American rights included within the First Amendment encompass “freedom of speech,” but the waters can become mucky when the government enforces limitations on those freedoms. In fact, “the debate over what constitutes as inappropriate material and whether (and how) the public should be protected from it will not likely be settled any time soon” (The Atlantic). The essential question for today’s blog post is should our government place limitations on obscenity under the first amendment?
To explore this essential question deeper, we need to dive into the history of obscenity in the United States. Since the founding of the United States, disputes have regularly occurred rooted in the basis of what is considered decency; thus, law enforcement began to step in. Government interference among obscenity issues can be traced back as far as the 1873 Comstock Act which limited freedom of speech by banning the mailing of “obscene,” “lewd,” or “lascivious” material, including sex education materials (TIME). As the years progressed, the government became more permissive of freedom of speech. For instance, in 1931, Stromberg v. California concluded that “symbolic speech” is protected under the First Amendment. At the time, Stromberg’s waving of a red flag out a public plane window was considered to be affiliated with anarchy and was then unlawful under California law. However, this display of symbolic speech was later deemed lawful. That same legal symbol expression allowance extends to the arts such as paintings, music, theatrical performances, and other artistic expressions. Nevertheless, later on, the United States continued to limit obscene speech. In the case Roth v. United States, obscene speech was outlawed yet again (PBS). Further, obscene material was defined as “utterly without redeeming social importance” (TIME). Later on, the case Miller v. California created a more specific system for determining obscene material. The case defined obscenity as any matter that “lacks serious literary, artistic, political, or scientific value” and “taken as a whole, appeals to prurient interests” (TIME). This test is what is known as the three-pronged test, and remains in use still today (PBS).
Currently, under the First Amendment, our freedom of Speech allows for only consented obscenity that serves a purpose (meets the three-pronged test) and does not present a disruption in certain social settings. However, since the First Amendment permits freedom of speech, and the government later synthesized that with freedom of expression, those same rights ought to be available to be exercised by the people in whatever setting they so choose. For instance, art is art when the artist affirms it to be, not when the audience says otherwise. One of the first videos said to be banned was the video entitled “Carmencita,” banned in the 1890s due to the way the female dancer occasionally pulls at her skirt and reveals her ankles (TIME). However, a little over a century later viral videos include that such as Miley Cyrus’s “Wrecking Ball” music video, that visually shows a bit more than an ankle. No one is forcing you to watch “Wrecking Ball” any more than they weren’t forcing you to watch “Carmencita.” In fact, if something is on display that displeases you, as an American citizen you should be able to respect that display since constitutionally people have the right to expression. Governments limitations on speech and expression of any kind, including obscenity, is wrong. Freedom of speech is a part of our government, a right and privilege not everyone has around the world. If you don’t appreciate that right, you can move to Saudi Arabia where women just received the right to drive in 2017. Or perhaps to North Korea, where the only expression allowed is one of respect for their leader, Kim Jong-Un. Similar to artwork, the scientific value in expression equally includes liberty in knowledge available to an educational setting. Even though in 1966 the Fanny Hill decision liberated the literary world because it decided it was “no longer impermissible to write about sex or to employ certain words” (The Atlantic), as late as 1982 court decisions were still being made to liberate school resources. The case Board of Education v. Pico determined that “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books” (PBS). Art, information, science, expression, these are the things that shape ideas and build the America of tomorrow. We deserve rights. In fact, we are guaranteed rights, unsolicited rights, under the First Amendment of the Constitution. Today is the day that government starts obeying our call for rights, our call for freedom of speech, and we cannot afford to live as bystanders in our own lives for even a second longer.
“Culture Shock: Who Decides? How And Why?: The First Amendment”. Pbs.Org, https://www.pbs.org/wgbh/cultureshock/whodecides/firstamendment.html. Accessed 21 Feb 2019.
Kessler, Ryder. “Obscenity, Censorship, And The First Amendment”. The Atlantic, 2006, https://www.theatlantic.com/magazine/archive/2006/07/obscenity-censorship-and-the-first-amendment/305073/. Accessed 21 Feb 2019.
Waxman, Olivia. This Is What Americans Used To Consider Obscene. 2016, http://time.com/4373765/history-obscenity-united-states-films-miller-ulysses-roth/. Accessed 21 Feb 2019.