Floridians’ Tax Dollars at Work Fighting Smut

by on June 24, 2008 · 15 comments

Ars reports on an important case down in Florida:

The defense against the obscenity charges will focus, in part, on the suggestion that interest in group sex fails the community standards test. Google search trends will be used to demonstrate that, except for brief periods near Thanksgiving, searches for “orgy” consistently outrank attempts to find information about “apple pie” in Florida . The rest of the year, orgy searches are closer in frequency to what might be expected to be a common activity in Florida, “surfing.” An astute reader at Slashdot also recognized that, among Floridian Internet users, “boobs” has built and then expanded a lead over surfing during the past three years.

Personally, I find the legal concept of “obscenity,” and the notion that obscenity rules could pass First Amendment muster, to be baffling. I can’t imagine what “compelling state interest” could trump the plain language of the First Amendment to allow the censorship of sexually explicit content consumed by adults in the privacy of the home.

  • Adam Thierer

    Tim… Have you ever read Jeff Rosen’s essay on “The End of Obscenity“? I summarized it in this old TLF post where I was contrasting it to Lessig’s proposal to comprehensively regulation online speech and expression.

  • http://www.techliberation.com Adam Thierer

    Tim… Have you ever read Jeff Rosen’s essay on “The End of Obscenity“? I summarized it in this old TLF post where I was contrasting it to Lessig’s proposal to comprehensively regulation online speech and expression.

  • http://www.LinkedIn.com/in/BerinSzoka Berin Szoka

    The simple answer is, of course, that the First Amendment (like the Second Amendment) only makes sense as an absolute prohibition when one understands that it was originally to apply only to the Federal government, and not to the states. The Federal government wasn’t meant to regulate guns or speech at all, but the states were meant to be able to chose their own rules.

    Like it or not, that was at least a coherent rule–one that goes right out the window as soon as we start talking about applying either amendment to the states.

  • Tim Lee

    So Berin, are you rejecting the idea that the 14th Amendment applied the Bill of Rights to the states? I don’t see anything incoherent with the notion that the First Amendment prohibits state governments from regulating “obscene” speech.

  • http://www.LinkedIn.com/in/BerinSzoka Berin Szoka

    Yes, I don’t buy the orthodoxy that the Fourteenth Amendment “applied the Bill of Rights to the states” in some wholesale fashion. But my opinions on that subject are crankish and unlikely to matter in any real way.

    My point was simply that incorporation leads to confusion about the meaning of the other Amendments, most of all #1 and #2.

  • Tim Lee

    I understand (but don’t necessarily agree with) the Fourteenth Amendment point. But I’m not sure I see how the incorporation doctrine makes things confusing. For the First Amendment, it seems to me that replacing “Congress” with “state and local legislatures” produces a pretty clear meaning. And with the exception of the Tenth Amendment, the others don’t appear to make any distinction between the federal and state government at all, so I don’t see how the incorporation doctrine creates any confusion.

  • http://techliberation.com/author/berinszoka/ Berin Szoka

    The simple answer is, of course, that the First Amendment (like the Second Amendment) only makes sense as an absolute prohibition when one understands that it was originally to apply only to the Federal government, and not to the states. The Federal government wasn’t meant to regulate guns or speech at all, but the states were meant to be able to chose their own rules.

    Like it or not, that was at least a coherent rule–one that goes right out the window as soon as we start talking about applying either amendment to the states.

  • http://www.tc.umn.edu/~leex1008 Tim Lee

    So Berin, are you rejecting the idea that the 14th Amendment applied the Bill of Rights to the states? I don’t see anything incoherent with the notion that the First Amendment prohibits state governments from regulating “obscene” speech.

  • http://techliberation.com/author/berinszoka/ Berin Szoka

    Yes, I don’t buy the orthodoxy that the Fourteenth Amendment “applied the Bill of Rights to the states” in some wholesale fashion. But my opinions on that subject are crankish and unlikely to matter in any real way.

    My point was simply that incorporation leads to confusion about the meaning of the other Amendments, most of all #1 and #2.

  • http://www.tc.umn.edu/~leex1008 Tim Lee

    I understand (but don’t necessarily agree with) the Fourteenth Amendment point. But I’m not sure I see how the incorporation doctrine makes things confusing. For the First Amendment, it seems to me that replacing “Congress” with “state and local legislatures” produces a pretty clear meaning. And with the exception of the Tenth Amendment, the others don’t appear to make any distinction between the federal and state government at all, so I don’t see how the incorporation doctrine creates any confusion.

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