Anti-Porn Law Is Unconstitutional

January 23, 2005 11:07 AM

Anti-Porn Law Is Unconstitutional A federal court in U.S. v. Extreme Associates has struck down the federal anti-obscenity law. In this case, the government argued that "entertaining lewd and lustful thoughts stimulated by viewing material that appeals to one's purient interests . . . . is immoral conduct even when done by consenting adults in private." The court, however, wanted no part of this moralizing, as it declared "upholding the public sense of morality is not even a legitimate state interest."
posted by expriest (36 comments total)

That's good to see. Any predictions on how the case would go if appealed to and heard by the Supreme Court?
posted by Coherence Panda at 11:21 AM on January 23, 2005

Many of the wrongs in history have come down to the dominant force trying to "uphold the public sense of morality". Good to see the courts not falling for it.
posted by John Kenneth Fisher at 11:24 AM on January 23, 2005

Good ruling.
But now I have to put up with hearing about those evil "activist judges" for the next week or so.
posted by Thorzdad at 11:34 AM on January 23, 2005

Tom Lehrer will be pleased.
posted by Faint of Butt at 11:34 AM on January 23, 2005

Now if only the other two branches thought that way.
posted by absalom at 11:36 AM on January 23, 2005

Expect the Third Circuit to overturn it.
posted by trharlan at 11:53 AM on January 23, 2005

Yes, I know the Volokh link was also referenced by one of the posts in the FPP.
posted by trharlan at 11:55 AM on January 23, 2005

While I agree with the principle behind the ruling, these particular pornographers were making some pretty sociopathic material. Frontline did an overview of American porn a few years back and they mentioned them in regards to the gonzo (read=violent) direction that porn might be going.
posted by ishmael at 12:34 PM on January 23, 2005

While I agree with the principle behind the ruling, these particular pornographers were making some pretty sociopathic material.

Are you just saying this as a "for your information" tidbit, or are you saying "i agree with the ruling, but actually i wish it wasn't this way for these particular guys" ?

I'm confused. I didn't know you could pick and choose.
posted by odinsdream at 1:11 PM on January 23, 2005

they mentioned them in regards to the gonzo (read=violent) direction that porn might be going.

"gonzo" does not necessarily mean violent. It just means.. uh... just the action, without any kind of love story or similar
posted by slater at 1:23 PM on January 23, 2005

As Pierre Trudeau might have said, "The state has no place in the plain brown envelopes of the nation."
posted by stonerose at 1:26 PM on January 23, 2005

I'm confused. I didn't know you could pick and choose.

In all fairness, you can pick and choose, as long as you stand up for what's right.

"I disapprove of what you say, but I will defend to the death your right to say it." --Evelyn Beatrice Hall
posted by Faint of Butt at 1:29 PM on January 23, 2005

Faint, I guess I should have been clearer. It sounded like ishmael was saying:

"I agree with the court's ruling that it is unconstitutional to legislate morality, except this stuff really should be legislated, because of how immoral it is."

If you're saying you agree with not legislating morality, well, that goes for all kinds of stuff, not just the things you didn't care about anyway.
posted by odinsdream at 1:44 PM on January 23, 2005

Having spent my weekend reading Enlightenment thinkers, I have to agree with stonerose and odinsdream. If you are going to agree that the state cannot legislate morality, you must be willing to accept that things which you find immoral must remain legal for others to indulge in.

"Secondly, the principle requires liberty of tastes and pursuits, of framing the plan of our life to suit our own character, of doing as we like, subject to such consequences as may follow, without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong." - John Stuart Mill, On Liberty, when discussing human freedoms.
posted by dazedandconfused at 1:55 PM on January 23, 2005

... old Europe seems to be more relaxed about sex?! This is one of these typical tales from America that make Europeans raise an eyebrow and say 'aha, what a strange story' ...
posted by homodigitalis at 2:39 PM on January 23, 2005

Homodigitalis: At the very least, we can say that old Europe seems to exert less pressures on television stations to remove explicit nudity and sexuality from public television (the proof is on the screen). Whether people looking at it think "tsk tsk" is another issue, but the fact that it doesn't motivate folks to letter writing campaigns to remove it indicates either more relaxation about sex or less relaxation about sex in conjunction with more apathy about television.
posted by Bugbread at 3:12 PM on January 23, 2005

ismael: "gonzo (read=violent)"

Negative. Current adult entertainment lexicon would equate gonzo material as more akin to 'nasty' or 'overt', not polished, a-la Hunter S. Thompson's art of gonzo journalism.

