Pornography and the Failure of the Constitution:

How Our Legal System Has Facilitated the Proliferation of Pornography in Society and Culture, Impugning the Credibility of Democratic and Constitutional Norms

(Author’s note: this treatise was originally published on Kevin MacDonald’s publication, The Occidental Observer. Readers are encouraged to visit that link as well, so as to help foster future collaborations with Dr. MacDonald)

Introduction: Pornography, Obscenity, and Modern First Amendment Jurisprudence

One unfortunate characteristic typical of much of mainstream conservatism is a dogged appeal to the Constitution, not just as a legal authority, but as a moral or normative one. It is of course a fallacy to presuppose that, because something is or is interpreted to be mandated or proscribed by the Constitution, that such a legal mandate or proscription is therefore correct and infallible on that basis alone as a moral, normative, or even practical matter. The Constitution after all once explicitly recognized and endorsed the institution of slavery. It has similarly been interpreted by The Supreme Court of the United States to prohibit execution for child molestation and other heinous sexual offenses Kennedy v. Louisiana, 554 U.S. 407 (2008), as it has also been interpreted to require provision of education and other services to children of illegal immigrants (whether born in the states or not) Plyler v. Doe, 457 U.S. 202 (1982). Birthright citizenship as mandated by the 14^th is another such flaw.[1] The Supreme Court has also ruled that practically unlimited campaign contributions, in effect legalized bribery, are also subject to First Amendment protections. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

Whereas most would argue that freedom of speech under the First Amendment—both as a proscription against government censorship and as an important societal norm and value—is infallible and utterly beyond reproach, this author is not convinced that freedom of speech is quite so unassailable, as leftist rhetoric has argued for years that so-called hate speech and other speech they do not like should be censored. And perhaps it should not be considered so sacrosanct if a far-right movement could seize power and had the political power and wherewithal to censor, oppress, and even eradicate certain repugnant speech that violates first principles. But even conceding what is agreed to by a seemingly overwhelming consensus, namely that free speech under the First Amendment is one of the highest societal norms and values (as well as a proscription against government censorship), the Constitution and more particularly the First Amendment, as currently interpreted, understood,[2] and applied, currently permits one of the worst vices of the modern age: that vice is of course pornography. Much to the indictment of mainstream conservatism as well as mainstream public consensus at large, many, including many mainstream conservatives and libertarians, and even those of a moral radical, enlightened persuasion such as Jared Taylor[3] are free speech absolutists. Many are convinced that the First Amendment not only does protect pornography under the First Amendment, but that it ought to. Both propositions are dubious, no matter how strong the consensus urging the contrary may be.

In discussing and analyzing this both as a legal and as a normative matter, a brief synopsis of First Amendment jurisprudence as it relates to pornography and obscenity is in order. Contrary to popular misconception, obscenity, even today, is not protected under the First Amendment, at least not in a strictly legal, technical sense, even if particulars make censoring obscene material impossible in practical application. The seminal Supreme Court decision on this matter is Miller v. California 413 U.S. 15

(1973). The Miller decision sets forth a three-prong test concerning obscenity and First Amendment protection.

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.

It is of particular note that the Miller opinion refused to adopt the "utterly without redeeming social value" test of Memoirs v. Massachusetts 383 U.S. 413 (1966).

At initial glance, it would seem to be fairly straight-forward to ban or otherwise censor or regulate pornography using this three-prong test. Hardcore pornography obviously “appeals to the prurient interest,” depicts explicit “sexual conduct,” just as such material “lacks serious literary, artistic, political, or scientific value.” And yet even as obscenity technically remains outside the scope of First Amendment protection, as a practical matter it has become all but impossible for local, state or federal governments to exercise state power against this vice, due to machinations of prominent leaders in the legal profession as well as subversive elements in cultural, educational, and political centers of power that, for a variety of reasons, have waged a war to not just normalize pornography (among many other vices), but render it something wholly banal and commonplace.

How could this have come to pass? Readers are directed to one particular operative phrase in the Miller test, which has served as a proverbial chink in the armor in relation to any effort to use state power to ban, censor, or otherwise regulate pornography in any meaningful way. This weak spot is found in the first prong of the Miller test, applying “contemporary community standards.” (emphasis added). This phrase has in effect rendered the concept something utterly subjective, when obscenity is an objective matter. “Contemporary community standards” ebb and flow with the ever-changing vicissitudes of an increasingly decadent and indeed profligate society. By not upholding a firm, objective standard, this test facilitates and accelerates a key sociological concept known as defining deviancy down. Closely related to the Durkheim Constant, which stipulates that each and every society has a constant, fixed quotient of behavior it regards as deviant but nevertheless exists on the outlying fringes of conduct and behavior in that society, defining deviancy down explains how when a society tolerates deviant behavior, that society becomes acclimated to it and, unless society stigmatizes and sanctions such deviant behavior in a way that deters its proliferation, that behavior will eventually—or even quite quickly—become mainstream, and more deviant or even theretofore unthinkable behavior will then become the fringe, and the process continues for as long as society is unwilling or unable to sanction and deter deviant or undesirable behavior.[4] To whatever extent that pornography or any other vice is tolerated or countenanced at all, society becomes acclimated to it, and very quickly this vice becomes incorporated into the “contemporary community standards” of this society as it fails to respond to this vice with urgency. This is of particular importance to unduly burdensome legal standards. Pornography went from something that was stigmatized even in the mid to late 90s to something that is utterly mainstream and even banal in less than a decade. A legal standard that imposes many years of burdensome litigation renders any state action too slow and cumbersome to accomplish anything. For by the time such matters make their way up the court system, society has already become acclimated to hardcore pornography, as that vice, pornography, becomes quickly subsumed in “contemporary community standards.” As Geoffrey Stone, constitutional law expert and law professor at the University of Chicago, articulates in “Sex and the First Amendment: the Long Winding Road of Obscenity Law, “The social changes unleashed in the 1960s and 1970s, shifting cultural values, and the advent of new technologies—including VHS, DVD, cable television, and the Internet—simply overwhelmed the capacity of the law to constrain sexual expression.”

This very phenomenon was demonstrated in a failed effort to prosecute Larry W. Peterman in Utah some 25 years ago. In that case, local authorities charged a video store proprietor, Peterman. for disseminating hardcore pornography via sales and rental of physical media. Peterman was unfortunately acquitted. One of the considerations that doomed the prosecution was this “contemporary community standards” qualifier. Defendant’s attorneys submitted evidence concerning clients at hotels and the pay-per-view rental of pornographic films. This somehow convinced the jury that such materials were within “contemporary community standards,” even if most hotel guests come in from out of town and likely out of state. This extended excerpt from an article in The New York on this matter is noteworthy:

Why file criminal charges against a lone video retailer, Mr. Spencer argued, when some of the biggest corporations in America, including a hotel chain whose board of directors includes W. Mitt Romney, president of the Salt Lake City Olympics organizing committee, and a satellite broadcaster heavily backed by Rupert Murdoch, chairman of the News Corporation, were selling the same product?

