Pardon me if I spit a few nails at the United States Supreme Court’s free speech jurisprudence. What provoked my ire was studying the arguments made to Court in January by pornographers over the constitutionality of a Texas law restricting minors’ access to pornography. You need to know how their precedents have unleashed the scourge of sexual perversion on our nation.
The issue is whether the First Amendment is violated by a Texas law that requires internet pornography sites to require users to verify they are not minors before providing access.
Upon reflection, all I can say is this: May God have mercy on those justices whose interpretations of the amendment’s text and history have made possible an argument that states cannot protect children from visuals that represent a perversion of human sexuality.
The first thing that loaded my nail gun was the way the porn industry lawyers quoted the applicable clause in First Amendment: “The First Amendment to the United States Constitution provides, in relevant part, that ‘Congress shall make no law … abridging the freedom of speech.’”
That is not accurate. It is not the whole clause. In full, it reads: “Congress shall make no law . . . abridging the freedom of speech, or of the press.” The whole clause is important to a proper interpretation of the word “speech” that pornographers want to isolate in the text.
It seems that little attention has been given to the meaning of the word “or” in the “freedom of speech, or of the press.” That word is important because it can have three meanings.
Merriam-Webster’s online dictionary says “or” is a “conjunction” having one of three possible uses. It is “used as a function word to indicate [1] an alternative: coffee or tea, sink or swim; [2] the equivalent or substitutive character of two words or phrases: lessen or abate;” or, and finally, [3] approximation or uncertainty: in five or six days” (emphasis supplied).
The natural question, then, is what does “or” mean in the clause “freedom of speech, or of the press”? The porn lawyers treat “or” as indicating the dictionary’s first use, an alternative, as though “speech” and “press” are two different things. That way the pornographers can isolate “speech” from “press” in the text.
That sounds reasonable, but is this interpretation of “or” correct? Yes and no. Speech is different from print. But could they be “equivalent”--the dictionary’s No. 2 purpose-- in some particular way?
To address these questions, we can turn to famed justice Joseph Story’s Commentary on the United States Constitution (1833). He wrote the following after commenting on the preceding religion clauses: “Sec. 1874. The next clause of the amendment respects the liberty of the press. ‘Congress shall make no law abridging the freedom of speech, or of the press.’”
Notice Story describes the whole clause at issue in the Texas case as respecting one object, “the liberty” of one thing, “the press.” His comment seems to imply that the word “or” means “speech” and “press” are being used in some way as an “equivalent or substitutive character of two words or phrases.”
But, in what way? Why would Justice Story write that the whole clause “respects the liberty of the press” if printed and spoken words are different—“alternative”— forms of communication?
The answer Story gives is found in the “history of other countries in other ages.” Here is his conclusion:
It is plum, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. (Emphasis supplied)
In other words, the whole of this clause is addressed to the problem of prior governmental restraint on what people “speak, write, and print.” It was addressed to this practice in the other nations, including especially our Mother Country, England.
“Speech” and “press” are effectively the same as respects a prohibition on prior governmental restraint on the communication of “opinions.” This is the “freedom” the clause speaks to.
This interpretation is buttressed by Justice Story’s statement that the clause “is neither more nor less, than an expansion of . . . the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends” (emphasis supplied). What does this mean?
Libel addresses untrue and damaging communications by printed words only. So, the inclusion of “speech” is an “expansion” of the “law of libel.” In other words, “speech” is to enjoy the same kind of liberty from prior governmental restraint as the “press.”
But, as I’ll demonstrate, the “freedom” or more properly, the “liberty” to “speak, write, or print” protected by the First Amendment does not prevent Congress or the states from fulfilling their duty to restrain the corruption of public morals.
Using the clause to protect commercial conduct selling or distributing visual representations of a perverse use of persons’ sexual powers is a perversion of the clause’s purpose.
My analysis is corroborated by the Comstock Act, enacted by Congress in 1873, and now found at 18 United States Code Sec. 1446. That law makes it a crime to use the U.S. postal service to distribute any “obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.” Congress certainly didn’t think the act violated the text and history of a clause directed to prohibiting prior restraints on speech or press by government agencies. Congress was acting under its power to establish postal services.
The language of the Comstock Act and purpose of the Texas law at issue are consistent with the following observation by Justice Story. Again, he puts spoken and printed words together, as one category; however, this time with respect to the kind of “right” that is enjoyed and its limitations:
That this 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, is a supposition too wild to be indulged by any rational man.
On this basis, I believe Justice Story would have called irrational any justice and lawyer before its bar who says the First Amendment provides commercial vendors an “absolute right” to sell to the “public” lascivious pictures and movies, let alone to children.
Reducing human meaning to not much more than sex bots is not the truth about human beings. It is dehumanizing; it turns us into nothing more than animals in heat.
But, says the pornographer, the law of libel and slander also requires that the lie cause a harm. What’s the harm, they say, if a particular person accesses the material voluntarily.
In this case, the proliferation of this lie subverts public morality. Story said the liberty from prior restraint could not “disturb the public peace.” Story said the harm could be “public” as well as “private.” My substack commentary--How SCOTUS and Evangelicals Unleashed the Sexual Revolution-- will explain how the Court eliminated the concept of “public harm.”
Pornographers are free to publish what they want. However, the First Amendment, properly interpreted, does not let them avoid responsibility for conduct that corrupts the public morals that contribute to the public peace.
If a pornographer publishes materials and is prosecuted, a jury can decide if the pornographer’s assessment of the materials was correct or a violation a law.
And if the pornographer doesn’t want to risk his decision being wrong in the eyes of a jury of his peers in the community, he can self-censor what he chooses to distribute publicly.
Let us pray the Court stops perverting the Speech and Press Clause, and stops reducing human meaning and the law that governs all of us—the public—to the lowest common denominator of a purely subjective individualism.