I have to confess a big sigh of relief upon hearing this development. To have the freedom to enjoy yourself means also having the freedom to be irked by others enjoying their selves. I am scared by anything that tries to prescribe how others enjoy themselves usual disclaimer of 'within the confines of not physically harming others'

homodigitalis, not sure what Europe you're living in, if you think it's a fraction as bad (regarding censorship, or social attitudes towards sex, particularly youth & sex) as America.

"Thou shalt not alter the consciousness of thy fellow man" - Leary
posted by cosmonik at 3:39 PM on January 23, 2005

To be clear, I support the ruling. Just like I support the ACLU whether or not they defend the Klu Klux Klan. And I meant to paraphrase the Frontline episode on what constitutes "gonzo".

Free speech should be defended, absolutely. I have no problem with explicit nudity and sexuality in media. However, I am uncomfortable with these particular people because their movies focus so much on rape and murder, simulated or no.
posted by ishmael at 3:48 PM on January 23, 2005

I don't see any problem with anyone being uncomfortable with it - in fact I suspect it's a healthy reaction to this kind of material. But there are those who find it appealling, just like some people pay money to watch films of people simulating killing each other in every big action film.

Is negating one's discomfort with people's enjoyment of said material worth destroying free speech? I, personally, don't think so.
posted by cosmonik at 4:11 PM on January 23, 2005

"upholding the public sense of morality is not even a legitimate state interest"

Surely a public sense of morality is the very definition of the law, hence a very legitimate state interest.

What he should have said was that the right to free speech rates an eleven on the social morality scale, and thus trumps whatever dirty bits are being published.
posted by IndigoJones at 6:48 PM on January 23, 2005

IJ: It's up for debate as to whether or not the law has any relation to morality whatsoever. (note: a seperate matter from whether it should or not) If it does, it's still hard to say what that relation is or should be.

I haven't read the decision, so I can't really comment on the judge's ruling, but I would imagine that The Law was overturned because its sole purpose was to uphold the public sense of morality, and that that alone is not sufficient for a law which reaches out of the public sphere and into the private. Preventing the sales of pornography in public: OK. Preventing the sales of pornography everywhere: not.

I don't know if I'd agree, as this judge does, as to whether upholding the public sense of morality is ever a state interest (this judge thinks it is not). It's a very strong statement, though one which I believe is generally true. Yet, there are exceptions; we pass and accept laws which attempt to enforce "moral" conduct in public places. No wandering the streets naked, for example, seems a reasonable law to enforce.
posted by mek at 8:44 PM on January 23, 2005

Indigo I'm going to have to seriously disagree with you, on the definition of law. Laws in the U.S. are not and should not be based on any morality. Mainly because morality is arbitrary. Law is based on the protection of individual rights.

i.e. murder is not illegal because it is not moral. But because your right to kill violates another basic right to life. (The three base rights stated as life, liberty, and the pursuit of happiness)
Theft is not illegal because it is immoral, it is illegal because it violates an individuals right to ownership.
posted by MrBobaFett at 10:22 PM on January 23, 2005

Perhaps you can resolve this then, Mr B.Fett:

Isn't the judgement that the violation of basic rights is a bad thing a moral judgement? Aren't the determination of what those basic rights are also decided on a moral basis?
posted by catachresoid at 10:41 PM on January 23, 2005

MrBobaFett: True, but the foundation those rights exist on is morality, I think. Rights are exactly as arbitrary as morality. Plus, I'd say it's a bit of a stretch to assign most laws to rights. Murder, fine, but what about minor assault laws? A single punch to the jaw kills no-one, so you can't really say "right to safety", but punching a random person is illegal. You can say that laws against theft come from the right to property, but what about alimony payments increasing due to infidelity.

Sure, I guess you could really strain and heave to link every crime with a right being infringed, but I certainly don't believe that the laws are based on these tenuous and spidery links to rights.

But I digress. The concept of "rights" itself is incredibly rooted in morality, so saying that laws are based on rights is de facto saying that they're based on morality.
posted by Bugbread at 2:26 AM on January 24, 2005

Morals include a judgement of good or bad. Rights are not concerned with good or bad. Is it "good" to smoke cigarettes? No. But you certainly have the right to do it. Same logic applies when I say marijuana should be decriminalized. It may not be healthy to smoke, but you are not hurting anyone else by doing so.

