Though it might be hard to believe, the federal government still is in the business of determining if certain movies involving consenting adults are "obscene, lewd, lascivious, indecent, filthy or vile." It is still not deemed a violation of the First Amendment or some other part of the Constitution (such as due process, since this is a quite arbitrary proposition). Yes, the Supreme Court held in 1969 that you can view such stuff in the privacy of your home. Nonetheless, since this was deemed largely a privacy decision, a corresponding right to receive it (including by such "closed" options as the mail or Internet) was not to apply.
Lawrence v. Texas has been seen by some, including Justice Scalia*, to call into question such laws. Though the Eleventh Circuit (Southeast) has gone out of its way to limit its reach, in part because the opinion's language can be twisted in various directions, there appears to be a logic to such reasoning. So says a district court opinion striking down a prosecution on transmitting "horror porn" for the purposes of at home download. The system of passwords and credit card access dealt with the unwilling viewer and protection of minor problem, leaving moral concerns. This was deemed not to be enough when consensual private sexual conduct was involved.
It remains to be seen how widely this reasoning will be accepted, but it is fully appropriate. The Internet and mail order is not only a boom to adult entertainment sales, but it allows consenting adults to enjoy such material without many of the problems of concern when it is sold in the public square. Private activity needs some sort of economic activity to supply its needs, as shown by sale of contraceptives and abortion services. This sort of merchandising is particularly private. And, if we recognize a general right to such activity, morality concerns alone should not lead to criminal prosecution.
I remain of the opinion that freedom of speech includes sexual speech, even of the material involved here. Sexual themes are clearly of long standing in literature, which needs not to be of high quality or complexity for constitutional protections to arise. All the same, some people find it silly to bring up the First Amendment. So be it. The parties for the sake of argument assumed the material was obscene and criminal on that ground. All the same, an additional concern of privacy in the area of sexual relations arose, and simple moral displeasure was not enough. The other interests able to be dealt with in ways more narrow than a ban, the prosecution was struck.
As it should have been. Let the feds worry about something worth their time and our money. And, not invading our privacy and liberty.
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* The district judge suggested that Justice Scalia's reasoning arose "after reflection ... not merely a result of over-reactive hyperbole by those on the losing side of the argument." The judge apparently is serious, but luckily, does not solely rely on this sentiment. It is ironic, however, how the Eleventh Circuit also used the dissent, but to limit the reach of the majority opinion to suggest a fundamental right was not involved.
This was dubious, since the majority relied on precedent in which fundamental rights were clearly at issue. Justice Scalia also noted that the Casey (abortion) decision also did not use the talismanic "fundamental right" terminology. The idea that only a rational basis test should be applied to abortion legislation, however, is not generally deemed to be accurate. Likewise, the majority referenced Justice Stevens' dissent in Bowers as the correct view. Justice Stevens clearly felt fundamental rights were at issue.
Wordplay is the funhouse of lawyers, but we should not be fooled into believing sophistry, even if we respect its skill.