sexual speech should be protected only if it has certain value, but never as much as political speech (post 4)

The question raised in communicative justice is whether or not words, images and sounds that stimulate erotic or sexual thoughts should be granted the same protection as political speech? I claim that this type of speech is “worthless” instead of worthwhile. Therefore, it should not be valued in the marketplace of ideas that is protected by the First Amendment. Adults should have the right to create such speech for private purposes but otherwise; it should not be distributed for public consumption and furthermore, it should not be protected the same way that political speech is protected. However, If the sexual speech proves to have serious literary, artistic, political or scientific value, it should be protected the same way that political speech is.

According to the philosophers Alexander Meiklejohn and John Chafee, political speech should be protected since it promotes self government but there should be less protection given to speech that is considered to be worthless or private. Speech that is deemed sexual has no value in the test to finding truth. For this reason, I would also agree with the philosophical grounding from John Milton and John Stuart Mill. Since sexual speech is not necessary to finding truth in the marketplace of ideas, it should not be protected as heavily as speech that would be considered worthwhile in the same marketplace of ideas.

In addition to the philosophical grounding for my argument, I agree with the “offense” theory approach to pornography: that which offends should be banned. Since sexual speech does not physically harm anyone, I would not lean towards the harm theory in regards to my argument. Since many average people are offended by sexual speech, the offense theory will be applied. If the sexual speech is offensive, it is in turn obscene. The definition of obscene I would use in this argument is “anything that may be deemed by the average person to be sexually arousing.” If a TV commercial is trying to sell a product using speech or language that is meant to sexually arouse, it should be banned. If this commercial used sexual speech in a political or scientific context, it would be protected under Miller v. California which I discuss in further detail below.

While I argue that sexual speech should be banned from the public marketplace, adults have the right to create such speech for private use, distribute such speech for private consumption and receive such speech. If an adult wishes to “sext” another adult, sexual speech in that context should be allowed. He/She is not speaking sexually in a public setting; they have the right to choose whether that speech is worthwhile for them personally. In addition, they have the right to create sexual speech and distribute it in private. If an adult wishes to “sext” another adult a sexual picture of himself or herself, they have the right to do so in the privacy of their own home. They should also be allowed to receive such speech. As soon as sexual speech reaches a public level, it should not be protected the same way political speech is protected.

To support my argument on doctrinal grounds, I look to the previous case, Regina v Hicklin of 1868. The Hicklin test of 1868 tests obscenity in this way, “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” This quote supports my idea that sexual speech should not be protected the same way as political speech in a public context. Such children and young adults are apart of the public marketplace they should be protected from immoral influences of sexual speech. If the sexual speech is in a private setting, it should be protected to the fullest, since between two adults, it does not threaten to leave an immoral influence.

Furthermore, I look towards Chaplinsky v. N.H., a case which refused to protect the lewd and obscene on the grounds that it is not worthwhile speech. Furthermore, I would like to look to Miller v. California that works on the same offense theory as I have. Miller v. California supports the idea that messages are banned UNLESS proven to have serious value (either scientific, political, or artistic).In order to overturn Roth vs U.S., I will use my philosophical groundings to argue that even though there may be some sexual speech cases that have “social value,” that form of speech should still not be protected the same way political speech is. It must have either a scientific, political, or artistic value in order for it to be protected.

There should be different levels of protection applied to different types of media. For example, books should receive more protection than broadcast or radio since the latter media have a “captive” audience that cannot always select what they see and hear. When a person buys a book, they know what type of book they are searching for and the books genre or message should be explicit to the reader before they even open the book. Moreover, web cams/chat rooms should receive a higher level of protection than cable. Since web cams are personal and chartrooms are divided by purpose or genre, cable is considered to have a more “captive” audience that would not be able to have as much freedom to choose the information they would receive.

The question raised in communicative justice is whether or not words, images and sounds that stimulate erotic or sexual thoughts should be granted the same protection as political speech? I claim that this type of speech is “worthless” instead of worthwhile. Therefore, it should not be valued in the marketplace of ideas that is protected by the First Amendment. Adults should have the right to create such speech for private purposes but otherwise; it should not be distributed for public consumption and furthermore, it should not be protected the same way that political speech is protected. However, If the sexual speech proves to have serious literary, artistic, political or scientific value, it should be protected the same way that political speech is.