Someone asked on a lawprofs’ discussion list whether Lawrence v. Texas means that obscenity laws are unconstitutional, on a sexual rights theory even if not a speech rights theory. (Recall that the Supreme Court has held that the First Amendment doesn’t protect “obscenity,” which roughly means hard-core porn, in those communities that object to such porn; these laws haven’t been enforced much recently, and with the Internet there may be little that the government can do about it, but the principle is that while much sexually themed material is protected, the really hard-core stuff is not, if the community to which its distrbuted finds it “patently offensive.”) This led me to think a bit more about the subject, and cobble together a quick post that I thought I’d also post here.
I can imagine (at least) three readings of Lawrence:
1. Lawrence secures a right to sexual autonomy as such. If this is so, then the case for protecting porn becomes considerably stronger. Some people get the most pleasure from oral sex, some from anal sex, some from using sexual devices, some from consensual sex with handcuffs, some from consensual whipping, some from looking at sexual pictures with a sex partner, some from looking at sexual pictures by themselves. Under a pure sexual autonomy reading of Lawrence, all these would be protected; and the distribution of material necessary for them to operate would be protected, too, at least unless the government shows a strong enough reason to restrict them (which I take it wouldn’t be easy for pornography in general).
2. Lawrence secures a right to sexual autonomy in the service of human relationships, possibly even relatively emotionally serious human relationships. If this is so, then restrictions that don’t materially burden the ability to develop those relationships might well be permissible. Unless we think quite a few people really need porn for their relationship with another person — not impossible, but I know of no evidence that this is so — then a ban on distributing porn would be constitutional.
How far, though, would this theory go. Say the government bans anal sex on the grounds that anyone (gay or straight) can at least engage in oral sex instead, and still have a sexual relationship that for most people would presumably be at least modestly gratifying. Would that be categorically permissible (with no need for any strict scrutiny analysis; I set aside the question whether anal sex could be banned on the grounds that it’s disproportionately likely to spread disease)? Is one possible distinction that most gay men would find the limitation to be quite burdensome, even if it doesn’t completely eliminate their sexual options in the contexts of the emotional and sexual relationships that work for them? What if 4% of the male population found that sex with their partners just isn’t exciting without porn?
3. Lawrence secures a right to sexual autonomy in the service of human relationships, but for dignitary and practical reasons precludes the government from inquiring into just what kind of sex people really need. If that’s so, then distribution of porn should be protected, because some couples use porn for sexual gratification. Should it matter that most porn is used solo (if that is indeed so)? I presume not, at least if the question is whether we have heightened scrutiny, rather than whether heightened scrutiny is passed. The question under this approach would be whether a considerable number of couples use porn as part of their sex acts within a relationship, just like they use their mouths or anuses as parts of their sex acts; if so, then heightened scrutiny would be required.
(Note that none of this deals with limits on the production of porn using human actors, which might be justified on the grounds of preventing sexually transmitted diseases, preventing the exchange of sex for money — which is involved in the making of porn with professional actors — and so on. Such limits might well not much burden any “right to sex,” since even if new porn were entirely banned, there’d be a vast reservoir of preexisting porn that should satisfy the tastes of most people. [I set aside here a couple’s self-produced sexually themed movies aimed at their own gratification; query whether they’d be protected in any event under Stanley v. Georgia, a 1969 case that held that private possession of even obscene materials can’t be legally punished.] On the other hand, especially these days, porn can be computer-produced without any human beings at all, and the actor-protection rationale wouldn’t justify bans on such material.)
So the case for a right to get pornography as part of a right to sex (even setting aside a right to free speech) seems plausible though not open-and-shut. I would expect that if the issue came up now, the Supreme Court would limit Lawrence using some version of rationale 2. But I also suspect that many people, including lawyers, will interalize Lawrence as a broad right to sex case, and adopt rationale 1 as their interpretation; and over time, that (mis?)interpretation may affect legal norms to the point that porn would indeed be protected on sexual rights grounds.
UPDATE: This discussion was triggered by the Extreme Associates case, a district court decision that in fact held that obscenity laws were unconstitutional given Lawrence. I think that this decision is the wrong one for a district court to make; given both the Miller and Lawrence Supreme Court precedents, the better view is that obscenity law is still very much constitutional. (There are possible counterarguments, but I won’t go into them here.) The question that I discuss here is what the Supreme Court is ultimately likely to do with this, not what lower courts should do in the meantime.
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