Let's talk about sex...

There can be no denying that American society has progressively liberalized speech and free expression. One area, however, that remains a rigidly regulated is sexual content. Whether implicit or explicit, the topic of sex and sexuality is still very much taboo. The simple fact that there is considerably less protection and an additional set of criteria that applies to expression that that may even be interpreted as sexual (i.e. nudes, open discussion of sexuality in clinical terms, etc.) proves that the topic of sex is still to hot to handle in American society.

Roth v. United States (1957) attempted to define parameters around which society and those who would produce adult materials would both be more clearly aware of what was constitutionally protected and what wasn't.

Roth stated that in order to be obscene, materials must:
a) as a whole, appeal to prurient interest
b) be utterly without redeeming social importance
c) be considered by the average reasonable person to appeal to prurient interest; this standard was national.

Memoirs v. Massachusetts (1966) further limited government power to regulate, requiring:
a) be patently offensive
b) be utterly without redeeming social value

Question #1: Why do you think that the US Supreme Court has consistently ruled in favor of government regulation since Miller v. California (1973) in which the Court granted local government, not national, the prerogative to determine obscenity?

The one respect in which all obscenity law agrees, mandated by the US Supreme Court in New York v. Ferber, is that child pornography is not constitutionally protected. However, Ashcroft v. Free Speech Coalition allowed non-minor actors to portray minors in pornography and allowed "virtual child porn". The Court even went so far as to say that child pornography did not necessarily lack redeeming social value but that the cost of producing real-time child porn (being the physical and psychological damage to the young participants) inherently outweighed whatever social value may be present. The Court ruled that the First Amendment made distinction between bad words and bad deeds and thus legal activity that depicted illegal activity may be protected.

Question #2: Given this interpretation, is there such a thing as content that would pass the "imminent incitement" muster and be considered legal in all respects save the promotion of a crime to such an extent that it is quite nearly a directive? Why do you think this standard is so significantly less rigorous for child pornography where it is more rigorous for "hate speech"?

There have been laws enacted in response to Westboro Baptist Church's affinity for protesting military funerals. Many state Supreme Courts have upheld these laws stating that the emotional nature of the event makes protest speech, even when conducted in a peaceable assembly, an "imminent incitement" of lawless behavior, specifically violence between protesters and funeral participants.

Question #3: Given the volatile nature of people's reactions to child abuse, could the "imminent incitement" test be applied in the same respect that laws banning protests at funerals, citing the potential for violence as the act being incited, not the depiction of the act of abuse itself?