Internet Pornography & the First Amendment
Current jurisprudence protecting pornography as "artistic expression" contradicts the Founders' understanding and the underlying purposes of the First Amendment's protection of speech, and it fails to protect Americans from the social and personal trauma caused by pornography. The second in a two-part series.
Introduction
In yesterday's article, I gave an overview of new brain research that has exposed internet pornography as a powerfully addictive narcotic. I also mentioned that, from a legal and constitutional standpoint, the First Amendment is the ultimate hurdle to clear in order to regulate or prosecute internet pornography.
But why should the government get involved at all? Isn't consuming internet pornography a private decision that doesn't hurt anyone?
The claim that internet pornography "doesn't hurt anyone" is patently disproved by years of multidisciplinary studies in the hard sciences and the social sciences. These studies have exposed internet pornography as a massive, paradigm-shifting social harm that undermines the family unit and causes abuse, life-longaddictions, infidelity, and unhealthy perceptions and expectations among men, women, and children.
Likewise, the "no harm" argument also fails to consider the production of internet pornography, which is produced by way of real human beings who are almost always engaged in illegal and dehumanizing acts such as prostitution, rape, sex trafficking, assault, and even murder.
Though sexuality is considered "private" in our society, the social effects of collective sexual behaviors and norms, including the effects of internet pornography, cannot be kept "private." Because pornography is sexual, it is inherently relational and thus inherently social. How people relate to each other in society is important, but how people relate sexually is crucial to the sustenance of a society because it either incentivizes or de-incentivizes the very foundation of society: the family unit.
How then, one might ask, can such a vice be "protected" under the United States Constitution?
While many assume that the First Amendment protects internet pornography as "artistic expression," that is largely not the case under current statutory and constitutional law. Still, current First Amendment jurisprudence, at least as it relates to sexually explicit material, fails to properly discern and apply the First Amendment's purposes. An examination of prior and even current precedent reveals that speech or acts of a sexual nature are a historically unique category and thus require a unique analysis. By considering the duties of good government and the intended purposes of the First Amendment, we can develop a just and principled interpretation of the First Amendment as it relates to internet pornography.
The Founders' Views on Free Speech
The scope and contours of the First Amendment's speech clause are difficult to decipher by way of "original intent" due to the scarcity of information in the historical records. While the freedom of the press was discussed, the free speech clause was perhaps too obvious or fundamental to require debate. Still, the general principles underpinning the First Amendment are accessible by examining the Founders' general understanding of liberty ("rights").
Though the Founders had a broad view of liberty, they also recognized the distinction between liberty and license. In other words, liberty does not include the abuse of rights.
What sort of speech would qualify as an abuse of the "right" to speak freely? Thomas G. West, Professor of Politics at Hillsdale College, explains that there were four commonly-recognized categories of injurious speech in the Founders' era: personal libel, government libel, speech that injures public health or the moral foundations of society, and speech used in the course of, or that promotes, other injurious conduct.
Internet pornography, with its epidemic social harm, certainly qualifies as speech injurious to society's health and moral foundations; it could also qualify as "speech used in the course of injurious conduct" due to its use of prostituted and even trafficked people in its production as well as its power to addict and harm those who see it.
It was uncontested in the Founders' era and far beyond that speech or conduct tending to injure the public morals was subject to government control. Profanity, obscenity, indecency, and pornography were treated the same as public nudity or public intoxication. Consider the following quotation from an 1824 Pennsylvania Supreme Court case: "Licentiousness endangering the public peace, when tending to corrupt society, is considered as a breach of the peace, and punishable by indictment. Every immoral act is not indictable, but when it is destructive of morality generally, it is, because it weakens the bonds by which society is held together."
Professor West aptly notes that the Founders did not distinguish between speech (obscene novels or drawings) and acts (operating a whorehouse), but rather asked if either tended to "undermine the moral basis of the community, especially of the family and the moral formation of the young." If so, such activity--whether speech or act--was subject to legal limitation.
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