The First Amendment seems clear enough, as written. Here it is in its entirety:

      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; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

      Those precise and concise 45 words don't lend themselves to multiple interpretations, do they? Let's take an even closer look, narrowing down to just the elements in the text concerning free speech. Here they are: "Congress shall make no law.abridging the freedom of speech or of the press."
      Once again, plain as day. Yet transparent as those words might be, they were the object of much thought prior to their writing. In 1786, as the consensus on the need for a Constitution was settling into the new American republic, Thomas Jefferson declared, "Our liberty depends on the freedom of the press, and that cannot be limited without being lost."
      But alas, just because the words are there, plain as day, in the Constitution, since the Bill of Rights was ratified into the Constitution on December 15, 1791, does not mean that those words are always enforced.
      And in fact, it didn't take long before the government set about to snuff out the freedoms it had just established. In 1798, the government of President John Adams and his Federalist Party passed the Sedition Act, which included this freedom-strangling language:

      That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

      The Sedition Act was one of four laws--collectively known as the Alien and Sedition Acts--brought into existence by Adams and his Federalists, allegedly in response to the hostile actions of the Revolutionary government in France, and pro-French aliens who might be entering the United States. But in fact, Adams' real enemy was not the French, but rather, Thomas Jefferson's Republican party, which was the Federalists' main rival for political power. Indeed, Adams made no use of the alien acts. But he did use the Sedition Act to virtually snuff out the First Amendment; prominent Jefferson men, including John Daly Burk, James Callender, Thomas Cooper, William Duane, and Matthew Lyon were all tried, and some were convicted, according to the Sedition Act. (Thus started a pattern that's observable in most government activities in a time of crisis: the alleged object of government power and the actual object of that government power are often much different.)
      At the time, a few brave voiced denounced the Sedition Act was an abomination. Here, for example, is the great James Madison, speaking out: "The Sedition Act was unconstitutional. ... The First Amendment was intended to supersede the common-law on speech and press. Freedom guaranteed by the amendment was absolute as far as the federal government was concerned because it could not be abridged by any United States Authority."
      Happily, Adams and the Federalists were defeated in the 1800 presidential election, and the Sedition Act expired.
      Still, for the past two centuries, freedom of speech, as guaranteed by the First Amendment, has never been completely free. At various times during subsequent wars--the Civil War, World War One, World War Two--the First Amendment has been drastically abridged.
      But of course, the First Amendment, as it is written, doesn't just cover wartime, and wartime politics. It covers all times, and all manners of free expression. To be sure, some argue that point, but to those arguers, the proper answer is: Go back and read the First Amendment as it's written. And once again, here it is: "Congress shall make no law.abridging the freedom of speech or of the press."
      Yet at the same time, other governments, below the federal level, have felt free to restrict free speech. In fact, a popular argument of the unlamented past was that the federal government, and its laws, did not necessarily apply to people who lived within a state. That is, you could live inside the United States--as a citizen, even--but if the specific state you lived in didn't agree with a federal law, that law could be "nullified" inside the state, and thus you could be subject to the restrictions placed upon your by own individual state.
      This "nullification doctrine" was particularly popular in the pre-Civil War South,where the likes of John C. Calhoun declared that the sacred--to them, at least--principle of "states' rights" overrode federal authority. And so it was that Calhoun's own state of South Carolina could and should be free to permit slavery, Calhoun maintained. This states' rights dogma, of course, was dealt a massive defeat in the Civil War. After Appomattox, the idea that those Calhoun's fellow white South Carolinians could be "free" to own slaves was gloriously nullified.
      But to this day, repressive forces invoke the idea of "states' rights" and "local control" to launch crusades against objectionable speech. And so countless injustices have been done to blameless victims.
      One such area of First Amendment-violating is in the area of sexual expression. Special words have been applied to the area of human sexuality, such as "obscenity," "indecency," and "pornography," as a way of separating sexual expression from the rest of human expression. But let's be honest: words such as "obscenity" are just words for lawyers to use, as they try to define "speech" as something other than speech. Because they know that if certain kinds of speech can be defined as something other than speech, then it will fall out of the realm of First Amendment protections, and thus can be regulated. But all sincere believers in human freedom should acknowledge that anything that comes out of someone's mouth or mind--unless it is, for example, a direct threat to someone else's safety--should be counted as "speech," and thus be protected.
      But sadly, over the centuries and decades, untold dollars and person-hours have been spent chasing down free speech. In the early 20th century, books that are now regarded as classics of literature--including James Joyce's Ulysses and D. H. Lawrence's Lady Chatterly's Lover--were banned. And the result was years of litigation. Fortunately, by now it's pretty much recognized that written material has a strong First Amendment protection.
      More recently, the focus of prosecution has moved to non-written materials, both aural and visual. In the early 90s, a Florida prosecutor tried to try the musical rap group Two Live Crew for violating Florida's obscenity statute. The case was basically laughed out of court.
      The lingering area of trouble is in the area of visual material. The easiest thing to do, of course, would be to simply go back and re-read the First Amendment--"Congress shall make no law.abridging the freedom of speech or of the press." But that libertarian approach doesn't satisfy those who seek to take freedom and pleasure away from others.
      And so the government--all the way up to the Supreme Court--has been forced to deal with issues and cases that should never have been made into "federal cases" in the first place. The result has been a swamp of prosecution and litigation, as lawyers and judges attempt to separate out what is "speech" (and thus protected by the First Amendment) and what is "non-speech" (and thus not protected by the First Amendment).
      The most famous opinion on obscenity came from Supreme Court Justice Potter Stewart, who wrote in the 1964 case of Jacobellis v. Ohio. In that opinion, he wrote, "Under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, [emphasis added] and the motion picture involved in this case is not that."
      For the past four decades, judges have been struggling to "know it when they see it."
      The 1973 case of Miller v. California sets out the "modern" test for obscenity. After years in which the Supreme Court could not assemble a majority for any one position, five members agreed on a three-part test for judging obscenity statutes; if a work in question flunks the three tests, it is regarded as "obscene," and thus not protected by the First Amendment. Here are the three tests, commonly (albeit Freudianly) described as "prongs":

