494- Week 7 Response to Joe's Blog questions

The first question Joe asks is: “Where should legal lines be drawn for ‘worthless’ speech”? I believe the answer to that question lies in a concrete definition of what constitutes ‘worthless’ or obscene. It requires an understanding that what is considered to be obscenity centers around the idea of what can be understood or labeled as “worthless”. As I have been reading chapter 5 one continuous thought keeps coming back into my mind. The idea that in countless case studies I have been reading, all the supreme court justices could not come up with a majority consensus on what constitutes ‘obscene material’. Countless times the sentence, “…the justices revealed clearly the semantic problem inherent in their definition of “obscenity,” for the six who formed the majority could not agree on a majority opinion” comes into the picture after each court hearing involving ‘obscene material’ or as the Roth test deems as ‘worthless’ in nature (Pg. 135). I do not feel that a simple, “I know it when I see it” (pg 136) kind of attitude is adequate in defining obscene material or speech deemed ‘worthless’.
Again it comes down to personal values. Perhaps I am a positivist in that I try to find ‘worth’ in everything I read, listen to or experience whether that be in media, relationships or any other aspect of real world interaction. I think each and every interaction or encounter with whatever we experience can offer some kind of ‘worth’. That can include serious issues such as speech & obscenity or issues far less serious such as finding worth in watching a cheesy class b horror movie. The content and messages were meant to do something or evoke something, if not in the author’s mind but also in the viewer’s mind, otherwise they would not be there in the first place. Once again, in terms of drawing a legal line for “worthless” speech, I believe the answer lies in the consensus of the society in which the speech in question is necessary in order to determine what is “worthless”.
What makes this idea interesting is that if you take the same definition of one society and move it to another, often the same laws do not apply. Hence the level of inter-state Supreme Court conflict in terms of a concrete ruling for differently tried cases involving obscenity or ‘worthless’ speech. It is for this reason that I believe it is almost impossible to distinguish whether something is “worthless” or not. If the basis for legal argumentation and the creation of laws is taken from norms or ideals that are supported by a ruling consensus or power how is a concrete definition ever possible? Take those laws elsewhere and you can often find different interpretations about validity and truth. I learned a long time ago that a truth is an agreed upon definition, supported by a majority power in society and then taught to others as a societal truth. Thus, I think in asking the question about where legal lines should be drawn for what is considered to be ‘worthless’ speech, Joe has found one of the many legal loop holes that exist in a legal world that is not black or white but gray.
As for the brief discussion of obscenity as pertaining to child pornography and obscenity being the exception of what is protected under the first amendment, I have several responses. First, in the statement that Joe makes about it being written, “The government has a compelling interest in the protection of children from seeing or hearing indecent material, but total bans applicable to adults and child alike are constitutionally suspect” there are several ideas that are problematic to me. The first question I have is how indecent material is defined and by who? The second question I have is, how does a government protect children from seeing or hearing indecent material when the children are the producers and consumers of their own indecent material as defined so far in the cases of ‘sexting’? Additionally, how does the government intend to protect children from hearing or seeing indecent material when those children accused of sexting are prosecuted as adults and labeled as sex offenders for the rest of their lives? That is directly contributing to the seeing or hearing of indecent material, not to mention physical and psychological violation of children. What do you think these children will experience when they are jailed and put in the bin with other “real” sex offenders?
It is true that pornography has and will always remain a part of life all over the world. However, what constitutes pornography in different parts of the world and determines what is acceptable or unacceptable is something entirely different. It would be literally, impossible to determine or define those terms on a global or cultural level. Sure, you might have some agreement but it would not be concrete and it would change according to situation.
Another underlying idea is that pornography is an industry that remains a source for adult entertainment and for profit organizations. Perhaps Joe is a bit out of the loop on this one but due to the increase of home video and ability for the average person to make, edit and publish their own home made adult movies, pictures and etc, the porn industry has seen the largest declines in profit since it’s creation. Not to mention now you have underage teens producing their own content and then distributing it via the web in the form of private or personal webpage subscriptions. You don’t have to be adult to do that either. Sexting is only one aspect of how this private way of experiencing human nudity has become public and mainstream. It is this kind of deregulation spawned by the internet that has actually significantly increased or led to the problem of sexting in the first place. This brings me to my next point about what constitutes child pornography.
If child pornography is, “the pictorial representation of children in films or still photographs in a variety of sexual activities of exposures of the genitals” how are we defining children exactly? Some would say teens under the age of 18 but if you look at the advances in technology and how teens under the age of 18 are actually producing their own sexual content how can you determine that it isn’t a form of personal expression? If a 16 or 17 year old girl or boy wants to send a “special” text/ picture message to their significant other who are we to stop them and with picture messaging along with sex education classes what do you expect to happen? If these same children are protected under the same constitution that condemns them when they use the new technology they have to produce their own content what are we saying exactly? Are we saying that adults are free to express their sexuality and freedom of speech but children aren’t because it is the job of the government to determine what their rights are under the first amendment? It was only a matter of time until children under the age of 18 began using their first amendment constitution rights. The question now is: What do we do about it? Do we view sexting as obscene or non-obscene and do we grant these so called children the right of personal expression through the creation and distribution of nude photographs or videos? Personally, I consider pornography to be any sexual act relating to having oral, anal or vaginal sex. Everything else is just sexual exploration. That is another reason why I don’t believe the Hicklin rule applies here. But I’ve run out of space so perhaps I will discuss this more in another blog.