Minnesota Constitution
Table of Contents
Cause of Injustice
A Case Example
I do not dispute the state's interest in preventing unwilling exposure to obscenity. I also will not comment on how courts ought to go about deciding whether or not such an interest outweighs the free speech interests of the distributing parties.
I do however contend that such an analysis must at least be performed; if obscenity is protected speech, it must first be met with an opposing right from another party before it can be constitutionally restricted.
In the Minnesota supreme court case State v. Davidson a jury determined that the material being distributed by an adult store was indeed obscene. The conviction was upheld, not because they performed an analysis and determined that the harms caused by unwanted public exposure outweighed the liberties of the speaking party, but simply because the speech in question fit the obscenity definition.
Davidson was convicted not because they caused harm, but simply because they spoke. Such injustice was only possible because of the notion that obscenity is "unprotected speech". This is the type of injustice that should be addressed by challenging obscenity statutes.
Compared to Recent Law
Obscenity does not derive its exclusion from free speech protection from any sort of necessary involvement in or adjacency to an action.
In recent times we have been dabbling with regulating more speech based on such rationales, such as prohibitions against distributing sensitive images of people without their consent. Minnesota statute 617.261 which deals with this issue survived a constitutional challenge based on free speech in State v. Casillas, but just barely.
The fact that a law prohibiting distribution of private sexual images without consent, without directly regulating the speech because of the nature of its content, was ruled to require strict scrutiny, and yet obscenity continues to be called "unprotected" despite directly regulating speech because of the nature of its content, again just goes to show the injustice of the "unprotected speech" label, and of Minnesota's obscenity statute, 617.241, which is drafted as broadly as possible without any constitutional guardrails.
Why in Minnesota
Davidson Origin
In State v. Davidson the Minnesota supreme court declined to provide more free speech protections than the federal constitution regarding obscenity, despite the fact that Davidson specifically invoked the language of the State constitution which refers to "all subjects". The court cited State v. Century Camera, Inc. as an example of another case where they declined to grant any additional protection via the state constitution, though in an unrelated context. That only shows that the state need not always provide more protection than the federal constitution.
They also cited State v. Oman to demonstrate that Minnesota has a precedent of refusing this additional protection. But even in Oman they simply cite Roth and the tradition of not considering obscenity protected speech. Everything therefore depends on Roth.
Roth cites numerous previous cases where it is assumed that obscenity is not protected, and mentions other unprotected categories such as libel, blasphemy, and profanity. In the cited Beauharnais v. Illinois case regarding libel the reason justifying the lack of protection was based on the words being used in the same manner as libel against an individual, which is unprotected because:
"There are certain well defined and narrowly limited classes of speech the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words – those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."
Libel, like fighting words, is unprotected because of it's adjacency to violent action, because of how the words are being used. The lewd, obscene, and profane are unprotected because they are considered useless for public discussion and the state has an apperent interest in upholding "morality".
The entire basis for Minnesota statute 617.241 applying as broadly as it does, even when there is no unwilling public exposure to obscene material or performance, is to uphold "morality".
What About Oregon
This conclusion is not grounded in the Minnesota constitution or its history, but rather the federal one. The court in Davidson did briefly bring up Minnesota history regarding obscenity, but the two sides had different interpretations about a past law that sought to keep obscene material from children and prevent broad distribution. The attempt was abandoned by the court, who then just defaulted to following the federal precedent from Roth. Accordingly, Minnesota has never actually ruled on this issue.
However, the state of Oregon has. In State v. Henry, 16 years before Lawrence, Oregon did a deep analysis of the history behind Roth, as well as their own history, and discovered that there was not sufficient evidence that obscenity was intended to be excluded from free speech protections.
Therefore, ever since 1987, Oregon has been the only state in the nation to provide their residents with free speech protections that are logically compatible with the plain language of the document.
