The Obscenity Conundrum, Contingent Harms, and Constitutional Consistency

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INTRODUCTION

This Article addresses the intersection between law and science as they relate to the regulation of hard-core pornography under obscenity doctrine. (1) We do not take for granted that pornography should be regulated under the law. Because we do not presume acceptability of regulation as a matter of course, we begin by examining obscenity doctrine's proffered ontological justifications or constitutionally permissible reasons for being. These include questions pertaining to First Amendment values, as well as justifications for regulation emanating from both offense-based and harm-based areas of concern.

As an initial matter, despite definitional indications to the contrary, it's not immediately apparent that obscene works will always lack the wherewithal to participate in public discourse or to otherwise achieve some quantum of First Amendment value. In Part I we consider arguments on both sides of this. For an influential defense of obscenity doctrine, we review Frederick Schauer's argument that beneath "all of the words of Roth, Miller, and Paris is the assumption that hardcore pornography is sex." (2) We consider as well the counterargument that hardcore pornography is speech, and more than this, speech that can contribute to an informal politics about changing sexual mores. Lastly, we investigate the validity of the Court's descriptive premise that if we look to the history of the First Amendment, we'll find that this dictates obscenity's exclusion from constitutional protection. (3)

To the extent that the suppression of obscenity may in fact implicate certain First Amendment concerns, we should inquire all the more carefully into proposed justifications for regulation. In Part II we survey the "moral" dilemma regarding the constitutional sensibility of regulating obscenity apart from the appearance of tangible social consequences, including the lesson of Lawrence v. Texas. (4) To the extent that obscenity doctrine has depended on the power of material to offend public morals without more, the legitimacy of this can be questioned in light not only of Lawrence but other lines of decision as well (e.g., the line of fighting words cases, which had originally reached to proscribe words which "by their very utterance, inflict injury or tend to incite an immediate breach of the peace," (5) but which since has been narrowed seemingly to exclude from the fighting words definition those words inflicting psychic injury without more.) (6)

By all appearances, rationales for regulation based on notions of offensiveness have reached a point in American society where they've become increasingly limited and less certain of their credibility, resulting in decreasing potency to those who would justify their continuation. In view of this difficulty, Part II suggests that if there were a long-lived solution for the obscenity problem (other than abandoning the doctrine), it would be by proceeding under a more explicitly harm-based rationale.

Above the recommended adjustment to replace offensiveness concerns with consideration of material harms if obscenity is to have a future as a defensible constitutional doctrine, in Part III we discuss why obscenity from a constitutional consistency standpoint should be considered low- rather than no-value speech. Such a move would end the oddity of obscenity's membership in the grouping of presently unprotected categories of speech, despite all others being identifiable for their provoking less contingent, more immediate injury. It would also swath obscenity in a proper imagination, placing it within the context of more familiar relations, similarly disfavored for their conditional risks of harm, namely commercial speech and adult sexual expression such as nude dancing (i.e., the "secondary effects" cases). (7) Here we note the example of commercial speech's historical transition from no- to low-value speech, evaluating the sense and etiquette in obscenity following commercial speech up the same yielding path to a level of intermediate review. …