Posted on 10/23/2005 7:47:38 PM PDT by dukeman
The First Amendment means precisely what it has: "Congress shall make no law ... abridging the freedom of speech." Is there any part of that you don't comprehend. No law means no law; speech is not qualified. The First Amendment does not prohibit states from abridging the freedom of speech. The question at hand is whether the First Amendment is incorporated (by the 14th Amendment) or not. If it is, then the debate is over: neither the Congress nor the States shall make any law abridging the freedom of speech. If it's not, the States can do whatever, but as for Congress: "Congress shall make no law ... abridging the freedom of speech."
Do you get it now? This criminal case was brought under federal law.
Got another one: If necessity is the mother of invention, then nagging is the wife of completion.
Where will it end? What one person finds obscene may be perfectly fine to someone else. Some find the naked human body obscene while others consider it a thing of beauty. I don't want some judge deciding what is "obscene" for me. I can do that myself & not purchase the videos I find offensive. Fairly simple soultion.
Sorry about the typos. My internet connection is acting all screwy - keeps fading in and out all day - and it's making me rush when I try to post something. LOL
"No law" is pretty clear as is "Congress shall", after that your argument is hazy. The Constitution is just as silent on obscenity as it is on abortion.
It's that tricky ole commerce clause that these folks have run afoul of. If California decides that violent pornography is okie dokie then I suggest they produce it and sell it in California.
Nope ....don't "get" it......"porno" is NOT "SPEECH" in MY WORLD.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press...
I have to tell you that when I read this quite literally, the words "no law" really do mean NO LAW. There is no hidden meaning allowing freedom of political speech but not allowing freeedon of obscene speech.
Please explain where in these few, simple words you find an exemption for opbscene speech?
"Then, why can't I shout "FIRE" in a theatre? It's a private business.....I know the reason - public danger....and THAT'S the reason I think obscenity/porno should NOT be part of "free" speech - public danger. Does that make any sense to you?"
It does. The government has a compelling interest in public safety. I can see that same argument for child porn - we have a compelling interest in protecting children. Like yelling fire that need to protect children from the exploitation in child porn is far greater than the right to free speech. So bannig child porn is a slam dunk.
To evaluate general obscenity the question comes down to whether the harm to society is sufficient to over-ride the freedom speech issue. To me it seems to depend in what you are doing with your obscenity - if its in the bedroom between married adults I don't see where the government has any interest at all.
If the obscenity is on a billboard across the street from an elementary school, the government has a clear interest.
What I can't tell you is where the cutoff in the middle should be.
No, it isn't. The Constitution is absolutely crystal clear: the Founders did not intend for Congress to exercise any role in the slightest whatsoever in the regulation of speech of any kind that you can possibly imagine. This is because the power is not enumerated. The Constitution explicitly does not enumerate rights; it enumerates powers.
In the Founders vision, any such regulation - of obscenity or any other kind of speech - would be exercised by the States. The Constitution is silent on whether the States can abridge free speech, and many of them did throughout their history.
The question is whether the 14th Amendment incorporated the 1st Amendment to the States (not only in free speech, but in other matters such as religion). The confusion within the law derives from that extremely unstable tension within the Constitution between the 14th Amendment and the concept of federalism.
I am not trying to hash out that whole aspect of it, because it's totally extraneous to the question at hand: This prosecution was brought under federal law. The Congress has no constitutional power to abridge speech, and is in fact explicitly prohibited from doing so.
The Commerce Clause is run amok, and I'm not going bother with that because it's irrelevant here anyhow. The Congress is prohibited from making any law that abridges free speech, notwithstanding any of its enumerated powers.
" Please explain where in these few, simple words you find an exemption for opbscene speech?"
Constitutional rights can be limited when they come up against other equally important rights. The easiest example is child porn - the child's right to not be exploited and harmed far outweighs the child pornographer's right to freedom of speech.
That's OK. I respectfully decline the invitation to join in your hallucination. Carry on as you see fit in your world.
what world are you posting from?
Yes it is.....I just see it differently.
Why isn't this like Marijuana? You can grow your own for your own use, but you cannot sell it! (I know....I live in a "different" world....) Whatever.
Instead of asking yourself if that's ok, ask yourself, what business or authority does the federal government have doing half the stuff they do?
The right to SELL obscenity is in that pesky little part about the "press".
Even in the framers' time, the output from the press was sold, not given away free. The right to print material, but not to subsequently sell it is not a serious interpretation.
I hate a great deal of the stuff the Fed Gov't does.....but, SMUT BLOCKING is NOT one of them. Public interest and all.
This is a point worthy of clarification. It would be one thing for Congress to regulate the commerce in speech deemed obscene under State law, if the State in question had the power to regulate obscenity. It is another thing for Congress to regulate obscene speech on its own initiative.
In this case, Congress is not saying: this is criminal commercial speech because the State of Pennsylvania deems it obscene (the charges were filed in Pittsburgh). Rather it is saying: this is criminal commercial speech because we, the Congress, deem it obscene. It's not the same.
This is a dangerous argument. There are no rights listed in the Constitution to sell anything. You can possess land, but what if the government could prohibit you from selling your land? What if the government could prohibit gun manufacturers from selling guns?
The Constitution does not list every right we have. See the Ninth Amendment which refers to unenumerated rights. The Constitution was created as a limitation on government, not its citizens.
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