If Obscenity Were to Discriminate

Abstract

This essay responds to Professor Elizabeth Glazer’s thoughtful essay, When Obscenity Discriminates, and its three-pronged argument that the Supreme Court's First Amendment obscenity doctrine is unconstitutional because (1) current obscenity doctrine leaves open the possibility that, in application, juries or judges might find gay sex portrayals obscene simply because they involve same-sex acts; (2) this possibility in turn encourages censorship of sexual expression involving gay sex by private actors; and (3) in view of the Court’s decision in Lawrence v. Texas, the obscenity doctrine violates the Equal Protection Clause by causing such private discrimination, and also violates the First Amendment because such discrimination is directed against the viewpoint that gay sex is equally acceptable as heterosexual sex. This essay contends that this argument is deficient because it rests on flawed legal and empirical premises. First is the notion that existing constitutional doctrine of the Court can itself be unconstitutional because it might be applied in a manner that violates other constitutional doctrines. Next is the idea that potential unconstitutional applications of a doctrine that purportedly encourage private actors to discriminate create sufficient state action on which to establish a constitutional violation. Another is the lack of empirical evidence of discriminatory behavior by private entities purportedly resulting from potential unconstitutional applications of the obscenity doctrine. The author presents an alternative argument to that made by Professor Glazer: if the discriminatory application of the obscenity doctrine against gay sex portrayals were to become an issue (something Glazer fails to establish), the demands of a principled and coherent jurisprudence might require the Court to revisit the doctrine to clarify that, standing alone, the gay or lesbian nature of such portrayals would not be a constitutional basis for deeming such expression to be obscene. However, such an argument would most properly rest on basic equal protection and First Amendment principles rather than on any changes in the law wrought by Lawrence.

Keywords: obscenity, obscenity doctrine, Equal Protection Clause, First Amendment, discriminate, When Obscenity Discriminates, Glazer, Lawrence v. Texas, homosexual, sexuality, constitution, constitutional doctrine, Supreme Court, free expression