CAN America no longer afford the First Amendment? Or is the
First Amendment more important today than ever before?
These stark choices are implied in the debate raging in the
United States over society's proper response to an unprecedented
climate of offensive and perhaps harmful expression.
"The media and the pornography industry are working overtime to
ensure that our society is filled with sexual messages," says
Joanne Masokowski, founder of Protect the Children Resource Center
in Concord, Calif.
The controversy centers most around two kinds of expression:
obscenity and hate speech. These are the cutting-edge issues of
free speech in America.
* Obscenity. Movies, television, heavy metal and rap music, and
printed pornography - popular culture is filled with it. Pop stars
like Madonna, the rap group 2 Live Crew, and comedian Andrew Dice
Clay spew forth degrading words and employ sexually suggestive
gestures in their acts.
True "obscenity" as defined by the Supreme Court enjoys no First
Amendment protection, since the justices have said that child
pornography and hard-core porn that meets the court's obscenity
test aren't "speech." State and local governments actively
prosecute producers and distributors of obscene materials, says
Deen Kaplan of the National Coalition Against Pornography in
Cincinnati. More than 90 percent of the pornography cases brought
to juries result in guilty verdicts, Mr. Kaplan says.
Beyond legally proscribed obscenity, however, is a vast realm of
soft-core porn and other sexually-oriented forms of speech that
government can't outlaw.
Government shouldn't wield scissors in a free society, says
Rodney A. Smolla, director of the Institute of Bill of Rights Law
at William & Mary Law School and an opponent of censorship.
Professor Smolla notes that many artistic works which, whether
one approves of them or not, have made important statements and
were greeted with indignant calls for suppression - from James
Joyce's "Ulysses" to the recent film "The Last Temptation of
Smolla also worries about the "hidden political agenda" in much
censorship. "It's no coincidence that censorship is often targeted
against society's fringe groups," he says.
Defenders of even the most extreme rap lyrics, for instance,
contend that the music is an authentic expression of the
powerlessness and rage felt by many blacks, and thus is politically
significant speech deserving of First Amendment protection.
The libertarian's customary remedy for people offended by
obscene speech is simply to turn away from it; one isn't forced to
read Hustler or view an exhibit of Robert Mapplethorpe photographs,
Yet turning away is becoming increasingly difficult in a society
inundated with sexual imagery.
And many parents are particularly alarmed about the exposure of
children to sexually explicit expression through recordings, cable
TV, and dial-porn. Thus, calls are rising for such private-sector
measures as warning labels on recordings and self-censorship by
film and TV producers.
An emerging element in the debate over obscenity that could
alter its terms is the question of the harm it causes. Women's and
children's groups are intensifying research into possible links
between pornography and deviant behavior.
Mr. Kaplan of the National Coalition Against Pornography says
researchers are finding high statistical correlations between porn
and sex crimes. If their data come to be broadly accepted, some
sexually-oriented materials currently protected as speech could be
viewed more as harmful substances subject to government regulation.
* Hate speech: Invective against minorities, women, Jews,
homosexuals, and other victims of bigotry. Manifestations of
bigotry are rising throughout American culture, but intolerance has
become a cause of special alarm on college campuses, where
incidents of bigotry have skyrocketed in recent years. …