'God Hates Fags' Is Not the Same as 'Fuck the Draft': Introducing the Non-Sexual Obscenity Doctrine

Abstract

In Miller v. California, the United States Supreme Court erred by limiting the definition of obscenity to speech appealing to the prurient (sexual) interest. Speech having no relationship to sex can be so vile that it lacks social, literary, or artistic value, contributes nothing to public debate, and causes severe emotional distress. It is called non-sexual obscenity, and it may, but does not always, intimidate others, incite imminent violence, defame, or have a sexual component. In each case, it traumatizes, humiliates, and shocks its audience. Neither the original purpose nor the plain text of the First Amendment shields this speech from restrictions of reasonable time, place, and manner. Non-sexual obscenity is a narrow class of speech that: (1) consists of low-value speech (and expressive conduct); (2) intentionally targets private and vulnerable individuals; (3) renders these individuals a quasi-captive audience; (4) occurs in places where the speaker’s message can be disseminated in an alternative public forum that provides equivalent, if not greater, benefits than those available in the speaker’s intended forum; and (5) results in severe emotional distress. This definition does not discriminate on the basis of viewpoint because speech cannot be deemed non-sexually obscene simply because it lacks social, literary, or artistic value. Examples of non-sexual obscenity include signs stating “God Hates Fags” and “Thank God for 9/11” on display outside of a private funeral, photographs of dismembered fetuses confronting women entering an abortion clinic, and a Nazi Swastika flag outside of a synagogue. Limiting obscenity to speech that appeals to the prurient interest (which is obscene) ensures that a significant portion of truly “obscene” material will never be restricted. In short, we not only know obscenity when we see it. We know where we see it as well.