''I despise this stuff -- some of it is really raunchy,'' said Mr. Spencer, a public defender who described himself as a devout Mormon. ''But the fact is that an awful lot of people here in Utah County are paying to look at porn. What that says to me is that we're normal.''

This is no principle by which public policy, implemented through the exercise of state power, can hope to deal with this or any other vice. If lots of people partook in child pornography, violent or gore pornography, bestiality, and the like, should such material therefore be outside the scope of state action because such unspeakably evil vices comport with “contemporary community standards?” Some readers may mistake this rhetorical question as to somehow suggest this author is unaware of New York v Ferber 458 U.S. 747 (1982), in which the Supreme Court deigned to grant that prevention of child pornography and the myriad harms it causes is a legitimate state interest; other damaging effects inflicted on society and the public welfare by hardcore pornography apparently are not. To the contrary, this rhetorical question exposes a certain cognitive schism, a moral and intellectual inconsistency where obscenity is subject to a subjective set of “contemporary community standards,” but the most pernicious evil of child pornography is still subject to an absolute, objective standard. That people are developing a taste for such things on a certain economy of scale implores a dire need for state intervention in all instances, from hardcore pornography to the sorts of even more pernicious, extreme content mentioned above.

More disconcerting still, language in the Supreme Court decision in Reno vs ACLU 521 U.S. 844 (1997) indicates the “contemporary community standards” component of the Miller test may forbid any national censorship or curtailment of internet pornography, as the opinion states that “the ‘community standards’ criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.” Footnote 39 further admonishes that the “determinations of ‘what appeals to the 'prurient interest' or is 'patently offensive' ... are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists.’" This supercharges a race to the bottom, to the most depraved and profligate community standards in the nation.

As to where that race to the bottom has led, this author suggests perusing two photo essays featured on the zombietime.com website (found here and here, though reader discretion is advised). These photo essays concern The Fulsom Street Fair and Up Your Alley street fair in San Francisco, in which all sorts of obscene conduct was taking place out in the open street, in broad daylight, including homosexual men engaging in oral sex, men impaling themselves anally with dildoes while masturbating, and other lewd sexual acts. These photo essays even depict a “piss pool,” an inflatable lawn pool for children, where a man with a shirt with “piss pig” written on it offers fellatio to untold numbers of men while others urinate on him. This sort of conduct apparently comports with the local “contemporary community standards” of San Francisco, although any sane person struggles to find any standards at all. Any anti-pornography laws less profligate than those “standards" would, according to Reno, violate the Constitutional rights of people in San Francisco and elsewhere defined by such abject depravity.

Our legal system similarly has defeated attempts to ban, censor, or regulate pornography under other nebulous legal doctrines such as “vagueness” and “overbreadth,” which only serve to frustrate and obstruct the exercise of state power on matters that are a vital state interest, as was done in the aforementioned Reno decision. See e.g.the series of Supreme Court decisions regarding the doomed Child Online Protection Act (Copa) Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), a deplorable Supreme Court decision which rules that the government could not ban simulated child pornography,[5] and the 2002 and 2004 Supreme court decisions in Ashcroft vs ACLU 535 U.S. 564 and 542 U.S. 656, which enjoined enforcement of the act, remanding it to the lower court, which ultimately led to the act never taking effect. The practical effect of these and other decisions is that under our current legal system and jurisprudence, it is inconceivable that any attempt to use state power to ban, censor, or regulate pornography will be successful in the foreseeable future. Stone has stated as much in this summary of the limited extent that state power can do anything about this menace:

First, there remains a strong presumption in favor of protecting unconsenting adults and children when they are out in public. Second, the government can constitutionally prohibit the sale or exhibition to children of material that is obscene for minors, but only if it can do so without significantly interfering with the rights of adults. Third, the government can constitutionally prohibit the production, distribution, and possession of child pornography (that is, sexual images and videos made with real children). Beyond that, though, there are effectively no limits on what consenting adults can see.

Stone further explicates how 20 years ago, during the first term of the Georg.e W. Bush presidency, Attorney General Ashcroft promised to crack down on obscene materials, but it was already too late and there were less than ten prosecutions sought. Those prosecutions only “went after the most extreme fare, such as videos in which men urinate in a woman’s mouth, women have sex with horses, and women and men engage in violent sado-masochistic behavior.”

Conceptualizing Pornography Not as Speech, But as a Product and Service

Were it possible, this realization urges that the Constitution and even this form of government ought to be jettisoned altogether. But since that is not likely to happen anytime soon, a close examination of what pornography is intrinsically is in order, as such an examination demonstrates that it should not be that difficult to devise a legal standard and framework within our Constitution and current system of government that could, theoretically at least, allow the government to ban, censor, or regulate such material.

Arguably the most renowned legal article published by legal scholars exploring the viability of banning pornography is Cass Sunstein’s “Pornography and the First Amendment,” originally published almost 40 years ago. That this was published so long ago and societal norms and mores have declined so precipitously is an irrefutable indictment by itself of the Constitution, our legal system, and this form of government. While the treatise does not advocate for the censorship of pornography per se, the author at least argues that the proposition of banning, censoring, or regulating pornography should at least be permissible as a legal matter when interpreting the First Amendment and its proscriptions against government censorship.

For the purposes of the analysis set forth in this essay written by yours truly, some additional primer on First Amendment jurisprudence is in order for those readers less familiar with such matters. The First Amendment is of course not absolute. Many often trot out the old chestnut that “you cannot yell fire in an open theater,” but that was taken from a horrible Supreme Court decision Schenck vs United States 249 U.S. 47 (1919) that allowed the United States to prosecute and convict American citizens for rightly denouncing the United States entry in World War I, a decision which was overturned in the seminal Brandenburg v Ohio 395 U.S. 444 (1969) decision over 50 years later (better late than never, one supposes). There are nevertheless various types of speech that are not protected at all or receive little protection from the First Amendment. These typically include things like threats, bribes, as well as defamation. In addition to such forms of speech that are entitled to no First Amendment protection whatsoever, other types of speech receive lesser protection than others. First Amendment jurisprudence offers the highest order of protection for speech that concerns political, cultural, religious and other matters relating to society, morals, culture, the law, and so on, known as “high value speech” in legal parlance. Commercial speech is theoretically entitled to a lower level of protection, but unfortunately, as a practical matter, even commercial speech (e.g. advertising) is afforded what this author argues are unreasonably robust protections.

