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Pornography and the First Amendment

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Would the freedom of speech exist without the First Amendment? How about the freedom of the press? What about the right of the people to peaceably assemble or petition the government for a redress of grievances? Is it the First Amendment alone that prevents the federal government from making laws respecting an establishment of religion or prohibiting the free exercise thereof?

Many Americans misconstrue the nature of the First Amendment. They include the current and former justices of the Supreme Court, liberals who look to the First Amendment when it can be used to further some agenda, and conservatives who profess allegiance to the strict interpretation and original intent of the Constitution. That last case is especially baffling.

A case in point is a recent pair of articles for Public Discourse advocating government censorship of pornography on the Internet. Conservative Morgan Bennett argues that the First Amendment should not be used to protect Internet pornography and other “obscene” material. He finds that “current jurisprudence protecting pornography as ‘artistic expression’ contradicts the Framers’ understanding and the underlying purposes of the First Amendment’s protection of speech, and it fails to protect Americans from the social and personal trauma caused by pornography.”

It is in the middle of his first article “The New Narcotic” that Bennett raises the question of the First Amendment:

Yet many would argue that pornography is merely “speech,” a form of sexual “expression” that should be protected as a constitutional right under the First Amendment.

The question of First Amendment rights is undeniably the ultimate hurdle to clear from a legal standpoint.

And then he adds at the end of his first article, “Internet pornography is not the sort of ‘speech’ the First Amendment was meant to protect from government censorship.”

In his second article, “Internet Pornography & the First Amendment,” Bennett insists that Internet pornography “certainly qualifies as speech injurious to society’s health and moral foundations.” It also qualifies as “speech used in the course of injurious conduct” because of its “power to addict and harm those who see it.” He points out that “while many assume that the First Amendment protects internet pornography as ‘artistic expression,’ that is largely not the case under current statutory and constitutional law.” He explains that “under current First Amendment jurisprudence, any sexually explicit ‘expression’ (including images and videos) is protected under the First Amendment unless it is obscene or ‘real’ (non-virtual) child pornography.” But he charges “current First Amendment jurisprudence, at least as it relates to sexually explicit material,” with failure “to properly discern and apply the First Amendment’s purposes.” He believes that “an examination of prior and even current precedent reveals that speech or acts of a sexual nature are a historically unique category and thus require a unique analysis.” Bennett concludes that “by considering the duties of good government and the intended purposes of the First Amendment, we can develop a just and principled interpretation of the First Amendment as it relates to internet pornography.”

Bennett, a law student, misconstrues the nature of the First Amendment. He is correct only insofar as the “freedom of speech” clause of the First Amendment was never intended to “protect” pornography, Internet or otherwise. Obviously, there were no motion pictures, DVDs, Internet, or even photographs when the First Amendment was adopted. However, that does not mean that pornography is not “protected.”

The First Amendment reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.

In order to not “protect” certain forms of speech, the federal government has over the years come up with certain speech tests — bad tendency, clear and present danger, fighting words, imminent lawless action, balancing, preferred position — to limit speech.

But in order to “protect” certain activities, the federal government has defined things as forms of “speech” so they could be “protected” by the First Amendment. For example, flag burning.

Back in the 1980s, Gregory Johnson burned an American flag in Texas in protest against Reagan administration policies. He was tried and convicted under a Texas flag-desecration law. After the Texas Court of Appeals reversed the conviction, it went to the U.S. Supreme Court, in the case of Texas v. Johnson (1989), which ruled against the state of Texas. Congress then passed the Flag Protection Act of 1989. It criminalizes the conduct of anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon” a U.S. flag. In 1989, Shawn Eichman burned a flag on the steps of the U.S. Capitol. He was charged with violating the Flag Protection Act, but the charges were dismissed by the U.S. District Court for the District of Columbia. The federal government appealed the case to the Supreme Court, which held the Act unconstitutional in the case of United States v. Eichman (1990). Flag burning was held to be “symbolic speech” and therefore subject to First Amendment “protection.”

