Obscenity and speech

Abstract

In this paper I will advance a simple argument against anti-obscenity legislation. This argument has both moral and legal force, as it appeals to the moral basis underlying the First Amendment protection of speech. In addition to defending this argument, I am concerned to show how it (1) renders moot a number of considerations commonly urged in favor of antiobscenity legislation, and (2) is more fundamental than most arguments typically invoked against anti-obscenity laws. It is appropriate to begin a critical discussion of anti-obscenity legislation with an examination of Miller v. California and its companions. 1 These cases continue to represent the latest major effort of the Supreme Court to deal with what it has called the "intractable obscenity problem. ''2 An analysis of Miller requires a critique of the reasoning of the Court in cases upon which Miller expressly relies. In Miller, it was announced that "since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity decisions." 3 The first of these cases is Roth v. U.S. 4 The holding in Roth, explicitly reaffirmed in Miller, is that obscene materials are not speech protected by the First Amendment. In reaching this conclusion, the Court relied heavily upon the following language from Chaplinsky v. New Hampshire, 5 quoted with approval in Miller: