Over here at my right-wing neighbors (and budding friends) to the north in the land of cheese and badgers (Badgers?), is a good discussion in the comments section on the place of pornography in a broader understanding of our First Amendment rights (have you ever noticed those two wrods are, more and more, capitalized, like Holy Bible?). The context is the careful content control exercised by China that includes an almost total elimination of "adult" content on Chinese websites. The standard argument (Standard Argument?) against the censorship of pornography is that the Constitutional ban on laws restricting freedom of the press does not say "except for those that portray sexual acts or nudity". In other words, it is a, ahem, literalist reading of the First Amendment. There is, of course, the "slippery slope" argument, which is not so much a legal argument as it is social commentary. Once we decide certain things are off-limits, what is to stop us from becoming Nazis who burn Picasso and smash Mondrian?
I wish to make it clear that I accept the legal argument concerning censorship. I shal return to the whole slippery slope thing in a moment, but I want it understood that I am not advocating limiting anyone's access to Juggs magazine or the on-line edition of Barely Legal. The First Amendment, in its individual content - the freedoms of speech, the press, assembly, religion and the official separation of church and state, and the right of petition to redress grievances - has to be understood as a whole that is greater than the sum of its very wonderful parts. These freedoms are primarily, and to those who wrote and ratified them, political freedoms. The Bill of Rights was inserted into the Constitution in 1791 after Patrick Henry led a serious threat to ratification in Virginia. He insisted that there be codified guarantees to protect the expression of political discontent with the national government. None of those who sat and argued in the earliest Congresses on the various amendments would have even thought it plausible that the right to sit and peruse naked people performing acts both silly and embarassing was included in an understanding of the amendment. Precisely because the entire amendment references public, political acts solely and exclusively.
As to the slippery slope argument, it can be dispatched easily. What keeps us from sliding down the hill from freedom to despotism is the collective discernment of the people that certain things are acceptable and others are not. We already restrict access - not very well and usually in the breach more than in actual practice - to porn to those over the age of 18 or 21 depending upon the jurisdiction. If we were seriouos about the slippery slope thing, we would open the floodgates. We don't because we are wise enough to understand that people not emotionally, psychologically, or sexually mature enough to udnerstand can be seriously damaged by exposure to sexually explicit material. Can we not be wise enough to say that our society as a whole is seriously damaged by widespread access to and consumption of pornography? What does it say about us as a people that we are willing to tolerate, not just the viewing of salacious material, but its production, which by its very nature exists on the fringes of society, and too often ends in destruction of those engaged in it? To stifle this debate with First Amendment arguments is disingenuous at best, because it ignores the truth that we are not a better society for the wide availability of pornography. We also would not be a better society if we arbitrarily denied access to it; perhaps we need to debate the issue thoughtfully, perhaps even worked toward a time when it was less prevalent - through education and awareness. A nice thought, eh?
Virtual Tin Cup
