Last week, on her radio show, I heard Laura Ingraham repeat a fallacy commonly voiced by those who do not fully understand the First Amendment's guarantees of free speech. The free speech guarantee should not apply to pornography, she said (referring to all forms of sexual expression and not just to the much more narrow concept of obscenity) because the Founders intended the free speech clause to protect political speech and certainly did not intend it to protect speech, expression, or conduct describing sexual acts.
The fallacy of her position may be demonstrated by considering a couple of hypotheticals. Suppose that the State of Ohio were to pass a law prohibiting the sale of science fiction novels. All other forms of fiction would be permitted without restriction, but science fiction would be prohibited outright.
Suppose further that the State of Indiana were to prohibit any written or graphic depiction of people eating food, as well as any photos or drawings depicting human mouths, tongues, or lips. Perhaps the courts would limit such prohibitions to depictions designed to appeal to the esurient interest.
In each case, there is no aspect of political speech that is involved. Neither would be protected under the limited concept of freedom of speech that Ingraham envisions. But both statutes would be clearly unconstitutional, inconsistent with guarantees of free speech as we understand them.
9:51:11 PM 
|