At the start of the treatise, Sunstein offers a clumsy definition of pornography that is bound up in feminist perceptions at the time concerning explicit or tacit violence against women as somehow intrinsic to pornography. While pornography is degrading to both men and women, most of it does not seem to touch upon this issue of violence against women at all, and in this way this preoccupation with violence against women, indeed defining pornography as necessarily having this feature seems counterproductive to formulating any legal or intellectual framework whereby state power under our current system and constitution (or any other system for that matter) would have free rein to ban, censor, or regulate such material. After fumbling with such a dubious definition, Sunstein redeems himself to some limited extent by stating the obvious distinction that any worthwhile legal system would easily recognize: pornography is, at its essence, a “sexual aid.”[6] While describing pornography as a sexual aid, Sunstein does not go as far to argue that pornography is not speech at all, but he ought to have. Sunstein later describes pornography as a type of speech or expressive activity that is not at all “cognitive” in nature, whereas the higher forms of speech that do receive the highest, absolute protections under the First Amendment are “cognitive” in nature. Forms of speech that are “cognitive” in nature include written books, essays and treatises, video essays on YouTube and other streaming sites, documentaries, as well as novels, short stories, cinema, and other works of fiction that tell a narrative and are characterized by things like plot, character development and the like. The distinction between cognitive expression and non-cognitive, emotive expressive activity was well enunciated in Chaplinsky vs New Hampshire 15 U.S. 568 (1942), which had affirmed the “fighting words” exception to First Amendment protections, but has regrettably been narrowed significantly. The operative language in Chaplinsky juxtaposes whether expression (or expressive activity) involves the exposition of ideas, balanced against interests of the public welfare.[7] Chaplinksy denied First Amendment protection to “fighting words” when “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Pornography typically if not categorically lacks any of these features, and when the status of First Amendment protection was not nearly so settled as it is today, pornographic films of the 70s and 80s typically consisted of the most rudimentary plot that was only there to provide plausible deniability on this issue. Any shoddy suggestion of plot was transparent in how pretextual it was. No one ever watched pornography for the plot, but watched it to “get off,” either by masturbation or for sexual stimulation before engaging in sexual relations with another person or even more than one person. Any semblance of plot or other features that Sunstein, other legal scholars, and our legal jurisprudence regard as “cognitive” in nature are merely incidental; pornography in its essence is a sexual aid, in other words a product like an illicit drug, or in the instance of personalized cam shows and the like, a service and a product.[8]

Conceptualizing pornography not as speech but as a sexual aid—a product or service acting as a sexual aid— is the key, defining distinction, and it ought to be the key factor that permits outright censorship and banning under the First Amendment, both as a legal proscription and as a greater societal value. Unfortunately, as obvious as this distinguishing factor is, it is one lost on prevailing jurisprudence and legal scholarship. Indeed, in Ashcroft vs Free Speech Coalition, Justice Kenndy fretted how Romeo and Juliet and other great literary works concern teen sexuality and even child abuse. His opinion even makes direct allusions to the films Traffic and American Beauty, specifically how the daughter of the lawyer for the D.E.A. becomes addicted to drugs and trades sex for drugs with a black drug dealer. He also expounds at great length how American Beauty depicts a sexual act between one of the teenage girls and her boyfriend, as well as how her blonde friend was ready to “yield herself” sexually to a middle age man, and even alludes to a teen boy performing fellatio, although that allusion or depiction rather is a mistaken perception with fatal results at the film’s climax. While arguably indecent (probably not, as there is no full-frontal nudity or any depiction of genitals, graphic or otherwise) none of these examples are sexually explicit. And they certainly do not come close to obscenity or acting as a sexual aid (at least not for the vast majority of persons). That our legal system is incapable or unwilling to discern such basic distinctions is utterly and permanently discrediting.

One way to conceptualize this fundamental distinction is by analogizing hypothetical laws against prostitution with pornography—a matter Sunstein for some reason neglects to examine altogether. If laws prohibiting one person from paying another for sexual favors are permissible, why is it then somehow constitutionally or morally suspect to promulgate laws prohibiting a client from paying one or more parties to commit sex acts either with that client, or simply by herself (masturbation) or with other parties because those sexual acts are contracted for while being filmed? Most if not all anti-prostitution laws would prohibit a man from hiring two women to have lesbian sex for his gratification as a spectator or voyeur, or paying a woman to have sex with another man, or hiring a prostitute and a gigolo to achieve some exhibitionist thrill, provided he does not film such sexual encounters. How this analysis should somehow change under precisely the same scenario but in front of a camera seems incredibly dubious. Analogizing pornography to prostitution is so obvious it was covered in a Family Guy joke—and yet it remains nebulous and confounding to leading lawyers and legal scholars alike.[9]

Conceptualizing pornography as a sexual aid and as something evaluated under objective rather than subjective standards, under a slightly modified Miller test that deletes the “contemporary community standards” component, illustrates the commercial nature that very often but not quite always defines pornography at its essence. Of course there are some who might produce such material for free. Just as some might produce methamphetamine, marijuana plants, and other illicit drugs and distribute this product for free. Such gratis offerings are still in effect a sexual aid, and in this way closely analogous to illicit narcotics that one might, as an exception and outlier, produce and disseminate for no monetary gain because such persons are committed, for their own peculiar reasons, to recreational drug use as some sort of perverse crusade.[10] A product or service offered gratis is still, at its fundamental core, a product or service.[11]

Other arguments include objections that people find all sorts of things sexually stimulating, even something a person could use to help “tend to one’s self.” This sort of objection is typified, for example, in distasteful, vulgar, and thoroughly stale jokes about masturbating to the women’s underwear and intimate wear sections in Sears catalogs and the like back in the day before the Internet and before pornography became so utterly ubiquitous. There is no doubt some have masturbated while looking at models in panties and a brassiere in otherwise benign offerings in advertising and the like. Perhaps the problem is the phrase “prurient interest,” rather than sexual aid, as one can watch Rachel Reynolds strut around in open-toed, strappy heels and a low cut, tight-fitting dress with a prurient interest, or Lynda Carter as Wonder Woman, or Gillian Anderson as Agent Scully, Catherine Bach as Daisy Duke, the list goes on and on.[12] The same rationale applies to even more risqué fare, such as burlesque dancing and even, perhaps, nude images that could be categorized as erotica but not as obscene, hardcore pornography.[13] With arguably the last instances excepted, such a “prurient interest” does not make these images pornographic, or a sexual aid by their intrinsic nature, for indeed such instances are neither obscene nor are most of these examples even indecent. But just as rudimentary plots to pornographic films of past eras were incidental and were not of the essence of what pornography is intrinsically, R-rated or other salacious or alluring images that may arouse such a prurient interest and a lewd thought—or several—and serve as a sexual aid in marginal instances are incidental and not intrinsic to the essence of such things, what they are fundamentally and principally. To reiterate: the incidental manner in which such images arouse a “prurient” interest is demonstrated by the fact that they are not obscene, the hallmark of pornography as a sexual aid and ersatz for prostitution.

