Offensive speech and unwilling listeners

[Volokh, Eugene]

	I share Scott's intuitions, and I wonder to what extent this is
related to First Amendment law related to offensive speech and unwilling
listeners.  Even Brennan suggested that, though pornography should be
constitutionally protected, some restrictions on display of pornography
where unwilling viewers are present should be permissible.  Likewise,
the Erznoznik majority left open the possibility that a law limited to
banning the display of highly sexual nudity on drive-in screens might be
permissible.  Bans on public nudity, it seems to me, reinforce that; and
I suspect that even people who would protect public nudity would draw
the line at public sex.  (I realize the latter can be dismissed as
conduct rather than speech; yet while the line between visual depictions
of sex and in-person sexual actions can be and probably must be drawn, I
think we should recognize that the two can't be analyzed entirely
separately from each other.)

	Similarly, lower courts have generally upheld bans on the public
display of obscene-as-to-minors material, at least outside the Internet
(where the filtering-as-less-restrictive-alternative argument has led to
the bans being struck down).  The justification there is a desire to
shield minors from sexually explicit matter, but my sense is that the
laws are also seen by many as doing double duty, protecting unwilling
adult viewers as well as perhaps too-willing minors.

	I do not suggest that it should therefore be illegal to display
porn in class; in fact, I believe that some obscenity statutes explicit
exclude certain educational uses, and in any event one could argue that
the educational context of the display makes material seriously valuable
even if it's not seriously valuable when sold just for sexual
gratification.  (Cf. Ginzburg v. United States.)  But it seems to me
that the discussion about what's good for teaching is related to the
debate about what should be legally permissible to display.

	And, of course, it raises the same question:  Why?  Why is it
that even those who believe, as I do, that pornography does often carry
an implicit ideological message, that Hurley was right to say that even
material that carries a subtle, ambiguous, or highly abstract message
should be protected, and that profanity and offensive political speech
should be protected, perceive that hard-core sexual material is
different?  Why do we further perceive that pictures are in some measure
different from physical appearance?  And are we right to so believe?

	Eugene

Scott Gerber writes:

> I've played George Carlin's "dirty words" monologue when the 
> class was 
> reading the Pacifica case.  I start with a warning that it might be 
> offensive to some, and that those students are free to leave class 
> early (to avoid the captive audience problem).  Even still, I 
> sometimes 
> wonder whether I should play it (although the class seems to 
> like it:  
> lots of laughter at the great comedian, etc.).
> 
> This said, I can't image showing a snippet of an adult movie 
> during the 
> obscenity cases, although I agree with Sandy that the material seems 
> relevant pedagocally.  There are some lines that shouldn't be 
> crossed, 
> even for educative purposes.  After all, I doubt anyone would support 
> showing actual examples of a number of the crimes covered in criminal 
> law courses.
> 
> Scott Gerber
> Law College
> Ohio Northern University
> 
> 
> Sanford Levinson wrote:
> 
> 
> >Patrick Wiseman writs:
> >
> >But I don't see any pedagogical _necessity_ to present 
> pornography to 
> >my students in order to talk about government regulation of it.
> >
> >
> >The obvious question is what is the operational antecedent to "it." 
> >Libertarians should be forced to confront some really hard 
> core stuff, 
> >especially if they are basically ignorant of what "truly hard core 
> >stuff" looks like.  Similarly, "regulationists" (sorry for the word) 
> >need to be asked if Playboy, etc., constitute pornography and if so, 
> >why, if not, why not.  And so on.  As I say in the 
> forthcoming article, 
> >I no longer teach a "free speech course" because I can't 
> figure out a 
> >way to do it that I am comfortable with intellectually (i.e., assign 
> >all the necessary stuff) and that I am willing to take the 
> inevitable 
> >heat for.  Someone in the audience (perhaps correctly) 
> suggested that 
> >the real topic of my lecture was on the "chilling effect" of 
> >contemporary students who are too sensitive to put up with actual 
> >confrontations with "offensive speech," etc.  There's probably 
> >something to it.  Abortion and affirmative action are 
> infinitely easier 
> >to teach, pedagogically--at least if people don't bring in 
> pictures of 
> >fetuses or botched abortions--than are pronography or 
> offensive speech.
> >
> >sandy
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> 
> --------------------------------------
> 
> Scott Gerber
> Law College
> Ohio Northern University
> Ada, OH 45810
> 419-772-2219
> http://www.law.onu.edu/faculty/gerber/
> _______________________________________________
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