Quote:
Originally Posted by SallyRand
Living in Canada as you claim to be, you have no idea of he backlash growing in the USA right now. Bachmann or someone like her could indeed win and things could well be decided in the next few weeks as athe budget battle may be the determining factor.
The US constitution does not in and of itslef protect porn but rather the Supreme Court has defined "obscenity" pretty much as that which violates community standards. Many states prohibit gay marriage and ban "sodomy"; anal and oral sex, same-sex acts and have therfore set the "community standard".
All that is needed RIGHT NOW is for a single judge in a single jurisdiction to determine that gay porn violates community standards for obscenity and BANG!
Gay porn gone until the subsequent very, very expensive and time comsuming court battle is over and even then there would be no guarrantee of a win for gay porn.
Yes, it could happen and very well may.
|
You are simply wrong in your analysis here.
Among other things, any obscenity ruling by a "single judge in a single jurisdiction" would merely set precedent for what is obscene
with respect to that community. That standard would not somehow magically be applicable nationally. That's simply not how obscenity law works.
The whole point of the community standards prong of the Miller test is to serve as recognition that what is considered obscene by the community standards of Greenville, AL might not be considered obscene by the community standards of New York, NY.
Beyond that, each "speaker" has an
independent right to defend his/her expression against obscenity charges. Just because one porn movie or another is found to be obscene by a community does NOT mean that the next, similar porn movie indicted in that community would be found to be obscene, as well. Two very similar movies could have radically different measures of "literary value," for example, and if a work is held to have serious literary value by the trier of fact in an obscenity case, then under the Miller Test that work is not obscene, by definition.
There's also a temporal factor to the Miller Test, because the first prong specifically references "contemporary" community standards. In other words, just because a court found
Tropic of Cancer to be obscene in 1964 (a ruling that was overturned by the Supreme Court, anyway) doesn't mean the same work would be found obscene by the same community's standards here in 2011.
It's also worth noting that the pledge that Bachmann signed doesn't actually say anything about banning porn. The relevant paragraph is a whole lot more vague than that, and IMO you have to make several assumptions about the underlying subtext of that ninth paragraph to read it as a promise to ban porn. No matter how you slice that paragraph, it certainly isn't a
clear call for a ban on porn, as many of the headlines relating to the pledge suggest it is.