A blonde, a brunette, and a redhead: these images, from left to right, of Rachel Reynolds in the present era and Catherine Bach and Gillian Anderson in their heyday are likely to evoke a prurient interest—a lewd thought, or several. These are healthy, acceptable expressions of male sexual desire, unlike the focus of this treatise.

In addition to falsely conceptualizing pornography as speech, rather than as an ersatz sexual aid or product or service that offers sexual excitement and titillation, our legal system has toiled and fretted unnecessarily with supposed evidentiary problems in determining or ascertaining how pornography is harmful and the precise nature of harm it causes both society and the individual. Such obfuscation and obstructionism are exhibited for examples in the series of Ashcroft decisions discussed earlier. Sunstein spins his wheels on this matter as well, although he does note that difficult evidentiary problems should not be used to paralyze state action for the public welfare and greater good. He specifically notes how very difficult it can be to prove carcinogens cause cancer according to higher standards of proof, such as clear and convincing or beyond a reasonable doubt evidentiary standards, but it would be madness to suggest that the nebulous nature of such matters should prevent the government from taking such action.

The Harm Pornography Inflicts on Society and the Individual

Published in 1986, Sunstein’s treatise is, quite obviously, nearing its 40^th anniversary. It is noteworthy that it was written as pornography was just beginning to become more ubiquitous through the advent of VCR technology, which allowed persons to rent or purchase pornographic video tapes and watch in the privacy of one’s own home, rather than go to some seedy “adult” theater. To whatever extent VCR and other home movie technologies caused greater ubiquity of pornography without social stigma and other external factors that deterred its use and proliferation, that problem has exploded by many orders of magnitude with the rise of broadband internet and the failure to respond in any meaningful way to pornography on the Internet. Almost half a century has gone by, and our legal system—"our democracy”—has utterly failed to respond to this problem in any meaningful way.

Streaming pornography on the Internet is of course quite different than a VHS tape or DVD disc back in the day, for a variety of reasons, and has begotten a plethora of social problems that harm both society and the individual. Streaming pornography has a particularly pernicious effect on brain chemistry and structure, acting in a manner similar to how opium and other drugs overload our natural endorphin reward system in ways our brain chemistry and biology could never possibly handle or deal with. One result is increasing desensitization, propelling those who use pornography to seek out more and more extreme material. The result—for both men and women—is that often an actual, living person as a sex partner is not able to titillate or arouse in the way ever more extreme internet pornigraphy can and does. This destroys interpersonal relationships while also hampering new relationships from ever forming in the first place, and further exacerbates the demographic winter that is one of the existential threats facing European peoples throughout the Occident. Evidence is piling up that Internet pornography gives rise to erectile dysfunction, not just in middle age men but young males, even those 18 years of age or younger. Any man who experienced or is experiencing adolescence and young adulthood in health rather than such sickness will attest what a shocking proposition this notion is; pornography is the irresistible force that can and does topple a seemingly unmovable object, namely the hormone-fueled male libido in adolescence and youth. Or would it be the immovable object that stops an irresistible force dead in its tracks? Beyond that, the explosion of persons using pornography has been associated with autogynephilia. In other words, tolerating Internet pornography the way this dystopic society has is an antecedent to the transgender menace. Finally, the ubiquity of pornography is such that large numbers of minors, including not just adolescents but prepubescent children, regularly consume it. The assurances provided in Reno vs ACLU and other opinions from the effectiveness of internet filtering software to the burden lying principally with parents have been utterly and completely discredited.

Anything that creates such terrible maladies are an enemy to public health, public welfare, and the greater good, and accordingly should be obliterated from society to the furthest extent possible; this means not just pornography, but the Constitution, our utterly worthless and dysfunctional legal system, and democracy[14] itself insofar as such hallowed institutions have proven incapable of stopping the proliferation of these and other civilization-destroying vices. There can be no more legitimate use of state power than protecting the public health and the public welfare, the most important considerations that all too often pure, unbridled laissez-faire capitalism not only fail to protect but can actively work against. After all, in a pure capitalist system favored by misguided and deluded libertarians and mainstream conservatives alike, little would sell quite as well as peddling cocaine or heroin, or for that sports gambling, pornography, prostitution, the list of destructive vices is seemingly endless.

Questioning Freedom of Speech and Democracy Itself

First Amendment jurisprudence has proven itself uniquely destructive and pernicious in other contexts as well. Note for example United States vs Stevens 559 U.S. 460 (2010), which held that the government could not impose criminal sanctions on the production and sale of videos featuring dog-fighting on the overbreadth and vagueness doctrines, even though engaging in the activity depicted in these vides violates laws in all 50 states as well as federal law. The federal statute in question, 18 U.S.C. § 48. was revised in a way to pass supposed constitutional muster, deleting prohibitions of depictions of wounding and killing, focusing on cruelty and torture, as the revised statute merely prohibits so-called “animal crush sexual fetish videos” and that such material must be obscene. Indeed, a special report by the New York State Animal Law Committee determined that "This [revised] statute limited its proscription to so-called crush videos, the fetish animal torture videos designed to appeal to prurient interest." The revised statute was deemed constitutional in a 5^th circuit appeals court decision Texas vs Richards No. 13-20265 (5th Cir. 2014), in which defendants were prosecuted and later convicted for producing and selling videos in which kittens, chickens, and other animals were tortured and killed in sexually orientated crush videos. While that result is the necessary and correct one, the effect of the Stevens decision seems to allow the production, dissemination, and sale of dog-fighting videos and the like, even though the underlying actions depicted in such media are illegal in all 50 states. Aside from the ridiculous objections concerning vagueness set forth in the Stevens decision, it must be emphasized that a proposed legal distinction permitting videos that expose and condemn such barbaric acts while prohibiting videos that offer such depictions for sick gratification would not pass constitutional muster as “content based, viewpoint based discrimination.” This only serves as a further indictment of The First Amendment. Videos and other materials depicting dog-fighting or people (usually of a certain racial background) who sick pit bulls or other large dogs to attack and kill cats are not simply unpopular or repugnant; they invoke matters of first principles on which there cannot and must not be any tolerance or compromise. Those who would produce, disseminate, or sale such materials for any purpose other than exposure and condemnation ought not be tolerated because they are morally repugnant and anathema to basic decency.

