“What is freedom of expression? Without the freedom to offend, it ceases to exist.”
Today it was announced that the ACLU has filed a lawsuit in Pennsylvania as a result of their investigation of the nearly 800 citations doled out by police officers in the last year for disorderly conduct. The ACLU claims that many of the citations involve cursing and other behavior that is not obscene and therefore protected by the first amendment. According to the ACLU the major problem is that officers are not properly trained to understand the difference between the vernacular term obscenity and the legal definition of obscene speech not protected under the 1st amendment. The real problem isn’t, as ACLU lawyer Marieke Tuthill put it, that officers aren’t trained to understand the “difference between the colloquial definition of obscenity and the legal definition.”
The real problem isn’t that obscenity isn’t defined, the problem is that obscenity–not matter how it is defined remains unprotected. Either speech is an inviolable right or it isn’t. To say that sometimes speech is a right and sometimes not is to say that it isn’t a right at all. The result of this lack of absolute protection of speech allows government agents to silence average citizens under the guise of curtailing obscenity. It also allows federal agents to put pressure on citizens who have the misfortune of falling under it’s purview. One such person, John Stagliano, has had the misfortune to learn first hand about the limits of the first amendment.
The right to offend: Under current judicial interpretation, obscene speech that would not be protected under the first amendment is determined if “it would be found desirable to the prurient interest by an average person applying contemporary community standards, depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value.” This is called the “Miller test“.
We’ve all heard it a million times, but it warrants repeating: The first amendment declares:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
And according to the incorporation doctrine, this amendment along with several others also applies to state and local governments. So, no government body can make rules that would abridge (that is lessen, diminish, or curtail) free expression.
What’s a community–how is it determined? Who determines what art is? What offends? How many people have to deem something offensive for it to become a “community standard”? In other words, how many people does it take to strip a minority group of people of their right to free expression?
The purpose of the first amendment is to allow people to freely express their ideas without coercion from the government to prevent tyranny. If we allow “offense to community standards” to be an adequate justification for the violation of a citizen’s right to free speech we are simply allowing the community to become that tyrannical state.
“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” ~Justice Anthony M. Kennedy