I’m about to start researching examples of civil rights “bad precedent” that was later overturned or reversed by the High Court, starting with the relatively short-lived but equally devastating precedent of Bowers v. Hardwick, a case that found “sodomy laws” to be constitutional, on the basis that homosexual sexual conduct simply enjoyed no privacy protection, despite heterosexual sexual activity having protection. Right now I’m looking for documented challenges to the law before it was overturned in Lawrence v. Texas.
On the notion of obscenity…
This tyrannical and puritanical hatred of certain ideas or opinions about sex espoused by the majorities of Roth/Miller read like passages from Mein Kampf. As I’m sure you’ve probably read me say dozens of times, it’s simply not compatible with the our First Amendment.
The very idea that materials can be denied First Amendment protection simply because of the way it might make people feel when they see it, read it, or watch it, strikes at the very heart of our identity. The First Amendment wasn’t designed to only protect speech or media that the people like nor is it limited to materials that have artistic, literary, or scientific “value”. It was designed to function exactly as it is written - to protect the freedom of speech.
The freedom to think, say, express, partake in the exchange of, patronize, consume, or otherwise indulge in whatever ideas that person may fancy, without regard to, and in many cases, in spite of what the others, including those in government, may think, is one that has carried us forward as a people. It is the freedom of freedoms. It is the freedom which allows us to understand life and ascribe for ourselves the value of happiness and the means by which we may pursue it.
This freedom is not absolute, as anybody could reasonably assume. Restrictions on speech have been formulated based on how they effect the rights and interests of others. Exclusions such as libel/defamation, child pornography, true threats, and deliberate incitations of violence all posses a rationale that can be reasonably deduced simply based on their definition and effects.
Libel/defamation is defined as deliberate untruths designed to cause real harm a person’s reputation or identity, the results of which can be shown to impact a person socially, financially, and in some instances criminally. The harm here isn’t quantified by any action taken against said person, but because it was done so under false pretenses.
Child pornography is excluded because it is intrinsically related to the sexual exploitation of children, in that the material in question would not exist without the direct involvement and recorded participation of an actual minor engaged in sexually explicit conduct. The rationale here lies not with the content but the means by which it was created, whereby a simulated, non-existent or fictional minor engaged in sexually explicit conduct would suffice because it doesn’t contribute to an economy that thrives on the sexual exploitation of children. We can reasonably assume that minors are exploited during the production process because children do not possess any understanding of sex or sexual traits that would otherwise justify an adult taking advantage of them for any reason that could put them at risk. This, combined with a legitimate interest in protecting them from abuse and wiping out a market for such abuse, more than explains the harm.
Threats of violence are excluded because they are declarations of planned action with intent to commit an unlawful act of harm against somebody. Those are crimes and, like CP, in a real-life context are read as undeniably linked to the commission of said crimes and can be excluded with a vested interest in the safety and well-being of the people and the community.
Incitations of violent action or “fighting words” are a bit of an oddity but the phrase “shouting ‘FIRE!’ in a crowded theater” sums it up best. Humans, like any other creature in the animal kingdom, are prone to take action when they feel afraid for their lives or well-being. Despite the plainly obvious differences between man and beast, we’re not above acting according to instinct, the consequences of which can be dire especially in instances where “reason” may come at the immediate expense of your life. To deliberately trigger such a response for where it is neither warranted, nor justified puts both the individual and the community at risk of injury.
What separates “obscenity” from these narrowly drawn and easily justified exclusions of free speech is that they are founded in reason, with a rationale built around the prevention of harm. Not just half-baked idealized assumptions of possible harm to other ideas or concepts, but their intrinsic relationship with actual case-and-effect instances or occurrences of crimes founded on harm to the rights or well-being of others.
Sure you can deduce “obscene” speech to the exploitation of natural desire to fulfill momentary gratification at the expense of morality and decency, but such an assumption is merely an opinion colored by one’s own tastes and ideas, rather than a meaningful, non-biased observation. Rather than explain how appealing to such interests in a communally unpopular or offensive way may be harmful to the morals of a community (or where such notions come from) or why such notions even matter to begin with, it tries to assert the idea that they are intangibly linked on the basis that they are offensive in a circular facade.
To place matters pertaining to sex on such a pedestal which rests on the basis of such a lousy argument that fallaciously attempts at appealing to morality and naturalism at the deliberate expense of reason in such an incredulous way should have been deduced as the tools of combatants in a culture war! Just about every single argument I’ve found that favors excluding hardcore pornography from the First Amendment rests on the assumption that it isn’t speech because speech can’t what excites or tantalizes the natural sexual instincts of man, when, in reality it IS speech. These are materials that communicate desire and tantalize the senses in a way that appeals to the individual tastes of the consumer using imagery and literary methodology. They are crafted to excite this, with varying degrees of quality and polish. To deny that this is art because it’s designed to get you off is to be disingenuous and intellectually dishonest.
The mere fact that these “obscene” materials even exist without breaking some law or violating another person’s rights in its production process and that there is a demand for it should be enough to dispel this.