      First, the proscribed material must depict or describe sexual conduct in a patently offensive way, such that the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.

      Second, the conduct must be specifically described in the law. That is, it must depict or describe sexual conduct specifically defined by applicable law.

      Third, the work must, taken as a whole, lack serious value and must appeal to a prurient interest in sex. That is, it must lack serious literary, artistic, political, or scientific value. The words "serious literary, artistic, political, or scientific value" are sometimes conflated into the acronym "SLAPS," and so we get the "SLAPS Test."

      To sum up, under the Miller Test, a work is considered considered obscene only if all three conditions are satisfied.
      Of course, many questions are left unresolved. For example, the concept of "contemporary community standards" is left unanswered. What's the relevant "community"? Is it a neighborhood, a city, or a county? What offends the average person in the rural areas of Los Angeles County is likely to differ from what offends the average person in West Hollywood, which is also part of LA County. Many legal scholars declare that any law or standard which is so amorphous cannot, by definition, be fairly enforced, and is thus unconstitutional under the "equal protection" clause of the 14th Amendment.
      And in the meantime, cases keep coming up. In the 2002 case of Ashcroft v. Free Speech Coalition, the Court heard a challenge to the Child Pornography Prevention Act of 1996, which made it illegal to distribute or possess sexually explicit computer-generated images of children, or of persons over 18 who might look under 18. The Court found the CPPA to be Constitutionally over-reaching. Writing for the Court's majority, Justice Anthony Kennedy suggested that the law might have been enforced against such movies as Oscar-winning American Beauty or the 1996 version Romeo and Juliet. The following is an excerpt:

      Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young. Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach. Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statute's prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work's redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene.

      Yet the cases keep coming, made all the more complicated by ever-proliferating technology, which keeps providing ordinary Americans with new portals to enjoy their freedoms. In 2000, in Provo Utah, a video store owner, Larry Peterman, was put on trial for dispensing allegedyly obscene tapes. Even in that conservative state, the jury acquitted him after Peterman's lawyers pointed out that the local Marriott hotel was also showing the same sort of adult material on pay-per-view, and that many other locals were getting identical material from cable and satellite TV.
      But the big issue, of course, is the Internet. Yet another test of whether or not First Amendment means what it says it means is the case of US v. Extreme Associates. More on that case later, here on ivote2004.com.
      But for now, it's worth recalling, yet again, those magic words of the First Amendment: "Congress shall make no law.abridging the freedom of speech or of the press."
      It's hard to get much clearer than that, but as we have seen, for two centuries, prosecutors and censors have overlooked the obvious clarity of those words.
      Does free speech sometimes annoy us? Does it outrage us? Sure it does. But that's exactly what the Founders had in mind. They, after all, had just waged a revolution against their mother country, England. If the Declaration of Independence wasn't an annoying and outrageous affront to the Powers That Were, nothing was. And so, to their eternal credit, the Founders created a tradition of freedom that has survived down to this day--even if it is always threatened by the clasping grip of censorship.
      And so, we must always remind ourselves that the essence of free speech is its ability to startle, even to stun. And there's no reason why politics and sexuality--two equally vital areas of human expression--should be treated differently, one protected, one not. As Oliver Wendell Holmes Jr. one wrote, "The prevailing notion of free speech seems to be that you may say what you choose if you don't shock me." But that was not Holmes' view. The "Yankee from Olympus" understood that free speech and free thought were the same thing. And so he insisted upon, not only free thought "for those who agree with us," but also, "freedom for the thought that we hate."
      It's hard to believe that people waking up in the morning hating the idea of other people's freedom. But they do, and history shows, those freedom-haters sometimes have power--and always have persistence. It's to protect us, and our rights, that we have the First Amendment. But if the First Amendment protects us, we also have to protect the First Amendment. And as we have seen, that's not always easy, because those wonderful 45 words are always under attack.


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