Law Knows No Simulacra, Essay Example

The First Amendment and licentious speech in the U.S. Supreme Court

Facts

In John D. Ashcroft, Attorney General, et al. Petitioners v. The Free Speech Coalition et al. No. 00-795 in the United States Supreme Court [535 U.S. 234; 122 S. Ct. 1389; 152 L. Ed. 2d 403; 2002] the exercise of constitutional law §931 guaranteed unmitigated First Amendment protections of free speech, and repudiated a motion by the FSC requesting prohibition of speech on the ground that such speech may encourage pedophiles to engage in illegal conduct; even where there is no more than a remote connection. The decision also upheld First Amendment protections in cases where there is a significantly stronger and more direct connection where allegations that speech that “might encourage thoughts or impulses and any resulting child abuse.”

Issues

Counter to the Ascroft complaint, the defense argued that any decision by the court denying protection of minors in situations where communications lack literary, artistic, political, or scientific value, 413 U.S. at 24 denies prurient interest, and when fulfilling those criteria do not need to apply to prurient interests at all times to extend to all images that may be patently offensive.

Review of Decision

Request for prohibition of free speech on the basis of proscription of a “visual depiction of an idea” was flatly denied by the court, citing inconsistency with other cases presented like Ferber 458 U.S. at 759, which included actual child pornography, and a claim that permanent record of the children abused would be continued by way of circulation. Economic motives are also cited in distinction between Ferber and the CPPA, Free Speech Coalition censorship practices and asserts that while images can lead to actual instances of child abuse, virtual pornography is not “intrinsically related” to the sexual abuse of children unknown.

Precedent Established

Communications based transmission of speech, then, is unquantifiable in terms of subsequent criminal acts, and at present that method of capturing that relationship is not sustainable. The court also rejected arguments that pedophiles may use virtual child pornography to seduce children, in that speech rights of adults may not be silenced completely to shield the rights of children. In consideration of standing U.S. Federal and state criminal laws, and in particular those based on Modern Penal Code Statute (MPC), the “evil” at question is dependent upon the actor’s conduct, rather that the persistence of the right to speak. Measures to protect children are necessary says the court, yet by shifting the burden to prove speech unlawful raises serious constitutional complications; especially as those laws pertain to mediated technologies and the variances between “real” and “simulated” events. I would argue, however, citing Oliver Wendell Holmes 1913 ruling that First Amendment protections persist as long as the rights of others exist (White 1992). To this end, a range of freedoms traditionally protected from censorship are addressed, as acts such as defamation, libel and slander are considered misconduct, yet in the last instance the distinction between those targeted offenses determined to violate particular parties, and the unwieldy act of licentious speech as a field of ‘carnal knowledge’ meant to harm children still find distance.

Works Cited

John D. Ashcroft, Attorney General, et al. Petitioners v. The Free Speech Coalition et al. No. 00-795, Supreme Court of the United States, 535 U.S. 234; 122 S. Ct. 1389; 152 L. Ed. 2d 403; 2002 U.S. LEXIS 2789; 70 U.S.L.W.4237; 30 Media L. Rep. 1673; 2002 Cal. Daily Op. Service 3211; 2002 Daily Journal DAR 4033; 15 Fla. L. Weekly Fed. S187(2002).

White, G.E. Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension. California Law Review, 80 (2), March 1992, 391-467.