I totally agree - I think it is a bad argument, but it is the argument used. As I mention in the other thread, the Supreme Court goes wonky when it comes to sex. They simply don’t know how to handle it.
Of course. A right that cannot be abused is rather insubstantial, isn’t it? If a right couldn’t be abused, it could only be that the right is an empty gesture, like the right to vote if the votes weren’t counted. If the right to speech could be confined to speech that met universal approval, it would be pointless, vapid.
I consider certain recent remarks of the repulsive Mr. Hagee (I’ll call him “Reverend” if you’ve got a gun…) are far more destructive and corrupt than any possible display of any human organs in any configuration. But if I don’t defend his right to spew, I can’t defend mine.
We have no chance of stating a fair and explicit standard for porn so that anyone could know in advance whether or not they would be committing a crime is the other, less convincing, reason.
Besides, no one was ever seduced by a book. Well, after finishing *Atlas Shrugged * I felt screwed, but that’s different…
“Go home, dad, you’re drunk.”
I think all those things are covered by the First Amendment, actually. Perhaps not child porn, although the real issue there is that someone is being victimized to produce it. The victimization, not the material itself, should be illegal, although one can make the argument that the only way to stop the victimization is to make the material illegal.
However, saying ridiculous things to people should not be illegal. Furthermore, the government should not discriminate between types of speech when setting rules on demonstrations. I can see a government banning all types of displays on public sidewalks (after all, the government owns those sidewalks) but the First Amendment, in my reading, does not allow the government to say that some speech is allowed and some is not.
A question for you, then: you seem to think the First Amendment, which clearly says that Congress shall enact no law infringing on free speech, means that Congress can enact some types of laws. What speech do you think is protected? What speech is not protected? If you don’t think that someone has the right to stand on a public sidewalk with pictures of horses screwing nuns, do they have the right to stand on their own property and display that? Do they even have the right to own such material? And what if it’s a picture of a horse screwing Hillary Clinton? Is that obscenity or is that a political statement?
I do not believe that obscenity is covered by the First Amendment because obscenity was not understood as being free speech for the purpose of the First Amendment when it was passed. Nor has the Court ever held that obscenity is covered by the First Amendment.
Go out on a public sidewalk with graphic sexual pictures and see how far that argument gets you.*
- Do not do this. It is almost certainly illegal where you live.
Yes, obscenity is free speech, and protected. I don’t personally agree with the SCOTUS definition currently used; I believe it is too tight. How can a judge decide if a work has socially redeeming value?
Porn that is a photographic record of sex with someone who is not a consenting adult crosses into another crime. Thus, photographic child porn crosses that line. Child porn in text exploits no child, nor does a drawing of sex with children. It isn’t appealing to me, and I don’t possess any of it. I believe child porn that doesn’t actually involve real children is protected speech. The only justification for child porn laws is the protection of actual children from actual exploitation. If imaginary sex with children becomes illegal, every 12-year-old boy will be in jail for imagining sexual acts with, well, hey, lots of people he’ll never have sex with.
Nobody was ever corrupted by a book. (I might make an exception for bad poets inspired by Rod McKuen and Allan Ginsberg.) 
Sometimes, I wonder what our development of sexuality would have been like if we weren’t told that pictures of naked people were forbidden, and if guilt and shame weren’t so tangled up with our feelings about what is and isn’t sexually exciting.
Can’t you apply exactly the same argument to any kind of speech? Is political speech free speech? What is free speech, if the plain meaning of the term isn’t the guiding definition?
No. When we look to the understanding of the First Amendment, political speech was exactly the type of speech that was understood to be protected.
Can you point out the law that makes this understanding clear? Are there any other parts of the Bill of Rights which do not actually mean what they say they mean, but whose real meaning is written down somewhere else?
[voice from the back of the city council meeting] Fur crine out loud, Mayor! In It’ly, Michaelang’lo’s David is in a freakin’ church! Dere he is, a hot stud in mahble, wit his dick ‘n balls hanging out for all to see! Y’ wanna guess what parts are polished most, from people touchin’ 'em? It’s 'is dick ‘n balls! In a church, f’ God’s sake! So, you tell me, what’s obscene? [voice from the back of the city council meeting]
Why would there be a law?
I am not completely sure what you are asking, but if you were to just read the 8th Amendment you might think that it also applies to pre-conviction punishment, but it does not. This not written down someplace else though, unless you count commentary and court decisions.
The Accademia dell’Arte del Disegno is freakin’ church?
It’s pretty darn broad, when you look at the tracks of various conservative and liberal Supreme Courts. Doctors and lawyers can advertise, because that’s commercial speech. Laws can’t completely limit how much money a person can use to influence an election, because money is speech. The issue of protesters outside abortion clinics has teetered back and forth. The boundaries of protected political speech include burning the US flag.
The definition of obscenity has varied quite a bit. The current pinpoint is probably not permanent. Let’s see how close I can come from memory.
The work is intended to appeal to prurient interests. (It’s intended to get the viewer aroused.)
It has no socially redeeming value.
It fits community standards for unacceptable obscenity.
That last rule was looked on as helping the anti forces, but checking the rental records of a city’s video stores will tell you community standards embrace explicit sexual depictions.
If that’s true, I have a new entry in my List Of Lies My Parents Told Me. They came back from a European vacation with a picture of the lad with a sling, and they said it was in a church. It was in the middle 1960s. Still, it’s a work of Biblical origin.
Of course, using that as an argument for restricting it assumes that arousing viewers isn’t “socially redeeming”. And if it’s not redeeming because it has no values but the pleasure it grants the viewer, you could use the same argument to ban entertainment in general.
Of course, what “community standards” really tends to mean is “the standard of the conservative control freaks in the population”.
I can’t argue with that, but we are stuck with what the SC says at any given time. The community standards part is the most recent addition. For the time being, obscenity is awfully hard to prove, but it could change, in either direction. Who elects the person who appoints federal judges? (looks around) It’s you, and it’s me.
The response from villa (post #20) is congruent with my views.
Why, because it wasn’t explicitly stated? (e.g., “Congress shall make no law… abridging the freedom of speech, including vulgarities and obscenities,…”)
Yeah, that’s kind of what I’m taking issue with here. 
Cite, please?
ISTM, that the last point might as well just swallow up the previous ones. (i.e., If society deems something as “unacceptable obscenity”, haven’t they already deemed it as having no redeeming social qualities? Otherwise, wouldn’t they have deemed it “acceptable obscenity”?)
I agree that the method of “original intent” is a good way to interpret the Constitution. When there is some ambiguity, then we should try and ascertain what the Founders meant when they wrote the words of the various amendments and sections of the Constitution. However, when the words are plainly written I don’t think we need to turn to interpretation. The words “Congress shall make no law” are very, very clear. The Constitution clearly states that Congress has no power to restrict speech. The words of the Constitution do not indicate that obscenity or commercial speech or [insert whatever type of speech you don’t like] are not covered. It says no law. How can it get any clearer?
That means nothing to me. The Supreme Court has a varied track record of correctly interpreting the Constitution in my view. My idea of what is Constitutional does not depend on the whims of Earl Warren or Sandra Day O’Connor or Anthony Kennedy or any other justice.
So? We are not talking about illegal here, we are talking about unconstitutional.
If you want to take such a narrow view of the text, I suppose you have no problems with laws not passed by Congress?
That all depends on the protections afforded by state constitutions, doesn’t it? And it also depends on my views of incorporation and the 14th amendment, doesn’t it?