Are You Obscene?

With Banned Books Week still going on, it seems like a good time to discuss why it is some folks think they have the right to abridge what others can say, read, write, and even think, despite protections against such a thing as provided by the First Amendment.  And yet there's this thing with Obscenity Law.  Current US Obscenity Law is founded largely on the 1974 Supreme Court Case Miller v. California.  If you don't want to read the full text, let me break down the essentials for you: if it's obscene, it's not protected speech, and the man can shut you down.  "But what exactly is 'obscene?'" you may ask.  Well, there's the rub - it's subjective.  Chief Justice Warren Burger stated in the court's opinion:

"The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Justice Douglas countered beautifully in his dissent with:

"The idea that the First Amendment permits government to ban publications that are 'offensive' to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed 'to invite dispute,' to induce 'a condition of unrest,' to 'create dissatisfaction with conditions as they are,' and even to stir 'people to anger.' The idea that the First Amendment permits punishment for ideas that are 'offensive' to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society.

The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to 'offensive' as well as to 'staid' people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard 'offensive' gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment—and solely because of it—speakers and publishers have not been threatened or subdued because their thoughts and ideas may be 'offensive' to some."

Right on Justice Douglas.

So are you obscene?  Take this quiz and see how you rate.  Just remember, you're only as obscene as you think you are, and that's also true for everyone else.

Comments

[Ashley Stark]

Well said Dan (and Justice Douglas).