> Good objection. However I don't think it carriews the
> day. The Court doesn't allow the banning of a lot of
> worthless stuff. I mean. People magazine. The Weekly
> World News. The National Review. (joke.) Pulp novels.
> Barbara Cartland stories. Mickey Spillane. It's
> worthlessness plus some other harm. Here the harm is
> the tendency to excite lustful thoughts, plus the fact
> that it's supposedly worthless.
Well, let's go back to Roth. I think it's set out pretty clearly that worthlessness is the key issue. From the syllabus:
"3. Obscenity is not within the area of constitutionally protected freedom of speech or press--either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States. Pp. 481-485.
(a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. Pp. 482-483.
(b) 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. P. 484.
(c) All ideas having even the slightest redeeming social importance--unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion--have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests; but implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. Pp. 484-485. [477]
4. Since obscenity is not protected, constitutional guaranties were not violated in these cases merely because, under the trial judges' instructions to the juries, convictions could be had without proof either that the obscene material would perceptibly create a clear and present danger of antisocial conduct, or probably would induce its recipients to such conduct. "
It's certainly arguable that a lot of non-obscene materials could theoretically be banned on the grounds contained in #3. I'll agree with your argument to the extent that the possibility of exciting lustful thoughts might give these old fogies a reason to WANT to ban obscenity, where they really wouldn't have any reason to want to ban other worthless materials. In that sense, yeah, I see where you're coming from on the "harm" front. What I'm saying is it isn't really part of the legal framework. I suppose it's one of those cases where they started with a personal opinion and worked backwards to find a way to make it constitutionally permissible.
> Not many, I think. There were osbscenity zoning cases
> that were upheld, I think -- keep the portn theater
> out of the neighborhood. Not so much the: can't sell
> the dirty mags cases or show the dirty movies.
Well that's what I mean about it being a CYA ruling for the justices. They don't want to tie their hands by getting completely rid of the power to ban obscenity, but they also don't really want to use that power. (At least, not the ones we have at the moment ... I wouldn't put anything past some of the up'n'coming crop...)
> Well, we could look it up . . . .
I don't have a copy of The Brethren here and I'm not even sure which professor told me the story (much less inclined to track him down a decade later to ask him about it :)), but if you don't mind ...