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Monday, December 19, 2005

Obscenity after Lawrence

This news story reports that (to the surprise of few, I imagine) the U.S. Court of Appeals for the Third Circuit has reversed a district-court decision invalidating several federal obscenity laws, "saying that those laws violate the Constitution.  [The trial judge] specifically cited a recent Supreme Court case, Lawrence v. Texas, in which the court ruled that laws prohibiting same-sex sodomy are unconstitutional.  He ruled that the Lawrence decision undermined obscenity statutes, as well as earlier Supreme Court decisions that upheld them."  (Here is a link to the Court of Appeals decision in Extreme Associates; here is the district-court opinion).

The trial judge had reasoned, in a nutshell, that "[a]fter Lawrence, the government can no longer rely on the advancement of a moral code, i.e., preventing consenting adults from entertaining lewd and lascivious thoughts, as a legitimate, let alone compelling, state interest." He had also noted that "upholding the public sense of morality is not even a legitimate state interest that can justify infringing one’s liberty interest to engage in consensual sexual conduct in private[.]"

So . . . why (putting aside the whole "district-court judges should not announce the implicit overruling of Supreme Court decisions" thing) was the district-court judge in Extreme Associates wrong?

Posted by Rick Garnett on December 19, 2005 at 02:24 PM in Rick Garnett | Permalink


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I only recently happened to find out about this whole mess, but feel compelled to toss in my $0.02. From the theoretical point of view, obscenity is ultimately a personal moral question, and the government should not be in the business of legislating morality, period, end of discussion. However, our Puritan roots continue to shine through, as our government continues to make decisions for us, via cases such as these, as to what is and is not "obscene." This case involves a set of productions which certainly push the boundaries of some peoples' comfort zones, but what is being left out is the fact that this pornography's display is not a public affair. Private citizens actively choose to purchase and view this "obscene" material, and a company produces it only because there is enough demand for it to justify its creation and distribution. This material isn't being slapped on highway billboards, isn't being used to demo televisions at Wal-Mart, and the list goes on. No one is being exposed to this "obscene material" that does not actively seek to be exposed to it, and no one is being harmed or forced to engage in non-consensual activity during the production phase either.

No one is harmed during production, and no one sees it other than those that want to see it. It's not displayed publicly, it's not created for the purpose of inciting crimes and violence...so how is there ANY legitimate state interest involved here? It is private business between two private entities, both of whom consent to the process and the exposure. The fact that the porn had to jump across a state's border doesn't automatically give the government the unlimited authority to intrude and control as they please. There's no state interest served by interference in this transaction, other than a "moral interest," which is beyond the scope and purpose of government in the first place.

Before the reader of this chooses to misconstrue it by saying, "by your logic all child pornography distribution should be legal," I'd like to point out that child pornography harms an individual that is not capable of informed consent to such activities, and that's where the biggest difference lies. Extreme Associates made some very extreme pornography that I probably couldn't keep my eyes on if I ever saw it (by the descriptions I've read anyway), but I have the option of choosing to not purchase and view it, and no non-consenting individuals are harmed in any way by any phase of the process from casting to masturbating, and as is so often repeated, the First Amendment doesn't exist to protect popular speech, it exists to protect the most unpopular speech. This idea that "obscenity doesn't get First Amendment protection" is a skeleton key to erode free speech rights where some moral crusaders don't agree with that class of speech. It's not Constitutional, plain and simple, regardless of what the SCOTUS has said about it in the past.

I didn't see an "obscenity clause" in the First Amendment. Did you?

Posted by: The Angry Offender | Sep 17, 2008 6:06:02 PM

Perhaps this is why the "district courts shouldn't overrule Supreme Court decisions, no matter how moth-eaten" rule makes some sense. Lawrence pretty clearly doesn't hold that obscenity is no longer punishable, just as Romer didn't hold that sodomy was no longer punishable, but it certainly does suggest it as a logical implication.

Posted by: Will Baude | Dec 19, 2005 8:04:24 PM

I think the district judge was wrong. On the liberty side, Lawrence was about private not public conduct. On the state interest side, there was a reason Feinberg wrote separate volumes on Offense to Others and Harmless Wrongdoing.

Posted by: Adil Haque | Dec 19, 2005 6:04:58 PM

Fair question. You mean, I gather, "why was Scalia's characterization of the holding of the majority not correct?" Because under Scalia's reading of the case, the district court judge was right.

So Scalia must, therefore, not have been right. Despite what the words of the majority opinion say, some morality-condemning regulation survives.

My theory is that the real holding in Lawrence is much closer to its actual facts, and rather farther from the broadest reading of its reasoning, than Scalia feared. Which may or may not make either side of the S Ct divide happy.

Of course, there was always something vaguely insulting in Scalia's insistence that, post-Lawrence, government could no longer outlaw bigamy, bestiality, or infidelity. Because if he can't theorize a plausible difference (harm principal? consent? *anything*?) between those which would allow regulation of some and not others, what is good for?

Further, I was led to wonder: what laws against infidelity? Although I see from the news that lewd & lascivious conduct, if committed by a football player on a boat, does lead to charges.

Posted by: Eh Nonymous | Dec 19, 2005 5:56:24 PM

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