As one would expect. Defendants in the Richards case, Brent Justice and Ashley Nicole Richards. The machinations of the Supreme Court has limited the scope of the obscenity doctrine in Miller to things like the disgusting cursh videos these vermin created and sold. This case does not only impugn The First Amendment, at least as it is currently interpreted, but the 8th Amendment prohibition against cruel and unusual punishment as well.

At the broadest, most abstract level, Supreme Court jurisprudence from the 70s onward has eviscerated any societal constraints against profanity and disorder, ruling for example a person has a constitutional right to wear a jack that reads “fuck the draft,” Cohen vs California 403 U.S. 15 (1971) not just in public but in court, even as courts to this day can (and do) expel persons for not being properly dressed. Those who regard the Constitution and our legal system with such undeserved deference should be made to consider how much more vulgar, profane, and coarse society has become since 1960. With deviancy defined ever further down, we now live in a pornographic and profligate society, and the response by luminaries in the legal profession and legal scholarship is, to quote Cohen vs California, “avert your eyes.”

But just as our legal system has crippled the government from doing anything about pornography or videos depicting animal cruelty and gratuitous killing of animals and other pernicious activity, a cursory glance at the body of laws of and other instances of state action demonstrates this same legal system allows state power to censor or sanction all sorts of speech which does facilitate the “exposition of ideas” or is cognitive in nature. That consideration of course demonstrates what absurd folly it is to humor the idea that any government could ever pretend that it could ever categorically avoid censoring or having a “chilling effect” on speech or expressive activity it deems undesirable or harmful. Amanda Shanor argues that the determinative factor whether speech or expressive activity “falls within the First Amendment’s reach and what is excluded from it does not rest on the distinction between speech and conduct,” but rather on “social norms. . ..” Sunstein articulates how, in the context of employment settings, the federal government suppresses and sanctions a wide range of speech expressing opposition, hostility, or general aversion to organized labor unions. The degree to which organizing labor unions are harmful or beneficial to a society, or an employer or employees is at the very heart of “high value,” “cognitive” speech that touches on matters of politics, religion, and other high-minded concerns regarding society and public policy. And yet both the government and luminaries in the legal profession and legal scholars have few qualms about state power curbing, chilling, or censoring that sort of speech. In addition to viewpoint-based restrictions on matters of organized labor, the government imposes all sorts of sanctions on speech in employment and business settings in relation to the onerous civil rights regimes imposed by Title VII and other so-called civil rights laws that restrict or deter freedom of speech on a number of important issues related to sex, race, sexual orientation, and now possibly even the menace of transgenderism. Anyone who doubts this is challenged to discuss gay marriage or the question of women in combat or on the-beat-law enforcement not even as an employee, but as sole business owner. Or consider the result of a proprietor of an eating establishment, hotel, or other public accommodation who displays some sort of sign or manifesto denouncing miscegenation.

Since Sunstein’s treatise was written in 1986, American society has also seen the rise of so-called hate crime legislation, an onerous regime that punishes people for harboring views the state disfavors. While it is true hate crime legislation does not ban or censor disfavored types of speech per se, vastly disparate outcomes in remarkably similar fact patterns involving criminal prosecution doubtlessly create a chilling effect.[15] Many liberal cities make no effort at all to enforce laws against vandalism and graffiti, and yet if one were to carve or paint a swastika on a park bench or place a sticker featuring the confederate banner or a World War II Reichskriegsflagge on a park bench or some fixture in public transit, a special hate crimes task force would be assembled to find who did such a dastardly thing.

These and other considerations indicate that perhaps the aversion to the proposition of state censorship, embraced most especially by mainstream conservatives, could not be more misguided. As set forth in “American Degeneracy Laid Bare,” censorship works if done correctly. Many will clamor about the Streisand Effect, but that only applies to censorship done poorly, such as when the Sex Pistols or Frankie Goes to Hollywood were “censored” they of course were not censored, as the BBC practically advertised for these artists by announcing they will not “God Save the Queen” or “Relax (Don’t Do it). Compare and contrast with how the German government deals with materials it (wrongly) regards as “material harmful to minors,” namely music, writings or art that advocate for far-right ideas, historical interpretations sympathetic to the German cause in World War II. As explicated at length in “American Degeneracy Defined:”

The German government does not put a label on compact discs, records, and the like brandishing a recording as neo-Nazi or far-right. They ban the sale of such materials outright, making it illegal to sell (but not possess) such media. Neither the German government nor state-owned media announce to millions that a particular disfavored artist, album, or song will not be played on the airwaves, thereby publicizing such materials to the public. They quietly prevent the broadcast, and disseminate lists of materials deemed to be “harmful to minors” to law enforcement and other agencies, as those agencies then use (or did use) those lists to audit what was sold in record stores back when those existed. As far as this author is aware, those lists are not available to the public.

Censorship efforts in Germany and elsewhere in Europe go well beyond such measures, a matter which has become newsworthy given grumblings about banning the Alternativ für Deutschland, EU bureaucrats fretting about Twitter during its Elon Musk era, and most particularly how Germany has cracked down on content on the internet the bureaucrats and officials in the puppet state deem hate speech. The latter was of course featured in an infamous 60 Minutes segment on February 16, 2025, and has become quite a controversy particularly in the states.

Many Americans liken censorship to ineffectual, half-hearted measures, such as “Tipper Gore’s initiative to put explicit advisory labels on recordings” in the 90s. That of course was an absolute farce, as the “explicit materials label” did nothing to restrict access to minors to anyone, and essentially advertised that such recordings were edgy by using profanity that might upset or offend parents, teachers and elders. Whereas one could hardly think of a better advertisement to entice young people than a conspicuous black and white label that reads “parental advisory, explicit lyrics,” actual censorship efforts by entities like the American vassal-state, the Bundesrepublik, both restrict access to materials targeted by this body in an effective, concerted way, while also stigmatizing such materials in incredibly powerful ways given the context of modern German society, defined, in many ways, by a pernicious war-guilt complex. The modern German government and other similar entities in Europe are of course utterly wrong about what they censor, “but the tactics it uses have been remarkably effective in curbing and curtailing cultural trends it wrongly finds to be anathema.” While “the motivations of the Bundesrepublik. . . are repugnant,” efforts to censor far-right materials have been remarkably successful in stunting the growth of such movements. Censorship as a tactic or means to achieve greater ends is remarkably effective if implemented wisely with a “gloves off” approach, provided such efforts are supported by some segment of the population and fortified by a minimally competent propaganda campaign.[16] As this author urges in “American Degeneracy Laid Bare,: “If the right ever achieves political and cultural power necessary to implement such measures, similar policies and more must absolutely be implemented to further our righteous ends.”

