Chapter 1: Should Limits Be Placed on Freedom of Expression?
Chapter 1 Preface
The sale of pornographic materials has long been one of the most contentious issues surrounding the right to free speech—and the rapid spread of online pornography has intensified this debate. Critics argue that online pornography makes indecent material more pervasive and easily accessible than ever before. They emphasize how easy it is for children to access such material.
The courts have traditionally upheld adults’ rights to view pornography, while also allowing laws that protect children from it. Free speech advocates, however, maintain that it is very difficult to use this type of regulatory framework on the Internet. Due to the nature of the medium, any attempt to limit children’s access to objectionable material will unavoidably limit adults’ access to it as well, undermining free expression on the web.
The federal government’s first attempt to deal with Internet pornography was the 1996 Communications Decency Act (CDA), which made it a crime to send sexually explicit messages to anyone under eighteen. The Supreme Court struck down the law in 1997, however, on the grounds that it was too broad and vague in its definition of what types of messages were prohibited.
In 1998 Congress tried to avoid the flaws of the CDA with the Child Online Protection Act (COPA). The law provides a narrower definition of what is banned: material depicting “sexual acts” and “lewd acts” that the “average person, applying...
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Censorship of Violence in Popular Entertainment Is Justified
About the author: Robert Peters is president of Morality in the Media, a national nonprofit organization established in 1962 to combat obscenity and uphold decency standards in the media.
My name is Robert Peters. I am a graduate of Dartmouth and N.Y.U. School of Law. I began my work at Morality in Media in May 1985 as a staff attorney, and I was named president in September 1992. Founded in New York City in 1962, Morality in Media is a national, not-for-profit, interfaith organization that works through constitutional means to combat obscenity (“hard-core pornography”) and to uphold standards of decency in the media.
We are also concerned about the related problem of gratuitous (and often graphic, sadistic) violence in various media: TV, films, music/RAP, video and computer games.
That violence occurs in real life, no one can deny; and few would argue that the media should never, under any circumstances, depict or describe an act of deadly or injurious violence.
I recently watched “Glory,” a film about the heroic efforts of African American Union soldiers in the Civil War. I wouldn’t recommend the film for small children, but the film’s graphic violence was not gratuitous. Many PBS documentaries about the two World Wars of this century have depicted the horror of war. I wouldn’t recommend them for small children, but none depicted violence in a gratuitous manner. “Private Ryan” and...
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Censorship of Pornography May Be Justified
About the author: Holman W. Jenkins Jr. is a member of the editorial board of the Wall Street Journal.
Pornography is not a subject one would expect to come up at a baby shower. But there I was when two Manhattan women of my acquaintance began discussing the web surfing habits of their husbands. It seems they had discovered the “history” folder on their spouses’ web browsers. That’s the folder that (unless you turn it off) maintains a list of web sites visited over the previous month or so. When they clicked, it popped open and revealed a list of porn sites running off the bottom of the screen.
What struck them most was the sheer astonishing breadth and variety of the porn trove. Tastes and fetishes that they wouldn’t have guessed existed are catered to by an endless universe of smut purveyors. They giggled over their discovery, disapproving but not terribly so. When one of the husbands came over, he giggled too. No harm done, right?
This came even as the  presidential campaign was making a strange sidelong excursion into panic about sex and violence (mostly violence) in the mainstream media. The Federal Trade Commission [FTC] had just issued a report blaming Hollywood for marketing R-rated fare to children as young as eight.
The cacophony was deafening. Hearings were held before John McCain’s Senate Commerce Committee. Hollywood executives were pilloried, denounced, and held up to public...
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A Constitutional Amendment Against Flag Desecration Is Justified
About the author: Patrick Brady is a retired army major general and chairman of the board of the Citizens Flag Alliance (CFA), a coalition of groups that believes desecration of the American flag should be illegal. Brady gave the following testimony at a 1999 House of Representatives hearing on a proposed constitutional amendment to prohibit flag desecration. As of May 2002, the CFA is still working to gain support for the amendment.
My name is Pat Brady. I am the Chairman of the Board of the Citizens Flag Alliance. We are a coalition of some 138 organizations representing every element of our culture, some 20 million souls. We are nonpartisan and have one mission and one mission only: to return to the people the right of the people to protect their flag, a right we enjoyed since our birth, a right taken away from us by the Supreme Court. We, the people, 80% of us to include the 49 states who have petitioned congress and 70% of that Congress, want that right back.
