1. The Obscenity Exception  Roth vs. U. S. (1956)  Miller vs. U. S. (!973)  Paris Adult Theatre (1973)

2. Roth vs. U. S. (1956) Justice Brennan  Historical argument: at time of passage of First Amendment (1793), 13 of 14 states provided for criminal libel, all states made profanity or blasphemy or both a crime.  Argument from the rationale of Free Speech (a variation of Meiklejohn's democracy argument)

3. Obscenity doesn’t fit the rationale for Free Speech  : "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." This covers only information and education "with respect to the significant issues of the times."

4. Obscenity ≠ sexually explicit material  Obscene material deals with sex in a way calculated to appeal to prurient interest.  Sex depicted in art, literature and scientific works is protected.  Since obscene speech is not covered by the First Amendment, there is no need to establish a "clear and present danger" (Schenck v. U.S. 249 U. S. 47).

5. Community standard test  "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."  The obscenity standard is admittedly vague: does it violate due process?

6. Obscenity and Vagueness  There are "reasonably ascertainable standards of guilt."  The boundaries are "sufficiently distinct for judges and juries to fairly administer the law."

7. Miller v. California (1973)  3 part test: –(1) Community standard test: "whether to the average person,..." –(2) The material depicts, in a patently offensive way, sexual acts specifically enumerated in the relevant state or federal law. –(3) The material, taken as a whole, must lack serious literary, artistic, political or scientific value.

8. Paris Adult Theatre.(1973) Burger’s Decision  Since obscenity is not protected by the First Amendment, the restriction must pass only minimal scrutiny under the 14th Amendment: the law must have some "rational basis."  There are "arguable correlations" between obscene material and crime, and the state has the right to protect the moral "tone of society". Right to a "decent society".

9. Burger, cont.  No constitutional right to privacy is involved, because the movies were shown in a place of public accommodation.  First Amendment not involved, because there was no communication of ideas involved, and no attempt to control thoughts or minds.

10. Brennan’s Dissent  Repudiates his own opinion in Roth (1956),  Vagueness cannot be reduced to an acceptable level.  No "sensitive tools" exist to separate obscenity from constitutionally protected speech.

11. Is pornography speech at all?  Is it rather a form of sexual gratification, essentially equivalent to prostitution?  It provides physical sensations, not ideas, concepts.

12. Do any of the rationales for the First Amendment protect pornography?  Marketplace of ideas?  Viewpoint neutrality?  Self-government?  Individual rational autonomy?

13. Discussion  To restrict speech, press, must the State prove the existence of harm? By what standard? Does the effect on the “moral climate” count as a harm? Is Burger right in excluding all public entertainment from the right to privacy?

14. Feminist Critique of Pornography  Catharine MacKinnon and the Indianopolis/Minneapolis ordinance.  Judge Easterbrook's opinion in American Booksellers.  R. Dworkin's Equality-Based Critique of MacKinnon  Feminist Rebuttals of Easterbrook, Dworkin

15. MacKinnon and the Indianapolis ordinance  Pornography = "graphic sexually explicit subordination of women through pictures or words", a form of sexual discrimination. Sexually explicit erotica that treat women with respect, in a context of equality, are OK.  Pornography is a political act, expressing an ideology, whereby social inequalities are constructed.

16. MacKinnon’s arguments  MacKinnon relies on anecdotal evidence of connection to violence, scientific studies connecting pornography to the reinforcement of sexist attitudes.  Pornography does not contribute to the marketplace of ideas, because it effectively silences women, contributing to a culture in which women's speech is disvalued.

17. Discussion  Does MacKinnon’s position amount simply to a claim that the State may restrict speech to prevent harm to others? Any harm? If not, what other conditions would be required, to meet MacKinnon’s standards for State restriction?  What difference, if any, is there between MacKinnon’s rationale and Burger’s?

18. Easterbrook's opinion in American Booksellers  Relies on neutrality theory.  The Indianapolis statute is not viewpoint-neutral: erotica expressing approved views is legal, that expresses disapproved views is not.

19. Easterbrook, cont.  Evidence of harm (effects on attitudes and behavior) are irrelevant, since they only confirm the power of pornography as speech. (Compare Scanlon's theory).  Rejects the "unanswerable speech" argument: a repudiation of the marketplace of ideas rationale?

20. Dworkin's Critique of MacKinnon  If accepted, the feminist theory would justify banning all speech offensive to minorities, such as the Skokie Nazi march.  Taken to its logical conclusion, it would justify taking away from racists, sexists the right to vote or run for office.  How would MacKinnon respond?

21. Dworkin, cont.  Central meaning of First Amendment: everyone must have the equal opportunity to shape the political and moral environment. [This would apply to more than speech -- actions can also shape that environment.]  In the long run, feminism benefits from this principle of equality. For example, in Canada some feminist books have been banned as practicing "sex discrimination".

22. Feminist Rebuttals  Pornography is analogous to segregation.  Just as racial equality justified some limitations on freedom of association & trade, so sexual equality justifies some restriction on expression.  Both segregation and pornography operate on a symbolic level, yet they effect subordination.

23. Pornography vs. discussion, debate  There is a distinction between pornography and the promotion of sexist ideas through discussion and debate.  Pornography manipulates its consumers psychologically, conditioning them by linking sexual release and the abuse of women.

24. Implications of Feminist Theory  Would feminist theory justify further restrictions on speech, such as racist speech (banned by UK race relations law)?  Overturn Collins v. Smith (Nazi march in Skokie)?