Obscenity: The Lingering Uncertainty
Introduction
While Anglo-American law sports a variety of unwieldy concepts and doctrinal formulations, few have emerged with greater ambiguity, both in theory and application, than obscenity. This comes, however, as no shock; the nature of the problem may be such that its ultimate resolution is for the sociologist and not for the judge. Courts traditionally have realized, at least subliminally, the difficulty of identifying obscenity. However, they have almost categorically felt constrained to pass judgment on the issue.
Because obscenity is an issue for which no amount of judicial expertise will serve the courts well, they have yet to crystallize a uniform legal standard. To this end, courts have proposed various tests to demonstrate that obscenity either does or does not exist in a given instance. Unhappily, from this melange of tests no single statement of obscenity can be gleaned. As a result, the defendant ultimately falls prey to the emotional anxiety and moral indignation experienced by the finder of fact.
The purpose of this Note is to analyze the constitutional tests employed in obscenity litigation since Roth v. United States, examine the rationale behind their use, and evaluate the current relevance of the Roth doctrine.
Suggested Reading
Origins of Obscenity
Overview of the origins of modern obscenity laws.
Free Speech Values, Hardcore Pornography and the First Amendment: A Reply to Professor Koppelman
Responding to Koppelman's critique, Weinstein argues he failed to address whether obscenity doctrine is aligned with larger free speech jurisprudence.
Possessing Pollution
The metaphor of "moral pollution" was used by the Supreme Court to refashion obscenity regulations as public interest regulations.
Democracy, Sex and the First Amendment
Evaluation of arguments addressing whether obscenity doctrine permitting censorship of hardcore pornography violates modern free speech jurisprudence.
Pornography and the First Amendment
Federal and state governments can constitutionally puish the purveyors of obscenity.