The Myth of Obsolete Obscenity

Abstract

First Amendment scholars have argued of late that obscenity law is obsolete, outdated, and unused. Contending that the proliferation of pornography on the Internet has proven to be too sweeping a change for government to effectively police and target, scholars cite declining numbers of federal prosecutions and reduced federal funding for specialized investigations as evidence of obscenity’s modern irrelevance. But these scholars tell an incomplete story of the current state of obscenity law. Relying solely on federal statistical data and political explanations, the current literature on obscenity law overlooks the importance of state-based and local obscenity prosecutions in assessing the current state of affairs. In other words, to argue that obscenity law is a thing of the past is short-sighted and, in many respects, incorrect. To demonstrate the fallacy of the current school of thought on obscenity, this Article addresses the full range of recent obscenity prosecutions in the United States on both the state and federal levels. The Article concludes with the observation that the current state of obscenity prosecutions, in which certain sexually explicit speech is criminalized and punished in an almost randomized manner while other erotic speech multiplies and spreads unfettered, presents grave danger to the First Amendment right of free speech.