Skip to main content

Obscenity laws are stupid and unconstitutional

I stole that title from a line in this Adam Serwer post discussing the Supreme Court's ruling regarding whether video games are protected by the first amendment. Here is Serwer with a run down:

Whether he enjoyed them or not, the implication of Scalia's majority ruling in Schwarzenegger v. Entertainment Merchants Association is that he would have thought of them as being protected by the First Amendment. The EMA was dealt a substantial assist by the American cultural distaste for explicit sexuality as opposed to explicit violence, a preference enshrined in obscenity law. California tried to argue that the games in question were obscene and thus subject to regulation, but Scalia noted that "the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of “sexual conduct[.]" According to the majority opinion, the First Amendment allows the government to regulate depictions of sexytime, not the sublime feeling of WTFPwning some poor n00b over Xbox Live.

Justice Stephen Breyer, in a separate dissent, expresses frustration at this double standard, asking "What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?" Answer: The First Amendment as read by gun toting prudes. Breyer has the right argument, but in arguing the California law should have been upheld, the wrong conclusion. The right conclusion is that obscenity laws are stupid and unconstitutional.

I actually wrote a paper on obscenity in my constitutional law class in grad school. I argued essentially the same thing that Serwer does, which is that the court shouldn't distinguish between depictions of sex being obscene compared to things like violence as not being obscene.

What sounds worse for someone, even a kid, to see; a raunchy sex scene or a person being killed? Aside from what's worse, when would a kid ever see those things? In a free society why shouldn't an adult be able to watch the kind of stuff that is currently considered obscene? Its not like the stuff is broadcast publicly during peak child tv watching hours. Yet because our country is so sexually repressed and as Serwer points out, so obsessed with guns, we deem things unacceptable instead of letting adults decide on their own what they want to consume all the while letting people use guns to kill each other and then showing it on the news.