The Right Constitutional Approach To The First Amendment's Obscenity Exception Simply Allows Laws Regarding Sexual Or Pornographic Material

The majority of the Supreme Court in Renton v. Playtime Theatres (1986) held that the zoning ordinance of adult theaters at issue were a form of time, place, and manner regulation, not a ban on adult theaters. The Court reasoned that the law was not aimed at the content of the films shown at adult motion picture theaters, "but rather the secondary effects of such theaters on the surrounding community." The fact that there is a "secondary effects" doctrine in free speech jurisprudence allows for zoning ordinances, some of which could essentially ban certain adult establishments if rigorous enough, to be held constitutional. The dissent, however, very credibly argues that such laws specifically and directly target establishments because of their adult content. The majority nonetheless concludes the zoning law should be rendered unconstitutional as a violation of the First Amendment's right to free speech.

My disagreement with the majority stems from the fact that it feels like a decision with the outcome decided first and the rationale in precedent coming after that. In other words, the court’s rationale is the true secondary effect of the preferred outcome. For some reason I have very little doubt that Justice William Rehnquist was completely unsympathetic to the adult theaters specifically because they were adult theaters. It is probably for this reason that he decided to use a doctrine that allows for directly targeting specific establishments while stilling allowing such targeting to be called “content-neutral.” After that it was just a matter of shoehorning the law into the necessary level of judicial scrutiny under the precedent for "content-neutral" regulations of speech as furthering a “substantial government interest” while leaving “alternative avenues of communication.” This case is a prime example of how legal acrobatics through precedent is always an option to reach a desired outcome.

It may sound like I am on the road to applauding the dissent because of my disagreement with the legal contortions the majority decision represents. I, however, disagree with the majority and the dissent. I differ with the dissent because even if this does regulate the content in adult theaters, I do not believe that regulation of sexually explicit material is protected by the First Amendment at all. I discovered that none other than Justice Antonin Scalia had authored very short concurrences in two other similar cases right in line with my own thoughts.

Justice Scalia wrote in his very brief concurrence in City of Los Angeles v. Alameda Books (2002):

[I]n a case such as this our First Amendment traditions make ‘secondary effects’ analysis quite unnecessary. The Constitution does not prevent those communities that wish to do so from regulating, or indeed entirely suppressing, the business of pandering sex.

In City of Littleton v. ZJ Gifts (2004) he briefly concurred:

I do not believe…Z. J. Gifts is engaged in activity protected by the First Amendment. I adhere to the view…[that] the pandering of sex is not protected by the First Amendment. “The Constitution does not require a State or municipality to permit a business that intentionally specializes in, and holds itself forth to the public as specializing in, performance or portrayal of sex acts, sexual organs in a state of arousal, or live human nudity.” This represents the Nation’s long understanding of the First Amendment.

Scalia is right to say that his view “represents the Nation’s long understanding of the First Amendment.” No Supreme Court decision argues that obscenity is protected by the First Amendment. In fact, all the Court's precedent has always explicitly acknowledged such an exception to the First Amendment's guarantee of freedom of speech. In Chaplinsky v. New Hampshire (1942) the Supreme Court wrote that "[t]here are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality" (emphasis added). The Supreme Court rightly stated in Roth v. United States (1957) that ‎"[a]t the time of the adoption of the First Amendment...there is sufficiently contemporaneous evidence to show that obscenity...was outside the protection intended for speech and press. The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people... [I]mplicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance."

What has taken place, however, is essentially defining obscenity into nonexistence by making it cover only the real fringe of sexually explicit material, rendering the rest of sexual or pornographic “indecent” material protected speech and outside the scope of possible regulation. The Supreme Court in its foolhardy central obscenity decision in Miller v. California (1973) rightly noted that "to equate the robust and free exchange of ideas and political debate with commercial exploitation of obscene materials demeans the grand conception of the First Amendment." But the Court went on to rule that in order for something to be obscene "the work, taken as a whole, must lack serious literary, artistic, political, or scientific value." Whether material had these elements so as to be considered obscene and a legitimate target of legal restriction or regulation was now to be decided not by the people's legislators crafting the law or by juries applying it, but by judges as a matter of law. Within no time this meant that the Courts created a doctrine in which all but the absolute fringe of sexually explicit material was to be protected as merely "indecent," but not "obscene," speech under the First Amendment. Justice Scalia has mocked the approach taken by the Supreme Court to obscenity describing it saying that “[t]he line between protected pornography and unprotected obscenity lies between appealing to a good healthy interest in sex and appealing to a depraved interest, whatever that means."

