For most of this class we have had discussion about obscenity and freedom of speech and what exactly the latter constitutes. Basically, this issue is the underlying concern of pornography and the sex industry as a whole. What is obscene and how free is free speech? Is there porn that should be illegal? In considering these issues I must point out that I feel obscenity is a tool for regulating free speech.
It has taken me a full semester of lectures and reading but I can finally say I have my own definition of obscenity. Contrary to most of my views, I take a conservative view of obscenity. First of all, if anything were to be deemed obscene, it shall not be protected by free speech. This, I attribute to the fact that our civil liberties are instituted to serve important social functions. Free speech, according to Dr. Tom O’Connor, functions in four ways. “These social functions point out that the First Amendment is about protecting the public good rather than individual freedom.”1
(1) Educational function (to advance knowledge and potential for self-fulfillment)
(2) Safety Valve function (to speak openly without fear of government reprisal)
(3) Truth-seeking function (to determine truth thru debate and adversity)
(4) Social obligation function (to learn what is important to say)
I feel that if neither of these functions is served, the material has no real value to society and could be deemed obscene. To regulate obscenity full scale is an almost impossible task. Because imaginations are ever changing and new things are printed daily it would be impossible to make a list of all that is obscene and follow it. Rather, it is important to judge by general standards and on a case by case method.
By no means am I qualified to make regulations on the level I am speaking, however, I have made an attempt at creating guidelines for judgment of possible obscene pornography.
For starters, complaints have to be filed against a certain image, movie or other pornographic material. These must be officially filed complaints to a legal authority. If, within a 30 day period, a substantial amount of complaints have been filed then a State investigation will take place. In this investigation the social value will be considered in accordance with time, place and manner restrictions of free speech. For example, where was this image and who had access to it? If a panel of state officials feel the material doesn’t serve as a social function and could have effect on the values of those exposed, then this is a violation of obscenity.
I know I have many loopholes in my idea but it allows for a case by case review. By this, I’m trying to imply that a material might be deemed obscene in one location but not in another. For example, if fliers for a strip club had two naked women on them and were being posted in a church or community center then I feel this would be an obscenity violation*. Had those fliers been posted in a men’s residence hall bathroom, there is a fairly large chance those exposed would not find it to be obscene.
My bottom line is that free speech should not protect those who produce obscene materials. The answer for what is obscene will probably never be answered, at least not to the point where it can fully be regulated. A general set of standards must be agreed upon that will allow for case by case review and judgment. I feel it’s our government’s duty to preserve moral and societal good, and by holding the rope on some civil liberties they are able to do so.
1 http://faculty.ncwc.edu/toconnor/410/410lect08.htm
*As a side note, the punishment for obscenity violations should be nothing more than a small fine and complete stoppage of printing of materials.
