Suppression by Any Other Name

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.

According to the U.S. Department of Justice, “Obscenity is not protected under First Amendment Rights of Free Speech, and violations of federal obscenity laws are criminal offenses.’ For Davidson Hudson, however, “obscenity is a confounding area of First Amendment law.”

Hudson defines obscenity as a “narrow area of pornography that violates contemporary community standards.” The problem is that such standards change so quickly that any sincere attempt to codify them is an exercise in frustration.

Nowhere is this conundrum more apparent than in our courts. Decisions such as Roth v. United States (1957) have tried to justify and preserve the obscenity exception by defining it as anything that is “utterly without redeeming social importance.” This and other variations, such as the Hicklin Test  have employed such concepts without bothering to ask what constitutes redeeming social importance or community standards. Who codifies these standards? It’s as if, rather than admitting that they’ve set themselves up as arbiters of decency, our learned judges are using the undefined “they.”

Over the years such standards have led to the banning of many classics, including James Joyce’s Ulysses and J. D. Salinger’s Catcher in the Rye. More limited definitions of obscenity in recent court decisions are no guarantees that self-appointed guardians of morality won’t look for other means of curtailing free speech, or that “hate speech” won’t become the new scarlet letter of censorship.

Another common obfuscation is the conflation of obscenity laws with child pornography. New York v. Ferber (1982) established that child pornography “does not meet the obscenity test.” But how is this a First Amendment issue at all? Child pornography is illegal because it involves sex with participants who are below the age of consent. Saying that it falls outside the First Amendment is no different from saying the staging of a rape or a murder has no such protection. There are already First Amendment exceptions to cover this that have nothing to do with obscenity.

The nub of the issue is that someone with legislative or judicial authority has decided to ban certain expressions because they find them repugnant. Yet, the First Amendment never mentions obscenity. The obscenity exception relies entirely on notions outside the Constitution, which is supposedly the foundation of our government.

The wording of the First Amendment, though it only applies to acts of Congress, is clear. It applies to offensive language not in spite of, but precisely because of its potential to offend. The founders of this country were all too familiar with the tendency of those in power to interpret decency to mean whatever they wished.

John Adams, our second president, signed into law the Alien and Sedition Acts, designed to prohibit free speech that, in the government’s opinion, undermined our national security. Thomas Jefferson in 1801, his first year in office, pardoned all those convicted under the act and allowed it to expire. During the Civil War, Abraham Lincoln suspended habeas corpus. Congress did much the same thing with its passage of the “Patriot Act” following 9/11.

The Bill of Rights exists for the purpose of protecting us from our own government. Defending and maintaining it is the job of the American people, both at the polls and in the media.