The First Amendment states that “Congress shall make no law abridging the freedom of speech, or of the press”. Yet controversy surrounds the legal protection of some categories of speech, including hate speech and obscenity.
Currently, hate speech is protected unless it incites or provokes violence; on the other hand, if sexually explicit speech is determined by the Miller Test to constitute obscenity, it is unprotected.
Free Speech and the Marketplace of Ideas
History shows that social mores and standards of morality change dramatically over time. John Stuart Mill points out that both Socrates and Jesus were put to death because they were perceived as immoral by men who possessed “the religious, moral, and patriotic feelings of their time and people: the very kind of men who, in all times, our own included, have every chance of passing through life blameless and respected” (28).
This demonstrates both the importance of free speech and the effectiveness of the marketplace of ideas: while Socrates and Jesus were both executed because their societies did not tolerate free speech, their ideas have proved persuasive enough to endure for millennia.
The Importance of Free Speech in Society
Free speech serves to propel our society towards change; the freedom to argue against the majority is crucial to this change. Hate speech, aside from incitement and fighting words, is protected by United States law; obscenity, on the other hand, enjoys less legal protection.
Several arguments exist for protecting hate speech: that all ideas have worth, that understanding opposing viewpoints helps one better understand one’s own opinions, and that even in the case of other-regarding speech there is considerable risk in allowing the government to define what is appropriate.
Making the Case for Legalizing Obscenity
These arguments should also apply to obscenity. John Stuart Mill comments that “Strange it is, that men should admit the validity of the arguments for free discussion, but object to their being ‘pushed to an extreme’, not seeing that unless the reasons are good for an extreme case, they are not good for any case” (24).
Obscenity may seem too extreme for legal protection, but it occupies a space in the marketplace of ideas.
It is inconsistent to criminalize obscenity because it may be immoral or offensive; instead, legislating obscenity by the standard of public harm, as existing law criminalizes pornography involving minors, would provide a more fair and consistent alternative to the Miller Test.
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SourcesJohn Stuart Mill, ‘On Liberty’ and Other Writings. Cambridge Texts in the History of Political Thought, 1998.
Rebekah Richards - Rebekah Richards has published fiction and nonfiction in the Atlanta-Journal Constitution, Brandeis Law Journal, Where the Children Play, ...
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