Bret Boyce (University of Detroit Mercy - School of Law) has posted Obscenity and Community Standards (Yale Journal of International Law, Vol. 33, p. 299, 2008) on SSRN. Here is the abstract:
In this article, I present a comparative study of constitutional obscenity doctrine in the United States and Canada, and argue that the community standards test that has long been the touchstone of this jurisprudence cannot be reconciled with fundamental principles of freedom of expression and conscience.
In the United States, the imposition of community standards of morality is at odds with the U.S. Supreme Court’s increasingly explicit rejection of mere majoritarian morality as a basis for criminal regulation, especially in the private sexual sphere. Moreover, the Court’s embrace of local standards was always constitutionally anomalous and is increasingly so in the internet age.
The Supreme Court of Canada has tried to develop an alternative approach, insisting on a national standard grounded not in morality but in harm, especially harm to women. However, this national standard is largely a fiction, and the claim that whatever the community does not tolerate is by definition harmful is both theoretically and empirically untenable. The Canadian Court has implicitly recognized these difficulties in a recent decision that appears to jettison the community standards test altogether, and to focus purely on the question of harm caused by “degrading” and “dehumanizing” materials. It is not clear, however, that this new approach rescues the doctrine from the vagueness that has led in practice to repressive and discriminatory enforcement, which, ironically, has been targeted especially against gays, lesbians, and feminists.
Both the U.S. and Canadian experiences thus suggest that the obscenity prosecutions have been arbitrary and highly political. The article concludes that the prohibition of obscenity is incompatible with free expression, whether such prohibition is based on community standards, or on the harms that are said to flow from “degrading” and “dehumanizing” material. Bans on sexually explicit materials that involve only consenting adults in their production and distribution cannot be justified in societies committed to the freedom of speech and conscience.