Consumer Law

The First Amendment is dead. Long live obscenity law.

By Rebecca Tushnet

A couple of related ideas:

Roger Alford on Judge Kozinski?s recent speech on the death of the First Amendment:

? [T]he essence of his speech was that, in a day when Internet speech is not capable of suppression, the ability of the First Amendment to have a moderating effect is now gone. What use does a constitutional limitation have on government restrictions on speech when the government no longer has the ability to control speech?

Kozinski argued that today we live in an age when whistleblowers are unknowable, documents are leaked without consequence, blogger journalists are anonymous and judgment proof, and the mainstream media is in financial peril. Any attempts to restrict speech results in that speech replicated a thousand times over. As such, the First Amendment jurisprudence that we cherish so dearly is now obsolete.

Amy Adler, All Porn All the Time, 31 N.Y.U. Rev. L. & Soc. Change 695 (2007)

In the escalating war against pornography, pornography has already won. I make this claim not to take a side in the porn wars, but rather to observe, bluntly, the new world in which we live. Because of shifts in our culture and, most prominently, shifts in technology . . . pornography has been transformed.

Where Kozinski declared defeat, at least rhetorically, Adler argues that the victory of pornography has, perhaps paradoxically, led law enforcement to focus on obscenity law, rather than child pornography or regulation of content harmful to minors, because only obscenity law offers the flexibility to attack everything that?s now available.

Full post as published by 43(B)log on April 23, 2008 (boomark / email).