Put bluntly, the law of obscenity, no matter how longstanding, has never satisfied constitutional requirements, and it never will. Finally, a judge has been brave enough to say as much. This opinion is notable for that reason – and for Judge Lancaster’s novel approach. His opinion attacks the obscenity laws on privacy grounds – and thus may be more effective than pure free-speech attacks mounted in the past.
Noise pointed me to Julie Hilden’s article at Findlaw.
The argument in a nutshell seems to be that the interest of the government in banning obscene matter is less than the privacy interest of the viewer of that matter, wherein privacy means the ability to contemplate icky stuff in one’s own home. The decision, for you law buffs, bypasses Miller, and focuses on Lawrence v. Texas and Stanley v. Georgia.
In addition, the Lawrence Court also reached another conclusion highly relevant to the Extreme Associates case. It concluded that the fact that a given law is a longstanding prohibition grounded in widely-held moral beliefs is not, in itself, a reason for a court to hold that law to be constitutional.
Sounds moral to me.