It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [36]
The Obscenity of Obscenity Restrictions
Just as there are vehement critics of Citizens United and its protection of groups of individuals, there are also many who seek to regulate speech which they find to be “obscene.” Miller v. California (1973) involved an individual who conducted a mass-mailing campaign to promote his business selling illustrated books with adult pornographic material. In trying to define what speech is “obscene” the Court developed a three-part test, which is still used today: Works or speech are obscene if (1) the average person, applying contemporary community standards, would find the work, as a whole, appeals to the prurient interest, (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) the work, taken as a whole, lacks serious artistic, literary, political, or scientific value.
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This standard is riddled with problems. First, it is a blatant violation of the Natural Law to restrict speech merely on account of its offensive nature. It presumes that government may assault natural rights, and that presumption indicates that we exist to serve the government. Are freedoms subject to the government’s whims really freedoms at all? As stated before, there can be no natural right not to be offended. Moreover, one can simply avert one’s eyes and ears if he is truly offended. Miller itself demonstrates the hypocrisy of such a doctrine: The recipients of Miller’s mailings did not have to open them up and view their contents; they could have just thrown them in the trash and successfully avoided any offense. If, however, they voluntarily view the pictures inside of a mailing which clearly contains pornography, they cannot later claim that they were offended, and thus seek the protection of the law. By insinuating that people cannot stand on their own two feet without the aid of the government, such a doctrine is demeaning to both the individual who is deprived of his natural rights, and the individual who is “offended.”
Moreover, such a doctrine is hopelessly subjective, and thus offers arbitrary protection of our natural rights. How can judges determine what is of artistic, literary, political, or scientific value? Not even experts in art, literature, politics, and science are able to do so! Surely, Darwin’s contemporaries did not believe that his theory of evolution was of any scientific value; where would science be today if his ideas could have been suppressed merely because they were unpopular? Moreover, it is clearly in violation of the Natural Law to judge speech according to community standards; the Natural Law transcends temporal local cultures. Similarly, the Constitution does not grant the government the power to restrict your speech based on moral or value judgments, nor does it grant the government the power to criminalize speech, which is legal in some parts of the country and illegal in other parts. The Constitution and the Natural Law are universal. The whole purpose of the First Amendment is to assure that individuals—and not the government—choose what to think, say, publish, hear, or observe.
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Not Now, Not There, and Not Like That
It should be clear by now that the government does not view the First Amendment as protecting speech it fears, hates, or finds offensive. However, the government additionally attempts to regulate where and how you enjoy your natural right to free speech through so-called time, place, and manner restrictions. To illustrate this type of restriction, consider the act of burning an American flag to show your discontent with public policy. Clearly, the government