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Lots of Good Stuff
over at PrawfsBlawg recently.
Marcus1 (mail) (www):
>That is, whose view comes closer to capturing what is really going on, for better or worse, in free-speech law relating to pornography?<

Can I say they're both right?

The problem with George's view, though, is that it "proves too much." Nothing, then, is private, because everything impacts our society, and of course we all have to live together.

To me, if your interest is simply in pushing the culture in a different direction, that's something you have to do by persuasion, not by passing laws restricting individual's private behavior for its abstract cultural impact. If we resort to the alternative, then we can't really call ourselves a free country anymore.
2.18.2006 6:39pm
Grand CRU (mail):
I do not think George's view proves too much. What you call "abstract" many parents recognize as concrete. A child that becomes desensitized to violence, rejects traditional moral norms, and is disrespectful to family members because the TV, radio, newspapers, magazines, video games, and other kids are all profane is a concrete problem. There's no reason why profanity can't be regulated, unless it involves core First Amendment concerns, like criticizing government officials.

You cannot honestly mean, Marcus1, that if 99.99% of the public wants .01% of the public to stop putting filth on the public airwaves, that the public cannot stop that .01%. Of course the majority can do so, as that is a part fo the FCC's mandate. I hereby introduce you to Janet Jackson's breast.
2.18.2006 7:01pm
A. Zarkov (mail):
Just how offensive is pornography to the general public? I suspect that many people who would tell a pollster that they abhor pornography really don't. They simply won't admit the truth out of embarrassment. The desire for pornography is part of the human condition. One only has to tour the ancient brothel in the recovered city of Pompeii to see how truly universal pornography is in both space and time. Erotic material is extremely pervasive on the Internet. Just type "legs" into google and bingo "leg-r-us" pops up right before "restless leg syndrome" (a medical condition my daughter has). Clearly there is a huge population of consumers for pornographic products. As for those who find it offensive, that's just too bad. The fruits of freedom are sometimes bitter.
2.18.2006 7:29pm
FXKLM:

You cannot honestly mean, Marcus1, that if 99.99% of the public wants .01% of the public to stop putting filth on the public airwaves, that the public cannot stop that .01%.


I can't speak for Marcus, but that's my position and I think it's a fairly common one. Free speech is a constitutional right. Public opinion is irrelevant.
2.18.2006 7:54pm
Kovarsky (mail):
I agree with Marcus1, the notion of "cultural harm" is hopelessly speculative; I'm not sure that there's any constitutional precedent for that idea.

More importantly, I'd argue that the constitution sets forth a number of procedural and some substantive parameters for how we are to "manage" our culture. In fact, I'd argue the constitution's most fundamental conceit is that there are a variety of competing ideas of what constitutes appropriate "culture," and it sets forth a process for dealing with those by making some elements amenable to statutory formulation and others not amenable to it.

That isn't to say that culture couldn't be a constraint on the 1st amendment, but it is to say that to recognize it as such a constraint would be hopelessly circular: "The constitution sets forth a variety of means for adjudicating competing cultural paradigms, except when a given cultural paradigm constrains that competition."

It seems odd to say that the primary vehicle framers set forth for adjudicating these competing ideas would itself be limited by adherence to one of them. Of course I'm not going to buy into complete relativism, but I think speech restrictions can generally be justified by reference to the degree that they embody expression v. conduct.
2.18.2006 10:00pm
Marcus1 (mail) (www):
Grand CRU,

You trust the government to speculate on what reinforces traditional moral norms, keeps children sensitized to violence, etc., and then, on the other hand, on what is too harmful for us to see?

I don't trust the government to make those decisions.

Yes, if they want to allow certain venues that are "smut-free," I can see that. But to the extent that they are outright banning large swaths of material simply because a bunch of grand-standing politicians decide that it is harmful to our public morality? With respect, I think you grossly underestimate the problems that this would cause.
2.18.2006 10:57pm
Dave Hardy (mail) (www):
It does seem a little difficult to say how the ability of people to obtain and porn in their homes constitutes a cultural harm. They'll want to see more and thus not read more serious material? Their tastes will be lower than they might otherwise have been? They will behave in accordance and spend too much time having sex and not enough reading? That they will be encouraged to seek sex in some manner other than an acceptable mode and setting?

At the same time, this might reflect a decent understanding of the way present caselaw tries to treat it (and this is caselaw that we're viewing). I forget now what the current test is, but the "purient interest appeal" of my law school days works out to something fairly close to that idea. Encouraging, and thus perhaps inducing, sex in some manner that Warren Burger thought an unacceptable mode and setting. (In which event, dare we say that the life of the law is not theory, but inexperience?)
2.18.2006 11:57pm
Shangui (mail):
A child that becomes desensitized to violence, rejects traditional moral norms, and is disrespectful to family members because the TV, radio, newspapers, magazines, video games, and other kids are all profane is a concrete problem.

