Monday, November 18, 2024

Pornography, obscenity, and the First Amendment

 How should the Constitution be interpreted concerning obscenity and pornography?
    
 Is pornography a social problem or is it just a matter of taste?
    
 Should all forms of expression be protected absolutely, in which case we would rely solely on the market to decide which books and movies are published and which are not?    

Should we temper a strong commitment to freedom of expression with a small area of permissible regulation (i.e. should we allow the worst forms of hard core pornography to be regulated while protecting everything else)?
    
 Or should we allow government a lot of room to protect us against cultural pollution?  Central meaning of First Amendment seems far removed from internet porn. Moreover, almost everyone is concerned about children and the fact that they are a couple of clicks on their phones away from unthinkably evil videos and images.

Also consider Prof. Catherine MacKinnon's law review article on Pornography as Trafficking, 26 Michigan Journal of International Law 993 (2005):

In material reality, pornography is one way women and children are trafficked for sex. To make visual pornography, the bulk of the industry's products, real women and children, and some men, are rented out for use in commercial sex acts. In the resulting materials, these people are then conveyed and sold for a buyer's sexual use. Obscenity laws, the traditional legal approach to the problem, do not care about these realities at all. The morality of what is said and shown remains their focus and concern. The injuries inflicted on real people to make the materials, or because they are used, are irrelevant to what is illegal about obscenity. Accordingly, as the trafficking constituted by the exhibition, distribution,  sale, and purchase of materials that do these harms is ignored.

Can the government regulate pornography?  Is it possible to distinguish between harmful movies and books and movies and books that may deal with sexual themes but which are nevertheless artistically worthwhile? And how can we enforce laws against the ubiquitous existence of internet pornography on the web? As Professor Stone concludes in his article on law and obscenity:

Perhaps ironically, we are where we are today not because citizens intentionally voted to make the most extreme forms of sexual material legal, not because judges intentionally held that the Constitution should protect the most extreme forms of such material, but because technology overwhelmed the capacity of the law to constrain the availability of such material. The challenge for the future is to make the best of it.
Should we shrug our shoulders and try to "make the best of" something so destructive as harmful? Or is there a way to at least protect children and victims of sex trafficking from harm?


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