With the Cabellas decision, I have not really had an opportunity to talk about an important new First Amendment decision. The Western District of Pennsylvania dismissed an obscenity prosecution in U.S. v. Extreme Associates based, not on First Amendment grounds, but on privacy grounds. Prior obscenity law had really never given a constitutionally adequate definition for what constitutes obscenity versus non-obscenity. This article does a good job explaining some of the significance of the Extreme Associates decision.
Orin Kerr, at Volokh, thinks that this decision will be overturned by the Third Circuit. Maybe he's correct, but I believe that his argument that you cannot get around established First Amendment precedent by sprinkling on Lawrence is not quite accurate. Lawrence was quite explicit that the moral beliefs of a segment of the population will not suffice to curtail constitutional privacy rights. That is not quite what this decision says. Rather, the decision (and findlaw.com article) recognizes that Lawrence signifies a substantial shift in privacy decision making. Thus, while the First Amendment may not protect certain speech, there may be other ways of limiting government's ability to take action with regard to that speech. Anyway, given Cabellas, any decision expanding individual liberty this last week or so is cause for celebration.
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