Pornography, the Rule of Law, and constitutional mythology

Tubbs and Smith cite that the regulatory framework based on Miller, Ginsberg, and Pacifica did not lead to a more effective regulation of pornography. The majority opinion in Miller presupposed the existence of both "private space" and "public space," a distinction found in previ...

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Bibliographic Details
Published in:Harvard journal of law and public policy 2018-03, Vol.41 (2), p.499-552
Main Authors: Tubbs, David L, Smith, Jacqueline S
Format: Article
Language:English
Subjects:
Adults
Child sexual exploitation
Constitutional law
Decency standards
Ethical aspects
Evaluation
Exhibitionism
Females
First Amendment-US
Influence
Judges & magistrates
Justice
Laws, regulations and rules
Morality
Mythology
Obscenity
Political aspects
Pornography
Pornography & obscenity
Prevention
Public libraries
Public spaces
Regulation
Rule of law
Sex industry
Skepticism
Social aspects
Social ethics
Space law
Supreme Court decisions
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Summary:Tubbs and Smith cite that the regulatory framework based on Miller, Ginsberg, and Pacifica did not lead to a more effective regulation of pornography. The majority opinion in Miller presupposed the existence of both "private space" and "public space," a distinction found in previous cases, and Justice William Brennan's dissents in Miller and Paris Adult Theatre did not deny the validity of the distinction. Being able to distinguish "private space" from "public space" allowed the Court in Pacifica to apply a more restrictive standard to "public space." Hence the emergence of the "indecency" standard in constitutional law. But as shown above, the Court has silently abandoned the regulatory scheme put forth in the three cases just mentioned. This development coincided with the rise of a series of myths about the Constitution and the regulation of pornography, and both developments call into question the Court's fidelity to the rule of law in this area. The absence of a regulatory framework has also meant that millions of minors have been exposed to pornographic stimuli that are, by the Court's own account, inappropriate for them. The Court has also disparaged the legal interests of "unconsenting adults"--women and men who do not want to see pornography in either public or private space.
ISSN:0193-4872
2374-6572