Pornography Remains One of the Most Contentious

Pornography remains one of the most contentious issues related to the freedom of expression. The definition of pornography and the parameters of the First Amendment must be taken into consideration when determining what, if any, types of pornography are protected as a First Amendment right. The First Amendment does have its legal limits, in theory and in legal precedent. As Lowey points out, the Supreme Court has consistently ruled that the First Amendment right to free speech can be delimited in cases of obscenity. Placing too many legal restrictions on the freedom of speech guaranteed by the United States Constitution is dangerous, though. It is critical to have a liberal interpretation of the First Amendment, protecting the right to produce, disseminate, and consume material that some might find offensive so long as no entity is harmed in the process.

One of the primary reasons to protect the right to freedom of speech under the First Amendment is that there is no, and never will be, a clear-cut definition of what pornography is. In 1964, Supreme Court Justice Potter Stewart issued "the most frequently quoted Supreme Court opinion on obscenity," by stating, "I know it when I see it," ("Exploring Constitutional Conflicts: Regulation of Obscenity"). Justice Stewart was referring to the definition of "hard" versus "soft" pornography. If the Justice of the Supreme Court could not offer a more concrete definition of what pornography is other than "I know it when I see it," then no person or organization, private or governmental, should be permitted to constrain freedom of expression.

Another reason to protect pornography as a First Amendment right is the fact that the culture needs positive expressions of human sexuality. The production of work that depicts consenting adults fosters natural interest in physical intimacy and all types of sexual acts, even those that some segments of society deem deviant. Pornography that titillates and excites the consumer does absolutely no harm, and in some cases could even be construed as having a net positive effect.

There are limits to the First Amendment, of course. Two primary limits to the freedom of expression within the domain of pornography include whether the material constitutes a hate speech act, and also whether the material involves consenting adults or not. Hate speech is one of the most notable exceptions to the unbridled freedom of speech otherwise guaranteed by the American Constitution. Some pornographic material can easily be construed as a form of hate speech, in ways that are similar to the ways neo-Nazi propaganda can be construed as hate speech. For example, if a female is treated like "a piece of meat," to be used and abused by men, then the material can be framed as a hate speech offence (Gilkerson). Pornography depicting rape, for instance, ceases to be sexually explicit and instead becomes overt depictions of genuine violence. If women are harmed in the production of pornography whether by the use of sex slavery or sadism, cannot be protected under the Constitution.

Likewise, it is certainly necessary to protect minors by limiting the First Amendment with regards to pornography involving those who are under-age. The Supreme Court has long ensured the differential consideration of minors vs. adults. Minors, for example, cannot vote. Minors are also protected in ways that adults are not. Yet when protecting minors, the government cannot overstep its boundaries by restricting what adults can and cannot do. The Supreme Court ruled as early as the 1950s that "the government can't 'reduce the adult population…to reading only what is fit for children,'" ("Pornography and the First Amendment").

Besides the two main exceptions to the First Amendment (when pornography constitutes hate speech and when it is not involving consenting adults) pornography should otherwise be protected as a fundamental right of human expression. It is pragmatic to take a liberal approach to the First Amendment regarding pornography for several reasons. First, pornography is a large and lucrative global enterprise ("Pornography and the First Amendment."). Much of the pornography on the market in the United States is produced in other countries. Thus, its production cannot be stopped. Second, the regulation of the pornography business helps to protect all persons involved in the production, dissemination, and consumption of pornographic material. Simply banning pornography is counterproductive, in the same way that banning drugs is counterproductive. It is far more effective to regulate and monitor the industry than it is to criminalize pornography.