Front Page Titles (by Subject) The First Amendment and Pornography - Literature of Liberty, Winter 1981, vol. 4, No. 4
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The First Amendment and Pornography - Leonard P. Liggio, Literature of Liberty, Winter 1981, vol. 4, No. 4 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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The First Amendment and Pornography
“Pornography and the First Amendment: Prior Restraint and Private Action.” In Take Back the Night: Women on Pornography. New York: William Morrow and Company, 1980, pp. 241–247.
Kaminer presents a legal positivist analysis of pornography, freedom of speech, and current feminist anti-pornography activities.
Obscenity, Kaminer notes, is not now protected by the First Amendment. In 1957 in Roth v. United States, 354 U.S. 476, the Supreme Court held that obscenity (like libel) was not speech and could be prohibited. Problems arise, however, in defining obscenity and separating it from protected speech. The current definition of the Supreme Court was enunciated in 1973 in Miller v. California, 413 U.S. 15. Obscenity is material that among other things, “lacks serious artistic, political, or scientific value.”
Theoretically, most “hard-core” pornography could be found legally obscene under the Miller decision and could be prohibited. This is not practically possible since the First Amendment has been interpreted to prohibit prior restraint of material before publication.
Some feminists have suggested that pornography could be readily prohibited because it is deemed dangerous and may incite violence against women, and therefore represents a “clear and present danger” to them. Kaminer argues that the application of the “clear and present danger” standard to pornography undermines the current legal rationale for censorship. The “clear and present danger” standard applies to protected speech, not unprotected speech such as obscenity. Traditionally the standard is used to restrict political speech: anti-draft pamphleteering in 1919; “subversive” speech in 1950; the Pentagon Papers. Application of this standard to pornography would imply that pornography contained “serious political values.” Since the “aggrieved party” would not be the state “in its role as guardian of national security,” but women as a class, application of the “clear and present danger” standard to pornography would exempt it from all regulation as protected political speech which does not threaten the state.
Kaminer notes that such a defense of freedom of speech for pornographers was attempted in Roth v. United States, 354 U.S. 476, and predicts that the current feminist anti-pornography movement's definitions and analyses of pornography may provide a climate in which a defense will be successful.