Justice Scalia is Scared of Genitals, OR Sexnegativity and the Law June 1, 2012

Posted by Within Reason in Culture and Society

Editorial Note: This post was written by Wes Fenza, long before the falling out of our previous quint household and the subsequent illumination of his abusive behavior, sexual assault of several women, and removal from the Polyamory Leadership Network and banning from at least one conference. I have left Wes’ posts here because I don’t believe it’s meaningful to simply remove them. You cannot remove the truth by hiding it; Wes and I used to collaborate, and his thoughts will remain here, with this notice attached.

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So, you may not know this, but speech in America isn’t completely free. You’ve probably heard of the “fire in a crowded movie theater” exception. However, unless you’ve gone to law school, you probably don’t have much of an idea what is protected, and what isn’t. Here’s a quick quiz. Some of these things are protected speech, and some are not:

Flag burning Cross burning (for explicitly racist purposes) Cursing in public Cursing at the Supreme Court Pornography Hate speech Advocating violent overthrow of the government Depictions of animal cruelty

If you guessed “all of those are protected,” you would be WRONG! All of them are protected… except for pornography. According to our Supreme Court, certain categories of speech 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.” These categories are generally limited to “fighting words” and obscenity.

Obscenity is not what you’re thinking, though. “Obscenity,” according to our Supreme Court (and most recently by Justice Scalia), is limited to strictly sexual imagery. Not cursing. Not blood & gore. Not torture. Just sex.

The Court never really offers a rationale WHY sex has no value to a society; it just operates under the assumption that sexual imagery is less than worthless, and can be actively harmful. Look back at the list at the top of the post. The Court has held, at one time or another, that each one of those examples has enough value to our society to be worthy of protection. But not sex. When it comes to sex, it’s just too dangerous.

I don’t know what happened to make SCOTUS so afraid of sex, but let’s hope the next generation approaches the issue with a little more sanity.