June 12, 2008
To the Editor,
I read Adam Liptak's latest "American Exception" article ("Unlike Others, U.S. Defends Freedom to Offend in Speech" ) with great interest, but can only hope that he will soon tackle another "American exception": Sexual speech. Only this time, the "exception" will be that America targets sexual speech for repression and prosecution in a way that is unheard of in many areas of the world.
In recent years, the Bush administration has begun more prosecutions of adult video companies and their Websites than the country has seen for 15 years, and with the recent indictment of Evil Angel Productions, the trend seems to be to prosecute more and more "mainstream" adult content. (Although, considering the religious bent of the Justice Department for the past eight years, perhaps Attorney General Mukasey simply didn't like this company's name.)
It is a sad commentary on free speech in this country that if that speech is of a sexual nature, it can be suppressed on the airwaves, its sellers zoned into industrial areas of cities, specially taxed for what they sell and their hours of operation curtailed, and the speech's creators can be put in prison for five years or more and fined hundreds of thousands of dollars, depending on how many examples of such speech the government decides to put on trial.
I must note one glaring error in Mr. Liptak's article: "The First Amendment is not, of course, absolute," he writes. This is clearly incorrect. (My English professor once told our class that we should always be wary of statements containing the phrase, "of course," since its use is meant to cut off debate by declaring its referent off-limits from analysis.) Regarding speech, the First Amendment states, "Congress shall make no law ... abridging the freedom of speech, or of the press." Nowhere else in that document is the word "speech" or the phrase "no law" qualified in any way.
Mr. Liptak rightly notes that, "The Supreme Court has said that the government may ban fighting words or threats," but surely that only makes the problem clearer. The way in which Americans change their Constitution is by amendment, not by Supreme Court edict. Conservatives, who constantly rail against "judicial activism," should be the first to recognize this problem.
But, many would say at this point, what about the laws against defamation, plagiarism and the so-called "fighting words"? I personally agree that some of those forms of speech should be banned - but there is a right way and a wrong way to do so. The wrong way is for the Supreme Court to simply declare this or that form of speech to be an "exception" to the First Amendment, although no such "exceptions" appear in the Constitution. If anything, the Ninth Amendment makes it clear that Americans have more rights than are enumerated in the Constitution, not fewer.
The right way to create an exception to free speech is by an amendment approved by two-thirds of both houses of Congress, and by three-quarters of the state legislatures. There can be little doubt that were amendments prohibiting, say, false advertising, defamation, plagiarism, or possibly even "fighting words" put before state legislatures, they would pass overwhelmingly. The same cannot be said for sexual speech - which may be why the Supreme Court took it upon itself to read such suppression into the First Amendment.
Mr. Liptak quotes Justice Oliver Wendell Holmes' dissent in Abrams v. United States, "The best test of truth is the power of the thought to get itself accepted in the competition of the market." It would seem, with sexual speech accounting for over $10 billion in annual retail sales in the United States - more than the sales of movie tickets, of music CDs and downloads, and of major league sports tickets - that it has passed Justice Holmes' test.
"I think that we should be eternally vigilant," Mr. Liptak continues quoting the Justice, "against attempts to check the expression of opinions that we loathe and believe to be fraught with death."
Indeed! And, the Justice might have added, "or life," which, for humans, does not exist without sex.
Regards,
Mark Kernes, Sr. Editor
AVN Media Networks
(For the past 17 years, Mark Kernes has covered sexual legal issues for Adult Video News, the trade magazine of the adult video industry.)
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