And I would not say rights are arbitrary. Everyone has equal right, everyone has the right to life, liberty, and the pursuit of happiness.
I guess I forgot to mention the other side of the coin, with rights come responsibilities.
posted by MrBobaFett at 5:49 AM on January 24, 2005

bugbread, it's not an ideal system we're discussing - women, for example, have historically not had the same basic rights as men, but we can all agree (i'd hope) that this is not an ideal situation, and could most definitely be improved.

Rights are not moral obligations, though, because we don't assign rights based on how moral someone is. Everyone has the same rights (in theory) whether or not they lead a moral life. That's the foundation of a free society. The laws, as has already been mentioned, created by a free society should not lessen the freedoms that we enjoy, but should instead seek to protect them.

It is, of course, no surprise that our system of laws has not always focused on this ideal. Myopic individuals have hijacked the legislative process in the past, and continue to do so, for personal gain, or even in what they themselves see as the preservation of illusory rights (like the right to never be confronted with homosexuality).

Just because we have laws that are not based on a foundation of protecting individual human rights is not evidence that Law Itself is based on preserving an ever-shifting definition of morality. Instead, it's evidence that we have a less-than-perfect legislative process.
posted by odinsdream at 7:52 AM on January 24, 2005

To play the devil's advocate for a moment:

Those who wish to limit pornography legally have a case, I think. Their argument, if well formulated, should be: pornography, in so far as it exists in society at all, is doing damage to all people in society. Something ceases to become private when it can be bought and sold. Therefore, pornography should be at least marginally limited.
posted by koeselitz at 8:26 AM on January 24, 2005

Just because it doesn't kill me doesn't mean I'm still "safe". You could break my kneecaps and I'd survive.

On a similar note -- people have paid "protection" money to not have their kneecaps broken. There's an inherent linkage between protection and safety, right?
posted by effugas at 8:42 AM on January 24, 2005

That's such a horrible argument, koeselitz. Here's the part where it falls apart:

... in so far as it exists in society at all [it does exist, this is not disputed. pornography Is.], is doing damage to all people in society. [evidence? clinical studies? that's a giant leap you just made.]

Pornography isn't something new. It's been around for... as long as society has existed.

Here's an interesting story about the effect of "illicit" material on children, courtesy of This American Life.
posted by odinsdream at 8:48 AM on January 24, 2005

Therefore, pornography should be at least marginally limited.

It already is. Last I checked the letter of the law says that you must be over 18 to purchase such materials. There are regulations that internet pornographers are supposed to follow to make it difficult for under age people to gain access to their sites.

And there is the ever more important limit of parents. If you don't want your kids seeing it, don't let them. If you don't want to see it, don't look. But don't you tell other adults what they can and can not watch.
posted by MrBobaFett at 9:50 AM on January 24, 2005

mek: No wandering the streets naked, for example, seems a reasonable law to enforce.

Why? I certainly don't agree and much of the world disagrees in varying degrees of acceptance. I really don't understand the need some people have to be "protected" from seeing bits of the body that we all have in one of two versions. One of the great harms foisted on humanity by religious missionaries is convincing people who require no protection from the elements that they must wear clothing to prevent others from viewing proscribed ares of the their bodies.

I think current NA body taboos just as silly as the taboo that existed 150 years ago that prohibited women from showing their ankle.

All these antiporn laws are plain fooolish in my mind as long as we are not going after hollywood for the R rated action flicks they crank out. If you want to outlaw imagined portrayals of nastiness it would seem foolish to not start with murder.
posted by Mitheral at 10:02 AM on January 24, 2005

odinsdream: Pornography, strictly defined, is new. There's never been an entire economy based solely upon the production and sale of sexual items. There have been sexual things in public before, but they were public things, and they were created by artists, writers, priests, and pranksters of all stripes to be shared by all. Pornography is wholly different. It is a dead medium, bought and sold merely for the purpose of viewing while masturbating. It isn't wrong to look at something while masturbating; but pornography encourages us to passively and continuously consume images where before we were forced to interact with humans to have real sexual encounters. It makes us machines because it makes us have sex with machines. This is why pornography is never as satisfying as the great erotic works of the ages; those works were meditations on a connection between people. It's healthy for society to express its sexuality; it's a debasement for that expression to be bought and sold.

