Obscenity, Pornography, and Vagueness

Many of my students think it obvious that obscenity and pornography statutes are too vague. When I ask my students whether they think it should be unconstitutional to prohibit the distribution of obscene materials to children, they overwhelmingly respond that such a prohibition should be upheld. This vagueness, they can live with.

When judges are asked to declare a statute for vagueness, their analysis ordinarily goes something like this: “The statute is unreasonably vague.” Or “No it’s not.” It is child’s play to observe that any statute has vagueness issues. Even an overbroad, but seemingly precise statute, that forbids the use of the name Obama in a sentence could give rise to questions about the meaning of a sentence in particular circumstances.

The best opinion I know of in attempting to analyze a vagueness claim is that of Justice Brennan in the obscenity context. He argued that the degree of vagueness one tolerates depends upon the severity of the state interest and the possibility of a clearer formulation. Accordingly, he though a statute forbidding the distribution of obscene material to adults should be unconstitutional (no significant enough interest involved), but a statute prohibiting distribution to children or unconsenting adults should be constitutional.

At the time, Brennan, of course, did not know of the research assembled by Malamuth and others. But any assessment of a vagueness claim regarding pornography would have to take it into account. In assessing the vagueness claim, MacKinnon would do more than cite the seriousness of the harm. She would point to the fact that there is a core of clear meaning and that core involves billions of dollars of material distributed each year. She would observe that other pockets of first amendment law are equally unclear. What is defamatory? Who is a public figure? What is fair use? There are clear cases, of course, but notorious vagueness as well.

And, of course, obscenity law is vague, but beneath the protection of the first amendment. One could argue that MacKinnon’s pornography ordinance is clearer than obscenity law. Obscenity law, to oversimplify a bit, generally outlaws the distribution of patently offensive materials that appeal to prurient interests, materials that lack serious literary, artistic, political, or scientific value. MacKinnon’s ordinance forbids the distribution of materials that involves the graphic sexually explicit subordination of women through pictures and/or words that also includes one or more of a number of specified factors, such as women presented as sexual objects who take pleasure in being raped (some factors are clearer than others – good arguments exist for the view that some of the factors should be omitted). MacKinnon’s ordinance has no value test, but, if one were added, the pornography ordinance would be less broad and clearer than the obscenity category. Indeed, it would identify a class of material that is patently offensive and appeals to prurient interest.

More on obscenity and religion later

Comments

[Steve Shiffrin]

Patrick, good stuff as always. Peter Gabels writing is relevant to
what Brad Wendel has to say. I dont want to steal his perspective
before he starts posting here though. I share the irony, however.

[Patrick S. O'Donnell]

Or, as Wendel also puts it, we can have plausibility, reasonableness, and so forth as objective criteria or standards and yet lack certainty in a strong sense, much like a good argument need not demonstrate the precision of formal logic and deductive reasoning to exhibit the kind of rationality we associate with practical reasoning.

[Patrick S. O'Donnell]

As Timothy A.O. Endicott thoroughly explained in his important book, Vagueness in Law (2000), vagueness is "ineliminable from a legal system" and in any case it "is not necessarily a deficit in the rule of law," especially if the law is to do the sundry things we've come to expect it to do. Moreover, and relatedly, Endicott details, with a sufficient command of both philosophy of language and legal theory, why precision in the law is not always a desideratum. Vagueness is clearly a deficit, however, "when it lends itself to arbitrariness--to abandoning the reason of the law." Vagueness and indeterminacy are a matter of degree, and legal systems respecting substantive due process and the principle(s) of legality (or procedural restraints) generally, that is, exhibiting features of procedural fairness and minimal moral legitimacy, have not been afflicted by vagueness and indeterminacy to a disabling degree or in a manner that undermines such fairness and legitimacy. In short, vagueness, as you illustrate here, is not an insuperable obstacle and may, at times, be a legal virtue.

Parenthetically, it's interesting and a tad ironic, as Brad Wendel notes at the Legal Ethics Forum in connection with the interpretation of the statutory prohibition on torture and the Torture Memos, that it's the Right today (like CLS of yesteryear) "that is arguing that we can't really say that a lawyer is distorting or twisting the law because, well, the law can be made to mean pretty much anything at all."