Violence is not Obscenity

By Geoffrey Hymans
October 01, 2007
On September 17, 2007, the United States District Court for the Western District of Oklahoma became the latest federal court to strike down a state law regulating the distribution of “violent” video games. This followed hard on the heels of a similar decision from the Northern District of California. In both cases the state crafted regulations that tracked the legal test for obscenity set forth in Miller v. California, yet neither court accepted the argument that depictions of violence could constitute a separate category of unprotected “obscene” speech akin to currently unprotected sexual obscenity. An examination of the history of the “violence as obscenity” argument provides an opportunity to examine how and why sexual expression really is uniquely treated under the First Amendment....