Children are being exposed to porn at an alarming rate, and the age gets younger every time a new study is completed.
According to a 2005 U.K. study, 93 percent of boys were exposed to porn during their teenage years, some as early as age 9. An even more alarming aspect of this is less than a quarter of that percentage intentionally sought it out.
The nonprofit organization that I head, the Reel American Heroes Foundation, has been pushing back against the damage done by pornography — especially to our children. We call our special project the Council on Pornography Reform.
Our first major project was leading a coalition of nonprofit organizations in filing an amicus brief in September in the U.S. Court of Appeals for the 5th Circuit to support Texas’ age verification law.
That law, Texas House Bill 1181, requires companies that produce or distribute pornographic material to have age-verification capability to ensure that the companies do not distribute their material to minors.
Predictably, online pornographers filed suit against Texas, and the district court enjoined the law just before it was to go into effect. When the pornographers brought the matter to the 5th Circuit, that court stayed the injunction.
There were only two amicus briefs filed. Our brief asked the court to uphold the law based on the original meaning of the First Amendment. The other brief was filed by the American Civil Liberties Union and other leftist groups supporting the pornographers’ effort to strike down the law.
Oral arguments were heard on Oct. 4, and the matter is now pending before the 5th Circuit as Free Speech Coalition v. Paxton.
A strangely named website — “techdirt” — launched a counterattack against our brief. It claimed that our brief stated that the First Amendment only protects “political speech.” It did no such thing. But it did establish what the First Amendment does not protect — pornography.
The article claimed that buried in the First Amendment are “implied rights of expression” and these rights can be found in “existing case law.” The article showed some irritation that we referenced the Holy Bible in our brief, but we cannot think of any source of authority more important. In any event, we thank techdirt for linking to our brief so that readers can see for themselves what we actually stated.
Is pornography protected by the First Amendment?
But what is most interesting is that the article accused us of “a willful ignorance of First Amendment case law.” Well, at least that gets us closer to the point of our brief. We are not “ignorant” of case law — it’s just that we believe this case law is profoundly wrong.
Federal judges have long disregarded the text and original meaning of the First Amendment. We want the 5th Circuit to take a fresh look, recognize that these cases were wrong, and chart a new course.
Since then, our group commissioned the writing of a policy paper that we are releasing today entitled, “The First Amendment Does Not Protect Pornography.” Written by lawyers who have worked for years on First Amendment matters, this paper explains how obscenity was viewed by the framers of the First Amendment and how the courts have gone astray.
Let me summarize just a few points from this paper.
The First Amendment protects “the freedom of speech,” not just anything that may be spoken. The use of the definite article “the” shows that free speech was an established concept with a historical meaning drawn from common law in England and the early history of the colonies. Even the Supreme Court once admitted that “acts of gross and open indecency or obscenity, injurious to public morals, are indictable at common law.”
So obscenity was not protected — it was criminalized. This was true throughout the colonies, and after the nation was formed, obscenity was criminalized throughout the states. This was the understanding of “the freedom of speech” as used by James Madison and the framers of the First Amendment.
As founding dean of Regent Law School Herbert W. Titus explained, the Supreme Court “had never found the First Amendment remotely relevant to the constitutionality of a federal or state obscenity law.”
But the tide began to turn when the Supreme Court ignored the text of the First Amendment, conflated “speech” and “press,” and invented a new term with no established meaning — “freedom of expression.” The courts then took it upon themselves to rule that all manner of obscenity and indecency — including nude dancing — were protected under that newly crafted “freedom of expression.”
Along the way, the court somehow distinguished between “obscenity” and “indecency,” which previously had always been viewed as synonyms. The court came up with vague tests like “appealing to prurient interests.”
None of it makes sense; none of it is grounded in the First Amendment.
We suspect that this paper will draw fire, just as our amicus brief did in the Texas case. Well, that’s fine. We are not afraid of an open and honest discussion — we invite it. We are standing against 75 years of Supreme Court error, so we really need your help to turn it around.
Sign the pledge to be porn-free this Valentine’s Day at CPRpledge.org.
The views expressed in this opinion article are those of their author and are not necessarily either shared or endorsed by the owners of this website. If you are interested in contributing an Op-Ed to The Western Journal, you can learn about our submission guidelines and process here.
