Academic

McDonald on Glazer on Discrimination in Obscenity Law

By Lawrence Solum

Barry McDonald (Pepperdine University - School of Law) has posted If Obscenity Were to Discriminate (Northwestern University Law Review, Vol. 103, 2009) on SSRN. Here is the abstract:

This essay develops the author's criticisms of Professor Elizabeth Glazer's thoughtful essay, When Obscenity Discriminates. First, it outlines Professor Glazer's three-pronged argument: (1) that the current obscenity doctrine leaves open the possibility that, in application, juries or judges might find gay sex portrayals obscene simply because they involve same-sex acts (as opposed to obscene acts); (2) that this possibility in turn encourages censorship of sexual expression involving gay sex by private actors; and (3) that, in view of the Supreme Court's decision in Lawrence v. Texas, the obscenity doctrine violates the Equal Protection Clause by causing such private discrimination, and also violates the First Amendment because such discrimination is directed against the viewpoint that gay sex is equally acceptable as heterosexual sex. The article then discusses what the author considers to be critical legal and empirical problems with Professor Glazer's arguments: (1) the false notion that the Supreme Court's existing constitutional doctrine can itself be unconstitutional because it might be applied in a manner that violates other constitutional doctrines; (2) the false idea that potential unconstitutional applications of a doctrine that purportedly encourage private actors to discriminate render the doctrine itself unconstitutional; and (3) the lack of substantial empirical evidence of discriminatory behavior, based on the obscenity doctrine, by private entities. Finally, the author presents an alternative argument to that made by Professor Glazer: if the discriminatory application of the obscenity doctrine against gay sex portrayals were to become an issue, the demands of a principled and coherent jurisprudence would require the Court to revisit the doctrine, in light of Lawrence v. Texas, to clarify that the gay or lesbian nature of such portrayals is not a constitutional basis for deeming expression to be obscene.

Both McDonald & Glazer are recommended!

Full post as published by Legal Theory Blog on June 09, 2009 (boomark / email).