US Supreme Court Upholds Texas Porn ID Law

But what counts as obscene is not well defined. Forget newspapers you could have to age gate Wikipedia

What counts as obscene has been defined for a while. And I don't think Wikipedia would count as obscene by the Miller test.

https://en.wikipedia.org/wiki/Miller_test

. Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,

. Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,

. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Clearly the whole of Wikipedia is not trying to appeal to purient interests of the average person. I don't think much of the content of Wikipedia is describing sexual content in a patently offensive way, and I'd argue it has serious political and scientific value.

I understand the point you're trying to make. However, I wanted to point out that Wikipedia being one-third porn/obscene content is unlikely in the extreme.

I'm just very skeptical of the argument that, when we see a fuzzy line, we have to erase it entirely so that nobody can abuse the fuzziness.

Even in this description you deferred to your own personal interpretation when you said "I don't think much of the content of Wikipedia is describing sexual content in a patently offensive way". Someone might, or might find it politically expedient to pretend that they do. After all, what's "offensive" is arbitrary.

What counts as obscene has notably not been defined.

"Contemporary community standards" and "lacks serious literary, artistic, political, or scientific value" are so vague as to be useless. Whose community? Which standards? How many people have to be offended by something? How many people have to find value in it for it to be serious?

https://en.wikipedia.org/wiki/Obscenity

> In 1957, two associates of acclaimed poet Allen Ginsberg were arrested and jailed for selling his book "Howl and Other Poems" to undercover police officers at a beatnik bookstore in San Francisco. Eventually the California Supreme Court declared the literature to be of "redeeming social value" and therefore not classifiable as "obscene". Because the poem "Howl" contains pornographic slang and overt references to drugs and homosexuality, the poem was (and is) frequently censored and confiscated; however, it remains a landmark case.

The Simpsons was considered concerningly off-color in the 1990s; I remember quite a bit of pearl clutching about it, to the point of them getting into a bit of a feud with George and Barbara Bush. Now it's positive family values TV of "serious artistic value".

Most of what's on Pornhub is considered pornography but not obscenity currently, but that could change on a dime.

It's not really that unlikely. In the exact same brief upholding the Texas Porn ID law they're arguing that states have the power to decide what is obscene or not; they're setting up the blocks for saying things like any LGBT content is inherently obscene. This is especially clear in another ruling posted today [1] where the supreme court argues that parents have a right to fully withhold children from any LGBT content they might experience from school.

[1] https://www.supremecourt.gov/opinions/24pdf/24-297_4f14.pdf

Not if I get to pick what's obscene

You're misunderstanding my description.

You don't just need "someone". You'll find "someone" say anything, including that the Earth is flat, its 40,000 years old, and we're controlled by lizard people. The standard isn't "someone". You'll find someone who claims a table of ICD codes or a stop sign appeals to their prurient interest and is sexual in nature.

You'd need "the average person, applying contemporary community standards" to say that under the Miller test and have the court/a jury to agree. Not just any person applying any standard.

> You'd need "the average person, applying contemporary community standards" to say that under the Miller test and have the court/a jury to agree.

No, you just need the court to agree, you don't need to actually get the (non-existent, fictional abstraction) of “the average person” to say anything, you just need a judge to believe that.

You're just kicking the can down the road. "Who decides what's obscene?" "The average person." "Who decides who the average person is?" In your own argument you keep pointing to how arbitrary and abusable this average person standard is as though that makes it somehow a better choice, but at the end of the day the idea of the "average person" is just someone dressing their own personal feelings in a pretty hat. There is no determining who the average person is or what they believe empirically, so the opinion of the person actually making the decision just gets labelled the opinion of the "average person". It does nothing but distance the people making these decisions from responsibility for them because they get to pretend they're just doing what everyone would want. It's 100% arbitrary.

in a nation of 400 million people you only need 5 to agree with you (if it's the right 5) and then the 6 of y'all are "the average person, applying contemporary community standards" and the 399,999,994 of us are out of touch deviants.

Would you also argue any standard related to a "reasonable person" to be entirely arbitrary? That's an incredibly similar standard used to determine negligence and similar concepts.

name one

It's a pretty common standard used in a lot of places.

https://en.wikipedia.org/wiki/Reasonable_person

And other similar "vague" concepts arise elsewhere in the law, like someone "skilled in the art".

https://en.wikipedia.org/wiki/Person_having_ordinary_skill_i...

IRT The Simpsons, the Simpsons of 1989 and the Simpsons of today are essentially two radically different shows, they just happen to both be animated and feature four fingered yellow cartoon people. That very early 90s Simpsons show featured far more family violence and other things along that nature than the show today, among a lot of other things that make the show very different.

Even then, it wasn't like the average person was arguing for it to be banned by obscenity rules. The spat between H.W. Bush and the Simpsons was a comment he made, saying "We are going to keep on trying to strengthen the American family, to make American families a lot more like the Waltons and a lot less like the Simpsons." It's not like Bush was actively pushing for The Simpsons to be taken off the air or anything along those lines.

Honestly, I think it makes more sense to have some kind of standard like a reasonable person/common person/contemporary community standard when trying to define something like "obscenity". Not making an argument of what kind of law to pass with that, just stating I don't think having some etched in stone standard would ultimately be good in the end for any kind of law related to such content. Ultimately its the same to me in terms of laws that would otherwise try and regulate certain kinds of commerce or whatever, with extremely rigid definitions that can't keep up with changes to the marketplace. That we might find something like The Simpsons potentially detestable in the 90s but otherwise fine today is an example for such a standard with flexibility, not against it IMO. We wouldn't want the law to be bound to whatever people specifically thought was "obscenity" in 1850 to still hold legal weight today.

Why shouldn't we? A law that isn't well-defined in no law in the proper sense. Ambiguity and overbreath will just be weaponized against people and organizations the government doesn't like just like the Department of Education has done with Title VI in its crusade against a nebulously defined "anti-Semitism".

Since you bring up anti-discrimination law, I would point to the concept of “hostile work environment” as a good example. It’s fuzzy and ultimately subjective to draw the line where crude jokes become so offensive and so pervasive that they constitute harassment. But if you refused to draw any line, you’d end up with a lot of workplaces where women aren’t in practice welcome.