Until you realize that child pornography would be protected by the First Amendment without obscenity carved out.
The Miller Test is what defines obscenity, and it seems pretty reasonable to me: is it about gross sex according to the average person (not the most Karen person), and does it lack serious literary, political, scientific, or artistic merit.
Honestly, I'm not aware of a Supreme Court case that held something to be obscene that was IMO wrongly decided. Pornography is fine. Even lolicon (cartoon sex of children) has been protected under the First Amendment and not deemed obscene.
The problem with opening the "which obscene is protected" door is that it gives the government (presumed to be correct in judgement by default) too much power. See Bush W admin's leaning on credit card processors to freeze out content they didn't like.
If a Miller bargain must be struck, then "not allowing pornography to be exposed to minors (and no other limits for everyone else)" seems a better line.
Then putting some safeguards in around what can and cannot be used as an age test in order to maximally preserve privacy (e.g. independent, non-government company, no identifiable information persisted, non-id verification options, etc) and what constitutes pornography (and what isn't).
I'm a free-speech maximalist, but "porn for kids" is a tough hill to die on. Even if there are sound technical reasons why that should be allowed, there are too many social ones to make that the all-in bet in a democracy.
Production of child pornography is illegal even without obscenity laws
That doesn't criminalize possession, and arguably there's a compelling interest to do that. But I hate the dance that lawyers do, pretending to legal rigor while simultaneously carving out exceptions that the text cannot justify.
Until you realize that child pornography would be protected by the First Amendment without obscenity carved out.
The Miller Test is what defines obscenity, and it seems pretty reasonable to me: is it about gross sex according to the average person (not the most Karen person), and does it lack serious literary, political, scientific, or artistic merit.
Honestly, I'm not aware of a Supreme Court case that held something to be obscene that was IMO wrongly decided. Pornography is fine. Even lolicon (cartoon sex of children) has been protected under the First Amendment and not deemed obscene.