As a result, the pornography of today deadens us to erotic stimulation. It especially weakens young people, I think, because instead of seeing their bodies glorified, they see them commodified. If fewer people used pornography, and more people had sex with each other, the world would be a lot less lonely, and peoples' souls would be healthier, I think.

What makes pornography wrong, I think, is finally the same thing that makes prostitution wrong. It isn't the fact of having sex with someone you don't really know, which is not always bad, and which has been the basis of some very healthy societies. It's the fact of paying for it, which cheapens it and tends to mold it toward marketability rather than real interaction.

But all of this may be pretty off-topic, and I'm sorry if it is. I only wish that someone could work on our perceptions of sex, which are a little weird, I think.

On preview: Mitheral, the depiction of sex is more important than the depiction of murder in the media because sex is something most of us are likely to do. But you're probably right: the government should be limiting that, too.
posted by koeselitz at 11:22 AM on January 24, 2005

Whoa koeselitz, I wasn't campaigning to end depictions of violence I was just saying it seems foolish to be going after pornography which is tightly regulated in most retail markets when bloodfests like Kill Bill, LOTR, or Pulp Fiction are available to anyone at the local multiplex or even on broadcast TV. I'd go for the low hanging fruit if I was going after fake nastiness; which I'm not.
posted by Mitheral at 2:40 PM on January 24, 2005

Mr Fett, greetings

I fear we still disagree, then.

"Rights are not concerned with good or bad. Is it "good" to smoke cigarettes? No. But you certainly have the right to do it."

Not where I work, you don't.

"Morality is arbitrary. Law is based on the protection of individual rights."

The notion of individual rights is a pretty recent phenom, and even now not universally applied. Plenty of legal systems would have found it, still do find it, odd, arbitrary, anti-social, even immoral. Nor can any system be based on such a simple premise. As you say, with rights come responsibilities, but where people cannot be trusted to take responsibility, the law steps in, good and hard.

Let's get back to the porn issue. We have restrictions on the stuff- age requirements, zoning restrictions. They interfere with the rights of prurient sixteen year olds and dirty old men without cars. What are these laws if not based on morality?

U.S. law frequently disfavors individual rights for the good of society. It is sometimes a practical matter (cigarettes allegedly cause second hand cancer- though the antitobacconists seem more morally fervid than concerned with individual rights); other times, as with marijuana- not.

As to morality being arbitrary. Hm. Moralists don't always make their own best case (tend to get sidetracked with God's will or their own narrow preferences) but few moral positions cannot be bolstered well or poorly with some kind of logic. So also law. My argument was that the judge was forgetting what fuels the engines with which he tinkers.

And is not the entire notion of individual rights based on a moral POV?

Of course, you have the right to disagree....

Side note re: pornography- as a social matter, everything changed with the invention of photography. Once you bring in real people....
posted by IndigoJones at 5:32 PM on January 24, 2005

Re: Right to smoke

Not where I work, you don't.

You do still have the right to smoke. The individual buildings rules are not federal laws. i.e. a bar could say no smoking, it's their private establishment they can require you to wear a jacket, but a federal law can't.

Of course you may be talking about a public building, in which case the law is based on individual rights, an individuals right to NOT smoke. Second hand smoke foists nicotine and other chemicals into their lungs against their will.

The notion of individual rights is a pretty recent phenom

That hardly invalidates it. Individual rights, aka civil rights, aka human rights, are imperative to creating an amoral religion neutral construct of laws. People should have morals, a federal gov't should not.

U.S. law frequently disfavors individual rights for the good of society.

You mean the needs of the many out weigh the needs of the few? That is still looking at individual rights. If the individuals action (the smoker) violates the individual rights of those others, then it is appropriate to restrict that right.

as with marijuana- not.

Right, and that's why it should be decriminalized. Just like alcohol prohibition.

Moralists

Isn't that anyone who follows a system of morals? Which is.. well.. pretty much everyone. I have morals, I just don't think my morals should be codified into federal law to force others to follow my morals. It's fine to be "moral" or to teach morals, but do not tell me I must follow your morals.

And is not the entire notion of individual rights based on a moral POV?

Actually it's based on an amoral POV. Not discerning right or wrong, good or bad. A very important idea in a country that supposedly supports freedom of religion.
posted by MrBobaFett at 7:45 PM on January 24, 2005

So do girls totally like dig it with other girls or what?
posted by nanojath at 9:26 PM on February 22, 2005