> However I am unconvinced that SCOTUS got this right. I don’t think there should be a free speech exception for obscenity
If you look at the question from an originalist viewpoint: did the legislators who drafted the First Amendment, and voted to propose and ratify it, understand it as an exceptionless absolute or as subject to reasonable exceptions? I think if you look at the writings of those legislators, the debates and speeches made in the process of its proposal and ratification, etc, it is clear that they saw it as subject to reasonable exceptions – and I think it is also clear that they saw obscenity as one of those reasonable exceptions, even though they no doubt would have disagreed about its precise scope. So, from an originalist viewpoint, having some kind of obscenity exception seems very constitutionally justifiable, although we can still debate how to draw it.
In fact, I think from an originalist viewpoint the obscenity exception is on firmer ground than the child pornography exception, since the former is arguably as old as the First Amendment itself is, the latter only goes back to the 1982 case of New York v. Ferber. In fact, the child pornography exception, as a distinct exception, only exists because SCOTUS jurisprudence had narrowed the obscenity exception to the point that it was getting in the way of prosecuting child pornography as obscene – and rather than taking that as evidence that maybe they'd narrowed it a bit too far, SCOTUS decided to erect a separate exception instead. But, conceivably, SCOTUS in 1982 could have decided to draw the obscenity exception a bit more broadly, and a distinct child pornography exception would never have existed.
If one prefers living constitutionalism, the question is – has American society "evolved" to the point that the First Amendment's historical obscenity exception ought to jettisoned entirely, as opposed to merely be read narrowly? Does the contemporary United States have a moral consensus that individuals should have the constitutional right to produce graphic depictions of child sexual abuse, for no purpose other than their own sexual arousal, provided that no identifiable children are harmed in its production? I take it that is your personal moral view, but I doubt the majority of American citizens presently agree – which suggests that completely removing the obscenity exception, even in the case of virtual CSAM material, cannot currently be justified on living constitutionalist grounds either.
If you look at the question from an originalist viewpoint: did the legislators who drafted the First Amendment, and voted to propose and ratify it, understand it as an exceptionless absolute or as subject to reasonable exceptions? I think if you look at the writings of those legislators, the debates and speeches made in the process of its proposal and ratification, etc, it is clear that they saw it as subject to reasonable exceptions – and I think it is also clear that they saw obscenity as one of those reasonable exceptions, even though they no doubt would have disagreed about its precise scope. So, from an originalist viewpoint, having some kind of obscenity exception seems very constitutionally justifiable, although we can still debate how to draw it.
In fact, I think from an originalist viewpoint the obscenity exception is on firmer ground than the child pornography exception, since the former is arguably as old as the First Amendment itself is, the latter only goes back to the 1982 case of New York v. Ferber. In fact, the child pornography exception, as a distinct exception, only exists because SCOTUS jurisprudence had narrowed the obscenity exception to the point that it was getting in the way of prosecuting child pornography as obscene – and rather than taking that as evidence that maybe they'd narrowed it a bit too far, SCOTUS decided to erect a separate exception instead. But, conceivably, SCOTUS in 1982 could have decided to draw the obscenity exception a bit more broadly, and a distinct child pornography exception would never have existed.
If one prefers living constitutionalism, the question is – has American society "evolved" to the point that the First Amendment's historical obscenity exception ought to jettisoned entirely, as opposed to merely be read narrowly? Does the contemporary United States have a moral consensus that individuals should have the constitutional right to produce graphic depictions of child sexual abuse, for no purpose other than their own sexual arousal, provided that no identifiable children are harmed in its production? I take it that is your personal moral view, but I doubt the majority of American citizens presently agree – which suggests that completely removing the obscenity exception, even in the case of virtual CSAM material, cannot currently be justified on living constitutionalist grounds either.