In a debate with another law professor over Constitutional law in November 2005, University of Texas Law Professor Lino Graglia told his opponent that he "says you got to really understand the First Amendment, it's [protecting] an exchange of ideas. That's why pornography is protected, right? I mean, pornography is a masturbatory aid, where's the exchange of ideas?" But that is precisely what has become the law of the land with pornography being protected by the First Amendment.

By looking to the nation’s legal history it becomes clear that it is Justice Scalia who is ultimately correct. University of Montana Law Professor Rob Natelson writes that at the time of the Constitution’s ratification “in England and the states, the law also punished ‘lewdness’ – pornography and associated activities… [F]ederal control of speech was limited to that available under common law. The common law, and therefore Congress within federal enclaves and territories, could punish (1) displays seen as destructive of public morality, such as public nudity and obscene theater productions (2) pornography designed for the corruption of youth, and (3) under the law of libel, obscene writings direct against a particular victim. Jurists divided on whether the common law could punish other pornographic writings” (emphasis added). The leading obscenity decision in early 1800s America was the State case of Commonwealth v. Sharpless where there was no question that “exhibiting an obscene picture” was, to point out the obvious, considered obscene (and remember that when they said “picture” it was 1815 and photography had not even been invented). In the second half of the nineteenth century no one considered the federal comstock law unconstitutional, which criminalized the transmission and receipt of "obscene", "lewd", or "lascivious" publications through the U.S. mail with an 1873 understanding of what was “obscene.” What is certainly clear is that zoning ordinances are actually historically mild in comparison. This is not to say I advocate our laws reflect a nineteenth century version of obscenity. But it is to say that the First Amendment is simply not the issue in regulations of sexually explicit material. For example, the City of Renton should in accord with the Constitution simply be able to conclude that adult theaters should be zoned because they consider the content to be obscene.

In fact, according to David Allyn in Make Love, Not War, even the ACLU recognized this Constitutional reality in the 1950s. Allyn writes that "ACLU officials in the fifties shied away from attacking the censorship of sexual materials. The group's executive director assured critics that the ACLU had never intervened in federal efforts to stop the mailing of 'smutty post cards,' 'strip-tease pictures' or 'nudes:' As far as he was concerned, the federal government had every right to suppress such literature." He even quotes an ACLU official saying in regard to government regulation or suppression of sexual materials, "Nor do we believe that the obscenity laws are interfering with freedom of the press in any way." Whereas the ACLU, with victories in the Supreme Court itself, is now dedicated to smut being treated like religion, and religion being treated like smut. It is quite the historical contrast. It also demonstrates how far our nation has veered from Constitutional sanity.

The First Amendment simply should not include, in the words of Scalia, “the business of pandering sex.” And if the obscenity exception as broad as originally understood were to be taken as part of the First Amendment, these cases would be all too easy to decide. The "secondary effects doctrine" is the secondary effect of not plainly following the simple, historical notion that the First Amendment does not provide protection to “the pandering of sex.” It is but one perfect example of an unnecessary judicially created doctrine that has arisen in the area of regulating sexual material because of Constitutionally warped Supreme Court rulings. Local legislatures and juries should be Constitutionally allowed to determine that which is worthy of criminal conviction as "pandering to sex" or "appealing to the prurient interest." The Supreme Court of the United States should not be in the business of inventing baseless doctrines within or to get around the absurd obscenity framework it has developed within the First Amendment. Obscenity should simply be allowed to return to its rightful historical place which allows for directly regulating or suppressing material that covers a broad range of pornographic and sexually explicit material. Tweet