I was actually puzzled as to why pornography doesn't fall under First Amendment rights. After googling it, I found an interesting piece on the wiki article talking about the guidelines used to discern an exception from the rule:
Instead, the Roth test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest"
I find it disgusting that after all this time, we're still using a moral-ethics based approach to determine whether a broad ranging law can apply to a specific form of media. It is not that I particular agree or disagree with whether minors should have access to this - but I do disagree on how this decision has been made.
I'm hoping that with this decision, we'll be forced to reconsider how expressions are perceived.
Yes, the standard is vague. But at some level, all laws come back to moral judgments of one kind or another. Even if you start with practical concerns, you end with moral values.
For instance, why do we value free speech? Because we believe that free speech is a human right. This is a moral belief. If a dictator says "I don't believe free speech is a right," I might argue that society functions better with it.
But the dictator doesn't care how well society functions, in terms of outcomes for other people; he only cares about his own power. In the end, my argument would be that people have rights that "shouldn't", in a moral sense, be violated.
And that is exactly what the United States' founders said - "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..."
I don't think the moral judgement is always so easy to find, though. Look at the second amendment, for example:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
It should be pretty clear to any strict constitutionalist that what's being laid out there is not a moral, inherent right to carry arms but a means to an end. Yes, there is a moral judgement in that it's worth doing things to preserve a free state, but it's several times removed from the actual question being addressed.
Also, as vague as "community standards" are, it does seem to me that they have some value in regulation. For instance, would you be in favor of allowing pornographic billboards in your town? What if the porn was political in nature?
I would still say that in that case, freedom of expression must be balanced against the community's moral standards. That may be vague, but it's real; I think there would be a pretty broad consensus among parents of all religious stripes, for example, that they don't want such billboards up where their children would see them.
Having worked for an adult company (and doing consulting for a different adult company now), one thing that I always see is adult companies banning access and/or credit card transactions from certain Zip codes known to be risky for the Miller Test.
I always wondered about that though, since I remember hearing about a case that was overturned because the defense was able to show that the number of adult pay-per-view purchases in the area far exceeded the number of subscriptions to their website. Also (since I'm a developer and not a lawyer), I'd really like to know why it should even matter what the community standards in, say, Salt Lake City are if the website is based and hosted in California.
Instead, the Roth test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest"
I find it disgusting that after all this time, we're still using a moral-ethics based approach to determine whether a broad ranging law can apply to a specific form of media. It is not that I particular agree or disagree with whether minors should have access to this - but I do disagree on how this decision has been made.
I'm hoping that with this decision, we'll be forced to reconsider how expressions are perceived.