This is, of course, the constant complaint against popular culture these days. At the same time, the rates of violence and teen pregnancy are the lowest they've been in decades.

Out of curiosity, has there been a recent outbreak of children being disrespectful to family members because of newspapers? Did I miss something?

More importantly, this seems to be just about the oddest justification for violating the 1st amendment that I've ever heard. "Rejects traditional moral norms, and is disrespectful to family members"?!? To avoid these time-tested rights of childhood you want the government to assert broad new controls over freedom of expression?

And how exactly does Janet's breast work into your argument? Given that most of the complaints were sent out through a single organization in the names of people who hadn't even seen it (and no one without Tivo could have in the original broadcast), this was hardly a case of the majority doing anything.
2.19.2006 12:14am
Kovarsky (mail):
Dave

I think you are mixing up the test for pornography, which is protected speech, with the test for obscenity, which is not. The test for whether something is obscenity is:

appeals to prurient interest in sex (community standard)
patent offensiveness (community standard)
lacks literary artistic political or social value (LAPS value) (national standard)

If you get an affirmative answer to all those inquiries then you are dealing with obscenity, which is not covered speech (i guess technically not first amendment "speech"), and the government need only satisfy rational basis the rational basis test.

If you are dealing with non-obscene pornography, that is covered speech (it is first amendment speech), but the question of whether a law regulating it is constitutional involves a variety of tests, many invoking time, place, and manner jurisprudence.
2.19.2006 12:21am
Ross Levatter (mail):
Marcus1 says:

"To me, if your interest is simply in pushing the culture in a different direction, that's something you have to do by persuasion, not by passing laws restricting individual's private behavior for its abstract cultural impact. If we resort to the alternative, then we can't really call ourselves a free country anymore."

Of course we can. The government simply has to pass a law forcing us to call ourselves a free country.

(Thanks and a hat tip from South Park:
Kyle (replying to his father explaining an aspect of modern American legal principle): But isn't that fascism?
Kyle's Father: No, because we choose not to call it fascism.)
2.19.2006 10:24am
Grand CRU (mail):
Oddly, everyone seems to have ignored the most important part of my post: that profanity is not within the First Amendment (nor has it ever been) and that the FCC is explicitly granted authority to regulate obscenity on public airwaves.
2.20.2006 6:35am
Anderson (mail) (www):
that profanity is not within the First Amendment (nor has it ever been)

Cohen v. California. The celebrated "Fuck the Draft" case, if you don't care to click the link.

Why do you present yourself as knowledgeable on First Amendment law, Grand CRU? I'm not an expert, but this is in every Con Law textbook in the country, surely.
2.20.2006 4:52pm
Grand CRU (mail):
Anderson,

As a matter of basic logic, one cannot deduce from a subaltern to a categorical proposition, e.g., even if it is true that the First Amendment traditionally protects one category of speech, that does not prove that it traditional protects all categories of speech. So your implicit claim, that because Cohen v. California is a First Amedment case involving one instance where an utterer of profanity won, profanity is therefore a traditionally protected category of speech.

By contrast, one can deduce from a categorical proposition to a subaltern, e.g., if the First Amendment traditionally protects all political speech criticizing government, then it is therefore true that the First Amendment traditionally protects political speech criticizing government that uses harsh language.

Profanity is not a traditionally protected category of speech. Nor does Cohen v. California so hold. What Cohen holds is what all First Amendment cases hold: that political speech criticizing government is the core of that which is protected by the First Amendment.

As to your (mis)characterization of the facts of Cohen v. California, I would suggest that you read the case. Cohen was not a mere "Fuck the Draft" case. Your analysis suggests that the case concerned the right to shout the word "Fuck!" as loudly as one pleases. By contrast, Cohen concerned the right to wear a "Fuck the Draft" tee shirt in or on the steps of a courthouse. Of course, one has the right to criticize the government policy on the steps of a courthouse -- if not, the First Amendment is meaningless. So I vehemently disagree: Cohen does not concern profanity as a category of speech, nor does it even concern an instance of an utterance of profanity, because criticizing Vietnam on the steps of a courthouse is not profane.

Your mistaken citation to Cohen, as well as your mischaracterization of its holding and its facts, also ignores the argument that I raised: regulating profanity is within the mandate of the Federal Communications Commission and the courts have held its mandate contains an intelligible principle, i.e., Congress has legitimately delegated the FCC constitutional authority to regulate profanity. Contrary to your belief, profanity is not a traditionally protected or presently protected category of speech. If I did not make that sufficiently clear before, I hope I will now sufficiently clarify it for you: if you believe that profanity is categorically protected by the First Amendment the Constitution, you are wrong.

Lastly, your straw-man to the contrary, I never claimed to be an expert on the First Amendment. I am not. But it is equally true that you are no expert on basic logic or theory formation.

Says "the Grand CRU"
2.22.2006 11:30pm