My friend Kristopher writes a lot on Facebook, and many folks miss it. This topic is important enough for his thoughts to be published widely.
Every day, I’ve been offering some thoughts. Some of the following could be slightly mistaken, vouching for my inexperience with the law. In a crash course review online, my sense is that (1) ardent pro-porn advocates are dominating search results, indeed, the entire bandwidth; (2) we have moved rapidly downstream, to the point of consistently losing recent court cases, though most people probably haven’t the faintest idea about the history; (3) more of these topics are up in the air, while simultaneously already a matter of judicial province, than most current discussion would have you believe.
For example, I perceive one discouraging turn of events with Jacobellis v. Ohio in 1964, of which PBS noted, “Justice Brennan elaborated on the Roth standard by clarifying that the ‘community standards’ applicable to an obscenity determination were to be national, not local standards. . . . He concluded that ‘The Lovers’ was not obscene because it had been ‘favorably reviewed in a number of national publications, although disparaged in others, and was rated by at least two critics of national stature among the best films of the year in which it was produced,’ and been shown in over 100 cities nationwide.” In other words, particularly since he even acknowledged disagreement over the quality of the movie, the sensibilities of people everywhere may be held hostage to the approval of anyone anywhere else. (As one example, http://voices.yahoo.com/internet-pornography-part-2-free-speech-double-2634812.html addresses some of the double standard which protects immoral while clamping down on moral acts.) Justice Stewart made a famous statement on that occasion that he could not intelligibly define hardcore pornography, though he knew it when he saw it, but, notice here, “the motion picture involved in this case is not that.” That picture contained an “explicit three minute sex scene.”
This has since evolved into a Miller test, which combines community and national considerations. You find most people don’t even bother referring to its technicalities when wand-sweeping that there’s First Amendment shelter. (That its usage as sanction for the perverse and smutty, let alone in public exhibition, is suspect is hardly a lone view, as one sees in http://www.thepublicdiscourse.com/2013/10/10998/ and one Minnesota media law attorney’s statement that the Founders may well be rolling in their graves at this application, since “the First Amendment was enacted first and foremost to protect speech about politics, not porn.” The evolution of restraint in history can be deceptive when there was not yet an existent problem to remedy.) Interestingly, a sizeable burden to prove that material was “utterly without redeeming social value” appears to have grown from Justice Brennan’s original observation with 1957 Roth, invoking only the average person’s community standards, that because obscenity was “utterly without redeeming social importance,” it was not protected by the First Amendment. “Obscenity” remains the throw-out criterion for such protection. To the extent that material can be identified under the law as such, one criminology professor has elaborated that obscenity and nudity are some areas which “have NEVER been protected by the Constitution. There are NO barriers to government interference or regulation. The ONLY constraints on government are that officials must be engaged in a legitimate purpose (doing their duty), the law to be enforced must not be too broad or vague (void for vagueness), the law must be content neutral (not impinging upon a suspect class), not intervene before the fact unless extraordinary circumstances exist (prior restraint), and not have a ‘chilling effect’ (which makes people fearful of engaging in legitimate activities).”
If our leaders are looking to set a national standard, we can ill afford to let the interested, vocal pornography industry set it. Of another sector, http://penetrate.blogspot.com/2008/11/hollywood-does-not-share-our-moral.html and http://speeches.byu.edu/?act=viewitem&id=430 mention how thoroughly out of touch Hollywood is with the majority of Americans’ value systems. The crying need for vocalization and political participation was elaborated in my prior quotation of Gordon B. Hinckley at http://www.facebook.com/kristopher.swinson/posts/10202705729268489, though I add the caution that, in using such an LDS plea, I’m not attaching that authority to this specific petition. Its close similarity in language, with another leader’s reminder that it’s never okay to bomb an establishment, and a long history of declaring that anti-pornography regulation should exist in law (in both continuance and new legislation), ought to help a few parameters solidify individually—again, as not directly associating one teaching with a single contemporary document–for determining what constitutes thoughtful, appropriate opposition in Howard W. Hunter’s exhortation (THWH166):
“Pornography is a growing evil in our society. It frequently accompanies immorality and the weakening of the moral fabric of individuals and families. The challenge to oppose this evil is one from which members of the Church, as citizens, cannot shrink. . . .