But our concerns are not sentimental, they are not about the soiling of a colored fabric, they are about the soiling of the fiber of America. We share with the majority a sincere anxiety that our most serious problems are morally based, and that morality, values and patriotism, which are inseparable, are eroding. This erosion has serious practical consequences. We see it in sexual license, crimes against our neighbors, our land, in our failure to vote, our reluctance to serve...
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Restrictions Against Hate Speech Are Necessary
About the author: Michael Israel is director of the criminal justice program at Kean University.
Virtually every case that the courts see regarding the First Amendment involves symbolic speech such as lettering on garments and offensive offhand utterances. Not since Terminiello v. Chicago (1949) has a speech itself been tested. That case involved conditions of a speech as a Communist riot outside a hall threatened to disrupt a speech by a neofascist. However, on November 30, 1993, at Kean College in New Jersey, Khalid Muhammad, a spokesman for the Nation of Islam, left behind a 3-hour audio tape that has strained the First Amendment in a manner that may portend the future. “I came to pin the tail on the honky,” introduced his baleful excursion of hatred toward Jews, all Whites, Catholics, the handicapped—especially the blind and those in wheelchairs, homosexuals, and nearly all Blacks who were not exactly like him. He literally praised Hitler, and he blamed the victims for the holocaust. He called for the mass murder of all Whites in South Africa. Jews received his greatest venom because purportedly they are the “blood-suckers” of the ghettos via their control of the White House, Congress, the Federal Reserve Board. They hold just about all power in America. Jews, Whites, and homosexuals are “all in the same group together.” All Jews, because they killed Christ, are “from the synagogue of Satan,” and they are “the...
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Censorship of Violence in Popular Entertainment Is Not Justified
About the author: Judith Levine is a journalist, essayist, and the coauthor of Harmful to Minors: The Perils of Protecting Children from Sex. The following viewpoint is excerpted from Shooting the Messenger: Why Censorship Won’t Stop Violence, a report that Levine prepared for the Media Coalition, a free speech advocacy group.
In May 1999, shortly after the Littleton, Colorado, murders, a North Carolina high-school student typed the words “The end is near” on a computer screen as a joke about millennial madness. Another student saw the message, called it a threat, and the school agreed. The boy was expelled for a year, then arrested. After three nights in jail, he was found guilty in state court. His original 45-day jail sentence was suspended, but he was penalized with 18 months of probation and 48 hours of community service. A 13-year-old student in Texas fulfilled an assignment to write a “scary story.” His story mentioned the shooting of real people. He was arrested and jailed for six days. In the Denver area, schools banned black trench coats, because the Columbine shooters and their friends were known to wear them. These excessive sentences and overreactions to teenagers’ behavior not only violate the Constitutional rights of minors, they also contribute to kids’ disaffection from school and the law. As child protection, they are useless, and may even be counterproductive.
An Old Issue
In the late 19th...
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About the author: Marilyn C. Mazur is an attorney for the National Coalition Against Censorship, an alliance of nonprofit organizations that promotes freedom of expression.
Are [photographer] Jock Sturges’ photographs of nude children on the beach child pornography? Does learning about sex or reading about homosexuality cause young people to experiment with sex in ways they otherwise wouldn’t? Should children be shielded from nudity in art and sex on the Internet? Can words like “masturbation” and “contraception” be banned from classroom discussions? Should parents always have the final say about what minors can read, see, and learn?
These are the issues at the center of many of the censorship wars in late 20th century America. In one sense, it’s part of our tradition. From the ban on [birth control pioneer] Margaret Sanger’s use of the words syphilis and gonorrhea to the ban on [authors] James Joyce and Henry Miller, the censors have traditionally focused on sex. The debate has shifted, however. While First Amendment protection now extends to a great deal of material with sexual content—at least for adults—where children are concerned, all bets are off. As a result, most censorship wars over sex are now fought ostensibly to protect minors, and to define what is “harmful to minors.”
Parents are understandably and rightly concerned about their children’s sexual decisions and behavior. For some...
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A Constitutional Amendment Against Flag Desecration Would Undermine the First Amendment
About the author: Kenneth A. Paulson is senior vice president of the First Amendment Center, a nonprofit organization that advocates freedom of the press and freedom of speech.
It was a classic American moment: the San Francisco Giants on the field, the national anthem on the public address system—and one jerk on his cell phone.
