The cases you have read is
New York v. Ferber; Massachusetts v. Oakes; Ashcroft v. Free Speech Coalition; L.A. anti- pornography law; Mackinnon on obscenity and pornography; American Booksellers Association v. Hudnut
We will hold no classes the week of September 26 while I am lecturing in Europe. That said, I want you to prepare two short, one-page papers each, based on these comments on the material assigned for this week. If you wish, give your own opinion.
We have discussed whether expressions deemed to be obscene or pornographic are protected by the First Amendment. First, decide, at least preliminarily, whether you agree with the current position of the Court on this issue. Second, do you think the Court correctly decided the cases, such as Ferber, Oakes, Ashcroft?
Note that Justice Byron White, in his opinion for the Court in the 1982 Ferber case, cites the Miller precedent quite a bit. How useful do you think this is? Is there a special issue involved here because the “victims” involved are children? How would you decide this case? How does it differ from the 1989 Oakes decision, decided just a few years later? Who was correct in this case: Justice Sandra Day O’Connor or Justice Antonin Scalia?
And then, determine the vast technological changes that took place from 1989 to 2002 when the Court decided Ashcroft. In 1989, the Internet was in its infancy, but not so by 2002. And yet, the justices tried to deal with the new technology in the distribution of child pornography, only now it was “virtual” child pornography. Justice Anthony Kennedy, who wrote the opinion of the Court, had five justices join him. How much reliance is there on Miller and Ferber? Is it well placed? What about the dissent? Which side do you agree with?
Is it possible to outlaw pornography as Los Angeles tried to do? How do you assess the law? Is it just an impossible task? What is your reaction to the views of Catharine MacKinnon, who is a distinguished law professor at the University of Michigan? MacKinnon has written about these matters, often in collaboration with another radical feminist by the name of Andrea Dworkin, who is now deceased, for many years.
Courts did not really deal with a law like the one L.A. passed until the Indianapolis city council passed a similar one. The American Booksellers Association is a national trade organization much like other trade groups like the American Manufacturing Association. It filed suit against the mayor of the city and the Seventh Circuit Court of Appeals struck it down in 1986.
Do you believe that laws can outlaw pornography and obscenity? Can morality be legislated in this regard?