Obscenity Laws in Danger?

Currently, obscene pornography is not protected as free speech. According to Eugene Volokh, however, the recent Supreme Court decision in Lawrence v. Texas that overturned a Texas law criminalizing homosexual sodomy could open the door for legal protection for obscenity. The court decision in Lawrence is very broad, going further than any other decision in defending both personal liberty and sexual liberty. As Justice Kennedy wrote:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.

Volokh sees ways in which a future court might not accept the above as a basis for protecting obscenity, but ultimately he believes that they don't work very well and that there is a good chance that a court won't choose to use them. The implications of Lawrence are, thus, very interesting indeed.

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• Supreme Court Decisions on Privacy
• Forum Discussion