obscenity

Richard Morrison and Marc Scribner welcome guest co-host Alex Nowrasteh to Episode 102 of the LibertyWeek podcast. We take on the healthcare tax, obscenity and the First Amendment, the prognosis for the Gulf of Mexico, and the collective insanity coming out of Venezuela.

“What is freedom of expression? Without the freedom to offend, it ceases to exist.”
—Salman Rushdie

Today it was announced that the ACLU has filed a lawsuit in Pennsylvania as a result of their investigation of the nearly 800 citations doled out by police officers in the last year for disorderly conduct.  The ACLU claims that many of the citations involve cursing and other behavior that is not obscene and therefore protected by the first amendment.  According to the ACLU the major problem is that officers are not properly trained to understand the difference between the vernacular term obscenity and the legal definition of obscene speech not protected under the 1st amendment. The real problem isn’t, as ACLU lawyer  Marieke Tuthill put it, that officers aren’t trained to understand the “difference between the colloquial definition of obscenity and the legal definition.”

The real problem isn’t that obscenity isn’t defined, the problem is that obscenity–not matter how it is defined remains unprotected.  Either speech is an inviolable right or it isn’t. To say that sometimes speech is a right and sometimes not is to say that it isn’t a right at all.  The result of this lack of absolute protection of speech allows government agents to silence average citizens under the guise of curtailing obscenity. It also allows federal agents to put pressure on citizens who have the misfortune of falling under it’s purview. One such person, John Stagliano, has had the misfortune to learn first hand about the limits of the first amendment.

The right to offend: Under current judicial interpretation, obscene speech that would not be protected under the first amendment is determined if  “it would be found desirable to the prurient interest by an average person applying contemporary community standards, depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value.” This is called the “Miller test“.

We’ve all heard it a million times, but it warrants repeating: The first amendment declares:

“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.”

And according to the incorporation doctrine, this amendment along with several others also applies to state and local governments. So, no government body can make rules that would abridge (that is lessen, diminish, or curtail) free expression.

delacroixxxWhat’s a community–how is it determined? Who determines what art is? What offends? How many people have to deem something offensive for it to become a “community standard”? In other words, how many people does it take to strip a minority group of people of their right to free expression?

The purpose of the first amendment is to allow people to freely express their ideas without coercion from the government to prevent tyranny. If we allow “offense to community standards” to be an adequate justification for the violation of a citizen’s right to free speech we are simply allowing the community to become that tyrannical state.

“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” ~Justice Anthony M. Kennedy

“Join your fellow pervs for some explicit, twisted fun,” urged a recipient of more than $25,000 from Obama’s $800 billion stimulus package, which received the money through the National Endowment for the Arts. The stimulus is also being spent on “nude simulated-sex dances, Saturday night ‘pervert’ revues,” and “pornographic horror films.” While providing taxpayer funds for “numerous” sexually perverse projects, and lots of money for welfare, the stimulus package has done little for America’s roads and bridges.

Why? Because feminist leaders complained that rebuilding roads and bridges would employ working-class men, who have borne the brunt of the recession, rather than women or the “sexually diverse.” Unemployment is very high among transportation and construction workers, who are overwhelmingly male. The vast majority of people who have lost their jobs in the current recession are male — 82%. But the stimulus package is not aimed at helping them. In response to demands from feminist leaders, the Obama Administration rewrote the stimulus package to largely exclude them, as Christina Hoff Sommers has chronicled at length.

The Obama Administration purged the stimulus package of most of the investments in roads and bridges originally suggested by economists, and filled it instead with welfare and social spending, out of political correctness, after feminist leaders complained that building and repairing roads and bridges would put unemployed blue-collar men to work, rather than women.

As Christina Hoff Sommers points out, “Men are bearing the brunt of the current economic crisis because they predominate in manufacturing and construction, the hardest-hit sectors, which have lost more than 3 million jobs since December 2007. Women, by contrast, are a majority in recession-resistant fields such as education and health care, which gained 588,000 jobs during the same period.”

But when the Administration floated the concept of “an ambitious . . . stimulus program to modernize roads, bridges, schools, electrical grids, public transportation, and dams” as a way of “reinvigorating the hardest-hit sectors of the economy,” “Women’s groups were appalled,” asking “Where are the New Jobs for Women?” and denouncing what they called “The Macho Stimulus Plan.”

