Rather than hijack Bricker’s thread, I figured we could discuss this here.
We all know that there are limits to free speech. I’ve always been a subscriber to the “your right to swing your fist ends at my nose” philosophy, which basically means I think speech should be free as long as it doesn’t infringe on anyone else’s rights.
So, I don’t understand why the First Amendment does not protect “obscene” content (visual, audio, or, as in the linked thread, textual).
My view is that these laws completely violate our right to free speech, protected by the First Amendment. As long as the obscene content is not forced upon any unwilling persons (i.e., it is available for adults to acquire; not forced on them), I don’t understand how this line can possibly be drawn.
I agree, although I have a hard time seeing how anyone’s speech can infringe on my rights. Speech cannot take away my life, liberty, or property, for instance (depending, of course, on if you define a reputation as property).
The First Amendment fairly clearly states that “Congress shall make no law … abridging the freedom of speech…” That seems pretty clear to me." So, yes, obscenity is protected by the First Amendment.
A lot of feminist reading that I’ve done (that I don’t agree with) posits that this kind of speech (visual pornography or in some cases, even books) are infringing on rights. I think it was Catherine MacKinnon who said that pornography isn’t speech but is rather an action in and of itself. (A conclusion I still can’t quite wrap my mind around, but there it is.)
The argument usually given is that the First Amendment applies to political speech, and that certain “speech” is so devoid of value that it does not rise to the level of political speech.
I’m not certain that this is a valid interpretation of the First Amendment, but, even if it is, then many times obscentiy can be seen as counting as political speech.
While I realize pornography and obscenity are legally different things, Indianapolis attempted to ban most pornography under a law written at least partially by Katherine MacKinnon, which attempted to skirt First Amendment protection by the same argument. My feeling is that such a law is self-defeating. The proponents of the law cited the degradation of women as a grounds for banning pornography, and argued this was not political speech, therefore not protected under the First Amendment. That’s a fallacious argument. If the material at work actually does portray and promote the degradation of women, then it is political speech. It may be political speech that we do not like, or approve of, or in fact it may be extremely unpleasant political speech, but trying to ban something for its message almost by definition places it in the category of political speech.
Therefore, if obscenity, however defined, has no effect on people, there is no rationale for it to be banned. If it has a negative effect on peoples’ attitude towards others, it is political speech, and therefore protected.
And if obscenity is not to be protected, then it must be defined. “I know it when I see it” is not good enough for a criminal prosecution. Community standards that vary across the country, preventing a person from knowing if their book or movie or art show can move from one area to another, are also an inadequate basis for prosecution, IMHO.
Drawing the lines on what is obscene isn’t that easy. We’re goofy in this country. We’ll let our kids play games that are graphically violent but Lord forbid they see a booby on network TV.
There’s some office across the street from my apartment that gets picketed by anti abortionists on a regular basis. I don’t mind the prayer vigils. The large signs depicting bloody fetus are a different story. It’s occurred to me I should get a picture of two people going at it and make a big poster from it. Then I make a large circle with a line through it and tell the protesters I’m on their side. I wonder how long they’d tolerate my poster before I got arrested.
Are we just talking language? Doesn’t good manners regulate obscenity as much as the law?
If you want to say that obscenity is covered by the First Amendment because obscenity is free speech then we to determine if obscenity is covered under free speech. Saying that obscenity is protected by the First Amendment because it is free speech, just begs the question.
I don’t know how you can define obscenity as anything other than “speech” or, perhaps, the press.
Those who claim that it isn’t covered by the First Amendment do so based on the content of obscenity. Content, however, has nothing to do with whether something is speech or not.
I could kind of understand that, but then I don’t see why the founders would have protected political speech, while not protecting “normal” speech.
Here is the text of the First Amendment:
In the given context, I see no reason to assume that “speech” should mean “only certain types of speech”, any more than “press” should mean “only certain types of press”.
I think the argument would be that “speech” as a whole has never been protected - there have always been exceptions to the First Amendment - such as the laws against slander, which existed at the time of the Bill of Rights and were not seen as in anyway affected by the passage of the Amendments.
As I said, it isn’t an argument I find that attractive, as I would consider myself a First Amendment absolutist on most issues. I’d also draw the boundary of what is “political” speech very broadly indeed. Political speech in this context doesn’t just refer to campaign speeches, or arguments about governance. It has a much wider meaning, though I can’t think of a particularly good way to express it right now.
Is child porn covered? Is walking up to person on the street and telling her you fucked her mother up ass covered? Is standing on the public sidewalk outside a church with pictures of horses having sex with nuns covered?
You seem to draw a line for speech that is forced on people, so I doubt you find any of this covered; however, forced speech cannot be the distinction. I doubt you would say it right to prevent people from protesting political issues on the street―this forces speech on people. Why should Justice Scalia be forced to see/hear people holding signs/saying he is wrong about the Constitution, but church members cannot be forced to see pictures of nuns having sex with horses/hear stories about nuns and horses? According to your view all speech is covered the same under the First Amendment.
It is not forced hearing/seeing that is the distinction. Obscenity itself is the distinction. If we look at the historical understanding of the First Amendment people have long drawn a distinction between obscene material and other types of speech. Obscenity was not seen as being covered by the First Amendment until fairly recently.
Sure. It makes the person a jerk, but that’s their right.
Sure, as long as the nuns weren’t raped by the horses.
My problem isn’t when speech is forced on people; it’s when speech infringes other people’s rights. (If I yell at someone, I’m forcing my speech on them. If I threaten them with bodily harm, I’m starting to infringe on their rights.)
And you would be correct. See above.
So, speech should be restricted if someone finds it offensive? Even if the someone is not targeted by it? Even if the someone is not affected by it at all, outside of knowing it exists?
I think obscenity should be protected now, and I think that obscenity should have been protected then.
Just so I understand you correctly, a person has a constitutional right to stand outside a church and hold up graphic signs of bestiality (as long nobody was forced to participate in the acts depicted*)? I guess you also believe a person has a constitutional right to stand outside a grade school on the sidewalk with giant graphic sexual pictures?
If we run into the problem of bestiality being illegal we could always have it be simulated.
It occurs to me that one problem with that argument, if taken seriously and not just used as an excuse to ban “obscenity” allows for the banning of most speech. If a prudish group can get talk of a particular sexual practice banned, why couldn’t another group use the same principle to ban talk of meat eating or fantasy fiction, or even you telling your wife/husband you love them ? You don’t see that happen because meat eaters, fantasy readers and spouses are more mainstream and powerful, but it shows how flawed the idea is I think, but it shows just how flawed
Restrictions on the time, place and manner of speech have always been considered constitutional, as long as they do not remove the ability to speak. Deliberately exposing minors to material ruled as adult only would count under that - for example one can restrict the place of sale of pornography, and restrict the ages to which it can be sold, even if that pornography is not obscene.
And I would consider a law banning display of pictures outside a church to be unconstitutional on establishment grounds.