Alan Sears on Free Speech, Censorship -- and Fighting Back

SCOTTSDALE, Arizona, JULY 30, 2004 (Zenit) - Pornography may be a thriving criminal enterprise, but a legal expert in the field believes the Church and the laity can stunt its growth.

Alan Sears, president and general counsel of the Alliance Defense Fund, served as the executive director of the Attorney General's Commission on Pornography under President Ronald Reagan.

Sears shared with us why pornography is not free speech, and why clergy and lay people need to break their silence and take action.

Part 1 of this interview appeared Thursday.

Q: Recently, the Supreme Court in the case of ACLU v. Ashcroft struck down the Child Online Protection Act as violating the First Amendment right to free speech. Why is pornography considered free speech?

Sears: First, the opinion was wrong. Advocates of a culture that supports the affirmation of life must reject any notion that most pornography is even "speech."

Of the five forms of pornography I mentioned earlier, at least four lack much, if any, constitutional protection even by the furthest stretch of the high court's imagination.

Obscenity and child pornography have never been within the bounds of "free speech," the First Amendment or equivalent state constitutions, except according to erratic decisions by courts in a few states such as Oregon and Hawaii that would amaze their founders.

Second, the term "pornography" is a generic, not legal, term. It relates to a broad range of sexual materials, some of which are protected by the First Amendment and some of which are not.

As noted by the Supreme Court in Miller v. California, in 1973: "Pornography derives from the Greek ('harlot' and 'graphos,' writing). The word now means 1) a description of prostitutes or prostitution 2) A depiction (as in a writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement."

The 1986 Attorney General's Commission on Pornography defined pornography as "material that is predominately sexually explicit and intended primarily for the purpose of sexual arousal."

In most First Amendment litigation, the outcome does not depend on whether the materials are characterized as pornographic. Ordinarily, courts begin by determining whether the restriction on free expression is content based or content neutral.

The answer to this question then dictates the amount of deference that is afforded to the governmental restriction and determines whether the speech restriction is constitutional or not.

Content-based laws focus on and proscribe certain unlawful speech. Such laws are based on objections to the "content" of the speech itself. Content-based restrictions are presumptively unconstitutional.

However, there are certain content-based categories of expression, including certain types of pornography, that have no First Amendment protection. The Supreme Court, in the 1992 case R.A.V. v. St. Paul, has said that these categories include "obscenity" and "child pornography."

If the Supreme Court determines that a restriction on pornography is not aimed at the content of the speech, it analyzes the restriction as a content-neutral restriction.

Content-neutral restrictions attempt to regulate the time, place and manner of the speech. Such laws focus on the negative secondary consequences or harmful effects, which certain speech and speech-related activities cause. Their impact on speech is only incidental in nature.

These laws regulate the time, place and manner of these activities in order to minimize or vitiate the harmful effects. They generally take the form of restrictive regulations governing the zoning and licensing of sexually oriented businesses, or so-called adult establishments.

It is much easier for speech restrictions to survive First Amendment scrutiny if they are deemed content-neutral since the government only needs to show that: the law is within the constitutional power of the government; the law furthers an important or substantial governmental interest; the governmental interest is unrelated to the suppression of free expression; and the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Q: Many people fear that limiting pornography is censorship. Is censorship bad?

Sears: How do we define either term? Bad for the profits lost by organized criminal activity? Bad for a child molester who wasn't able to trade his "collection" of trophy photographs with others?

Bad for potential child molesters who could not get a magazine at the corner store that they would use to lower their inhibitions and eventually end up acting out ...