If Obscenity Were to Discriminate
Barry P. McDonald, 103 Nw. U. L. Rev. 475 (2009)
In her thoughtful essay, When Obscenity Discriminates, Professor Elizabeth Glazer argues that First Amendment obscenity doctrine, as it relates to portrayals of gay and lesbian sex (“gay sex”), violates the Equal Protection Clause of the U.S. Constitution, and, somewhat paradoxically, the First Amendment itself. More specifically, Professor Glazer appears to make a three-pronged argument. First, current obscenity doctrine leaves open the possibility that, in application, juries or judges might find gay sex portrayals obscene simply because they involve same-sex acts (as opposed to obscene acts). Second, this possibility in turn encourages censorship of sexual expression involving gay sex by private actors. Finally, in view of the Court’s decision in Lawrence v. Texas, the obscenity doctrine violates the Equal Protection Clause by causing such private discrimination and also violates the First Amendment because such discrimination is directed against the viewpoint that gay sex is equally as acceptable as heterosexual sex.
