Essays on the First Amendment

The First Amendment was intended to protect the American’s right to freedom of speech, among other rights. A problem arises, however, when contention arises from two camps from opposite sides of the fence. No two groups could be of more opposition than the feminists, and those who are pro-pornography. The First Amendment was designed to protect every American’s freedom of speech; how can it then protect two factions with opposing views? Susan Brownmiller, feminist and founder of Women against Pornography, believes that the First Amendment should not allow obscene pornography.

Her premise rests on Chief Justice Warren Burger’s statement in 1973, in the United Sates Supreme Court's majority opinion in Miller v. California: “To equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a misuse of the great guarantees of free speech and free press. ” (Brownmiller 1979) For Brownmiller, pornography is a blatant abuse of the First Amendment and of women’s rights in particular.

She clarifies, however, that her sentiment about the First Amendment is that it was, admittedly, “never intended to protect obscenity”. Brownmiller also stresses that a distinction should be made between permission to publish and permission to display publicly. She isn’t against the publishing of obscene material itself; she is just pushing for the restriction of the public display of pornography, which she says “does not threaten but strengthen our societal values”. Keeping your smut to yourself, so to speak, is a form of respecting and protecting other people’s rights – in this case, women’s rights.

Although Brownmiller has presented very strong points, her bias leaning towards feminism and anti-pornography permeates her arguments. She also fails to address the issue at hand she initially attempted to discuss: the direct conflict between the First Amendment and pornography. Brownmiller instead spoke about a sort of compromise to keep both camps happy: those who like smut can keep their pornography, as long as they don’t flaunt it in front of the women who are anti-pornography. She did so probably to respect the freedom of speech of smut publishers as well.

Another feminist, Susan Jacoby, agrees that the First Amendment should not allow obscene pornography, but she also states that not all nude pictures are “overly obscene” (Jacoby 1978). By examining both sides of the issue, Jacoby strongly agrees with the First Amendment in that she stresses her belief in the preservation of the right to speech; but on the other hand, she also states that the First Amendment should not serve as an excuse for people to threaten or degrade other people. Jacoby averred that pornography may be turning into a greater enemy of women than of free speech.

She then posits, however, that not all pornography falls into this category. In fact, women themselves lack unanimity in declaring what is obscene and what is not. One woman may see a nude picture as a work of art, or even a celebration of the female figure; another may declare the same picture as an insulting exploitation of the vulnerability of the female physique. Unlike Brownmiller, Jacoby did not show any bias in her argument in spite of her own feminist persuasions. She clearly defined what should and should not be named obscene, and she also coherently presented both sides of the issue.

It is commendable that Jacoby refutes some feminist irrational arguments that attempt to separate the pornography-free speech issue from other similar issues like free speech and fascism/racism. Her main punch comes in her statement (Jacoby 1978): “Feminists who want to censor what they regard as harmful pornography have essentially the same motivation as other would-be censors: They want to use the power of the state to accomplish what they have been unable to achieve in the marketplace of ideas and images.

The impulse to censor places no faith in the possibilities of democratic persuasion. ” In this, Jacoby accurately points out that censorship would be against not just the principles of the First Amendment, but would also imply that feminists use their “being women” to sway the power of the state. There could be no way of comparing and saying that the plight of women exploited in pornography is of a different level (worthy of being granted censorship powers) than that of other exploited groups (such as minority groups, etc. ). Such an ideology would be a form of fascism itself.

Sarah from Law Aspect

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