Legality of Obscenity at Center of Smut Case Appeal

Agape Press ^ | 10/20/05 | Allie Martin

[bigsigh]

I didn't ask whether or not you hate it. I asked what authority does the constitution give them to do it.

[AntiGuv]

Why isn't this like Marijuana?

It is like marijuana. In both cases, unconstitutional rulings by the Supreme Court have permitted unconstitutional policies by the federal government.

[goodnesswins]

"Even in the framers' time, the output from the press was sold, not given away free."

Oh, pulllleeeasaseee......Smut isn't something that the "Press" in the "framers' time" was selling....or even dreaming of.

[edsheppa]

The federal government routinely regulates commercial speech and the courts have held this permissible. Now perhaps that is an error, but it is certainly a precedent for regulation of obscene "speech."

[goodnesswins]

PUBLIC SAFETY. (i.e. children.....and even adults.) Smut adds NOTHING of value to this world. I can't believe I'm having this discussion.

Night all.

[Rightwing Conspiratr1]

The First Amendment as I understand it, refers to POLITICAL speech.

You are quite correct. Are there any more originalists in the house?

[bigsigh]

I can't believe I asked about publec safety and you reply it adds nothing of value. Are you on medication?

[Sir Francis Dashwood]

Judge Lancaster considers being a judge "the best of all worlds,"

Tht reminds of a story about a fellow named Candide and what happened to his ill-fated friend... ‘best of all possible worlds.’

[goodnesswins]

Sorry, didn't see your question about "public safety." I WISH I was on medication!

[jwalsh07]

You can't make an argument that the the intent of the the free speech clause was intended to protect obscenity which directly refutes your 14th amendment incorporation gambit.

And you can't make an argument that the rights enumerated are absolute and all encompassing. We both know that.

An absolutist would have to argue that communities can not proscribe masturbation or other such activity on the public sidewalk in front of the local grammar school.

You're not an absolutist, are you AntiGuv? :-}

[Antoninus]

1st Amendment.

Here's a little historical background on this issue for you. First, two Supreme Court decisions:


Chaplinsky vs. New Hampshire (1942):

"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words....It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

Roth vs. The United States (1957)

"Obscenity is not within the area of constitutionally protected freedom of speech or press--either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States.... In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.... The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.... All ideas having even the slightest redeeming social importance--unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion--have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests; but implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.

This all changed in the 1960s and 70s when our currently prevailing attitude was born--that a photo of a man sodomizing another man suddenly qualified as "speech" worthy of 1st Amendment protection. The SCOTUS had no trouble overturning the precedent established above. So much for stare decisis. Why did this happen? Well, here's an excerpt from the Current Communist Goals read into the Congressional Record in 1963 by A. S. Herlong, Jr., Democrat representative from Florida:

24. Eliminate all laws governing obscenity by calling them "censorship" and a violation of free speech and free press.

25. Break down cultural standards of morality by promoting pornography and obscenity in books, magazines, motion pictures, radio, and TV.

You be the judge.

[AntiGuv]

Well, "commercial speech" per se is that speech which is intended to influence consumers in their commercial decisions - e.g., advertising. There's a difference between that and commerce in speech (selling otherwise noncommercial speech).

[Antoninus]

I didn't ask whether or not you hate it. I asked what authority does the constitution give them to do it.

Where does the Constitution give the federal government the power to prevent state and local governments from setting their own standards of public morality?

[Sir Francis Dashwood]

Are there any more originalists in the house?

That's the way I see it... Some of these folks, I would just rather see subjected to public beatings. Free speech my a$$...

[jwalsh07]

Perhaps but that's not your base argument. It's peripheral.

Your arguing, if I understand you correctly, that obscenity is a fundamental right incorporated to the states through the 14th amenmdent and thus states and communities can not legislate or regulate obscenity.

Is that your argument?

[Antoninus]

An absolutist would have to argue that communities can not proscribe masturbation or other such activity on the public sidewalk in front of the local grammar school.

An absolutist would also have to argue that the 2nd Amendment gives one the right to own a suitcase nuke. I actually had a few nut-cases arguing that on another thread.

[bigsigh]

I don't know whay you asked me that question unless you misread my post.

[Antoninus]

Porn consists of images and/or text.  Both are forms of speech.  Your world isn't the one the rest of us live in.

Ok, now be honest. Do you think that the Founding Fathers would have agreed with the notion that an image of a man shoving a whip up his cornhole was protected by the First Amendment?

[AntiGuv]

You can't make an argument that the the intent of the the free speech clause was intended to protect obscenity which directly refutes your 14th amendment incorporation gambit.

The intent of the free speech clause is to prohibit Congress from making any law abridging freedom of speech. It's crystal clear. I haven't made an "incorporation gambit" because incorporation is irrelevant to the present case. This was brought under federal law, not state law.

And you can't make an argument that the rights enumerated are absolute and all encompassing. We both know that.

Sure, I can. The confusion in this regard originates from the collapse of federalism. The rights enumerated were meant to be absolute and all-encompassing versus the federal government. The confusion arises because the restrictions have been applied to the states, which was never the intent of the Founders.

An absolutist would have to argue that communities can not proscribe masturbation or other such activity on the public sidewalk in front of the local grammar school.

Umm, no. This is not analogous to my argument. A true analogy to my argument would be: The Congress cannot constitutionally proscribe masturbation on the public sidewalk in front of the local grammar school. The States and local governments can.

This is true by the way.

You aren't misrepresenting my statements, are you?? :p

[Sir Francis Dashwood]

You be the judge.

O.K. “A warrant is hereby issued for the arrest of all ACLU lawyers, bail set at twenty million dollars each.”