April 28, 2002


The Sanctity of Smut : How did "virtual child porn" end up with constitutional protection? (ROBERT H. BORK, April 27, 2002, Wall Street Journal)
The importance of the Free Speech Coalition decision is less in its particular rejections of the government's necessarily limited rationales, however, than in the light the case throws upon the entire direction of First Amendment decisions that have brought the court to this point. There was, to put the matter bluntly, no good reason to throw free speech protections around pornography, nude dancing, raw profanity, and calls for law violation in the first place. Our jurisprudence has gone so far astray that there appears to be a right to display a picture of the Virgin Mary festooned with pornographic pictures and cow dung; but the presence of a crche on government property is a forbidden establishment of religion under the same amendment.

There is nothing about the First Amendment that requires these results. That until relatively recently pornographers did not even raise the First Amendment in defending their sordid trade indicates how far we have come. It would seem merely common sense to think that graphic depictions of children in sexual acts would likely result in some action by pedophiles. The court finesses that problem with the statement that its "precedents establish . . . that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it." Quite right. But why is pornography within the rights of adults to hear and see?

And why--to take only one category of speech undeserving of the court's solicitude--are the rawest forms of profanity exempt from regulation? Cable television is saturated with words never before used in public, and the broadcast networks are racing to catch up. The New York Times reports that in "A Season on the Brink," the character playing basketball coach Bobby Knight "drops the F-word 15 times in the first 15 minutes," and that the characters in "South Park" used a "well-known word for excrement 162 times in 30 minutes." The industry response to criticism on this score is that such words give the programs authenticity because this is the way people talk. In reality, however, the arrow probably points in the other direction.

People increasingly talk this way because they hear the words on television, and they hear the words on television because the Supreme Court's rulings have deprived the government of any effective sanctions for profanity. In justifying its decision here, the court actually said, "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought." One wonders what valuable thoughts are triggered by child pornography or by nude dancing and profanity. The point is not that the court should outlaw such things; it has no power to do so. But it ought not to deny society the power to curb speech of no social value, indeed capable of inflicting great social harm.

I still don't get what important idea it is we're protecting when we allow pornography. The degradation and objectification of our fellow humans is an idea, but how does it advance the purposes for which we instituted government in the first place :
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
Posted by Orrin Judd at April 28, 2002 8:01 AM
Comments for this post are closed.