By Barry P. McDonald[*]
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.
While Glazer’s thesis is creative and provocative, she does not address critical legal and empirical problems with her argument. The first is the notion that existing constitutional doctrine of the U.S. Supreme Court can itself be unconstitutional because it might be applied in a manner that violates other constitutional doctrines. While such applications of a doctrine might be unconstitutional if they were to occur, that does not render the doctrine itself unconstitutional. The next problem is her idea that potential unconstitutional applications of a doctrine that purportedly encourage private actors to discriminate render the doctrine itself unconstitutional. If solely private actors commit the ultimate discrimination, then there is no state action to support a claim of constitutional violation.
Finally, there are significant empirical deficiencies with Glazer’s argument. She concedes there is little evidence that juries or judges actually apply the obscenity doctrine against gay sex portrayals in a discriminatory manner. Thus, she bases her claims of constitutional violation on alleged discrimination by private parties. But even here, Glazer attempts to make a case of private discrimination by focusing on the actions of just two private entities—the Motion Picture Association of America (MPAA) and Google—where her “proof” of discrimination involves highly anecdotal or limited information, which fails to establish anything definitive. Moreover, Glazer provides no evidence to tie the allegedly discriminatory behavior of these two entities to the obscenity doctrine, relying instead on bare assertions that the doctrine’s treatment of gay sex portrayals causes such “collateral effects.”
This Essay develops these criticisms of Professor Glazer’s essay. Part I discusses the lack of a sound legal or empirical basis for arguing that the obscenity doctrine is unconstitutional due to its claimed discriminatory collateral effects. Part II examines Glazer’s argument as it might properly have been made: that if the discriminatory application of the obscenity doctrine against gay sex portrayals were to become an issue, the demands of a principled and coherent jurisprudence would require the Court to revisit that doctrine in light of Lawrence to clarify that the gay or lesbian nature of such portrayals is not a constitutional basis for deeming expression to be obscene. I conclude that Glazer would have a strong argument in this regard, but one that relies primarily on basic equal protection and First Amendment principles rather than on any changes wrought by Lawrence.