The obscenity conundrum, contingent harms, and constitutional consistency.

• Author: Huppin, Mark
• Position: Introduction through III. Finding the Right Home: Describing Obscenity as Low-Value Speech By Analogy to Commercial Speech and the 'Secondary Effects' Cases C. Toward Moving Obscenity into the Province of Intermediate Scrutiny p. 31-65

INTRODUCTION

This Article addresses the intersection between law and science as they relate to the regulation of hard-core pornography under obscenity doctrine. (1) We do not take for granted that pornography should be regulated under the law. Because we do not presume acceptability of regulation as a matter of course, we begin by examining obscenity doctrine's proffered ontological justifications or constitutionally permissible reasons for being. These include questions pertaining to First Amendment values, as well as justifications for regulation emanating from both offense-based and harm-based areas of concern.

As an initial matter, despite definitional indications to the contrary, it's not immediately apparent that obscene works will always lack the wherewithal to participate in public discourse or to otherwise achieve some quantum of First Amendment value. In Part I we consider arguments on both sides of this. For an influential defense of obscenity doctrine, we review Frederick Schauer's argument that beneath "all of the words of Roth, Miller, and Paris is the assumption that hardcore pornography is sex." (2) We consider as well the counterargument that hardcore pornography is speech, and more than this, speech that can contribute to an informal politics about changing sexual mores. Lastly, we investigate the validity of the Court's descriptive premise that if we look to the history of the First Amendment, we'll find that this dictates obscenity's exclusion from constitutional protection. (3)

To the extent that the suppression of obscenity may in fact implicate certain First Amendment concerns, we should inquire all the more carefully into proposed justifications for regulation. In Part II we survey the "moral" dilemma regarding the constitutional sensibility of regulating obscenity apart from the appearance of tangible social consequences, including the lesson of Lawrence v. Texas. (4) To the extent that obscenity doctrine has depended on the power of material to offend public morals without more, the legitimacy of this can be questioned in light not only of Lawrence but other lines of decision as well (e.g., the line of fighting words cases, which had originally reached to proscribe words which "by their very utterance, inflict injury or tend to incite an immediate breach of the peace," (5) but which since has been narrowed seemingly to exclude from the fighting words definition those words inflicting psychic injury without more.) (6)

By all appearances, rationales for regulation based on notions of offensiveness have reached a point in American society where they've become increasingly limited and less certain of their credibility, resulting in decreasing potency to those who would justify their continuation. In view of this difficulty, Part II suggests that if there were a long-lived solution for the obscenity problem (other than abandoning the doctrine), it would be by proceeding under a more explicitly harm-based rationale.

Above the recommended adjustment to replace offensiveness concerns with consideration of material harms if obscenity is to have a future as a defensible constitutional doctrine, in Part III we discuss why obscenity from a constitutional consistency standpoint should be considered low- rather than no-value speech. Such a move would end the oddity of obscenity's membership in the grouping of presently unprotected categories of speech, despite all others being identifiable for their provoking less contingent, more immediate injury. It would also swath obscenity in a proper imagination, placing it within the context of more familiar relations, similarly disfavored for their conditional risks of harm, namely commercial speech and adult sexual expression such as nude dancing (i.e., the "secondary effects" cases). (7) Here we note the example of commercial speech's historical transition from no- to low-value speech, evaluating the sense and etiquette in obscenity following commercial speech up the same yielding path to a level of intermediate review.

As low-value speech subject to intermediate scrutiny, obscenity would gain a presumption of First Amendment protection rebuttable by a showing of harm. Part IV therefore presents the sum of evidence indicative of real-world harms flowing from pornography. We suggest that the scientific evidence relevant to the regulation of pornography generally speaking is unlikely to support widespread effects upon all or most adults, and that demonstrably harmful effects, to the extent that they have been shown, vary by type of pornography (e.g., violent vs. non-violent pornography) and type of individual (e.g., some identifiable types of individuals will be more susceptible to negative effects than others). Although a definitive causal case cannot be made in light of ethical limitations on conducting the "ideal" scientific studies and therefore shouldn't be attempted, definitive evidence of causation is not required under an intermediate standard of review. (8)

