The State should not be regulating obscenity.
In general, the State should not be regulating speech.
That is, after all, one of the main points of the 1st Amendment:
Congress shall make no law … abridging the freedom of speech …
(Irrelevant clauses removed for clarity.)
That’s a very clear prohibition; the strongest legal prohibition of State interference in free speech in the world, actually. It’s one of the points where the United States has always been (and still is) the greatest.
It’s arguably too strong, really, because there are a few categories of speech that actually do need to be forbidden:
- false factual claims, in some contexts, can be fraud or defamation
OK, so that was a short list.
So, let’s clarify the 1st Amendment to read:
Congress shall make no law … abridging the freedom of speech … for any reason other than fraud or defamation
That still doesn’t include obscenity.
Because obscenity is a cultural attribute of the listener.
It’s not an attribute of the speech itself: the listener’s cultural attitudes are what makes some speech obscene and other not.
So regulating speech by gauging its obscenity gives the regulator free reign to allow or forbid any speech.
It cannot be made into an objective standard. Which, amusingly, the U.S. courts have recognized with constant comments about “I know it when I see it” without actually admitting the fundamental problem that that points to.
You cannot regulate obscenity fairly, because you cannot create a fair, universal standard to measure it.
Each viewer will have their own, personal, view of how obscene any thing is.
The obscenity is not in the speech itself; it is, as with beauty, entirely in the eye of the beholder.
