In class yesterday, we were shown a documentary regarding some First Amendment cases, and when the freedom of speech or press should be protected. As we have learned, the first amendment is highly regarded by the government, and the Supreme Court has often protected these freedoms when it is the least expected. In particular, the question of whether pornography is considered speech and should be protected by the first amendment was considered. As we have learned, there is no clear, definitive answer to this. While the court has protected the amendment in some child pornography cases, they have also claimed that the material must have socially redeemable and artistic qualities, as in "Miller v California." The government has also added some "tests" to assess whether the freedom of speech should be maintained, such as when there is "a clear and present danger," "imminent lawless action," and "bad tendency." But this doesn't eliminate the complexity of the situation, as the way these tests are done seems ambiguous. There are also questions of how artistic value is determined, and whether pornography should even be categorized as "speech". Opposers to pornography, generally conservatives, feel that the first amendment should be interpreted the way that the Framers had stated it originally in the Constitution. They feel that pornography is not a form of speech or "artistic expression" but rather obscene, addictive material that is harmful to the citizenry. Others feel that it is a form of sexual expression that merits protection. The issue here is that if pornography is not protected, does the government have the right to censor it? If they do have this right, then they would have to censor other forms of sexually explicit material, such as songs with derogatory and misogynistic messages. In any case, we can see that the issue is not so straightforward, and it explains why the court has to analyze each case independently. There isn't one blanket ruling that can resolve the issue and answer all of these questions.
Sources:
https://www.fff.org/explore-freedom/article/pornography-and-the-first-amendment/
I think it goes without saying that what is "socially redeemable" and "artistic" is subjective in nature. Building off of that notion, I think that the production of pornography is definitely debatable as "socially redeemable." The industry is quite large, and so the public definitely feels that it is in some sense valuable. Additionally, since most instances of pornography are not negative in the sense of wanton distribution (as in Miller v. California), I think that those instances of pornography are more protected under the first amendment. In any case, I think that the hypothetical censoring of pornography would cause a huge uproar and definitely be a controversial topic in terms of the government's censoring bounds.
ReplyDeleteI really enjoyed reading your post, and I liked how you cited specific court cases. I agree with your point that the First Amendment is complex and can be ambiguous. For example, a lot of otherwise protected speech is not protected at schools. As decided in Tinker v. Des Moines, any conduct that “materially and substantially interfere[s]” with the operation of the school is not protected. In the case Bethel School District v. Fraser, the Supreme Court ruled 7-2 that a high school student's sexual innuendo-laden speech during a school assembly was not constitutionally protected. Furthermore, in Hazelwood School District v. Kuhlmeier, the Court ruled that the school administration was allowed to censor school newspaper articles. Nevertheless, citizens of the United States still enjoy more rights than people in most other countries. For instance, in China, the government censors anything that it disagrees with, blocking websites and digital media with the Great Firewall of China; pornography is outlawed in China.
ReplyDeleteSources:
https://www.oyez.org/cases/1985/84-1667
https://www.oyez.org/cases/1987/86-836
I really liked your post, and completely agree that the tests for what is protected under the First Amendment are really hard to define. While there are specific phrases like "clear and present danger", it's also hard to define what those mean as well. When is something too obscene for it to be protected under the First Amendment? It's also really hard to determine this as well, because it's the judges that get to decide that in court, not the law.
ReplyDeleteWhile I think that all of these points are true and that it really is hard to distinguish what should be censored and what shouldn't be, I think overall people should be allowed to do what they want. For the Miller V California case specifically, I think the main problem was that Miller sent the ads out unwarranted. If he had had a list of subscribed individuals instead I think there would be no distinct problem. As much as we may want to censor some of these things, I think the harm of doing so will outweigh the good. Like Manasi started to mention, if one person wants to censor pornography, what is stopping someone else from censoring explicit songs or movies. When is the line drawn? I think that unless it directly harms someone, then we should just leave it alone and choose our battles. I personally don't want to have to prove that I am over 18 every time I want to download a song with a swear word or watch a movie on Netflix.
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