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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?
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
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

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