1) Should words, images and sounds that stimulate erotic or sexual thoughts be granted the same protection as political speech?
Words, images, and sounds that stimulate erotic thoughts should be granted a high level of protection, and they should be given the same absolute protection as political speech, except only in certain online and offline forums. In these places the sexual speech should be protected to the utmost degree, but otherwise it should be susceptible to punishment.
Although often controversial, and not always accepted by all, I believe that it is important for this kind of speech to be protected to a high extent. It should be protected until it becomes obscene, as obscenity is still criminal in all media. The overall definition of obscenity that I want to use to support my argument was applied to Miller v. California, where it was decided that obscenity was not protected under the First Amendment, and that the Miller Test should be used when decided if speech was obscene or not. A work was defined as obscene if an average person applying community standards finds:
- The work as a whole whole appeals to prurient interest, and;
- It depicts in a patently offensive way sexual conduct outlawed by specific state law, and;
- It lacks Serious Literary, Artistic, Political, or Scientific value as judged by national standard.
2) Should adults have the same rights to create such speech for private use, distribute such speech for public consumption and receive such speech – or should varying levels of protection be applied?
In accordance with Reno v. American Civil Liberties Union, I think that adults have the right to post and participate in sexual speech via the internet, and that this speech should be protected. The 1997 case marked nine Justices of the Court striking down anti-indecency provisions of the Communication Decency Act because these provisions suppressed free speech rights of internet users. The provisions were meant to protect children from encountering sexual material online by criminalizing any obscene messages sent to minor recipients, and also criminalizing the knowing sending of any material that basically depicted and/or described sexual activities or organs. The majority opinion was that less restrictive measures could be used to protect children while maintaining free speech among adults on the internet.
Under Reno v. ACLU, adults should be able to create, distribute, and receive such speech (posting of homemade sexual material/webcamming) on the internet. Varying levels shouldn’t be applied for the different actions – I think they should all be protected unless deemed obscene and being transmitted to a captive audience or children (Justice Brennan’s approach to sexual speech).
3) Should the same levels of protection apply to ALL media – print, broadcast, movies, cable, online sites, webcams/chat – or should the levels of protection vary according to medium?
Adult-to-adult materials such as webcams/chat and online sites are easier to contain on the internet that all types on media. I think that the sexual speech should not be protected to a high degree if being broadcast via television, radio, or cable. These are portals that are widely watched, and an audience that doesn't want to see sexual material could more easily stumble across it if it was broadcast all over the place. I think that for the safety of children, sexual speech should be contained in closed portals that are not as accessible, and that take more effort to experience.
Movies are more of a choice because they are often kept in a certain section of a DVD or video rental store. It requires more effort to buy a video and take it home than to turn on the television to a regular station and all of a sudden be watching some aspect of sexual speech. They should therefore be protected under Burstyn v. Wilson, a case that decided that movies do have value and are protected speech under the First Amendment and marked the decline of movie censorship in the United States. I feel that the internet is the same way -- a viewer or participant needs to make an effort to reach sexual speech in most cases. They need to go on the computer, find a certain kind of website, pass a warning page, and often log in before they can access sexual material. Material found in these areas of the web should receive protection. However, this argument could be partially undermined by the widespread use of webcams. Now, anyone anywhere can connect a camera to their computer and go online to any kind of chatroom to get involved in sexual speech. I don't think this should be protected unless it is on certain websites and online spaces where people have to knowingly make the decision to engage in such speech.
I would agree with your opinion that this type of speech should be protected to the highest degree, when adult-to-adult and voluntary. I would also agree with the use of Miller v. California definition of obscenity in terms of sexual speech to a certain degree. If a certain sexual conduct is outlawed by a specific state, it should undoubtedly be seen as obscene and may be punishable. However, I think that it would be hard to deem certain sexual conduct illegal, if it is between adults and voluntary. I think that sexual conduct can be seen as obscene to many, and not to many, and that most would agree that pornography lacks serious literary, artistic, political, or scientific value, and therefore would have to disagree with the definition. I find the definition, then, to be a bit overbroad and too subjective. Thus, although I agree with the definition and would like to apply it to sexual speech, I don’t know that I could unless refined. I also question Stanley v. Georgia, because to through watching obscene material in the privacy in one’s own home should be just as punished as perhaps making it in one’s own home. I completely agree that such sexual speech as child pornography and beastiality should be punished as they are, in the very least, unvoluntary. However, then, I don’t think that sexual speech could be given the same absolute protection as political speech.
