When Obscenity Discriminates

Abstract:     
When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine's infliction of first generation, or status discrimination against sexual minorities by conflating "sex" - and the prurient representation of sex that constitutes obscenity - and "sexual orientation." Civil rights lawyers and scholars have turned their attentions away from "first generation" discrimination," where groups experience discrimination on the basis of their status, and toward "second generation" discrimination, where groups experience discrimination for failing to downplay or "cover" traits constitutive of their group identities. However, some groups, particularly those in civil rights law's "second wave" - sexual minorities, women, the elderly, and the disabled - continue to suffer first generation discrimination harms. This Article bridges first amendment and anti-discrimination literatures, which until now have not come together to address a harm that falls within their individual, and collective, jurisdictions. Moreover, and perhaps more importantly, the Article addresses a pervasive harm that courts will likely not have the opportunity to resolve. Because their representation is classified as obscenity, and therefore unprotected speech for first amendment purposes, sexual minorities are effectively barred by obscenity doctrine from bringing suit to assert their first amendment rights.

Keywords: obscenity, first amendment, jurisprudence, law & sexuality, sexuality, gender, discrimination, anti-discrimination, lawrence v. texa

Accepted Paper Series