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How Is Hardcore Pornography Speech?

Stephen Bates writes for the Washington Post July 15:

That toxic combination makes a mockery of the First Amendment — chilling freedom of expression even as it erodes the separation of church and state.

The Web site is run by Morality in Media Inc., an “interfaith organization” that has battled pornography, profanity and blasphemy since 1962. It aims to “rid the world of pornography” — most of which is constitutionally protected. The site blames porn for, among other things, the Virginia Tech massacre, international trafficking in women and the Abu Ghraib prison scandal. (“The pictures these soldiers produced at Abu Ghraib could have come out of porn valley in California,” the group’s site says. “In a real way, they did.”) According to Morality in Media, Playboy promotes sibling incest, and even Cosmopolitan is nothing short of pornographic. The outfit also fulminates against “the hellish sexual revolution,” R-rated movies, gangsta rap and Bratz dolls.

What about the First Amendment? It’s merely part of “a framework of ordered liberty,” the group said in a 2005 letter to President Bush, not “a license to publish pornography.” Unfortunately, the site argues elsewhere, “a judicial oligarchy accountable to no one” has brushed aside considerations of decency in favor of the agenda of “pornographers and radical libertarians.” If the Constitution protects consensual, private gay sex, what’s next? asked Robert Peters, the group’s president, in July 2003. “A right to bugger farm animals”?

I email lawyer and journalism professor Stephen Bates: “How is hardcore pornography speech? Have you ever seen hardcore? How familiar are you with hardcore? What exactly is speech about twelve guys ejaculating on the face of one woman? How is this constitutionally protected? How is reasoned discourse chilled by obscenity prosecutions of gang bang producers? Do you think that the writers of the Bill of Rights had in mind Max Hardcore and JM Productions’ bukkake videos when they crafted the First Amendment? Do you truly feel that your rights as a journalist would be infringed upon if you could no longer rent DVDs of 100 guys ejaculating on one woman?”

In my view, pornography is expression, not speech. I have no position on whether it should be legal or not.

Bates responds:

I’m sure that the authors and ratifiers of the First Amendment had no such thing in mind. But the Supreme Court has ruled that the amendment protects “hardcore porn” so long as it doesn’t violate a three-part test for obscenity. The Court has been construing the Constitution since Marbury v. Madison, whether we like it or not.

As a policy matter, fwiw, I’d rather see the Justice Department devote its limited resources in this realm to prosecuting child porn, as it did under Clinton, instead of obscenity. Not that I’m a particular admirer of Clinton, having worked on the Whitewater/Lewinsky investigation as an associate independent counsel.

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