The End of Obscenity?

The Supreme Court has repeatedly held that obscene speech is not entitled to First Amendment protections. Nonetheless, its jurisprudence has been a little complex on the issue over the years. First, in Stanley v. Georgia, the Court held that states could not criminalize the private possession of obscene material. In later years, however, the Court held that, Stanley notwithstanding, states could still criminalize the sale or distribution of obscene material.

Over at FindLaw, Julie Hilden discusses a recent decision out of a federal court in Pennsylvania that may have found a way to harmonize the Court's muddled law in this area. In a federal obscenity prosecution (based on a postal inspector going "undercover" as a member of the defendant's website), the judge tossed the case on due-process based privacy grounds. Relying heavily on Lawrence v. Texas, the court held that the stated objective of federal obscenity law (protection of public morals) is no longer a legitimate motivation for the law or prosecution. I'm not sure that this decision will hold up on appeal, but it makes a pretty compelling argument.