When Obscenity Discriminates

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When Obscenity Discriminates

I. INTRODUCTION..................... 1380

II. THE LANGUAGE OF OBSCENITY..................... 1386

A. The Obscenity Doctrine..................... 1387

B. The Tension Between "Sex " and "Sexual Orientation "........................... 1399

III. THE MANY MEANINGS OF LAWRENCE..................... 1411

A. Basic Background to Lawrence.....................1412

B. Interpreting Lawrence Broadly..................... 1415

C. Interpreting Lawrence Narrowly..................... 1417

IV. TRANSLATING OBSCENITY FOR DISCRIMINATORS .....................1418

A. Obscenity as Status Discrimination.....................1419

B. Obscenity as Viewpoint Discrimination..................... 1425

C. Indiscriminate Obscenity......................1432

V. CONCLUSION: TALKING PAST MORALITY; TOWARD INDISCRIMINATE OBSCENITY..................... 1433

APPENDIX..................... 1434

I. INTRODUCTION

This Essay argues that the First Amendment's obscenity doctrine has produced a discriminatory collateral effect against gays and lesbians.1 If expression or conduct2 qualifies as obscenity, it is excluded3 from the First Amendment's protective reach.4 Expression or conduct qualifies as obscenity if it satisfies a three-pronged test that essentially seeks to determine whether the expression or conduct's main purpose is to depict sex in a patently offensive way.5

Because the obscenity doctrine judges the offensive depiction of sex by reference to "contemporary community standards" applied by the "average person,"6 the doctrine has been "deemed Objective.'"7 Despite that objectivity, commentators have criticized the application of the obscenity doctrine for, among other things, its incongruity with the First Amendment's core purposes,8 its inability to capture what is truly offensive about speech,9 its obsolescence in light of new technology,10 and its codification of morals-based legislation.11

This latter criticism has gained traction in light of the Supreme Court's decision in Lawrence v. Texas,12 in which the Court invalidated a Texas statute that criminalized consensual same-sex sodomy.13 In United States v. Extreme Associates,14 in which a federal obscenity statute was used to prosecute defendants in the business of distributing obscene material via the Internet and the mail, the Western District of Pennsylvania held that "after Lawrence, the government [could] no longer justify legislation with enforcement of a 'moral code.'"15 However, the Third Circuit reversed, holding that the implications of Lawrence on morals-based legislation were "analytically irrelevant to the disposition of th[e] case."16

This Essay does not explore the implications of Lawrence on morals-based legislation.17 This Essay also does not take a position on the outcome of Extreme Associates. However, this Essay takes as its starting point the articulation in Extreme Associates of the supposed analytical irrelevance of Lawrence to the obscenity doctrine. One might argue that the outcome in Extreme Associates foreclosed the possibility of addressing, in light of the Lawrence decision, criticisms waged against the obscenity doctrine. This Essay demonstrates why such foreclosure is unfortunate, and is, moreover, unconstitutional.

Refusing to entertain the extension of Lawrence to the obscenity doctrine is unfortunate because the Lawrence decision has much to offer the obscenity doctrine. Despite the proliferation of pornography that has accompanied the Internet,18 obscenity cases have declined dramatically in recent years." As a result of the doctrine's disuse, the Miller v. California obscenity doctrine has been left unchanged since it was formulated in 1973.20 The Court most recently invoked the doctrine in 2002 to clarify a distinction not in the Miller obscenity doctrine, which it reaffirmed, but instead in the Ferber doctrine,21 which separately governs child pornography.22

Despite its disappearance from courts' dockets, the obscenity doctrine has operated stealthily out of court. The doctrine's tracks can be detected, among other places, in Senator Larry Craig's guilty plea under Minnesota's disorderly conduct statute23 for "(1) put[ting] a duffel bag at the front of his stall; (2) peerfing] through a crack into an adjoining stall; (3) tappfing] his foot; (4) mov[ing] his shoe over until it touched an officer's; and (5) r[unning] his fingers along the underside of the stall divider. That's it."24 Further traces can be seen in volunteer firelighter Stephen Cole's arrest under Ohio's disorderly conduct statute25 for his "offensive attire," which included "a skimpy woman's blue bikini with two tan water balloons placed in the top to simulate two woman's breasts and a pair of pink Speedo flipflop sandals," an outfit he wore in anticipation of a cross-dressing contest at a nearby gay bar.26

Simply because courts have not been in the business of determining the obscenity of expressive content has not meant that content has not been determined to be obscene. seemingly neutra...

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