And as Bennett points out in his second article, “In 1952, the Supreme Court struck down a film censorship statute on First Amendment grounds and announced that motion pictures were ‘expressions’ and therefore protected as ‘speech.’”

When it comes to obscenity, the Supreme Court, as Bennett also mentions, follows the standard it set down in Miller v. California (1973) when it ruled that “obscene material” was “not protected by the First Amendment.” However, in order for something to be subject to state obscenity laws, it must first be proved “that the work in question, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value.”

Bennett, like many conservatives, believes that Internet pornography is in fact obscene and therefore is a form of “speech” or “expression” that should not be protected by the First Amendment.

His conclusion is correct, but not because Internet pornography is obscene or doesn’t qualify as “protected” speech.

Let’s just stick with the First Amendment. Congress shall make no law “abridging the freedom of speech or of the press.”

Pornography is not speech any more than flag burning is, regardless of the tortured interpretations of the First Amendment by the Supreme Court over the years in an attempt to “protect” certain activities by classifying them as “speech.” The First Amendment has nothing to do with “protecting” artistic expression.

Once you start defining things as speech in order to grant them First Amendment “protection” from government interference, you must forever argue over what is classified as speech and what kind of speech it is.

If Internet pornography is to be “protected” by the First Amendment, it seems that it would make better sense to do so under the rubric of freedom of the press. Proponents would argue that since pornography is published material, it should be treated no differently than any other book, magazine, or movie. Opponents would argue either that Internet pornography is different from traditional media so it doesn’t qualify as “the press” or that pornography is obscene so it cannot be “protected” by the freedom of the press.

But if Internet pornography cannot be “protected” by the First Amendment by means of the speech or press clauses, does that mean that the federal government can censor it?

Absolutely not.

The First Amendment does not grant Americans any rights. That is an all-too-common, but erroneous, viewpoint. The First Amendment merely prohibits the federal government from infringing upon the natural rights that Americans already have.

In Article I, Section 8 of the Constitution, Congress is granted certain limited powers. Aside from six paragraphs related to war, the military, and the militia, Congress is granted the power to lay and collect taxes, duties, imposts, and excises; to borrow money; to regulate commerce; to establish rules and laws regarding naturalization and bankruptcies; to coin money and regulate its value; to fix the standard of weights and measures; to provide for the punishment of counterfeiting and piracies; to establish post offices and post roads; to secure to authors and inventors the exclusive right to their respective writings and discoveries; to constitute tribunals inferior to the Supreme Court; and to exercise authority over the District of Columbia. In Article III, Section 1, Congress is given the power to regulate the jurisdiction of the Supreme Court; in Article III, Section 2, to designate the location of certain trials; and in Article III, Section 3, to declare the punishment for treason.

The federal government has been granted no authority whatsoever to regulate, monitor, or censor any speech of any kind or any movie, magazine, newspaper, advertisement, television program, or website. The fact that any of those things might be pornographic doesn’t change anything.

That doesn’t mean that pornography is natural, wholesome, or harmless. And it doesn’t mean that pornography is not obscene, immoral, or degrading to women.

It simply means that no power was granted to the federal government to abridge any of what are commonly referred to as First Amendment freedoms. The First Amendment merely reinforces this idea. The individual rights to freely exercise one’s religion, speak freely, publish freely, peaceably assemble, and petition the government are natural rights independent of the Bill of Rights.

Although the Bill of Rights’ being added to the Constitution is generally looked upon as a good thing, there are, unfortunately, two misunderstandings in American political thought that have developed because of it. First, the idea that natural rights are instead rights granted by government; and second, that if a right isn’t listed, then it doesn’t exist unless government says so.

The misconstruing of the First Amendment and the Bill of Rights has destroyed federalism, centralized power in the national government, clogged the federal judiciary with needless cases, and unnecessarily polarized Americans.

Pornography is an individual, personal, moral, and religious concern, not a political one.

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