Sex, Violence, and Individual Liberty


If you consider a stash of obscene videos scarier than a stash of firearms then this is the country for you.  In America you have a constitutional right to own a gun, and you may traffic in firearms with legal impunity; but you risk being imprisoned for buying and selling arguably obscene pornography.  And don't even think about child porn (I mean that literally): possessing obscene cartoon images of imaginary children is a federal offense; so is communicating your sexual fantasies about children to other adults (as I lamented here.)  
Technically, you do have a First Amendment right to possess obscene material (excluding child porn) in the privacy of your own home, thanks to a 1969 Supreme Court ruling in Stanley v Georgia.  But the courts have not interpreted that right logically to include a right to receive or deliver obscene material, (as the 4th circuit stressed in U.S. v Whorley.)  So you can make your own pornographic, arguably obscene home movies and view them in the privacy of your home, but if you want to enjoy commercial, arguably obscene pornography, you'd better figure out a way of possessing without receiving it.
Fourteenth Amendment guarantees of sexual privacy offer no greater protection to distribute obscene material than the First Amendment, according to a recent federal district court ruling; last month, Judge Richard Leon rejected a Fourteenth Amendment challenge to the prosecution of John Stagliano and Evil Angels Production for distributing allegedly obscene videos.  Stagliano argued, in part, that the right to sexual privacy enunciated by the Supreme Court in Lawrence v Texas (striking down state sodomy laws) includes a right to distribute pornographic videos.  "The liberty interest the defendants claim pales in comparison to the liberty interest in Lawrence," Leon ruled.  That's true, but the harm of distributing and obtaining sexually explicit videos is also rather "pale" and speculative, at best.
Protecting "the individual's mind from the effects of obscenity" is not the business of the state, the Supreme Court ruled in Stanley, 40 years ago, offering a defense of liberty that seems sadly anachronistic today. "Georgia asserts that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence," Justice Marshall noted, writing for the majority.  But finding little empirical basis for that assertion, he stressed that "the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit mere possession of chemicals on the ground that they may lead to the manufacture of homemade spirits ... The right to receive information and ideas, regardless of their social worth ... is fundamental to our free society."
Still, Stanley was, perhaps, destined to provide only nominal First Amendment rights.  The Court had previously ruled that obscenity was not protected speech and upheld a conviction for distributing obscene materials (in 1957, in Roth v U.S.)  Stanley limited the effects of that decision without questioning much less reversing it.  The Court established a right to possess obscene material, but as a practical matter, it was a right you were likely to exercise at the risk of being prosecuted.
It's hard to imagine similar rulings upholding a constitutional right to own a gun but not a right to distribute or receive one. This term, in McDonald v Chicago, the Court will decide if the federal right to possess firearms for self-defense applies to the states and trumps state and local gun bans.  If the Court strikes down these bans on possession you can safely bet that strong challenges to "reasonable" restrictions on distributing and receiving guns will follow: legal restrictions on guns will have to meet strict standards applied to laws that limit constitutional rights.  You can also bet that many people who consider restrictions on the sale and possession of firearms intolerable deprivations of liberty will continue to tolerate, or support, criminalizing the sale and possession of pornography.   
It's an odd notion of liberty that equates the dangers of legalizing pornography and the dangers of prohibiting gun ownership, but it's not an uncommon one.  Consider the views of the Liberty Counsel: "(O)bscenity, pornography, and indecency debase our communities, harm our families, and undermine morality and respect," according to the Counsel's Declaration of American Values. "Therefore, we promote enactment and enforcement of laws to protect decency and traditional morality."  But if "smut" poses demonstrable harm to "(m)en, women, children, families and larger society," gun ownership (according to the Declaration of American Values) is "central to the preservation of peace and liberty." The Second Amendment "stands as an impenetrable wall between tyranny and freedom," Liberty Counsel founder Mathew D. Staver declared, lauding the Supreme Court's recognition of a constitutional right to own a gun:  "Praise the Lord and pass the ammunition," he chortled; cower when confronted with pornography.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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