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> Producing, selling, and consuming pornography are matters of protected sexual speech so long nothing illegal and criminal occur. This is not true. https://en

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

metalcrow 8mo ago
This is a good point. A lot of people don't realize online pornography is arguably federally illegal, just totally unenforced.
testing22321 8mo ago
Freedom often isn’t.
rayiner 8mo ago
“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.
- sirspacey 8mo ago
  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 1700s
  - rayiner 8mo ago
    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.
    - staticman2 8mo ago
      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.
      - rayiner 8mo ago
        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?
        colinb 8mo ago
        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.
        rayiner 8mo ago
        > Second, the constitution may be written but the interpretation is always changing It’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?
- throwaway98327 8mo ago
  [dead]
cweagans 8mo ago
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.
- metalcrow 8mo ago
  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.
  - SilverElfin 8mo ago
    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.
    - metalcrow 8mo ago
      It is ridiculous, i agree 100%. It's a holdover from the bad old days.
  - shakna 8mo ago
    "Patently offensive" carries some weight there. To those from Puritan backgrounds its probably offensive. To less prudish backgrounds, probably not.

metalcrow 8mo ago

This is a good point. A lot of people don't realize online pornography is arguably federally illegal, just totally unenforced.

testing22321 8mo ago

Freedom often isn’t.

rayiner 8mo ago

“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.

sirspacey 8mo ago
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 1700s
- rayiner 8mo ago
  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.
  - staticman2 8mo ago
    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.
    - rayiner 8mo ago
      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?
      - colinb 8mo ago
        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.
        rayiner 8mo ago
        > Second, the constitution may be written but the interpretation is always changing It’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?
throwaway98327 8mo ago
[dead]

cweagans 8mo ago

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.

metalcrow 8mo ago
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.
- SilverElfin 8mo ago
  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.
  - metalcrow 8mo ago
    It is ridiculous, i agree 100%. It's a holdover from the bad old days.
- shakna 8mo ago
  "Patently offensive" carries some weight there. To those from Puritan backgrounds its probably offensive. To less prudish backgrounds, probably not.