Replies

“IMO, incorrect. ALL Rights are UNLIMITED;”

Sorry. You are just wrong. It’s that simple. I won’t sugar coat it. Educate yourself more before interjecting an uninformed opinion.

Here’s a good example:

https://www.law.cornell.edu/supct/html/07-290.ZO.html

From Justice Scalia’s Opinion of the Court in Heller:

“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.”

Perhaps where you are confused is in the difference between enumerated versus unenumerated rights. We all have natural rights regardless of whether they have been specified in the Constitution or codified into law. The right to protect one’s self is such a right. It is the basis for the enumerated right to bear arms. There are also positive and negative rights. A negative right is one which imposes on others the duty to NOT interfere. For example, our right to be secure in our persons, possessions, etc. implies that others, such as the police, have the duty to leave us alone without probable cause.

“Please, define ‘obscene, indecent, a/o profane’, considering. Just as this thread points out, it’s arbitrary to the individual.”

Again, read up. The difficulty in defining certain restrictions on speech did not begin in this thread. It is an issue that has been tackled by the Supreme Court repeatedly. We rely on such rulings, as well as the letter of the law, to determine what applies and when.

So, for example, whether something is obscene should be evaluated with landmark decisions, like Miller v. California, in mind. Previously the legal standard had been, “utterly without socially redeeming value” but was changed to the more specific three-pronged test based on whether a work has “serious literary, artistic, political, or scientific value”.

The Miller test, as it is called, has three parts for testing if a “work” is obscene:
1. Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The work is considered obscene ONLY when all three conditions are apply.

Keep in mind that the issue in the article referenced in this thread is NOT prohibited based on obscenity, but can be regulated based on the lower standard of indecency. This has to do with public interest as well as community standards. There is a public interest in protecting children, for example.

Indecent “speech” (which modern legal standards whether improper or not include many things outside of speech such as art) is protected speech but has limits because other people have the right not to be forced to listen to someone else’s speech.

Obscenity is NOT protected by law and is in fact prosecutable. Child pornography is an example. In fact, that is about the only thing that has been prosecuted since Bill Clinton quit enforcing these laws. Technically, pornography that shows penetration and crosses state lines could be prosecuted even for possession. Due to non-enforcement pornography is rampant. But pornography is not generally protected speech under the Constitution regardless of what the ACLU would have us all believe. Likewise, censorship is also not unconstitutional.

In 1915, the Supreme Court ruled unanimously that the free speech protection of the Ohio Constitution, which was substantially similar to the First Amendment of the United States Constitution, did not extend to motion pictures. This was overturned (also in a unanimous decision) in Burstyn v. Wilson (1952) in which movies began to be treated as protected “speech”.

The basis for the 1952 decision was that such censorship constituted “prior restraint”. It did not absolve the medium from legal consequences of the content of the films. So, for example, a film producer still can be sued for defamation. A film cannot be forced to get approval by censor boards before being exhibited except on the limited basis of obscenity laws. Apart from this, stopping a film from being shown requires an injunction by a court of law. This might be obtained, for example, if it could be demonstrated that the distributor or producer did not have authorization of the actual owner of the intellectual property (as in a film being an unauthorized adaptation of a copyrighted play).

One of the biggest failures on the part of the courts and Congress with regards to the propagation of indecency in the film industry lies primarily in the allowing of intellectual property rights to be extended to indecent works. Free speech does not necessarily mean the right to enjoy intellectual property right protection in order to profit from said speech. IP is not a natural right but is a Constitutional power of Congress for the explicit purpose: “To promote the progress of science and useful arts.”