Obscenity: An Outdated Concept for the Twenty-First Century

Abstract

In the pages that follow, this essay argues that the Court should take the opportunity to travel the path not taken in Miller v. California and hold that there is no such thing as obscenity. Instead, all speech is protected. To the extent that sexually explicit speech may sometimes cause harm because of its manner of dissemination, case law that has developed since Miller is more than adequate to deal with that harm. Consequently, whatever utility Miller once had in preventing social harms is no longer present. Further, Miller has long been antithetical to sound First Amendment theory. Therefore, it should be overruled.