I have a friend who has a theory that a conservative court is more likely to offer a strict interpretation of the constitution than a liberal court. Cases in point.
Lawrence v. Kansas

the rob black initial dismissal

the 2257 reversal

all happened in ultra conservative courts

yet in denver on the 2257 challenege most of it was upheld, and denver is a liberal court.

Miller is useless in this day and age but if “obscenity” is to remain unprotected free speech its high time someone defined what obscenity is.

I’m also not sure that any First Amendment lawyers want to go to the Supreme Court right now. It’s a toss up, at best, on First Amendment issues. Scalia is showing himself to be more and more of a hard-core religious fundamentalist with no regard for the Constitution, notwithstanding his protests that he is an “originalist.” And I fear that Thomas will take whatever crazy, anti-porn stance is necessary for him to try to put the “Long Dong Silver” incident to rest. Plus, if McCain gets elected in November (please God, no!), the Court could look awfully different by the time the Max Hardcore case got up there. I think that Stevens has a maximum of 18 months left, and I have concerns about Ginsburg’s health.

As far as calling to Max Hardcore to task for making stuff that’s “too extreme,” I have to cry foul. It’s not my cup of tea either, and I think that his influence on the industry in general is unfortunate. (I don’t want to see women gagging—period.) But someone is clearly buying his stuff. It’s not like he’s getting grant money from the National Endowment for the Arts.

This is where the whole “community standards” element of Miller has really gotten derailed. The original obscenity cases dealt with quasi-public displays—movie theatres that were doing advertising on the streets for everyone to see. In those cases, the purpose of the community standards part of the test was to protect the community from stuff that was “too offensive” for the public. For example, a theatre in Salt Lake City that was showing and promoting “Double Penetration 4” would probably offend a very large part of the population and cause lots of general unrest in the community.

Applying “community standards” to videos that are ordered and watched at home is ridiculous because nobody except the viewer is even going to know that it’s in the community! Some people might argue that the community standards element is in place to protect public morals, but that idea was laid to rest by the Supreme Court in Lawrence v. Texas when it overturned Texas’s anti-sodomy laws.

Bottom line, if there is a market that allows someone to make and sell videos that don’t involve criminal activity (bestiality, necrophillia, child molestation) to private viewers, then they should be allowed to make and sell it. Protecting Max Hardcore’s right to make and sell his videos is necessary because it protects the rights of Mike South, the Sinclair Institute, and even Universal Studios to make their videos.