Kernes Responds To John Stagliano's Reason Interview

You can find links to the Stagliano video here , and from there to the excerpted transcript (here ) ... but I felt I had to comment on one point:

Dear sir,

I was troubled by interviewer Nick Gillespie's unqualified assertion that "Obscenity isn't protected by the First Amendment," and even moreso by the fact that John Stagliano, a longtime First Amendment advocate, didn't pick up on the error.

The First Amendment is clear that "Congress shall make no law ... abridging freedom of speech, or of the press." That phrase contains no caveat about sexual speech, nor even about the various other forms of speech that the Supreme Court has, over the years, seen fit to declare to be unprotected. What's sadder is that branding obscenity as illegal is EXACTLY the type of "judicial activism" that conservatives have been complaining about for the past several years! Yet none have seen fit to comment on THIS form of judicial activism. In fact, "originalist" Antonin Scalia has specifically endorsed this particular activist position, although attorney/law professor Eugene Volokh, writing on the speech portion of the First Amendment for the Heritage Guide to the Constitution, has noted that there was not a single criminal obscenity prosecution brought in any state until 1821, long after the Constitution was ratified.

There are various forms of speech that even I would agree shouldn't be protected by the Constitution - defamation, fraud, possibly a couple of others - but the Constitution itself sets forth the method by which such forms of speech can be exempted from First Amendment protection: Amendments passed by two-thirds of both houses of Congress, and then ratified by three-quarters of the states. No other method of amending the Constitution, including Supreme Court edict, is sanctioned.

Further, if one still questions whether sexual speech can be exempted from First Amendment freedoms, one might also look to the (often-overlooked) Ninth Amendment, which states that, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Surely, the right to look at sexually-explicit material in the privacy of one's own home, no matter how disgusting some might think that material to be, would fall at least under Ninth Amendment protection. And indeed, in Stanley v. Georgia, even the Supreme Court affirmed the right of citizens to own obscene materials. But it has never answered the obvious follow-up question: How is that allegedly "obscene material" supposed to get to the citizens' homes in the first place? Do they want everyone interested in the subject to become his/her own producer?

The mind boggles.

Mark Kernes, Sr. Ed., Adult Video News (AVN)



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