# What does this have to do with the first amendment? **URL:** \ **Category:** Factual Questions\ **Created:** [June 27, 2011, 7:36pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055 "2011-06-27T19:36:03Z")\ **Posts on this page:** 12\ **Page:** 2
**Author:** ![suranyi](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@suranyi](https://boards.straightdope.com/u/suranyi)\ **Post date:** [June 28, 2011, 5:51pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/21 "2011-06-28T17:51:11Z")
> [@njtt](#): > > :eek: Have you been living under a rock? > > Scalia, as the leading conservative ideologue on the Supreme Court (and thus, very arguably, the most powerful Conservative in America), is surely one of the most polarizing public figures in the U.S.A. today. He is often in the news, and I don’t think he inspires indifference in many people. He’s definitely a love him or hate him guy. True, but as an aside, notice that in this case he was on the same side as Ginsburg and Sotomayor. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 29, 2011, 1:57am UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/22 "2011-06-29T01:57:01Z")
> [@Darth\_Panda](#): > > No offense, but this is apples and beef jerky. Freedom of Speech just doesn’t cover tobacco, it’s a health issue. Right, so call it equal protection, due process, or freedom of contract. As a tobacco purveyor, I have historically been allowed to contract with children for my business. Only in recent years have the laws denied me of this right. Just like with violent speech toward children in the form of video games. You say that only in recent years have we discovered the ill effects of tobacco smoke? Maybe the California legislature thought the same thing with violent video games. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [June 29, 2011, 2:46am UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/23 "2011-06-29T02:46:04Z")
> [@jtgain](#): > > Right, so call it equal protection, due process, or freedom of contract. As a tobacco purveyor, I have historically been allowed to contract with children for my business. Only in recent years have the laws denied me of this right. Just like with violent speech toward children in the form of video games. > > You say that only in recent years have we discovered the ill effects of tobacco smoke? Maybe the California legislature thought the same thing with violent video games. Right, so tobacco isn’t a freedom of speech issue and thus has absolutely nothing to do with this thread. There is nothing in the constitution that would have ever prevented individual states from regulating the sale of tobacco. Up until the 14th Amendment, barring State constitutional stipulations, there was nothing in the U.S. Constitution that would have prevented a State from prohibiting any type of speech that it so chose, but it’s almost 150 years now since the 14th was ratified so it is fairly settled law that all 50 States have to follow the first amendment of the U.S. Constitution. (Every State constitution I’ve ever seen has its own free speech clause in any case, FWIW–so in this case all the 14th does is guarantee that the SCOTUS interpretation will govern even if a State Supreme Court finds a certain regulation doesn’t violate the State’s free speech requirements.) ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [June 29, 2011, 11:10am UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/24 "2011-06-29T11:10:43Z")
> [@jtgain](#): > > Right, so call it equal protection, due process, or freedom of contract. As a tobacco purveyor, I have historically been allowed to contract with children for my business. Only in recent years have the laws denied me of this right. Just like with violent speech toward children in the form of video games. > > You say that only in recent years have we discovered the ill effects of tobacco smoke? Maybe the California legislature thought the same thing with violent video games. As Martin said, there is a heavy burden on the state to deny someone the right to speech, as it constitutionally protected. There is no constitutional right to freedom of contract and even if there was it wouldn’t cover children. Equal protection just guarantees that all people are viewed similarly by the way - it no more prevents the banning of tobacco sales than it prevents the setting of speed limits. Due process has to do with notification of rights, right to a trial, and so forth as procedural due process. Substantive due process was somewhat popular in the pre-Lochner era but has been largely retreated from and really only has a role in abortion law currently. Anyway, the problem is that you want to extend a constitutional right to sell tobacco for purposes of your analogy, but there isn’t one and there never has been one. Regulating the sale of tobacco is no different than regulating drinking water or setting building codes. Regulating speech is different and intentionally so. It’s a feature, not a bug. You may want to read [West Coast Hotel Co. v. Parrish - Wikipedia](http://en.wikipedia.org/wiki/West_Coast_Hotel_Co._v._Parrish) ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [June 29, 2011, 2:24pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/25 "2011-06-29T14:24:19Z")