Because I am not a historian, I cannot properly evaluate such claims either way. But the fact that Oregon could not find evidence of this, combined with Minnesota's strange reluctance to approach the issue, is certainly suspicious. If the state supreme court is going to claim these special excluded categories of speech, the people of Minnesota deserve compelling evidence that this was, in fact, intended.
Lawrence Strikes Back
If Minnesota wants to continue citing federal precedent as its official reason why it still follows Roth without critical examination, then I contend that this practice is inconsistent with Lawrence.
Lawrence, which overruled Bowers v. Hardwick, says that Justice Stevens' analysis in his dissent from Bowers should control:
"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons."
The principle that the governing majority may not cite a tradition of considering a practice immoral in order to justify a law prohibiting it defeats the justification that Minnesota has previously given for denying free speech protections to obscene speech between legally consenting parties.
Furthermore, the enjoyment of a person's own physiological capability for sexual arousal is surely well within the scope of "liberty" that we believe in as Minnesotans. It follows that to deny a particular type of speech the protections guaranteed by Article 1 Section 3 of the Minnesota constitution simply because it has a tendency to effectuate this physiological response is not a valid interest of the state. This defeats the first prong of the Miller test.
The second prong is defeated by the counter speech doctrine, that even offensive or harmful speech is nonetheless protected, provided that there still be some opportunity for additional dialogue between the speech and the violence it may incite. If a particular piece of obscenity offends someone, they have every right to criticize it in an attempt to convince others to join them in their disapproval. But they have no right to enforce silence on the speaker.
The third prong was added to the obscenity definition in order to avoid works with serious literary, artistic, political, or scientific value from being deemed obscene. The sheer fact of speech lacking any such value, or lacking a sufficient amount of such a value, is not considered a legitimate reason to deny that speech protection.
In Winters v. New York for example, regarding magazines principally made up of news or stories of criminal deeds of bloodshed or lust, it was said:
"We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature."
Although the combination of being offensive and lacking value has in the past been used as such a justification, like for for profanity and blasphemy (which Roth mentions), this concept has larely been discredited under modern precedent. "Fuck the draft" did not need to prove that it had sufficient political value before being considered protected in Cohen v. California:
"To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why "[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons," Winters v. New York"
Likewise, obscenity is also a necessary side effect of a society that values and holds sacred the individual's right to "life, liberty, and the pursuit of happiness".
Not Useless
The obscene material in Davidson would not be considered obscene today, but merely pornographic.
At trial, a psychologist testified that in her opinion the materials "depicted normal sexual conduct between consenting adults, which was not shameful or degrading. She stated her opinion that healthy sex encompasses any mutually enjoyable act between consenting adults."
A mainsteam video rental store manager also testified that "in the previous three years the store had 3,000 to 5,000 members, from all walks of life, and accounts with area schools. She testified that half of all rentals were from the adult section."
Obscene material may be useless specifically to those who have no interest in such material, but there is overwhelming evidence that such material has value to those who take an interest in it, which constitutes a large portion of society.
Whether these people "ought to" value such material is not a matter for the state to determine. These people constitute a large portion of society, and they value obscene material, even enough to pay for it. It necessarily follows that such material has value to society. This defeats the claim that obscenity is "utterly without redeeming social importance".
The people of Minnesota have the right to "pursue happiness" in whatever way they choose to, so long as they follow the laws and don't harm others in the process.
Put It Together
Roth declared obscenity to be utterly unprotected speech, but then Stanley clarified both that:
"the statement…[in Roth] concerning the rejection of obscenity must be interpreted in the light of the widespread distribution of the material in Roth"
as well as that mere possession of obscenity is protected.
Lawrence then overturns the validity of using majority rule regarding traditions about immorality as a valid basis of state action, which then restricts parts of the ruling in Roth that relied on such justifications. All of this leaves in tact the state's ability to regulate obscenity for the remaining valid purposes, such as preventing unwilling public exposure.
I would therefore ask the courts to find that obscenity is protected speech under the Minnesota constitution, as is adult content more generally, for the principled reasons I have presented here.