Porn Again (It's my blog so I can belabor the point)

But why is freedom of the press and expression denied them? Are they to be barred from communicating in symbolisms important to them? When the Court today speaks of "social value," does it mean a "value" to the majority? Why is not a minority "value" cognizable? The masochistic group is one; the deviant group is another. Is it not important that members of those groups communicate with each other? Why is communication by the "written word" forbidden? If we were wise enough, we might know that communication may have greater therapeutical value than any sermon that those of the "normal" community can ever offer. But if the communication is of value to the masochistic community or to others of the deviant community, how can it be said to be "utterly without redeeming social importance"? "Redeeming" to whom? "Importance" to whom?

This is a portion of Justice Douglas' dissent that includes a response to the majority opinion (written by Brennan) upholding a conviction involving fetish magazines.  After over fifteen years of lots of split decisions that involved them repeatedly deciding if specific works were obscene, Brennan basically decided in his Paris Adult Theatre v. Slaton dissent that the laws were just too vague. Even then, he didn't want to simply say anything goes since history and concern for minors and unwilling viewers (stretched out to mean "pandering" as I say in the post covering that excerpt). Brennan did, after concurring separately earlier, agree with the Stanley v. Georgia privacy opinion, so vagueness was specifically problematic here. As I said earlier, no rule was going to be crystal clear.  Some shades of gray. So, e.g., the law could protect the privacy of the home more than glancing views of "Fuck the Draft" on a jacket in a courthouse (Cohen v. California).

The dissent rejected the somewhat modified (though he questioned how much it mattered) test that allowed more material to be declared obscene. For instance, the old test required "utterly" no value, now it was "no serious" value. Whatever that means, some degree of borderline value communication would be barred.  A skim didn't seem to suggest he was that upset the new test required local as compared to national standards for what is prurient and patently offensive though fellow dissenter is said to have found that absurd (we have one First Amendment).

And, Brennan does reference privacy cases protecting an individual's right to decide moral questions but mostly rests on worrying about some valuable materials on First Amendment grounds being blocked.  As Justice Douglas noted in that dissent, a basic question here is what is it about these sorts of low brow sexual materials that make them not valuable in the right way?  Some find rape fantasies disgusting; others enjoy them with or without talk about how they provide a sort of safe release akin to sports being an alternative to war. This sort of "hard core" (penetration) pornography might have been blocked, but why?  As I said five years ago, it is appreciated that Justice Douglas took the time to give such stuff their due, so to speak, though the majority did nicely give us a reading list.

I have a book on a few obscenity cases in the 1960s on the "to read" pile and that case is referenced as an example of what "prurient" material with little value might be in comparison to let's say Tropic of Cancer, a serious work of literature. The publisher did push for more explicit material, and as to line drawing, it is a less blatant case on some level (e.g., the knowledge to realize it is at best borderline material) but on a basic point is so what?   Not all stories have deep meaning, and even if it is mainly for some sort of release, why is not that the right sort of "value"?  There is some concern that pornography is harmful to women though women do enjoy it in various respects, especially romance novels that can get pretty hot and heavy.  But, other than line drawing problems (vagueness is an issue), the ultimate problem is why is obscenity an exception?  We know why the likes of libel (wrongful information that is generally harmful both emotionally and often financially and otherwise) or true threats or perjury is.  Basically, it amounts to not the right sort of sexual speech.

[ETA: Justice Clark put forth an extended argument on just what is wrong with obscenity in his dissenting opinion in the Fanny Hill case.  There was some evidence that the "exaggerated and morbid emphasis on sex, particularly abnormal and perverted practices, and its unrealistic presentation of sexual behavior and attitudes, may induce antisocial conduct by the average person."  "Antisocial" here is rather open-ended.  Why is this different from some hateful or potentially dangerous political thoughts?  Only so much, especially if you look at the sort of thing that was once banned.

Or, some connection with sex crimes and prostitution (sure).  As compared to other material, including non-sexual violent themed material and non-obscene sexual related content? As Douglas says in his concurrence, "However florid its cover, whatever the pitch of its advertisements, the contents remain the same."  So, the whole pandering concern also seems dubious to me.  I can see how it matters if "appeals to the prurient interest" is a factor here. But, that seems like a thought crime anyhow. Again, a verbal attack (threat) or something is quite different.  As Stanley v. Georgia noted, even if speech might in some fashion lead to conduct, you address the conduct by means other than banning the speech.]

It is telling that Brennan while referencing history cites laws against blasphemy (found unconstitutional years before as blocking speech related to ideas) and profanity (generally protected in the context in question; face to face, "fighting words" is an exception, but that isn't mere profanity; some profanity could be banned, but even there -- such as the "Seven Dirty Words" Case regarding a radio broadcast -- Brennan dissented in a key case or repeatedly found the restriction vague).  Obscenity is a form of blasphemy, a violation of good morals in the area of sexual expression.  But, granting public morality can be a thing, the First Amendment draws a line here.  As does privacy rights in general, which can involve use of sexual materials in various respects.* 

The material often is going to be badly made (what else is new?) but that is not grounds to ban it. Ditto it not having that much high brow value. A lot of political speech doesn't. Just check out Twitter daily.  And, like other types of expression, some better material very well might be nice (fwiw the voice work in that video is pretty good).  Again, so what?  Other than special cases involving children (laws against "crush videos" might be comparable though we can target the animal abuse itself) and unwilling viewers (and modern blocking technology etc. makes this much less an issue; worrying about people saying "fuck" on television is dubious at this point) and perhaps concerns about allowing sex for money in general, why are obscenity laws still a thing?  Consensual sexual material should be protected.  

But, prosecutions are still possible as seen as split judgments in the last decade or so regarding sex toys. So silly.

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* Defining "public morality" in a way separate from harm to third parties specifically can be tricky. Justice Brennan noted:

And much legislation -- compulsory public education laws, civil rights laws, even the abolition of capital punishment -- is grounded, at least in part, on a concern with the morality of the community. But the State's interest in regulating morality by suppressing obscenity, while often asserted, remains essentially unfocused and ill-defined. And, since the attempt to curtail unprotected speech necessarily spills over into the area of protected speech, the effort to serve this speculative interest through the suppression of obscene material must tread heavily on rights protected by the First Amendment.

I'm not sure if those things couldn't be justified in some other fashion such as training people to be citizens (including members of juries, militia and voters) being a reason for education and civil rights laws being required to uphold constitutional rights and so forth.  "Morality" has a broad meaning.