Free speech advocates scored a major victory today with the announcement of a State Appeals Court ruling in the case of State of Oregon v. Charles Robert Ciancanelli, which held that the Article I, Sec. 8 of the state Constitution prevented the government from prosecuting the defendant for having "direct[ed], manage[d], finance[d] or present[ed]" a "live public show" in which the participants engage in "sexual conduct" – namely masturbation and girl/girl play.
As we prepare a fuller analysis of the decision, check out these tidbits from the appeals court's opinion, which distinguish the all-too-common view of "freedom of speech" as "freedom from prior restraint", as was the view of legal philosopher William Blackstone, from the views of "natural rights" philosophers like John Locke, which views were popularized by John Trenchard and Thomas Gordon under the pen name "Cato":
"[Blackstone's] pronouncements -- that liberty of speech does not extend to publications that are 'improper, mischievous, or illegal' or that are 'on a fair and impartial trial * * * adjudged of a pernicious tendency' -- often were repeated and endorsed. ... Thus, many respected early and mid-nineteenth century jurists and legal writers appear to have believed that "abuse" covered at least some speech that the governing authority deemed to have anti-social tendencies or to threaten the public peace. That Blackstonian formulation, purporting to be a restatement of the English common law,extended to broad categories of speech including, apparently, libel, seditious libel, blasphemy, and obscenity."
"On the whole, the nineteenth century American judiciary appeared to have shared that limited view of the right to free speech. ... Interestingly, the foregoing view of the right of free speech was contrary, in many respects, to the philosophy that had animated the American Revolution. Many of the leading lights of the American revolutionary period were greatly influenced by the 'natural rights' philosophy that was advanced in the works of John Locke and that later was popularized, and fused with the republican political tradition, by John Trenchard and Thomas Gordon under the nom de plume 'Cato.' ... On the issue of freedom of speech, Cato wrote: 'Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; Which is the Right of every Man, as far as by it does not hurt and controul the Right of another; and this is the only Check which it ought to suffer, the only Bounds which it ought to know.'"
"To the more libertarian adherents of the natural rights philosophy, freedom of speech was an 'inalienable' natural right -- that is, it was not part of the package of natural rights that individuals ceded to the community in order to obtain the protections and benefits of civil society. Rather, it was a right that the individual always retained, as he or she would in a state of nature. Even for natural rights adherents, however, the right was not absolute. According to the natural rights theory, inalienable rights, such as freedom of conscience and speech, were bounded, as they were in the state of nature, by the equally fundamental rights of other individuals. If the state had any authority at all to act in these protected areas, it was to enforce the fundamental rights of other individuals, not to protect society as a whole from undesirable 'tendencies' or to promote the majority's idea of the greater good. That is decidedly different from the Blackstonian notion of 'abuse',which extended to everything that Parliament had identified as contrary to the public good (a notion that included purely social values like order, morality, and religion)."
Guess which view the Oregon court came down on the side of?
Just something to chew on 'til tomorrow.
