Obscenity Properties

In the Minnesota case State v. Davidson the jury was instructed that "patently offensive" meant that the material goes beyond the customary limits of candor. That was back in 1992. Today there is a much wider variety of adult content available online than what Davidson had in their shop. Even though much of it goes clearly beyond the customary limits of candor, there aren't many obscenity convictions today.

What I conclude from this is that obscenity either refers to almost all pornographic content, or almost none of it. A definition that used to be synonymous with pornography seems to now only refer to the most extreme, and perhaps violent subsection of it. What else would "patently offensive" mean in the present day?

There is an inherent vagueness in trying to guess what the "average person" thinks is "patently offensive". Even "prurient interest" can vary in meaning between a merely erotic interest, or a morbid and shameful one.

A rule that restricts stuff the average person finds offensive might be a good way to moderate a shared community space, but this rule of thumb breaks down and becomes oppressive when it restricts a person's ability to speak under any circumstances.

Applying the opinion of the average Joe to dictate what people may legally say to each other over a private phone conversation, for example, is grossly unfair. It would immediately block any fringe or minority religious groups from discussing their views or beliefs. It would prevent any discussion of controversial views, even when the purpose is to debunk them. It creates a fundamentally different speech environment to have to constantly wonder: What would Joe think?

The third part of the definition lists only literary, artistic, political, and scientific value. It fails to mention religious, philosophical, educational, utilitarian, or entertainment value.

It's all well and good that the courts have been careful to protect (most of) the most essential types of speech, but surely there's more to life than just political discussions. A quote from Brown, et al. v. Entertainment Merchants Assn. et al.:

"The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try."

Unfortunately, the supreme court has been rather confident that in the case of obscenity, they have succeeded in making this distinction. But why should it matter? Not everything we watch or read must have some lofty value. The mind grows weary from thinking, and needs a break now and then. Mindless entertainment has a social value too.

Since Ginsberg v. New York, the obscenity definition has been able to be applied differently to different age categories. In practical reality, it has only been applied differently to the specific category of ages 0 up until just before age 18.

This is actually rather peculiar, since the "average person" in that age group is a mere nine years old. So it stands to reason that something will be "obscene for minors" if the average adult thinks it's offensive to show it to a nine year old.

This is terrible news for teenagers whose minds are significantly different than those of pre-pubescent children. Although teens theoretically have free speech rights, content that is not actually obscene from their perspective may still yet be obscene to a nine year old.

What that means is that a law requiring a refusal to sell a certain "obscene for minors" magazine to any minor necessarily violates the free speech rights of teenagers, since the content of the magazine is not being reevaluated based on the teen's age for possible acceptance.

It's pretty clear to me that lumping teens in with the little kids in one broad "minors" category, even though Ginsberg should allow smaller age brackets, is not at all respectful of the constitutional rights of teenagers.

There has been a trend in the thinking on this topic that the State should have enough power so as to absolutely prevent any and all distribution towards the unwilling, such as to children. This is an authoritarian concept that goes against the spirit of liberty that America was founded on.

Consider the constitutional guarantees against search and seizure. One could argue that the state should have the power to prevent any and all crime before it occurs, which necessarily includes the power to search anyone at any time for no particular reason.

Such authoritarian urges are precisely what the bill of rights is supposed to protect against. In a free society, the cops will never be able to stop all crime, and speech laws will never be able to prevent all children from obtaining adult material.

If you have been under the assumption that such total control is a valid and desirable goal, I invite you to reevaluate your thinking, substituting other fundamental rights in place of stopping kids from accessing "harmful to minors" speech.