This one goes a bit into the weeds. I apologize for its length.
Yesterday we at Centre had a talk by a visiting philosopher on obscenity law. My "Happy Society" class went because we have been studying Haidt's Righteous Minds, which talks about the different moral foundations that liberals and conservatives appeal to. When I read the poster describing Michael Kessler's approach, I knew he was a liberal. His argument was that an individual's choice to use obscene material hurts no one, so there should be no law against it. A conservative, by contrast, would argue that pornography - the specific example of obscenity that Kessler was concerned with - degrades the sanctity of the body, both of individuals and of the body politic.
To make his argument, Kessler used three arguments:
1) Mill says I am the sovereign over myself, as long as I do no harm to others.
2) The Rowan decision said that householders could opt out of receiving obscene material in the mail.
3) the Miller decision said that community standards could prohibit sending obscene material in the mail to anyone in the community.
Kessler read this sequence this way:
Mill was right - individuals are sovereign over what they do, as long as it does not harm other individuals.
Rowan was right - individuals can exercise their sovereign individuality by choosing not to receive obscene material.
Miller was wrong - the state is imposing a universal judgment that obscene material is not open to the free choice of individuals.
I think this reading is wrong.
Mill is talking about individuals. I think in practice the range of things that apply only to individuals, without affecting the other people that individual is connected to, is very small.
Rowan is not about individuals, it is about households. The responsible adults of a household decide to protect their little community from the intrusion of obscene material.
Miller is not about the state, and certainly not about the state making a universal substantive judgment. The community is a larger version of the household that was acting in Rowan. This large household is making a similar decision to protect their somewhat larger community from the intrusion of obscene material.
Kessler objected to any community standards on the grounds that they might be used to support racism.
But here is the problem. Liberals use community standards the same as everyone else. They decide in the little community of their household, or in the somewhat larger community of the social networks they control, such as campuses, that some obscene material is not permitted. For example, they forbid the use of racist words.
Banning the 'n-word' is a community standard.
I think Kessler was confused about obscenity and pornography. He was drawing a distinction, but the wrong one. What makes anything obscene is its public quality. The debate over obscenity is over whether things which are not, or cannot be, forbidden in private must also be accepted in public. Rowan drew the public/private line at the household mailbox. Miller, more ambitiously, drew the line at the community's border. Pornography is just one example of the vastly broader category of obscenity.
The other thing at issue in Rowan and Miller is whether pornography is an inherently dangerous substance. Some things are banned even in private because they are too dangerous to the community to be in private hands. Nuclear weapons would be an uncontroversial example.
Pornography is a somewhat dangerous substance. I think porn is about as dangerous as marijuana. They both do dull the moral sense. But neither is very dangerous. Therefore, I think they should be regulated the same way. Not forbidden in private, but strongly discouraged in public. In other words, obscene - off stage.