Constitutional Law

An Originalist Case For Presumptive First Amendment Protection Of Pornography

A free speech guarantee applied with an originalist lens requires robust, evidence-based procedures that modern porn prohibitionists cannot satisfy.

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Unlike most other “Western style” democracies, the United States has recognized that government, and its officials, should be denied the power to make “principled distinctions” on matters of “taste and style.” Even what might be called vulgar or indecent expression is, nevertheless, presumptively protected from government interference by our First Amendment to the Constitution. Perhaps because “absolutism is what freedom of speech actually makes impossible,” the law also recognizes exceptions to the presumptive protection in specific contexts, circumstances, and, perhaps most importantly, in certain U.S. Supreme Court-defined categories.

One rather obvious example where government has reasonable subject restrictions, such as with sexually explicit material, is in public schools. However, even in the public school context viewpoint restrictions remain presumptively unconstitutional. Another rather obvious area where government has regulatory power over sexually explicit expression is within broadcast media, but relatively recent cases have suggested government cannot utilize this regulatory power with vaguely broad standards.

A historically unprotected, Court-defined category of speech is the obscene. The obscenity category is based on a theory of harm regarding morality and secondary effects. Current obscenity law applies the standard established in Miller v. California that tests:

“(1) whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”

Recently, the U.S. Supreme Court denied extending obscenity categorical restrictions for minors to include violent material. In fact, in an opinion written by the late Justice Antonin Scalia, the Court denied that state legislatures could strip First Amendment protection based on a finding that “certain speech is too harmful to be tolerated.” All that seems to matter is whether speech fits into already recognized categories, and the Court seems highly resistant to expanding such categories any further.

This obscenity jurisprudence could make the more recent push by conservatives to wholesale ban pornography appear constitutionally bleak. In fact, the Court has already recognized pornography or what the Court defines as “material distinguished or characterized by an emphasis on matter depicting, describing or relating to ‘Specified Sexual Activities or Specified Anatomical Areas” as presumptively protected material when it comes to adults. The response by conservatives to the challenges presented by more recent jurisprudence, is to question whether “a persuasive originalist argument that the First Amendment protects hard-core porn” exists. As it just so happens, I was recently successful in publishing just such an argument.

The starting point from an originalist perspective of free speech to me begins with the Sedition Act of 1798. The Sedition Act passed by Congress and signed by President John Adams made it a crime to publish or speak out against the government of the United States, the Congress, or the president, “with the intent to bring them into contempt or disrepute.” Because debate over the passage of the Sedition Act in Congress pitted nearly every Founder against one another, it provides a useful understanding over the original intent behind the free speech guarantee.

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The disagreement over the meaning of free speech during the Sedition Act debate was dictated by each political side’s vision of the role of the new government and faith in the citizenry at large. Many on the Federalist side, including John Adams and Alexander Hamilton, believed government must be superior to the people, and government censure against the effects of expression was necessary to maintain such superiority. In opposition to the Federalists, including James Madison and Thomas Jefferson, were those who believed government was, in all ways, subservient to the will of the people, who, consequently, must possess the inherent right to speak without the threat of government interference. It is important to emphasize the dispute over the issues debated by Madison and the Federalists remains largely unsettled. However, I do not have to take a side in order to extract fundamental, originalist principles from the struggle over the Sedition Acts.

As my Article puts it [citations omitted]:

“Regardless of whether one finds the Federalist or Madison’s more Info-Libertarian interpretation more convincing, two principles emerge from the Sedition Acts debate that apply to free speech legal doctrine. First, it has long been common knowledge to scholars that all forms of speech maintain some level of guaranteed protection from prior restraint. Secondly, as the next section will demonstrate, any restriction that seeks to censor speech because of the danger it imposes to society must include an evidence-based test of the link between the speech and the danger asserted. The reason only these two principles survive with any certainty, is that they were the only premises both sides of the debate generally agreed on.”

The next section then goes into detail regarding how the Federalists and Republicans amended the Sedition Act to include an evidence-based procedural standard required to demonstrate harmful effect in order to ensure a measured degree of constitutional fairness.

This evidence-based standard, even during the period of the Founding when our fears regarding human expression were far greater, nevertheless resulted in limiting Sedition Act cases to extremely rare, but highly publicized trials — trials that a substantial amount of evidence suggests were based on political considerations rather than cases of actual immediate danger. Even obscenity cases during the nineteenth century were relatively rare events and became even rarer the more our understanding about human behavior increased. And if one were to apply an evidence-based standard to the claimed linkage between porn and certain dangers today, the evidence, and therefore the originalist argument, is entirely stacked against you.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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