778
Souter, J., concurring
that means it will take some time before reaching a final method of review for cases like these, there may be consolation in recalling that 16 years passed, from Roth v. United States, 354 U. S. 476 (1957), to Miller v. California, 413 U. S. 15 (1973), before the modern obscenity rule jelled; that it took over 40 years, from Hague v. Committee for Industrial Organization, 307 U. S. 496 (1939), to Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37 (1983), for the public forum category to settle out; and that a round half-century passed before the clear and present danger of Schenck v. United States, 249 U. S. 47 (1919), evolved into the modern incitement rule of Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam).
I cannot guess how much time will go by until the technologies of communication before us today have matured and their relationships become known. But until a category of indecency can be defined both with reference to the new technology and with a prospect of durability, the job of the courts will be just what Justice Breyer does today: recognizing established First Amendment interests through a close analysis that constrains the Congress, without wholly incapacitating it in all matters of the significance apparent here, maintaining the high value of open communication, measuring the costs of regulation by exact attention to fact, and compiling a pedigree of experience with the changing subject. These are familiar judicial responsibilities in times when we know too little to risk the finality of precision, and attention to them will probably take us through the communications revolution. Maybe the judicial obligation to shoulder these responsibilities can itself be captured by a much older rule, familiar to every doctor of medicine: "First, do no harm."
"once the categories are established . . . the categorical mode leads to briefs and arguments that concentrate much more on threshold characterization than on comparative analysis").
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