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1 posted on 07/16/2002 2:03:35 PM PDT by aconservaguy
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To: aconservaguy
This article captures my thoughts on the subject. It does barely touch on one issue important to me. The production of this material can only lead to the development of desire in individuals who view it for pleasure. Where is the release for that desire if not to inflict acts on real children? These materials should not be legal.
2 posted on 07/16/2002 2:10:27 PM PDT by DoughtyOne
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To: aconservaguy
Even if one could credibly argue that there is some First Amendment value to such pornography, any minimal benefit is clearly outweighed by society's interest in order and morality.

Where is that balancing test located within the text of the First Amendment? When does "no law" mean "no law"?
3 posted on 07/16/2002 2:13:36 PM PDT by BikerNYC
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To: aconservaguy
I hope the U.S Supreme Court will overturn the 9th Circuit here. This is not like the Congressional attempts to outlaw the viewing of adult erotica. To the contrary, this law is intended to protect children from harm in order to serve the basest passions of a few perverted adults. By definition, such conduct on the part of adults is not free speech but rather the manifestation of behavior considered morally repugnant to the order and values of society. Given the compelling governmental interests served here, it should be a no brainer for the SCOTUS to reinstate the ban on virtual child pornography. No one should be able to hide behind the excuse of the First Amendment to exploit children in the service of perverted ends.
12 posted on 07/16/2002 2:50:21 PM PDT by goldstategop
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To: aconservaguy
It's similar to magazines adjusting the pics to make people look more attractive. Sets an impossible goal: even the models in mags aren't "attractive" enough to just pose.

I don't care what the friggin' Constitution says or what the law states, nobody should be selling/showing child pornography EVER. Obviously the lunies viewing this have yet to figure out their own identities. And anyone viewing and/or showing this stuff should be forced into prison where big bubba/bubbette will show him/her what it's like to be sexually exploited.

58 posted on 07/16/2002 8:24:53 PM PDT by Little Bush
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To: aconservaguy
"Strict construction" of the Constitution does not mean taking a word or phrase out of all context and making it mean anything that might come to mind. Strictly construing the Constitution means using every means possible to discover what was intended by the framers of the Constitution and its amendments. We are bound by the Constitution as the codified intention of We the People of the United States, as enunciated by their representatives, and ratified by their several state governments.

So it won't do to sit atop the First Amendment like a parrot and squawk "No law! No law!" as if that settled the question. It's necessary to ask what the First Congress intended when it framed the First Amendment and under what understanding it was ratified.

Every piece of information we have, as far as I know, says clearly that freedom of speech and of the press were intended as the guarantee of free political debate, discussion, and contention. It's no good saying "But it doesn't say that!" It does too say that, because that is what "freedom of speech and of the press" meant in that context, amongst 18th century Whigs. Every discussion of the subject from that period is deeply entangled in a long-running British discussion of the common law and the various attempts of British rulers to control public speech by prior licensing and/or post-publication prosecution. There's not a word about "expression."

That this was the intent of Congress can be seen already in the debates on the First Amendment. It's clear from the debates that in the original intent of the amendment "the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" formed a unified whole, whose concern is the freedom of the people to express their views to the government.

Therefore, Madison, in objecting to a proposal that the people should have the right to formally and bindingly instruct their representatives, says this:

The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government; the people may therefore publicly address their representatives, may privately advise them, or declare their sentiment by petition to the whole body; in all these ways they may communicate their will.

The freedom of speech and of the press, together with freedom of assembly and petition, is cumulatively the freedom of the people to "communicate their will," their political will, to their elected officials.

This was also the understanding of the Amendment in the early commentators on the Constitution. For example, the strict Jeffersonian St. George Tucker, summarizing the arguments of the opponents of the Sedition Act:

Every individual, certainly, has a right to speak, or publish, his sentiments on the measures of government: to do this without restraint, control, or fear of punishment for so doing, is that which constitutes the genuine freedom of the press.

James Kent has the same reading exactly:

The liberal communication of sentiment, and entire freedom of discussion, in respect to the character and conduct of public men, and of candidates for public favour, is deemed essential to the judicious exercise of the right of suffrage, and of that control over their rulers, which resides in the free people of these United States. It has, accordingly, become a constitutional principle in this country, that "every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right, and that no law can rightfully be passed to restrain or abridge the freedom of speech, or of the press."

Justice Story says the same thing:

That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man.... No one can doubt the importance, in a free government, of a right to canvass the acts of public men, and the tendency of public measures, to censure boldly the conduct of rulers, and to scrutinize closely the policy, and plans of the government. This is the great security of a free government. If we would preserve it, public opinion must be enlightened; political vigilance must be inculcated; free, but not licentious, discussion must be encouraged. But the exercise of a right is essentially different from an abuse of it.

These commentators all have differences among themselves, particularly about libel laws and the question of whether any circumstances can justify post-publication sanctions on libelous attacks on public figures. But they all agree about the object of the First Amendment. All these reference can be found in The Founders' Constitution.

What's happened in the twentieth century is that the First Amendment has been twisted to become a guarantee of "expressive" freedom rather than political freedom, and expressive freedom has with further absurdity been stretched to include virtual child porn. (The truth is that virtual child pornographers on the internet are not engaging in artistic expression; they're offering a particularly nasty product for interstate sale.)

This isn't "strict construction"; it's classic "living Constitution" bilge. "Yes, yes, the framers may have meant political speech but isn't it great that we've found a phrase on which we can hang a constitutional sanction for our growing understanding of tolerance" (or maybe, "our libertarian ideology"?).

At the same time, real freedom of political speech and publication has been constantly wittled down. Some time ago I posted this article, which is a good overview, though written before the passage of the recent McCain Incumbent Protection Act.

86 posted on 07/17/2002 10:17:46 AM PDT by Southern Federalist
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To: aconservaguy
The first ammendment doesn't apply to anything but Congress.
133 posted on 07/17/2002 10:27:15 PM PDT by doryfunk
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To: aconservaguy
The article shows the problem. The SC has expanded the meaning of speech to mean 'expression'. This was totally uncalled for and this is what opened the floodgates of pornography. I can understand allowing such books as Fanny Hill being allowed to be published on the grounds that making a distinction between such and 'legitimate' books would be impossible and dangerous. However, pictures, actions, flag burning, have never been speech and should never have been protected. This sort of thing belongs at the local level and the SC needs to get out of it.
156 posted on 07/18/2002 5:54:31 AM PDT by gore3000
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