“We encourage members, with other citizens of goodwill, to be aware of the dangers posed by obscene and pornographic materials and to join in thoughtful, appropriate opposition to their production, dissemination, and use. Our voices must be heard in defense of those virtues that, when practiced in the past, made men and nations strong and, when neglected, brought them to decay.”
Speaking for myself, I feel surprised, almost hurt, to witness cases where the ideas of opposition and defense seem applied to the very opposite parties of those originally described in context. It is a right, responsibility, and solemn obligation to use our influence to publicize just how tasteless and objectionable unfiltered Internet sewage is…and how woefully inadequate filtering is under the deluge. This bar can be raised.
Harvard Law School’s Berkman Center for Internet & Society reviews additional current controversies on the matter. In the 1997 ruling against the Communications Decency Act, they state that “the Court rejected the Government’s effort to analogize the Internet to traditional broadcast media (especially television), which the Court had previously held could be regulated more strictly than other media. Unlike TV, the Court reasoned, the Internet has not historically been subject to extensive regulation, is not characterized by a limited spectrum of available frequencies, and is not ‘invasive.’” Does that sound right to you? That your Internet is not invasive, while they admit that your television is? Concerning broadcast standards, a 1978 ruling stated much of the obvious: “The broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.” “Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when they hear indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.” “Broadcasting is uniquely accessible to children, even those too young to read. The government’s interest in the ‘well-being of its youth’ and in supporting ‘parents’ claim to authority in their own household’ justified the regulation of otherwise protected expression.” “The ease with which children may obtain access to broadcast material, coupled with the concerns recognized (by the court), amply justify special treatment of indecent broadcasting.”
The ability to regulate broadcasting has moved slightly, though remaining more on the community standard model, and still maintaining that obscenity bears no First Amendment protection, whereas with respect to indecency (“language that in context, depicts or describes, in terms patently offensive as measured by contemporary community standards in the broadcast medium, sexual or excretory activities or organs”), “The courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted in order to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience.” This expresses a willingness to decrease likelihood of exposure which isn’t being transferred to the Internet. The battle’s not over in that arena, either, as http://www.thewrap.com/tv/column-post/viewers-urge-fcc-resist-relaxing-indecency-standards-87866 shows at least 80,000 citizens rejecting proposals to relax standards of indecency. This makes it seem all the more pitiful when we can’t garner as many on the present; the message it sends to the highest levels of government is that not even 100K care as standards decline. Not only could we not be bothered—some of us opted out of such expression on technicalities and irrational fears.
While, with COPA fallout, a 1998 ruling lashed back that community standards were too restrictive, it did state, “We are forced to recognize that, at present, due to technological limitations, there may be no other means by which harmful material on the Web may be constitutionally restricted, although, in light of rapidly developing technological advances, what may now be impossible to regulate constitutionally may, in the not-too-distant future, become feasible.” It is in that optimistic spirit that the petition repeats our plea that the government preserve our right to opt out of exposure to the indecent, which is really but another way of saying citizens should have the right not to be victimized. A proper function of government is restraining crime. To say we ONLY shoulder that burden individually is nullification of the profoundest order.
I grasp that there’s a broad spectrum of vocal disagreement. I cannot hold at all, however, with those who swear that they in principle oppose something as glaringly, irredeemably immoral and destructive, yet in fact purposefully weight the scale in its favor. As for some of the others, without linking it to this topic specifically, Dallin H. Oaks outlined a principle of civic action: “[W]e must not go into blocking tactics when a representative body fails to satisfy us fully on our favorite special interest. We should not expect all our personal preferences in government action that must represent a consensus. Americans are well advised to support the best that can be obtained in the circumstances that prevail.” I wouldn’t justify scrapping principled approach as closely as possible to the ideal, but, where pornography’s concerned, I find it far easier to applaud the man or woman actually speaking up to open the halls of Congress for renewed consideration of these themes. In that sense, anything worth doing is worth doing imperfectly. Too many of us behave like the rightly criticized panicky investor, buying high and selling low, bailing on mere suspicion of our ordinary complaints and finally chipping in where there’s less occasion for it; there’s no reason for lassitude on the things which constitute the very heart of civilized society.
The link to the petition is here.