The Obama Administration quickly knuckled under to this pressure, replacing its recovery package with an $800 billion stimulus package that instead “skews job creation somewhat towards women” by spending money instead on social services like welfare that are administered mostly by female employees.

“A recent Associated Press story reports: ‘Stimulus Funds Go to Social Programs Over ‘Shovel-ready’ Projects.’ A team of six AP reporters who have been tracking the funds find that the $300 billion sent to the states is being used mainly for health care, education, unemployment benefits, food stamps, and other social services.” Or, as another AP report put it, “Stimulus Aid Favors Welfare, Not Work, Programs.” Less than 6 percent of it ended up going to transportation.

The stimulus package also repealed welfare reform, as Slate’s Mickey Kaus and the Heritage Foundation have noted. Obama ran campaign ads claiming to support welfare reform, even though he had actually fought against meaningful welfare reform as an Illinois legislator. The stimulus package largely repeals the welfare-reform law passed by Congress in 1996.

Obama claimed the stimulus package was needed to prevent the economy from suffering from “irreversible decline,” but the Congressional Budget Office admitted that the stimulus package would shrink the economy “in the long run.” The stimulus package has since destroyed thousands of jobs in America’s export sector, and subsidized countless examples of government waste and corruption.

Recently, Obama fired an inspector general, Gerald Walpin, who uncovered millions of dollars of waste and fraud in the AmeriCorps program, including by a prominent Obama supporter, endangering the Obama supporter’s ability to administer federal stimulus spending in Sacramento.

The stimulus package also imposes on states racial set-aside requirements and prevailing-wage requirements, which increase the cost to taxpayers of government contracts. The prevailing-wage requirements will inflate the cost of state construction and transportation projects by at least $17 billion. Racial set-asides also are very costly to taxpayers.

Racial quotas, set-asides, and affirmative action are also mandated by Obama’s health-care plan, drawing criticism from the U.S. Commission on Civil Rights, reports today’s Washington Times. Earlier, the Commission criticized the Obama Administration for turning a blind eye to racist voter intimidation by black panthers, including an Obama poll watcher and Democratic official who used a nightstick and racial epithets to drive white voters away from a Philadelphia polling place.

My good friend and Bureaucrash ally Xaq Fixx recently altered me to an interesting story on the intersection of politics, technology and free speech. It seems that the state government of California, through the California Employment Training Panel, is paying contractors who train in-state workers in new skills – an effort to boost the Golden State’s notoriously sagging economy. Nothing too unusual there.

Enter SF Weekly’s Matt Smith, who noticed that the list of recipients of this state-subsidized training were employees of Cybernet Entertainment LLC. Cybernet in turn is the proprietor of a number of websites which feature videos catering to adult and, ah, highly specialized interests. Kinky but legal, in other words. Smith submitted a public records request regarding the company’s participation to the state, and received a reply to the effect that “the government had been unaware that Cybernet was in the business of narrowcasting videos depicting sexualized torture.”

Thus informed, however, officials at the Employment Training Panel promptly canceled Cybernet’s participation in the program, citing a policy of not working with the adult entertainment industry. The company’s COO Daniel Riedel, has vowed to fight the state to keep the subsidy. Interestingly, scribe Smith goes on to cite the possibility that denying participation in the program based on the content produced by Cybernet may violate the First Amendment:

Does the state’s refusal to train porn-makers violate constitutional free-speech guarantees? I’m not joking. Some serious and credible people says it’s worth considering whether it’s legal to deny training to porn workers merely because they film naked, shackled women with live electrodes clipped to their genitals.

Smith then goes on to cite experts from the California First Amendment Coalition and the UC Hastings College of the Law to the effect that there might, in fact, be a case here for Cybernet. And, of course, they have their natural allies within their own industry – porn titan Vivid Entertainment Group is also opposed to the decision.

So what do we think, OpenMarket readers? Assuming that there’s going to be an employment training subsidy program in place at all, should the people running it have discretion to deny participation to legal businesses because they don’t like the product being pedaled? Should vegan grant administrators, for example, be able to veto applications from meat processing plants, or Catholic administrators applications from health clinics that provide abortions? Tell us what you think in the comments section.