The Volokh Conspiracy

>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.

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.

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.

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?)

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.

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.

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"