ReplyDeleteI like your application of Reno v. American Civil Liberties Union because I completely agree that adults should have the right to engage in, create, distribute, and receive sexual speech when between adults and voluntary and should be protected. I would also perhaps consider Cohen v. California (1971) in which it was ruled expression is allowed and it’s impossible to define what words are acceptable and which are not. Although action wasn’t protected in this case, I think it brings about an interesting point – that sexual speech is for many away a sexual expression and to prohibit it would risk suppressing ideas and personal expressions. And, once again, only when it is done between consenting adults.
However, I think that the same levels of protection should apply to all media because I find that everything that is in print, movies, etc. is online as well, and we all have access to the internet, and I think that they should all be protected to a fairly high degree. Consider that we have created a digital divide in which children are able to gain access to and utilize technology more so than the current older generation. In the case that there are children in a household, I think that it’s the parent’s job to choose to censor or activate the parental controls, and not necessarily the media’s.
Hello. I agree with you that online pornography should be treated more as Obscenity than indecent speech. Creating and posting their videos online should be protected as long as children are not exposed to these materials. In other words, I also think that adult-to-adult materials via the internet should not be a problem. Also, I think that the decision on Stanley v. Georgia could be suitable for the internet user since there are so many crazy pornographies on the internet although I haven’t seen extreme ones with my eyes. I do think that creates and distributes of abnormal pornography such as child pornography and bestiality should be punished; however, people could accidently consume these on the internet. If possession of obscene speech was not protected, people could be arrested by accidently accessing these websites. I liked your use of Reno v. American Civil Liberties Union. I agree with you that adults’ right to post sexual content (not obscenity) should be protected under the first amendment while children should stay away and protected from sexual materials as they ruled in the case of Ginsberg v NY that “adolescents and minors can be restricted from sexually “harmful speech” even if that speech is NOT obscene. I also think that “criminalizing any obscene messages sent to minor recipients, and also criminalizing the knowing sending of any material that basically depicted and/or described sexual activities or organs” may be important to protect children, and it is relevant with the idea of the case of Ginsberg v. U.S.
ReplyDeleteIt seems like your differentiating between sexual speech and obscene sexual speech. I like this idea. It proposes that sexual speech itself is valuable (regardless of SLAPS worthiness or appealing only to prurient interest). This would certainly impose far fewer restrictions on sexual speech but could also reverse this country’s historically puritanical views of sexuality, which is certainly supported by Mill’s Marketplace of Ideas approach to free speech. I find this exceedingly reasonable since you also say that the depictions of illegal material (child pornography, bestiality) would still be illegal. I agree. It only makes me wonder what kind of speech would be allowed that isn’t currently allowed. Maybe the Castillo v. Texas case fits the bill since Castillo was convicted on the basis of material that wouldn’t be deemed obscene were SLAPS and prurient interest not involved. This substantially changes the definitions of obscene and sexual speech and would probably reverse Castillo v. Texas.
ReplyDeleteYour second point is equally valid. Sexual speech between adults who are not captive audiences should be protected speech. It’s especially important to consider captive audiences and children when expanding protections or restrictions surrounding the First Amendment. Because many consider sexual speech, expletives, and profanity obscene, it seems unfair to take away the existing FCC regulations. The selective application of the offence principle seems correct when you consider captive audiences and children. It isn’t completely banning speech that some consider offensive, it is just taking their interests into account as well while accounting for the unpredictable nature of flipping through the channels or surfing the web.