All Things Profane and Sacred

Sometimes you just gotta wonder what the supreme court is smoking. This is a topic very much on my mind today, as I just got done with a whirlwind tour of con law via barbri. Now take for instance the rule for obscenity. Obscenity is unprotected by the first amendment (not that I agree with this, but that's a topic for another day). For items to be obscene, they must be sexy-ya gotta get hot from perusing them-according to community standards. So basically, your community must think they're sexy materials for them to be obscene.

Now think of what sort of sexual materials you think shouldn't be allowed to be sold. My list is pretty short-basically snuff films and kiddy porn. Neither of these makes me hot. I sure as hell hope that my community isn't thinking these things are all sexy. But I think they would meet most people's definition of things the first amendment shouldn't protect. I can even think of a range of other materials that people in my community may think shouldn't be protected by the first amendment-and I would lay all my bar loan proceeds that these things (golden showers, BDSM, and scat would be my guess as the most common) also don't get a majority of my community hot.

In The Brethren, one of the justices (either Douglass or Brennan, I think) toys with the idea of allowing obscenity to be protected by the first amendment. This doesn't mean kiddy porn or snuff films would suddenly be all cool-I think that either the conduct of raping children or killing people could provide a sufficient basis for banning such items, or (as is the case with kiddy porn-even non-obscene depictions of minors being all sexual is currently banned) the burden such a ban would place on speech interests would be justified as a narrowly tailored law to meet a compelling state interest.