3/6/2026 at 9:43:54 PM
> Producing, selling, and consuming pornography are matters of protected sexual speech so long nothing illegal and criminal occur.This is not true. https://en.wikipedia.org/wiki/Miller_test
by Georgelemental
3/7/2026 at 5:13:08 AM
From your link:> In practice, pornography showing genitalia and sexual acts is not ipso facto obscene according to the Miller test.
I'm not sure you can make the statement that pornographic materials aren't protected speech. I don't think you can make the statement that they are though.
by cweagans
3/7/2026 at 5:35:09 AM
In practice it is protected, but as the law is written it's hard to say how or why. Pure pornography with penetrative sex, by any reasonable definition, "depicts or describes, in a patently offensive way, sexual conduct" and "lacks serious literary, artistic, political, or scientific value". And it's pretty clear that most pornography is intended to "appeal to the prurient interest". So it's really only protected because juries refuse to convict, meaning it's only protected if the defendant is seen as likable.by metalcrow
3/7/2026 at 6:07:37 AM
Why Does “literary, artistic, political, or scientific value” matter. And who gets to judge that? I can arbitrary decide it does hold artistic value to me. If at least one person finds it is valuable why should it be banned?I understand you’re simply quoting the Miller Test but the entire concept of obscenity is ridiculous. Speech is speech. The Constitution says nothing about obscenity.
by SilverElfin
3/7/2026 at 6:34:30 AM
It is ridiculous, i agree 100%. It's a holdover from the bad old days.by metalcrow
3/7/2026 at 7:51:29 AM
"Patently offensive" carries some weight there.To those from Puritan backgrounds its probably offensive. To less prudish backgrounds, probably not.
by shakna
3/6/2026 at 11:06:41 PM
This is a good point. A lot of people don't realize online pornography is arguably federally illegal, just totally unenforced.by metalcrow
3/6/2026 at 11:36:12 PM
Freedom often isn’t.by testing22321
3/7/2026 at 12:22:58 AM
“Protected sexual speech” is such a bizarre phrase. Nobody who wrote the first amendment envisioned that. How can you say the First Amendment prohibits a democratically elected legislature from banning something that was never envisioned as being protected by the First Amendment by the people who wrote it? It makes no sense. Surely the views of either the writers of the first amendment of the past, or the democratically elected legislature in the present, must prevail.by rayiner
3/7/2026 at 1:08:20 AM
because that pretty much is the state of any kind of speach it could apply to. either we operate from it as a first principle/“sacred text” or its scope shrinks as modern life loses any literal comparison to life in the late 1700sby sirspacey
3/7/2026 at 2:02:37 AM
That doesn’t make any sense. To the extent that “modern life” diverges from the late 1700s, then you don’t need the First Amendment. Voters in 2026 can decide what kind of speech they want to ban or not.by rayiner
3/7/2026 at 2:29:39 AM
What doesn't make any sense is proposing the constitution be interpreted as it was when there was no general right to vote or general right to political speech... then claiming this is the "voters decide" option.by staticman2
3/7/2026 at 3:29:13 AM
Your argument undermines the whole idea of written constitutions. It just means that we should ignore the First Amendment altogether. If there is a problem with what people thought in 1789, how can words written back then possibly bind elected legislatures in 2026 in any whatsoever?by rayiner
3/7/2026 at 8:06:06 AM
Your argument ignores two things.First, the US constitution as it currently stands admits modifications. Amendments are version bumps. My understanding is that they’re harder to come by these days.
Second, the constitution may be written but the interpretation is always changing. In particular, the interpretation of laws around restriction of free speech have lots of history of being interpreted in ways that may or may not be congruent with the intentions of the original authors, who’re dead, so we’ll never know the truth of it. It’s only been 107 years since the US Supreme Court decided that anti-draft speech in time of war COULD BE ILLEGAL. Apparently that was partially overturned in 1969.