Grim Prospects of Turning the Tide: A Nigh Impossible Task Lies Ahead

While implementing no-nonsense censorship policies such as those in various European states is not realistic in America in the foreseeable future, conceptualizing pornography as both objectively obscene, rather than subjective “contemporary community standards” and as sexual aid or sort of ersatz prostitution should not be so terribly difficult for what are regarded as the finest minds in the legal profession and legal scholarship to enunciate. After all, this obvious distinction was alluded to, at least to some limited extent, in the Family Guy joke alluded to above. This of course strongly suggests that the matter is not so much that these leaders in the legal profession and legal scholarship are unable to enunciate why pornography should not and must not be entitled to legal protection. Rather, it is that they do not want to[17], just as these same leaders have instigated all different sorts of civilizational ruin in various forms. That consideration further implores the necessity of something far more drastic than conventional conservatism, but rather some expression of right-wing authoritarianism that at least envisions utterly purging these nefarious elements from our cultural and political institutions of power, including much of the legal profession and legal scholarship as they currently exist and have existed for decades. A system of government and indeed a society at large that cannot protect its citizenry from a vice so destructive it renders otherwise healthy 17 and 18 year-old men impotent, a vice that destroys relationships, hampers the formation of others and contributes to unsustainably low birth rates does not possess any fitness for any purpose for which the state or the social contact as envisioned by Enlightenment thinkers are created.

Those who are of a more optimistic outlook or are of a more mainstream persuasion concerning the Constitution and the First Amendment are apt to note that Supreme Court recently granted certiorari regarding challenges to a Texas state law requiring age verification to ensure users are of age, and heard the case, Free Speech Coalition vs Paxton, this past month (January 2025). Given the spotty history of Barrett and most particularly Roberts (who wrote the opinion in the deplorable Stevens decision), it is most unclear whether the Court will uphold even some of the very modest regulations and limitations mandated by the Texas state law and other laws. It is utterly inconceivable that the Court will overturn past precedent in cases like Reno or the series of Ashcroft decisions, let alone reinvigorate the dead letter of Miller vs California.

Despite the stubborn optimism and indeed naïveté of mainstream conservatives and their dogged fetishism for the Constitution not merely as a governing legal document but as a moral and normative authority, our system of government and indeed the Constitution itself are irredeemable. Such utter lack of fitness of purpose requires a truly revolutionary spirit, one that seeks to burn the Constitution, end democracy, and dismantle our current form of government through to its very foundation. Those who balk at such a radical proposition must at least concede that the judiciary branch of this government has wreaked absolute havoc and destruction for many decades, and that there is no apparent prospect of undoing the damage within the framework of the current system in place. Indeed, those committed to democratic norms, despite all the evidence to the contrary, should consider how the Constitution has been unable to stop a rogue judiciary from appointing itself as the final arbiter as to what is a compelling (or legitimate) state interest or not.[18]

Alas, that sort of effective remedy to so many of our problems does not seem foreseeable in the near or distant future. The emotional appeal to the Constitution and the First Amendment in particular has been thoroughly engrained in the conscience of an overwhelming number of people. This is particularly true of conservatives and many opposed to the left. That tendency, whereby mainstream conservatives carry on about “constitutional principles,” “human rights,” and so on and so forth is particularly disadvantageous insofar as many elements on the left have been openly espousing censorship policies, from Tim Walz saying so-called “hate speech” and “disinformation” should not enjoy 1^st Amendment protection to myriad other examples.[19] True to their form, conservatives will adhere to Queensbury rules to their graves, even as the other side fights no-holds barred.

In addition to the problem of dogged fetishism for the Constitution, other problems abound insofar as pornography has become so utterly mainstream, as many in society discuss it, their masturbatory habits, and other sexual proclivities as matters fit for polite society, in the public. Pornography is such a uniquely pernicious vice precisely because it strikes at the mammalian essence of human sexuality and, accordingly, is pleasurable and exciting. The visual sight of an attractive young or even middle-aged woman nude, performing certain sex acts is hard-wired into our very biology to be appealing, arousing, and sexually gratifying. But just because something is pleasurable, enjoyable in the short term does not mean it is not harmful in the short and long term. In many ways, pornography can be likened to the vice of alcoholism for native Americans, a vice which is uniquely pernicious to that group of people for reasons stemming in large part from racial differences and evolutionary biology. Such a vice that overwhelms our pleasure reward system calls into the question the very notion of freedom. Is it really freedom for an alcoholic to have 20 dollars in his pocket, affording him an opportunity to buy a bottle of whiskey[20] or vodka when such liberty simply feeds his vice? Or consider a heroin addict with similar money and opportunity to partake in his preferred poison—is it really a personal freedom for him to he able to purchase a few hits of heroin when the interest of his own well-being and the greater good for those around him and society at large implores that he must not have such liberty?

It will be exceedingly difficult to muster any effective resistance to this vice—hardcore pornography—not just as it relates to turning the tide in decades of disastrous legal decisions, but reversing and upending the process whereby pornography has not only ceased to be stigmatized and shamed, but something that has become commonplace and banal, and something much of society professes an affinity for in the open.[21] Working within the parameters of our current legal system and form of government, the sort of legal and intellectual framework envisaged in this treatise needed to have been implemented decades ago, in the 70s or the 80s, possibly the 90s at the very latest. Putting the proverbial genie in the bottle will be extraordinarily difficult if not impossible. However difficult confronting this and other existential threats to European civilization and posterity may be, the fight, the revolution, starts with the articulation of those ideas that rebut and repudiate conventional, prevailing wisdom about so much civilizational ruin. In relation to the vice of pornography specifically, any Kulturkampf must begin with the ability to articulate why pornography is not speech, but rather a vice, an illicit product or service for more akin to prostitution and illicit drugs than free expression. This is particularly so given that freedom of speech is not just a governing legal proscription against government censorship in the United States, but something the vast majority regard as an important societal norm and more that would doubtlessly endure even if our current system could be jettisoned or overthrown. In addition, such an effort must articulate how pornography is a pernicious vice that harms both the individual and greater society alike. That basic intellectual framework is the nexus from which any effective resistance to this problem will necessarily emanate. While it is doubtful this legal system and system of government will respond in a way that addresses these concerns, the propagation of ideas such as those espoused in this treatise will engender not just outrage at the continued tolerance of pornography. Insofar as this and other catastrophic failures impugn democratic and constitutional norms, the propagation of the ideas set forth in this treatise and similarly works will, with good fortune, foster greater dissidence on a scale sufficient to make far more radical change possible, once a critical mass of people realize our current system is beyond salvage and utterly irredeemable.

