W.D.Penn: Obscenity law is unconstitutional
Fulfilling one of Justice Scalia's concerns (in fact, relying on Scalia's own logic), a court has held that U.S. obscenity law is unconstitutional, relying on Lawrence v. Texas. Boing Boing has news and good links, including a direct link to the opinion from the Western District of Pennsylvania.
It is reasonable to assume that [the Lawrence minority] came to [the conclusion that the Lawrence majority opinion would invalidate obscenity law] only after reflection and that the [minority] opinion was not merely a result of over-reactive hyperbole by those on the losing side of the argument. In any event, there are other constitutional scholars who have reached the same conclusion, i.e., that the nation's obscenity laws cannot stand in light of Lawrence.
Another interesting idea that I take from this case is that Justice Department forum-shopping for obscenity prosecutions can sometimes backfire.
I've already mentioned the article "The End of Obscenity", which points out Lawrence as one reason that older obscenity jurisprudence may be in trouble.
Here's another observation, which I hope will be a separate post at some point. In a precedent-based legal system, the answer you get depends on the order in which you ask the questions. It seems pretty clear that obscenity is one area where asking the courts about different aspects of free expression and sexual autonomy in different orders could have yielded drastically different results, and it may still yield a wide variety of results depending on the order in which future questions are posed.
A simple example of this is the relatively higher social status of gays and lesbians in our society than commercial pornographers. There is a conceptual relationship (as Scalia rightly pointed out, although from the point of view of someone who disfavored the liberties of both groups rather than favoring them) between the sexual autonomy of gay people and the sexual autonomy of pornography creators (and audiences), because the suppression of both is related to the same kinds of supposedly traditional sexual morality. If you ask about gay people first, though, and then pornographers, the courts are now reluctant to be seen as reactionary bigots by giving the kind of short shrift to gay rights that they did back in Bowers. And then the pornographers, as Scalia observed, will benefit from the collateral effects of recognizing the importance of individual sexual autonomy and disparaging state power over sex in general. But if you asked the question the other way round, to a certain extent, it could go the other way: you might get a ringing opinion supporting state power over sex, which would at the least be helpful to the anti-gay amici when a case like Lawrence came up.
I have no idea whether this case out of Pennsylvania is the vehicle, but I hope some day we will say good riddance to Miller, that (um) obscene hole in the already unsteady edifice of first amendment doctrine. We've seen over and over again that holes in the first amendment's coverage constantly invite other holes; patching them up, conversely, strengthens the whole structure against every kind of attack.
