Mr. Cranky Takes NY Times to Task for 'Harmful Obscenity'

FIRSTAMENDMENTVILLE—In late February, The New York Times editorialized about the Stolen Valor Act, which makes it a crime to lie about having served in the military or about having been honored by the government for having done so. The court case which gave rise to the editorial, U.S. v. Alvarez, was argued before the Supreme Court on February 21.

The Times made the excellent point—one elaborated upon by several others—that as much as it would be nice if everyone told the truth all the time in their public statements, the law as written goes too far and, according to Ninth Circuit Chief Judge Alex Kozinski, leaves "wide areas of public discourse to the mercies of the truth police."

But then, in an attempt to bolster its case, The Times slipped in a gratituous slam against adult content ... and the Cranky Old Guy called them on it in a letter The Times declined to print:

To the Editor,

What a shame that in editorializing ("Honor and Free Speech," Feb. 22) in support of Xavier Alvarez's First Amendment right to lie about his non-existent military service and non-receipt of a Congressional Medal of Honor, The Times has inadvertently supported its own right to lie: About "obscenity."

"Mr. Alvarez’s lies were not inherently harmful to others, like libel or obscenity, so they do not fall outside the First Amendment’s coverage," you wrote.

However, there is no peer-reviewed scientific data that has shown that obscenity is "inherently harmful" to anyone, and even the Supreme Court has ruled, in Stanley v. Georgia (1969), that citizens may lawfully possess obscene material in their homes—a strange position for the high court to take if it believed that obscenity were actually intrinsically harmful.

Moreover, despite the hundreds of obscenity prosecutions that have taken place over the years at the federal, state and municipal levels, in not one single instance has a prosecutor ever called a witness to testify that he or she had been personally harmed by exposure to "obscene" material. Instead, they rely on anecdotal reports from pro-censorship groups and appeals to the "community standards," when it's long been clear that the vast majority of Americans have never discussed their sexual preferences, let along their sexual media preferences, with their neighbors in order for the jurors selected to try the case to form an idea of what are their own community's "standards."

And finally, of course, there is nothing in the First Amendment itself that allows even the Supreme Court to exempt "obscenity" from the unqualified rights of "freedom of speech, or of the press." (This same prohibition, of course, would apply to such banned speech as defamation and fraud, but the solution is not to summarily ban such speech by Supreme Court edict; it's to pass a constitutional amendment to exempt those forms of speech from First Amendment protections. The fact that Americans appear to be too lazy or complacent to do the work necessary to comply with the Constitution's speech clauses is not an excuse to ignore that document's clear wording.)

So as long as The Times has taken the stance that non-harmful speech is fully protected by the Constitution, perhaps it should rethink its mistaken impression that anyone is harmed by "obscene" speech.


Mark Kernes

Senior Editor, AVN Media Network