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[1] President Trump of course executed an executive order interpreting the 14^th Amendment to not require birthright citizenship, which was quickly enjoined by lower level federal courts. This process if the first step in any attempt to get the Supreme Court to decide on this matter. It is doubtful that this matter will be resolved in a favorable manner, both because it is doubtful the plain language of the 14^th Amendment can be interpreted to not mandate the 14^th Amendment, and because it is doubtful Justice or Barrett would join any such opinion, The theory advanced by Trump and his allies is a novel one, with a peculiar interpretation of the clause “subject to jurisdiction of the United States.” On the other hand, the spirit rather than the letter of the law implores the 14^th Amendment was intended to grant freed slaves citizenship because they were born on U.S. soil.

[2] One important matter related to the topic of this treatise but which cannot be explored in depth concerns original intent, that is what the framers intended by the Constitution and the Bill of Rights. It will only be stated in passing this author is highly skeptical that the framers ever envisioned let alone intended the First Amendment to protect hardcore pornography. It is of course important to note that only the printed word existed at that time, or indeed when John Stuart Mill wrote On Liberty, from which the expression “marketplace of ideas originates.” “First Amendment Fetishism” by John Kang 2024 UKR 679 (2024) offers some analysis of the legal history the author uses to make this argument, but much of it seems tangential. A far more persuasive argument is that the framers failed to address things like obscenity and hardcore obscenity because such things were utterly unforeseeable and thus something they could not have fathomed. Given how obscene and even profane content was regularly censored before 1960 seems indicative of how questions of original intent ought to be answered with any intellectual honesty.

[3] Taylor said as recently as the February 13, 2025 edition of the Amren podcast that he is a free-speech absolutist.

[4] See generally the introduction to Robert Bork’s Slouching Towards Gomorrah. Defining deviancy down has been discussed at length by this author, most notably in “This Horrid Rainbow: Defining Deviancy Down and Away,” which explores how mainstream conservatism was unable to effectively combat the advent of so-called gay marriage in large part because mainstream conservatives either had no conception of this vital concept, or did not want to impart this important concept to the public. The concept is also discussed at some length in “What Consenting Adults Do Is Our Concern” and “The Psychic Toll: How Anti-Social Behaviors and Bizarre Manias Affect The Individual and Society in the Instant of the Moment.”

[5] In a strict sense this was due to vagueness and overbreadth, but the particular import of this decision was to prevent the United States federal and state governments from even attempting to promulgate revised statutory language that seeks to ban such material.

[6] As modern legal jurisprudence favors multi-prong tests or sets of criteria, a list of indicia that are the hallmark of pornography-as-a-sexual aid are set forth by this author below; this set of criteria is written ad hoc, on an off-the shelf basis. The particulars of such language could be refined and elaborated on by any legislative. The point of this exercise is to demonstrate that it is abundantly clear how pornography, at its essence, is a sexual aid and that our legal system should not be spinning its wheels on such matters for half a century. That stated, a workable three pont test defining pornography as a sexual aid is as follows. Any visual, written, or audio medium that bears the attributes listed below serves the principal, essential, and intrinsic purpose of providing sexual stimulation and gratification for the purposes of masturbation, sexual congress, or orgasmic climax. As such, any material is a sexual aid and therefore not subject to first amendment protection:

· Lurid, unobstructed videographic, photographic, or illustrative depictions or exposure of human genitalia or the anus

· Depiction or simulation of sexual acts including but not limited to masturbation, vaginal, anal, or oral penetration or stimulation by a penis, vagina, sex toys, fingers, or other implements or body parts. Any act of vaginal, oral or anal sex, or masturbation, or other act tied to a sexual fetish.

· The commission of any sexual act or performance in exchange for monetary consideration is particularly indicative that the phenomenon in question is not speech but a sexual aid, a product designed to provide sexual stimulation and climax. Such an act or performance does not need to be done for monetary consideration in each and every instance. That is typically or commonly done in exchange for monetary consideration is indicative of its nature as a sexual aid and not expressive activity subject to First Amendment protection.

[7] It is of note that Steven vs United States declares in one portion of the opinion that free speech jurisprudence can no longer apply such a balancing test. Such marginal areas of expression are grandfathered in, it would seem.

[8] The Supreme Court and lower courts have of course struggled with any distinction between actual speech and the provision of goods or services that involve “expressive activity.” That topic is beyond the scope of this essay except in passing. It is of course true that the provision of some products and services have an expressive component to them. Consider for example the “bake the cake” cases in which LGBTQ have singled out political opponents with what ought to be considered vexatious litigation. “Pornography and Cognition: A Reply to Cass Sunstein” by Paul Chevigny is just one example of the viewpoint asserting that the sort of sexual activity at question here is expressive activity. Consider however that most any action has an expressive component. Obliterating the distinction in this way should nullify any prostitution laws, on the idea that someone who exchanges sexual services for money is expressing a decadent or profligate worldview. To the extent pornographic material, or extremely graphic “erotic dancing” and the like can be limited to a finite number of variants of a few basic sex acts (masturbation, oral, anal, vaginal sex, lurid depiction of the genitals or anus), the idea such things really have an expressive quality to them worthy of First Amendment protection is highly dubious. There is doubtlessly greater variation to products and services provided at a hair salon or barber shop, and yet the expressive activity involved there is not sufficient to overcome onerous civil rights laws that force proprietors to provide services to protected classes of people.

[9] Critics, detractors, and ideological enemies may scoff at this particular assertion, noting for example that while murder is illegal, it is not necessarily or even usually illegal to disseminate or view depictions of murder or other crimes. There are several distinguishing factors, pornography, as explicated above, serves as an ersatz for the illegal activity (prostitution) and is produced, disseminated, and sold for commercial reasons. An analogous comparison would be to ban depictions of murder or other violent crime in which the crime was planned for the purpose of being filmed, to then sell such material for commercial purposes. While this treatise will not address whether or not graphic depictions of murder or other violent crimes is obscene, hardcore pornography, as a sexual aid, is obscene.

[10] A great deal of First Amendment jurisprudence gets bogged down with blurred lines between commercial and non-commercial speech, insofar as writers of books, essays, screenplays and any number of forms of speech that fit comfortably under that “highest order” of speech that receives nigh absolute protection for the First Amendment. There is of course the cognitive distinction Sunstein and others make to distinguish higher forms of speech with things like pornography. There are only so many sexual acts that can be performed, and none of them express a cogent argument or idea the way an essay, novel, so and so forth do.

