
notion that, at the definitional level, "sex is different" and the exposure
to sexually
oriented speech is different.  This is a morality-based determination doing
much of the work.

I would agree, however, that Extreme Associates probably was wrong in one
regard.  If obscenity is categorically unprotected, then a regulation of
obscenity could be based on those otherwise-impermissible connections
between the material and attitudes that you describe, which means the
statutes themselves may, indeed, be  about more than the moral code.  The
government thus could be more paternalistic even as to willing adult viewers
than if it were dealing with a protected category. So if Lawrence is going
to do the sort of work that the court is suggesting, it would have to be at
the level of the First Amendment level of defining what is protected
expression, not at the level of the statute.


Howard Wasserman
FIU College of Law




----- Original Message ----- 
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <Conlawprof at lists.ucla.edu>
Sent: Tuesday, June 14, 2005 3:57 PM
Subject: Obscenity, morality, and harm


I don't think this argument would (or should) go far.  While
obscenity law has sometimes been defended on "morality simpliciter"
grounds, it has also been quite sincerely defended on the grounds that
it leads to tangible harms.  Some argue that obscenity contributes to
men's viewing women as sex objects and thus leads to rape and sex
discrimination.  Others argue that obscenity exacerbates men's desire
for sexual variety, and thus tends to lead to more adultery (and
concomitant harm to children) and more promiscuity (and thus unwanted
pregnancy and sexually transmitted diseases).

These aren't arguments about "morality simpliciter" or about the
government *interest* being "promotion of a moral code."  Rather, they
are arguments that obscenity law serves eminently legitimate, even very
important, government interests, and that it does so by blocking
materials that influence people towards harmful behavior.

Naturally, one can disagree with the factual assertions at the
heart of obscenity law.  But unless obscenity is presumptively protected
speech, or unless it's presumptively protected by the sexual autonomy
right, it's up to legislatures to resolve such factual debates
(especially when the factual assertions are traditionally accepted and
empirically plausible, as I think they are).  So either obscenity is
covered by the First Amendment (which Miller rejected) or by the
Lawrence right, in which case it's those substantive rights are doing
the work.  Or it's covered by neither, in which case the "morality
simpliciter is not a legitimate, much less compelling, government
interest" argument doesn't help, because obscenity law can be defended
as serving a very different interest.  In either case, the "no morality
simpliciter" assertion, even if it is sound constitutional law on its
own terms, strikes me as not very useful to obscenity law's challengers.

Eugene

Howard Wasserman writes:

> There could be a slightly different use of Lawrence, which
> the District Judge in Extreme Associates: Morality
> simpliciter is not a legitimate, much less compelling,
> government interest.  Promotion of a moral code is the
> significant interest underlying both the judicial decision to
> read obscenity out of "the freedom of speech" and the various
> legislative decisions to ban all obscenity, at least as it
> pertains to adults (especially willing adults).  So Lawrence
> could be used to establish either: 1) A broad conclusion that
> obscenity is not categorically unprotected and everything
> from Miller all the way back to Roth is wrong; obscenity as a
> category is subject to regulation as indecent sexual
> expression (and the mere offense of non-consenting adults is
> not a basis for regulation).  Alternatively,  and more
> narrowly, even if obscenity is more regulable than other
> expression, the regulation cannot apply to the narrow sale to
> willing adult viewers (the actualy holding in Extreme Associates).
>
>
> Howard Wasserman
> FIU College of Law
>
>
>
> ----- Original Message ----- 
> From: "Scott Gerber" <s-gerber at onu.edu>
> To: "Howard Schweber" <schweber at polisci.wisc.edu>
> Cc: "Volokh, Eugene" <VOLOKH at law.ucla.edu>;
> <Conlawprof at lists.ucla.edu>
> Sent: Tuesday, June 14, 2005 2:08 PM
> Subject: Re: The future of obscenity law
>
>
> > The federal district court opinion that prompted my
> question, United
> > States v. Extreme Associates, assumed the material was
> obscene.  The
> > trial judge takes on Miller v. California.
> >
> > Scott
> >
> >
> > Howard Schweber wrote [snip]:
> > I believe it is the case, though, that all the attempts at
> government
> > regulation of the Internet thus far have foundered because they
> > attempted to go beyond the regulation of obscene material to reach
> > merely "indecent" material.  As Eugene observes, those
> arguments are
> > very far from over, but as a matter of straight doctrine I
> don't think
> > anything that has transpired thus far requires rethinking
> the Miller
> > categories.
> >
> > --------------------------------------
> >
> > Scott Gerber
> > Law College
> > Ohio Northern University
> > Ada, OH 45810
> > 419-772-2219
> > http://www.law.onu.edu/faculty/gerber/
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot be
> viewed as
> private.  Anyone can subscribe to the list and read messages
> that are posted; people can read the Web archives; and list
> members can (rightly or
> wrongly) forward the messages to others.
> >
>
>
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly or
wrongly) forward the messages to others.