> [@Max\_Torque](#): > > The decision wasn’t, “It’s OK to sell depictions of graphic violence to children.” It was, “It’s not a _criminal offense_ to sell depictions of graphic violence to children.” The case wasn’t about whether the sales acceptable, it was about whether the retailers could be fined by the State for doing so. In general, the Supreme Court takes a dim view of any law that tries to punish speech before it’s spoken/published/skywritten/whatever. Are the laws different, in respect of sales to minors, when you compare selling depictions of graphic violence to children vs. selling descriptions of the sex act to children? Can it be a _criminal offense_ to sell pornography to children? I can’t seem to find any clear answer to this question. ---
**Author:** ![Max\_Torque](https://avatars.discourse-cdn.com/v4/letter/m/e9bcb4/32.png) [@Max\_Torque](https://boards.straightdope.com/u/Max_Torque)\ **Post date:** [June 29, 2011, 3:12pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/26 "2011-06-29T15:12:47Z")
> [@Arnold\_Winkelried](#): > > Are the laws different, in respect of sales to minors, when you compare selling depictions of graphic violence to children vs. selling descriptions of the sex act to children? > Can it be a _criminal offense_ to sell pornography to children? > I can’t seem to find any clear answer to this question. To answer your questions in order: yes they are, and yes it can. See [my post in the other thread](http://boards.straightdope.com/sdmb/showpost.php?p=13966965&postcount=40) citing the Texas statute that makes selling or displaying “harmful material” to minors a misdemeanor, punishable by a fine of up to $4000 and up to 1 year in jail. The statute defines “harmful material” strictly as sexual material “without redeeming social value”. ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [June 29, 2011, 3:17pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/27 "2011-06-29T15:17:33Z")
So it would not be a violation of the First Amendment to make selling or display of “harmful material” to minors a misdemeanor punishable by up to 1 year in jail, if the definition of “harmful material” included violent material “without redeeming social value”? Or does the Supreme Court decision prevent that kind of law? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [June 29, 2011, 3:33pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/28 "2011-06-29T15:33:10Z")
> [@zoid](#): > > Dude I’m working two jobs and my wife works full time so we can put three kids through private school and still try to actually spend time with them, provide them with home cooked meals, keep up with laundry, shopping, and yard work and help with homework. > > So yeah - pretty much under a rock 😃 Your kids have been in school for almost 30 years? I think you’re sending them to the wrong kind of private school. 😃 ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [June 29, 2011, 5:13pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/29 "2011-06-29T17:13:55Z")
> [@Arnold\_Winkelried](#): > > So it would not be a violation of the First Amendment to make selling or display of “harmful material” to minors a misdemeanor punishable by up to 1 year in jail, if the definition of “harmful material” included violent material “without redeeming social value”? Or does the Supreme Court decision prevent that kind of law? Yes, that law would be in violation of the first amendment based on the recent ruling (and even without it really, it just makes it clearer and more recent) and probably void for vagueness to boot. Pornography is basically a carve out when it comes to freedom of speech, and trying to analogize anything to it is generally unhelpful. ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [June 29, 2011, 6:05pm UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/30 "2011-06-29T18:05:49Z")
IMHO this is another example of a fundamental problem with American cultural values: showing violence to children is more acceptable than showing people having sex. Violence OK, nudity bad. ---
**Author:** ![Mr\_Downtown](https://avatars.discourse-cdn.com/v4/letter/m/8e8cbc/32.png) [@Mr\_Downtown](https://boards.straightdope.com/u/Mr_Downtown)\ **Post date:** [June 30, 2011, 3:29am UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/31 "2011-06-30T03:29:01Z")
_Nudity_ is not _obscenity_, and hasn’t been since 1958. _Obscenity_ is a small, limited category of sexual content that has no literary or artistic merit, no redeeming social value, and violates community standards. ---
**Author:** ![Darth\_Panda](https://avatars.discourse-cdn.com/v4/letter/d/ee7513/32.png) [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)\ **Post date:** [June 30, 2011, 9:55am UTC](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055/32 "2011-06-30T09:55:16Z")
Exactly, the courts have said that nudity does not equal pornography repeatedly. It’s not illegal to sell children a national geographic magazine with the naked tribesmen (and ladies) of wherever, or even some bad comedy movie with titties. Selling an 11 year Anal Fisting Extravagaza VIII may not go over so well for you… For the record the whole PG, PG-13, business isn’t by law, it’s an industry practice. [Previous page](https://boards.straightdope.com/t/what-does-this-have-to-do-with-the-first-amendment/587055.md?page=1)