Thirdly [naming, caching and out by one bugs!] it is far from clear that a written constitution will lead to a durable republic. It’s only been ~250 years. Too soon to tell.
by colinb
3/7/2026 at 12:42:27 PM
> Second, the constitution may be written but the interpretation is always changingIt’s okay if the change is because you think the new interpretation is closer to what the constitution originally meant.
It’s democratically illegitimate to change the interpretation otherwise. A written constitution is already an impingement on democracy. But how can it be that whoever is doing the interpreting is allowed to restrict democratically adopted laws in ways the constitution didn’t originally intend to restrict them?
by rayiner
3/9/2026 at 12:12:38 PM
There is no right to vote in the constitution as written and interpreted in the 1700s. There is also no guarantee of freedom of speech. The first amendment was considered a rule that only applied federally.What's democratically illegitimate is everything you wrote in this thread.
If your state government threw you in jail for what you just wrote that would be perfectly aligned with your "original understanding" interpretation of the U.S constitution.
by staticman2
3/7/2026 at 5:17:52 AM
> Voters in 2026 can decide what kind of speech they want to ban or not.You're essentially arguing against a constitution. Governments can work without one but it should at least be recognized what we're losing. There are no longer any practical limits to what laws legislators are allowed to enact.
There's a huge disconnect between what the voters want and what legislators actually enact which is why I'm glad we have a constitution. My home state, Ohio, actually tried to limit ballot initiatives because they knew they knew the upcoming abortion ballot measure was going to pass. Literally the definition of legislators not representing the will of the people. I wouldn't ever argue "some state legislature passed a law therefore it must be what the people wanted."
by Spivak
3/7/2026 at 1:40:40 PM
> I wouldn't ever argue "some state legislature passed a law therefore it must be what the people wanted."That’s a broadside argument against democracy. You’re not just saying that legislatures sometimes don’t reflect the will of the electorate. You’re saying that’s the default. Do you really think that’s the case here? That people in Utah don’t support a porn tax?
The Ohio abortion referendum doesn’t prove your premise. It shows that, when you put a single issue to a public vote, you can get a different result than a legislature, where factions necessarily have to form coalitions to support or oppose platforms including many issues. If you put the abortion issue in a referendum with other issues like say police funding, you would probably get a different result—even with no legislators standing between the public and the outcome.
And how is your alternative proposal better? If elected legislatures don’t reflect the will of the people, doesn’t that go doubly or triply so for a handful of unelected judges interpreting a “constitution?”
by rayiner
3/7/2026 at 4:58:36 PM
> If you put the abortion issue in a referendum with other issues like say police funding, you would probably get a different result.Ohio actually is aware of this which is why in the state constitution there's a rule that bills must have a single subject. The hypothetical abortion plus police funding bill would be unconstitutional.
by Spivak
3/7/2026 at 6:09:52 AM
> Voters in 2026 can decide what kind of speech they want to ban or not.No, they can’t. The point of the constitution is to prevent arbitrary changes that violate the civil rights of the individual. A tyranny of the majority (the flaw in democracy) does not get to override fundamental individual rights.
by SilverElfin
3/7/2026 at 12:36:07 PM
> A tyranny of the majority (the flaw in democracy) does not get to override fundamental individual rights.“Sexual speech” isn’t a “fundamental individual right.” And if you disagree with me about that, then we have to put it to a vote, right?
by rayiner
3/7/2026 at 3:54:49 PM
By "fundamental individual right", I believe they're referring to the first amendment. How we should interpret the first amendment is not something we can put up to a vote. Only the judicial branch holds the power to interpret the law. As the root commenter noted, the Supreme Court has already decided that sexual speech is not necessarily protected by the first amendment.At the same time, you're allowed to disagree with their decision. The Supreme Court tries its best, but there is no "100% correct" interpretation and individual justices often disagree (as they did on Miller v. California).
by NotPractical
3/8/2026 at 2:22:28 AM
You can try to put it to a vote but I doubt Article V's requirements would be met in today's environment. So what's the point that useless thought exercise?by donkeybeer
3/7/2026 at 3:18:07 AM
[dead]by throwaway98327