Congress shall make no law… abridging the freedom of speech, or of the press…
First in the list of the inalienable rights granted all United States citizens is the First Amendment of the Constitution of the United States of America. It is sacrosanct as a portion of the document which serves as the very foundation of our government and society. Or is it?
As law, the First Amendment is quite clear. It states, quite simply, you, I, and all other American Citizens have the right to express what we are thinking and how we feel in any media we desire. Congress, that is, the Federal Government, shall make no law which censors our expression or our ability to distribute said expression. However, despite the absolute clarity of this law, it seems that many within our country and government have difficulty in comprehending its scope.
The Federal Communications Commission, for instance, certainly seems to feel that the First Amendment does not apply to any form of broadcast media, as is evidenced by the following statement by the FCC, which can be found on the FCC website:
“Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time.”
Now, last time I checked, which was, oh, about a minute ago, the First Amendment does not include the provision “unless it is obscene.” It states, quite clearly, “no law… abridging.” That means none. Zip. Zilch. Nada. Congress and the Federal Government cannot state “unless I don’t like it.” They cannot qualify what is and is not protected by the Constitution. All speech and expression is protected by the First Amendment, whether we agree with it or not and regardless of whether we find it offensive.
Being that the word “obscene” is rather subjective, the FCC, as a Federal agency upholding Federal law, must provide a definition of the term “obscene” in order that any obscenity law might be able to be enforced. After all, any law without clear definition is unenforceable. This is because law must be objective in order to be fair, just, and universally applicable. Any subjective law cannot be universally applied in a manner even approaching fair or just. So, this leads one to ask, what is the FCC’s definition of “obscene?” They use a “three-pronged test” laid down by the U.S. Supreme Court (also obtained from the FCC website):
- An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
- The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
- The material, taken as a whole, must lack serious literary, artistic, political, or scientific value.
Let’s examine this. Is this an objective test, or a subjective test? To determine this, we must determine if any of these points are testable in an objective manner.
Point the first relies on an average person applying contemporary community standards. Who is an average person? And who decides what contemporary community standards are? And what community? Amish? The Castro District in San Francisco? Maybe they mean the Cape Cod Community? These are all vastly different communities with vastly different standards. This is quite clearly a subjective measure.
Point the second is circular. In defining “obscene” it relies on a synonym of the word obscene. “The material must… in a patently offensive way…” This is circular logic in its most basic. This eliminates the point as a valid measure.
Point the third is also patently subjective. Who gets to decide whether material has “serious literary, artistic, political, or scientific value?” This is the very reason for the First Amendment in the first place! To ensure that nobody has to, or, for that matter, is allowed to judge the “value” of another person’s expression.
Unfortunately, the U.S. Supreme Court has backed the Federal obscenity laws and the FCC’s interpretation thereof. They have, in effect, tacitly approved a direct violation of the U.S. Constitution. And they have done so by attempting to dupe the American public into believing that certain parts of speech are not protected by the First Amendment. They provided the above bullet points to define the “obscene” speech that they felt was not protected. But by attempting to define obscenity, they only muddied the waters. Waters that our Founding Fathers poured quite clearly into the bowl that is the U.S. Constitution. This is why the First Amendment begins with the words “Congress shall make no law…” No law will sufficiently define what is and is not acceptable. And no law should.
The First Amendment is the First for a reason.