The Sydney Sweeney commercials released last week demonstrate that American Eagle believes sex sells. The billions made off pornography are conclusive. But, a Michigan legislator and I are tired of the protection that industry gets from the U.S. Supreme Court’s 1973 decision, Miller v. California and its progeny. We’re going to take it on, but my motivation for doing so rests in the doctrine of the Trinity
In the Miller decision, the Court developed a three-pronged standard for defining obscenity. Obscenity, the Court said, is not protected by the Free Speech Clause. The problem with that is it ostensibly left material not considered obscene—pornography—protected by that Clause. Consequently, pornography has exploded.
Mr. Justice Douglas dissented in Miller. He said the majority’s “standard” for defining obscene material was one “we ourselves have written into the Constitution” meaning, made up. Moreover, its standard was tied to “contemporary” standards, meaning what is currently acceptable, and from community to community. That is why yesterday’s obscenity is today’s pornography.
I don’t know how this legislator found me, but he wanted to do all that he could within the confines of Miller to curb the scourge of pornography. I advised him to ignore Miller. He agreed that trying to enact legislation that would not run afoul of a terrible decision is itself a terrible idea, like wanting to regulate abortions so they are safe.
I urged him to point to another Supreme Court precedent addressing the First Amendment though in connection with strip clubs, not printed material, Barnes v. Glen Theatre, Inc. (1991). It was decided almost 20 years after Miller. In Barnes, the Court said
Public indecency, including nudity, was a criminal offense at common law, and this Court recognized the common-law roots of the offense of "gross and open indecency" in Winters v. New York, 333 U. S. 507, 515 (1948). Public nudity was considered an act malum in se. Le Roy v. Sidley, 1 Sid. 168, 82 Eng. Rep. 1036 (K. B. 1664). (emphasis supplied)
The first reason for disregarding Miller is that the Free Speech Clause could not have been intended to protect what were crimes at the time of its adoption. And nothing about the Fourteenth Amendment’s adoption in 1868 changed that. To believe otherwise is to embrace a “living Constitution.”
That precept is supported by the Court’s 2023 Dobbs decision. The Court held that abortion could not have been a “liberty” right under the Fourteenth Amendment’s Due Process Clause because it was then considered a crime.
So, I drafted the proposed legislation in such a way as to make the Court address precedents it had recognized spanning three hundred years. If the legislation reaches the Court, it will need to acknowledge those precedents, and uphold the law. Or it will need to explain why they must now be repudiated.
But today’s central point is the public’s interest in speech and print that harms the public. Esteemed Supreme Court Justice Joseph Story, in his Commentaries on the Constitution of the United States (1833), wrote that it was “a supposition too wild to be indulged by any rational man” that the First Amendment “was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor. (Emphasis supplied).
It is not true that “anything goes.” Public harm is not constitutionally protected.
However, the Supreme Court’s ahistorical, non-textual meanderings led to this statement in 2000:
Consistent with the fundamental First Amendment principle that “aesthetic and moral judgments about art and literature … are for the individual to make, not for the Government to decree,” this Court has long treated non-obscene sexual content as constitutionally protected.
United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 818 (2000) (emphasis added).
In view of history, I don’t know where that “fundamental principle” came from. But notice that the Court eliminated from its constitutional jurisprudence any objective basis or meaning for art and literature. Mere pornography — “non-obscene sexual content”— is a constitutionally protected form of “art and literature” based on an individual’s “esthetic and moral judgments.”
A harm to the public, that is, to the common good, has been lost to an individualized and subjective conception of reality. (That happens when you no longer know what it means to be human.)
What might that common harm be? As I told this legislator, pornography, as I described it in the bill, communicates to the good people of Michigan the idea that they are nothing more than animals in heat, and that he would not attribute such thinking to his constituents. He should assert that this understanding of who we are coarsens and debases the nature of the relations between persons in the community.
I further suggested that he respectfully tell his colleagues that if they think the compelling narrative of Michiganders is that they are basically animals in heat, they should say so. They can do that by voting against the legislation.
By doing this, the legislator is changing the nature of the conversation. It would no longer be just an argument about what the Supreme Court allows and disallows but what kind of beings we think we are.
This, though, is the question Christians must ask themselves: How can there be an objective conception of a common good if there is not a humanity grounded in the objectivity of the image of God?
Humanity only comes into its own under the covenantal representation of a first Adam from whom Eve came. And from them has everyone since come. Humanity, as distinct from individual humans, is rooted in the ontological unity of a Triune God. If all that is true of God as Father, Son, and Holy Spirit is distinction, diversity, individuality, or personality, where is a ground for a common good within the unfolding image of God in persons over time?
What I have found is this: Without clear teaching on the profound implications of the Trinity, we cannot understand how in that revelation are “hid all the treasures of wisdom and knowledge” (Colossians 2:2-3). In this situation, what we need from that knowledge and wisdom is law grounded in a fully-orbed view of the image of God that respects both the individual and the common good.
To restore the common good as objectively true and real, the sublime doctrine of the Trinity must once again resound from pulpits to inform the Christian mind.
If we lose sight of that, pornography will continue unabated as our societal choice even if the ostensible constitutional permission by Miller to proliferate it is reversed.
The Court’s current precedents on pornography (and obscenity) are ultimately rooted in a trinitarian heresy. And for that reason, I do not believe Christian lawyers and legislators should acquiesce to those precedents. Being a lawyer and having been a legislator, I would adjudge myself as conforming my thinking to that of the world on this subject.
In saying that, I am not unaware of the Christian argument against my view; I’ve heard it ad nauseam: Legislation that ignores Supreme Court rulings might not be held constitutional, and the labor will be for naught.
However, in reply I would ask: Could the pornographic direction in our nation get any worse if we straight-up fought for a common good grounded in the precedents I’ve cited and the truth of who God is and lose? I think not.
And standing for truth, especially with legal precedents behind us, is not for naught in my estimation. A much needed change in the conversation is initiated.
I pray others will join me. Miller’s time needs to be no more.