While thousands around him doffed their hats and turned to the flag before the game began, this man, who appeared to be in his mid-30s, kept both his baseball cap and his cell phone on, oblivious to the ceremony.
He also was oblivious to the angry reactions of those around him. Fans glared at him, and at the close of the song, several muttered about the lack of respect. But no epithets were tossed or punches thrown. These were polite patriots. One man said, “This guy deserves to have his ass kicked,” but then apologized to other fans for his language.
I was a little surprised at just how irritated I was. I found myself hoping for a line drive off the man’s head.
If one guy with a cell phone can stir so much emotion at a recent ballgame, it’s little wonder that terrorist attacks on New York and Washington have led to a new wave of patriotism all across the United States. This, in turn, has fueled a well-intentioned but destructive movement to bar flag burning by passing a constitutional amendment.
The History of Flag Desecration
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Restrictions Against Hate Speech Violate the First Amendment
About the author: Paul McMasters is the First Amendment ombudsman for the Freedom Forum, an advocacy organization dedicated to free press and free speech.
More than one year has passed, and we have yet to shake the image of Matthew Shepard pistol-whipped and strung up to die on a Wyoming rail fence because he was gay [the murder occurred on October 7, 1998]. We still shudder over the horror of James Byrd chained to a pickup truck and dragged to his death along a Texas country road because he was black. We cringe when reminded of the racist rampage of Benjamin Smith that left two people dead and nine others wounded.
America, we like to feel, has room for everyone. It is a place of tolerance, equality, and justice. Hate is a singular affront to that vision, and the lengthening list of these atrocities haunts the national conscience and quickens the search for remedy.
It once seemed easier to ignore the haters among us. They held furtive meetings in out-of-the-way places, wrote racist screeds in the guise of bad novels, and when they appeared in public, they wore hoods to hide their faces. Now, they apply for admission to the bar, stand for elected office, appear on radio and television talk shows, and increasingly take their message to the mainstream by using the Internet.
Hate has been a presence on the Internet since its inception. That presence increased dramatically with the advent of the World Wide Web. Now...
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Restrictions Against Offensive Speech Harm Society
About the author: Journalist Nat Hentoff writes frequently on free speech and other civil liberties issues. He is the author of numerous books, including Living the Bill of Rights: How to Be an Authentic American and First Freedom: The Tumultuous History of Free Speech in America. More than 6,000 New Yorkers gathered at New York City’s Foley Square in November 1999 to exercise their free-speech right to protest the presence of 18 members of the Ku Klux Klan, who were there because of their right to express their views. The Klan stood in silence because the courts had denied them sound equipment.
The fiercely hostile crowd included children whose parents wanted them to share their revulsion against these racists. As the cursing and hooting rose to a crescendo, a young woman said to no one in particular, “This is America. Even those Klan members have a right to speak.”
She was surrounded, kicked, spat at, and beaten over the head with American flags. Punched at least 15 times, she fell, scrambled to her feet, and escaped. The children in that mob had learned a lesson in the limits of free speech.
There were no editorials in the city’s newspapers decrying the silencing of the Klan members; and only one newspaper, the New York Times, mentioned, in a news story, the lesson the young woman had learned.
I found this contempt for what most Americans claim—especially on the Fourth of July—to treasure alarming but not...
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The Use of Military Tribunals to Try Suspected Terrorists Is Not Justified
About the author: The following viewpoint is an editorial from the St. Louis Post-Dispatch, a daily newspaper. It represents the opinion of the Post- Dispatch’s editorial staff. President George W. Bush’s plan to use military tribunals to try terrorist suspects is founded on three flawed assumptions: that military trials can be fair in the United States even if they aren’t fair in other countries; that U.S. military tribunals provide the same kind of legal protections as courts-martial; and that historical precedents justify transplanting 19th century notions of fairness into the 21st century. The claim that U.S. military tribunals will be fair is too self-serving to be credible. For years, the United States has excoriated dozens of countries—Peru, Russia, China and Sudan among others—for unfair military trials. Mr. Bush argues that our military courts will be different. That borders on a double standard.
The Right to a Fair Trial
Mr. Bush’s order providing for military tribunals already has the hallmarks of unfairness: All or part of the trial could be closed. Military officers replace impartial judges and juries. Most rules of evidence are tossed out as is the requirement for proof beyond a reasonable doubt. The suspect doesn’t have the right to choose a lawyer. Conviction and execution require only a two-thirds vote. Appeals to federal court are barred, effectively suspending the writ of habeas corpus. The absence of...
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