As a staunch free speech advocate and supporter, my appreciation for the right to say, think, listen to, read, and indulge in whatever I want, when I want, and for whatever reason i want is a liberty I hold in high regard. I owe it my life. Without freedom of speech and expression, we wouldn’t be free. Our individual thoughts, ideas, opinions, and beliefs wouldn’t be the same as we know them now, regardless of where we stand on… on anything.
That being said… it’s no secret that not all people choose to observe this basic truth. Such a plainly obvious and observable demonstration of pluralism is either misinterpreted to deprive their contemporaries of the same rights they enjoy, or is simply lost. Authoritarianism thrives in an environment where it goes unchallenged. If certain ideas need to be protected by way of silencing those that challenge, defy, mock, or blaspheme them or simply don’t interpret them the way you wish them to be, then either they’re not valid ideas to begin with or the person advancing such a conquest isn’t representative of them.
I’ve been knee deep in the concept of obscenity for a few years now. The very idea that a nation whose values so representative of the concept of freedom of thought and expression, to the point where it bars its government from punishing people for desecrating its own flag somehow can maintain some exclusion based not on physical or intrinsic harm, harm distinct and isolated to the very context that a person’s rights or physical wellbeing is put in jeopardy would find speech relating to sex and sexual expression that does not conform to whatever standards for offensiveness and value (or lack thereof), even without regard for any “clear and present danger” is just… mindboggling. It’s devastating and nauseating, even more so than whatever perverse acts or depictions contained might be to the most prudent of puritan.
An obscenity exception from our First Amendment is antithetical to our nation’s core values. It places that which we, as a supposedly free and pluralistic people, depend on for our survival on a pedestal it has no right to be on. It bastardizes those values by twisting them to fit a specific ideal or ideology. That sex is sacred because we say so, that the current mob-like prejudices and mores of a community take precedence over the right to free expression, and that a man must rearrange his tastes, opinions, and interests on the topic if you are to be allowed to fraternize with this “free” people.
The very concept is dystopian. It is a cancer on our legal jurisprudence. The fact that in some manner or fashion, be it state or federal, that an innocent man or woman can be indicted, arrested, arraigned, put on trial and incarcerated as if they were a murderer or child predator… not for their actions against their fellow man, woman, or child, but for the contents of their hard drive, comic book or film library does not conform to the contemporary community standards of that particular US town or state… is madness.
I’d like to see it retired and allprecedent and legislation overturned. Decades of legal history, wiped away with the swing of a gavel and the stroke of a pen.
That being said… I’ve delved into the arguments against protecting “obscene” speech, the philosophy behind them, and their so-called justifications. Currently, as of Miller v. California, obscenity is excluded because it “has no value”, is linked to harm or violence in young adults (as dictated by the Meese Commission on obscenity and pornography), that commercial exploitation of it can lead to a corruption of the very moral fabric of a community and that communities have a right to a “decent life”.
The entire majority opinion from Miller is riddled with this rhetoric. Such a rhetoric is familiar to that of Lord Delvin’s book “The Enforcement of Morals”, a machiavellian lecture on morality and a society’s right to define, pursue, and enforce it. Aside from the fact that they’re wrong, these arguments all rest on the presumption that they’re correct because they seek to further a communally agreeable goal. That upholding and enforcing morality is a legitimate interest, that there is reason to suspect that violent, demented, or hardcore pornography may influence violent or sex crime in our society, and the last is just a hackneyed attempt at dodging criticism by asserting the idea that morality is intrinsic to sex and that communities, and the government itself, can and regularly do advocate for the “common good” which obscene pornography simply cannot fall into.
All of these rationales fall victim to a myriad of fallacious arguments.
For one: It’s not the government’s place to punish people for thought crimes. Coming across offensive, nauseating, rage-inducing speech that violates community standards and has no value is a risk you take when choosing to be free. You don’t have to look at, tolerate, or support materials that you don’t like. What obscenity laws do is they take this level of individualism from the community, and the community decides what is appropriate for the individuals to enjoy. That’s not democracy. That’s moral majoritarian tyranny.
Second, the Meese commission was a follow-up attempt by Congress and the Nixon administration to correct what the previous commission said about the issue by essentially fixing it to fit with their socially conservative narrative. Numerous issues have been called out from within and outside the commission, with the Nixon administration appointing their own people to spearhead research into a biased direction. Even the findings themselves admit that it couldn’t establish a satisfactory intrinsic link between degenerate pornography and actual harm or crime, but referenced “common sense” over social-science inquiry. So to imply that such a book is a valid empirical metric to base such a conclusion on is lunacy.
And finally… the morality argument. The morality argument is fallacious in that it seeks to apply real-world standards to the realm of art. This is bolstered by the presumption that pornography isn’t art because it seeks to get you off, but to imply that in and of itself isn’t or can’t be art is evidence of a bias. Art is to the beholder whatever value it may have. There are dozens of arguments and definitions for how to objectively define “art” and “artistic value”, but the most satisfactory answer people go with is if it’s a tangible, observable work that is expressive and attracts an audience. To define what can and can’t be “expressive” is demeaning to the very medium, in that it strips the individual of their right to enjoy the gift of “art”.
How does this relate to morality? Because in addition to demeaning the institution of “art” in such a contradictory fashion, it seeks to further establish a link to the real world where your standards for what may exist in your imagination are secondplace to certain moral issues a community may have. By establishing this link, it becomes harder and harder to rebel or object because they’re using appeals to emotion and morality fallacies to rob the individuals of their right to define it. Such a psychological tactic is common in religions and despots.
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These are only some of my statements and arguments against defining and excluding obscenity. The Constitution already allows indecent and pornographic materials that aren’t declared obscene to be restricted based on “time and place” but to go any further than that is unconstitutional. The First Amendment does not, and should not, have this barbaric double-standard for sexually explicit or offensive pornography. Pornography is, by it’s very definition, art.
Please, if anybody knows how or when Miller could or will be overturned, please keep the discussion going. I hope to wage war on this precedent.