The United States Constitution First Amendment unambiguously declares that “Congress shall make no law … abridging the freedom of speech or of the press …” and this constitutional mandate applies to all 50 states since the ratification of the Fourteenth Amendment.
Take note here that the First Amendment conspicuously makes no exceptions under any circumstances to this mandate. No law means no law.
So neither the federal government nor any of the 50 state government authorities have the power to make any law which abridges freedom of speech or the press, right?
Isn’t that what a strict constructionist of the Constitution, like Anton Scalia or John Roberts or Clarence Thomas or Samuel Alito, would say?
Well, no; not exactly; the sad truth is that all strict judicial constructionists of the Constitution are only strict about it when it comes to furthering their own personal political agendas. Otherwise, they are quick to carve out imaginary exceptions when the mood strikes them to do so, and in those instances strict construction goes flying out the courthouse window.
Consider the recent case against Ira Isaacs who was sentenced to four years in federal prison last week for the “crime” of producing and selling “obscene” material. His conviction is part of several other obscenity prosecutions that began under the Bush administration in 2005 with the formation of an Obscenity Prosecution Task Force.
Isaacs produced, starred in, and distributed pornographic films through a website he advertised as "the Web's largest fetish VHS, DVD superstore." Some of his films, which depict bestiality and sexual situations involving human excrement, were shown to the jury during his trial.
Again, please take note here that the First Amendment makes no exception what-so-ever for obscenity, pornography, fetishes, or any other kind of sexual activity – all of which existed in the print media at the time the founding fathers created the Constitution and the Bill of Rights.
Never-mind that ruled the court; this criminal was allowed no First Amendment defense even though his “crime” consisted entirely of speech, albeit, speech which many people would find disgusting.
But again, the First Amendment makes no exceptions for disgusting speech, patently offensive speech, or prurient speech. Obscene speech is speech which shall not be abridged by the government authorities.
"They were so disgusting I couldn't even watch them," said Isaacs' own attorney, who said he averted his eyes and read a book as the 90-minute films were played in court. "But that doesn't mean they're not free speech."
Isaacs maintained that his films are supposed to shock and disgust people in a way that challenges their conception of art. "It makes people think, 'What is art? Can art be gross?'" he explained.
According to federal law, material must meet a three-part test to be considered criminally obscene: It must appeal to a prurient interest, lack scientific, artistic and political value and be patently offensive.
Federal obscenity law in the U.S. is unusual in that there is no uniform national standard. Former Justice Potter Stewart of the Supreme Court, attempting to classify what material constituted exactly "what is obscene," infamously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced…[b]ut I know it when I see it…"
Clearly then, this exception to the First Amendment Free Speech Clause is entirely arbitrary and imaginary.
Chief Justice Warren Burger, in the 1973 case of Miller v. California enunciated the current test for a finding of “obscenity.”
“The basic guidelines for the trier of fact,” he wrote, “must be: (a) whether 'the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
But where did he find that test in the First Amendment?
It isn’t there.
Where does this Justice get the harebrained idea that speech which “lacks serious literary, artistic, political, or scientific value” might not be protected by the First Amendment? Since when must speech not appeal to the “prurient” interest and not be sexually offensive to some?
This is the Supreme Court of the United States making imaginary law while trampling on the constitution.
Prosecutor Michael Grant said Isaacs had never mentioned artistic intentions until he was in front of a court. "Since 1999, he has operated a business with one goal in mind: make money off of individuals that enjoy sick materials," Grant said in court.
Once again, at the risk of beating a dead horse, take note that the First Amendment makes no reference to this imaginary test or any exception for materials which are deemed to be “sick” by the authorities.
U.S. District Judge George H. King, who presided over the case, said Isaacs had sought to "cloak himself” in the 1st Amendment with a "cynical post-hoc justification" and was not "a defender of the 1st Amendment."
Obviously, this judge thinks that defendants in his court who wish to rely on the First Amendment are actually “cynically cloaking themselves” in it instead of defending it. Addressing Isaacs directly, King said, "You are an abuser of the 1st Amendment. You cheapen the 1st Amendment."
As a lawyer who respects the U.S. Constitution, that’s the first time I’ve heard that cynical cloaking oneself in the law rather than defending it is a no-no. I really can’t imagine where His Honor came up with such rubbish. It’s certainly not the law.
How can one abuse or cheapen the First Amendment – or any other provisions in the Bill of Rights for that matter -- merely by relying on it as a defense? Free speech either applies to the accused or it does not and the First Amendment provides that it applies to all, not just some.
People who find “sick” materials offensive are free to avoid such materials if they don’t wish to be offended.
Personally, I had never even heard of Mr. Isaacs or "the Web's largest fetish VHS, DVD superstore," before I learned of his conviction. If others like me have never sought out and looked at his works, how can they possibly be offended?
Ironically, Isaacs was convicted and given four years in prison for distributing the same materials that another federal jurist involved in the case, Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, distributed by putting the stuff on an Internet server that could be accessed by the public.
Why isn’t Judge Kozinski going to prison?