About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

15 St. Thomas L. Rev. 517 (2002-2003)
The Law of Obscenity - or Abusurdity

handle is hein.journals/stlr15 and id is 527 raw text is: THE LAW OF OBSCENITY - OR ABSURDITY? H. FRANKLIN ROBBINS, JR. AND STEVEN G. MASON* I. INTRODUCTION We did not choose the title of this article to deliberately impugn the important moral values that underpin our nation's obscenity laws; we just thought it was catchy. That said, we are nonetheless everlastingly convinced that obscenity laws are indeed absurd - absurd and dangerous. They ignore the most fundamental principles of American jurisprudence and they seriously attenuate our First Amendment right to freedom of speech. Before we can understand why obscenity laws are absurd and dangerous, we must first understand that the freedom of speech has a serious downside. When we choose free speech as a constitutional imperative, our choice compels us to permit the speech of those we find evil and repugnant, e.g., Nazis, racists, communists and others.' It is because of our belief that censorship is more dangerous than free speech that we tolerate the speech of those we despise. But when sex is involved in a mode of speech, particularly sexually explicit magazines and movies, we employ an entirely different approach - an approach that is irrational, unreasonable and absurd. The government frequently exhibits zero tolerance for sexually explicit magazines and movies and employs serious criminal sanctions to prohibit this form of expression - expression that the legislature (or some of its constituents) obviously finds offensive. But how can this be possible when the First Amendment protects free expression in such sweeping terms?2 To establish an exception to the First Amendment's guarantees, the government ordinarily must show a clear and present danger that the speech will incite imminent lawless action.3 In . H. Franklin Robbins's practice is limited to First Amendment Law. You can contact Frank at PO Box 3322, Orlando, FL 32802, telephone (407) 425-0724. Steven G. Mason is a sole practitioner who is Board Certified by the Florida Bar as a Criminal Trial and Criminal Appellate Specialist. He limits his practice to First Amendment, Criminal and Civil Rights litigation. You can contact Steve at 1643 Hillcrest Street, Orlando, FL 32803, telephone (407) 895-6767, E-mail at sgmason @bellsouth.net or sgmason.com. 1. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969). 2. The First Amendment provides: Congress shall make no law.., abridging the freedom of speech, or of the press .... U.S. CONST. amend. I. 3. Schenck v. United States, 249 U.S. 47, 52 (1919). Actually, there is compelling authority that even the clear and present danger exception should be eliminated. See, e.g., David

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most