Utah's online porn tax proposal poses a major threat to civil liberties
techdirt.com
techdirt.com
This is not true. https://en.wikipedia.org/wiki/Miller_test
> In practice, pornography showing genitalia and sexual acts is not ipso facto obscene according to the Miller test.
I'm not sure you can make the statement that pornographic materials aren't protected speech. I don't think you can make the statement that they are though.
I understand you’re simply quoting the Miller Test but the entire concept of obscenity is ridiculous. Speech is speech. The Constitution says nothing about obscenity.
To those from Puritan backgrounds its probably offensive. To less prudish backgrounds, probably not.
First, the US constitution as it currently stands admits modifications. Amendments are version bumps. My understanding is that they’re harder to come by these days.
Second, the constitution may be written but the interpretation is always changing. In particular, the interpretation of laws around restriction of free speech have lots of history of being interpreted in ways that may or may not be congruent with the intentions of the original authors, who’re dead, so we’ll never know the truth of it. It’s only been 107 years since the US Supreme Court decided that anti-draft speech in time of war COULD BE ILLEGAL. Apparently that was partially overturned in 1969.
Thirdly [naming, caching and out by one bugs!] it is far from clear that a written constitution will lead to a durable republic. It’s only been ~250 years. Too soon to tell.
It’s okay if the change is because you think the new interpretation is closer to what the constitution originally meant.
It’s democratically illegitimate to change the interpretation otherwise. A written constitution is already an impingement on democracy. But how can it be that whoever is doing the interpreting is allowed to restrict democratically adopted laws in ways the constitution didn’t originally intend to restrict them?
What's democratically illegitimate is everything you wrote in this thread.
If your state government threw you in jail for what you just wrote that would be perfectly aligned with your "original understanding" interpretation of the U.S constitution.
No, they can’t. The point of the constitution is to prevent arbitrary changes that violate the civil rights of the individual. A tyranny of the majority (the flaw in democracy) does not get to override fundamental individual rights.
“Sexual speech” isn’t a “fundamental individual right.” And if you disagree with me about that, then we have to put it to a vote, right?
At the same time, you're allowed to disagree with their decision. The Supreme Court tries its best, but there is no "100% correct" interpretation and individual justices often disagree (as they did on Miller v. California).
You're essentially arguing against a constitution. Governments can work without one but it should at least be recognized what we're losing. There are no longer any practical limits to what laws legislators are allowed to enact.
There's a huge disconnect between what the voters want and what legislators actually enact which is why I'm glad we have a constitution. My home state, Ohio, actually tried to limit ballot initiatives because they knew they knew the upcoming abortion ballot measure was going to pass. Literally the definition of legislators not representing the will of the people. I wouldn't ever argue "some state legislature passed a law therefore it must be what the people wanted."
That’s a broadside argument against democracy. You’re not just saying that legislatures sometimes don’t reflect the will of the electorate. You’re saying that’s the default. Do you really think that’s the case here? That people in Utah don’t support a porn tax?
The Ohio abortion referendum doesn’t prove your premise. It shows that, when you put a single issue to a public vote, you can get a different result than a legislature, where factions necessarily have to form coalitions to support or oppose platforms including many issues. If you put the abortion issue in a referendum with other issues like say police funding, you would probably get a different result—even with no legislators standing between the public and the outcome.
And how is your alternative proposal better? If elected legislatures don’t reflect the will of the people, doesn’t that go doubly or triply so for a handful of unelected judges interpreting a “constitution?”
Ohio actually is aware of this which is why in the state constitution there's a rule that bills must have a single subject. The hypothetical abortion plus police funding bill would be unconstitutional.
This is actually one of those "turns out!" facts people like to bring up that isn't actually rooted in any solid data. It was widely circulates based on a misinterpreted 2009 Harvard study, and Utah generally ranked in middle or lower middle of the pack when it came to site traffic per capita by state (in years prior to SB287, that is--obviously now traffic is next to none because of the IP ban).
This is one of those "turns out" facts that is part of PH's annual PR release. Until 2023, PH and its competitors reported that red states led by Utah have been the largest consumers of adult material and wasn't even close.
PH reported an extremely large rise in VPN usage after the Utah adult content bill passed, and assuming that those new VPN users are mostly Utahans, Utah still leads the nation in terms of adult material consumed.