Sunday, March 16, 2008

Good point, Will

At Outside the Beltway, James Joyner notes a point made by Will Wilkinson in discussing the Spitzer-"Kristen" saga, namely the oddity that prostitution is illegal while pornography is legal.

Why? Well, if you know the history on this, it really goes back to the 1960s, when the Supreme Court began hearing a series of cases that eventually led to a ruling that pornography was protected under the First Amendment as "artistic expression."

It's important to understand that most pornography involves photography or motion pictures (now also video), technologies that were non-existent at the time the First Amendment was drafted. So trying to get a "original intent" argument on this issue is impossible.

Still, the fact is that the so-called Comstock Law -- which harshly restricted interstate transportation of pornography -- was enacted in 1873 and was targeted by no constitutional challenge until the 1930s, and that only because of its restriction on contraceptives. While the Comstock Law limited the federal distribution of pornography, many state and local laws similarly restricted such materials, and thus the availability of porn was very limited.

The Supreme Court's decisions of the 1960s and '70s, which effectively abolished federal, state and local laws against pornography, were thus a radical departure from nearly a century of legislative and judicial tradition on this subject. As with other subjects during this era (including abortion), the Court effectively disempowered state and local authorities, even though (in the 1973 Miller decision) the Court declared that "community standards" should be applied to obscenity cases. Given the likelihood that the Court would void any prosecution of, say, Hustler, state and local authorities simply avoided such prosecutions.

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