[11] An interesting distinction could be discerned as follows, resting on the existence of a long-term relationship or marriage. Lewd or even obscene videos or images in private correspondence between a husband and wife or even boyfriend and girlfriend do not implicate considerations involved with defining deviancy down and public morality, at least not as much, provided such materials are not disseminated to the public. This comports with individuals being allowed to do as they wish behind close doors, while lewd or obscene sexual exhibitionism is public is prohibited by law.

[12] This author laments at how he is able to cite these and other exemplars of American Unkultur with such ease. As exemplified in “Enveloped by Kultur-Terror,” such an odious cultural milieu is something my generation was born into. Despite assertions to the contrary, we cannot just turn the television off. No one can. And anyone who asserts the contrary is challenged to find someone who does not know who the “Fonz” is.

[13] While there is arguably, some ambiguity concerning nude images, the proposed three prong-test set forth in footnote six of this treatise should be clear enough. When media are intrinsically a sex-aid, a sex act comparable to prostitution, such media crosses the threshold into obscenity.

[14] Invariably there will be some reader who happens upon this tract who is apt to utter the monstrously stupid refrain “Actually, this is not a democracy, but a republic.” The New Shorter Oxford Dictionary. of Historical Principles defines democracy as both direct and indirect democracy, as the definition reads in pertinent part: “Government by the people and is exercised by them either directly or by means of elected representatives. . ..” (Volume I, A-M page 629, Fourth Edition, 1993). A democratic republic is still a democracy as that term is properly understood and defined.

[15] The manner in which so-called hate crime laws punish persons for expressing viewpoints the current system disfavors or even reviles should be obvious, as evidenced by a hypothetical and a real-life example. As a hypothetical, consider two scenarios where a white man sits at a bar or is otherwise going about his day. Words are exchanged with a black or other racial minority. The racial minority lunges or otherwise commits an assault or even assault and battery in a manner that causes the white man to have a reasonable fear of death or serious bodily injury, entitling him to a claim self-defense as a perfect defense. The white man defends himself, resulting in either assault and battery or even homicide. In one instance, the white defendant has never indulged in so-called hate speech. Nor does he utter any forbidden words. In the other, he has read, or even simply has copies of books and materials on matters of race or the Jewish question (as does this author), writes about such matters (as does this author)_or simply listens to Death in June (as does this author), owns German World War II militaria (as does this author) or likes skinhead oi music, or even perhaps uttered a racial epithet while defending himself. It is totally foreseeable that whereas the first instance results in an acquittal or even not even having charges filed at all, the second instance could result not just in a conviction, but conviction with enhanced “hate crime charges.” The real-life example is the McMichaels Ahmad Arbery matter, in which the black went for the shot gun. The Georgia citizen arrest statute was arcane, as it has since been repealed, but it did seem the McMichaels authority to conduct a citizen’s arrest. The McMichaels were convicted, and later even convicted on federal hate crimes and civil rights charges, with the government scouring their smartphones and other devices for disapproved speech. The much greater motivation prosecutors have in charging those like the McMichaels or the second hypothetical ought to invoke constitutional claims under the equal protection clause for selective prosecution and other theories, but good luck with that.

[16] Some readers may dispute this assessment, citing the surging popularity of the AfD. Such objections overlook how parties and movements like the AfD would likely be far more popular than they are if these censorship policies had not been implemented. Far-right movements in Germany had started to flourish immediately after Reunification in 1990, but quickly petered out largely due to these measures. Beyond that, it is doubtful the AfD and other parties will ever have a mandate sufficient to govern. This of course remains to be determined, but even if the AfD or any other power does somehow come to power, the rise to such power will nonetheless have been greatly hampered by these efforts.

[17] This salient passage by Stone professes the supposed positive “consequences” of how First Amendment jurisprudence has led to a free-for all in which practically anything goes is particularly telling:

The greater availability of sexual expression, for example, enhances the ability of individuals to understand and to satisfy their own sexual needs and desires; gives them a much richer exposure to unconventional forms of artistic excellence; entertains, amuses, enlightens, and excites; and enables individuals to learn more about sex and its many varied possibilities. All of this, in varying degrees, captures at least some of the potential individual and social benefits of a much broader freedom of sexual expression.

His suggested remedy for how to contain or deal with pornography rather than ban it. Educate people. Even after conceding that “n practical effect, though, it is difficult, if not impossible, to shield children in today’s world from exposure to sexually-explicit expression,” the proper response is parenting. He actually dares to suggest that “, parents can create a reasonably safe environment for their children,” suggesting that the burden on parents to protect children and minors from an obscene, pornographic milieu is no different from the trust we place in parents more generally. In everything from crossing streets to playing near the water to choosing friends to walking alone at night to eating right to smoking and drinking and drugs, we rely upon parents to protect their children from harm.”

[18] Those familiar with Constitutional Law know the Supreme Court and our entire judiciary compelled by it have had the audacity, the impudence—die Frechheit—for many decades, to dictate to duly elected governmental bodies what is and what is not a compelling state interest or what is “rationally related to a legitimate state interest” according to different strict, intermediate, and rational basis standards of review regarding matters litigated under theories and doctrines of Constitutional law.

[19] The amount of academic and other material beating the drum for so-called hate speech to be excluded as constitutionally protected speech is so vast as to dispense with any need for citation. As this author warns in “Good Intentions or the Maddest Folly?,” a Kamala Harris presidency would have been disastrous as the Supreme Court is just two justices away from “discovering,” by judicial fiat, a phantom exemption from First Amendment protection for so-called hate speech. Justices Thomas and Alito are 78 and 74, respectively. Law is downstream from culture.

[20] This particular example must not be construed to mean this author harbors puritanical views regarding alcohol. Drinking age laws in this country are absurd, as the 21 age restriction might as well attempt to legislate against the sky being blue or grey, insofar as college and high school kids will (and ought) to drink. Someone however who has succumbed to more severe forms of alcoholism is different. The key difference however is that alcohol has many positive attributes, and indeed is part of our greater Western culture as seen in various styles of cuisine, cultural festivals such Oktoberfest or Frühlingsfest and so on. Pornography, heroin and other vices have no such redeeming value.

[21] Censoring material on the Internet is of course by itself an arduous task, and a subject utterly beyond the scope of this treatise. As difficult as it is, it can be achieved through greater authoritarianism, when such authoritarian measures are backed by a popular mandate (does not even have to fifty percent of the population) and by a minimally competent propaganda campaign.

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Chevigny, Paul. “Pornography and Cognition: A Reply to Cass Sunstein”

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

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