Based on its greater demonstrable association with subsequent harm than for other types of pornography, Part IV singles out violent pornography for special consideration. (9) As examples of the potential feasibility of adopting a "harm based" regulatory scheme, Part IV describes three other democracies where changes in pornography laws similar to those proposed here have been adopted in recent history. Here we also distinguish "extreme violent pornography," which portrays sexual images and acts embedded within or merged with extreme acts of violence, including brutal rape, body mutilation, and murder, for its more reliably diagnostic harmful associations. This definition excludes mild sadistic stimuli such as descriptions of "dates gone wrong" or bondage and spanking with either eager or reluctant partners. (10)

We would refer readers to a previous article by the same authors for a similarly exhaustive review of research identifying to what degree and for whom virtual child pornography constitutes a valid risk factor for the commission of harm, i.e., sexually abusive acts. (11) With virtual child pornography, the government generally contends that it seeks to target only that material which is indistinguishable to the consumer from child pornography using real children, (12) and further contends that the technology to create such pornography is readily available. (13) Because of this, and because these assumptions allow for the considerable data regarding actual child pornography to be applicable to a discussion of virtual child pornography's effects, when we speak of virtual child pornography in this Article, we mean depictions that appear to be virtually indistinguishable from actual children.

We conclude by recommending that under the strengthened lens of intermediate scrutiny government at minimum should limit enforcement efforts to identifying and proscribing only those pornographic materials appealing to prurient interest, lacking serious value, and from the review of evidence most likely to result in harm, (14) or the significant measure of extreme violent pornography and virtual child pornography likely meeting these requirements. (15) in raising the greatly deferential bar presently used to test obscenity, this should forecast the finish of prosecutions for the likes of BDSM, (16) gay, and scatological pornography, among other offense-based indictments. Indeed, success for obscenity regulation even when limited to extreme violent pornography and/or virtual child pornography should likely rise or fall on a judicial interpretation of the evidentiary burden under intermediate scrutiny as applied to these cases, a question we consider in our concluding remarks. Regardless of the sum of evidence required, for other than these two pornography types, the case for regulation should likely fail, certainly as to consenting adults. (18)

1. IS PORNOGRAPHY JUST SEX? QUESTIONING MAJOR HISTORICAL AND THEORETICAL PREMISES FOR OBSCENITY REGULATION

   1. A Matter of Value: The Exclusion of Obscenity from the Protections of the First Amendment

      As James Weinstein writes, "to make sense out of most areas of constitutional law it is necessary to posit values explaining the pattern of decided cases." (19) In the area of free speech, it can be safely affirmed that constitutional protection conjures up one or more of three values: "[1] advancing knowledge and 'truth' in the marketplace of ideas, [2] facilitating representative democracy and self-government, and [3]promotion of individual autonomy, self-expression, and self-fulfillment." (20) Professor Weinstein identifies as the "core" First Amendment value the opportunity for individuals to participate in the speech by which we govern ourselves, (21) estimating that the nation's commitment to democratic participation offers the best explanation for the pattern of decided First Amendment cases. (22) There is much to recommend Weinstein's approach. (23) Most recently, the commitment to popular sovereignty best explains why the Westboro Baptist Church case wasn't the perplexing nuisance that many in the media had anticipated it would be. (24) Once the conversation turned to whether the Phelps' speech, however hyperbolic, met the requirements for discussing matters of public concern, the rest was pseudo. important (e.g., Albert Snyder's putative status as a private figure). (25) Even though they seemed to be playing a cruel joke, under the value of facilitating participatory democracy, the Phelps couldn't be held liable for protesting America's perceived unceremonious moral spiral, including, by their view, our tolerance for homosexuality and for abortion. (26)

      Of course, in practice the different First Amendment values are a bit like first-year law school roommates, stuck fast together in all their nobility and vanity, sharing or straining to share in each other's ups and downs. We can imagine, for example, that were people denied the autonomy to...