Sex In The Public Square - politics - Comments

Ah, the convenience of 'Living' documents

Kelly — Sat, 20 Sep 2008 20:26:44 -0700

Often held is that the Constitution is a ‘Living’ document. The same is held for the Bible. It is the ‘Living’ Word.

Let us look at that. The claim, of course, is that these writings are living in a way that allows them to have the same relevance today as when they were written. That is certainly a reasonable and defensible position. The Bible holds that …‘and the second of these is as great; to treat your neighbor as you would have them treat you.’ Or, in the Declaration of Independence, ’…that all men are created equal…’

Then where is the problem, you might ask. The problem is that in defending a writing as a ‘Living’ document it allows the defender the latitude of interpretation of the words instead of the speech.

Let me explain. The First Amendment to the Constitution does not amend by change it amends by addition. The First Amendment precludes the government, and by extension the People, from abridging the right of speech of any other citizen (and by Supreme Court decision, any other person.)

Now, the Supreme Court has decided that there is something called ‘Community Standards’. Does that mean that if a community organizes in such a way that the rule of ‘Pater Familias’ holds as the penultimate rule of law, an action that would normally be proscribed is allowable because the act took place within the domain of the household? Does it mean that if the community has determined that meat is not to be consumed on a particular day, any household that consumes meat on that day is in violation of the standard and thus prosecutable?

Those may seem ludicrous on the surface. They are not in the sense that they speak of what freedom means. In the framework of whether a ‘community standard’ should be applied to what is pornography, obscenity, or indecency, freedom has a very specific meaning. These are all forms of speech. If a ‘community standard’ is to be applied, then the freedom lies in the speech and not in the words.

That is, writing, oration, visual depiction, and other expressions are speech that is allowed by the ‘community standard’. What is proscribed by that standard is the content. The content is the words used. A community allows the production, distribution, possession, and control of a DVD of a particular production because the content of the DVD is in alignment with what is decent and proper. I cannot imagine the Virginia community banning or criminalizing the movie ‘At Dawn We Slept’, the depiction of Japanese bombers destroying the Naval Base at Pearl Harbor is iconic and somehow ‘patriotic’ in nature. Of course, this movie inspires apathetic Americans to send their children off to destroy other children and accept the Bush Doctrine of preemptive war. That seems completely Holy and Righteous to America. This content is allowable because it meets the ‘community standard’. I cannot see the Virginia community banning or criminalizing ‘The Scarlett Letter’. This book is completely innocuous because it is written in such an anachronistic form of the language that few get beyond the prose actually to understand the author’s point.

I can understand the Virginia community banning the book ‘Johnny Got His Gun’. After all, this anti-war novel has been banned in America at least three times (Prior to and during both World Wars and the Korean Conflict.) I can even understand the Virginia community banning ‘Lolita’. This book is clearly about a proscribed act in the ‘national community’. Of course, the book is about the detrimental consequences of the act and the male figure is clearly made out to be anything but a role model. In this case, the Virginia comminity bans through ignorence, a seemingly allowable component of 'community statndard'. I can understand the Virginia community banning what it fears because that community refuses to take the time to understand what challenges what it believes.

I can understand the local prosecutor pressing this case with the power of the Supreme Court ‘Community Standard’ decision as a legal theory. I can understand the minions of the Executive, the US Attorney, riding along in the trial balloon. The shift from a Blackstonian theory of law and government to a Benthamite theory of law and government is much too deeply ingrained in American society for the average American to grasp the flaw in 'community standard' (a tyranny of the majority by virtue of 'moral pressure'.) This tyranny is well played by the People (read: The State). The People have lost their ability to express their Consittutional Rights because the 'People' begin with the least defensible exercise of freedom and then spread like mold in a wall, usurping freedoms that offend those who claim the moral high ground.

This is in no way meant to demean the religious of any faction or belief. Nevertheless, this interpretation of Freedom of Speech has become Freedom of Speaking what I want to hear by the strong and vocal Religious Right. The tactic is simple. Begin by ostracizing the most indefensible. Broaden the ‘label’ to include those who would not fit under the original label. Move from that success to imply a relationship between one thing and another that does not exist. Once the first label is expanded, irrational relationships do not require linkage with something as inconsequential as proof. The ‘community’ has learned to ignore fact and accept belief. If there is one thing that is true about American society it is; It is easier to accept an untruth and keep a belief than it is to understand a truth and have to change a belief. Americans epitomize ‘tell me what I want to hear, so I don’t have to leave my comfort zone’.

The point is if there is to be Freedom of Speech, the freedom must be in the words, not in the speech. The next time you catch yourself using a label, pornographer, sex offender, Christian, or American understand that you are using a label to identify a person who may not fit the label. Understand that the label is a mold in which you must jam the person/object without regard to fit. You are applying the Virginia community standard. I agree wholly with the point Elizabeth makes. If we do not speak out, the standard will have to be renamed from ‘community standard’ to Staunton Standard.

A Few Thoughts About Staunton

Lou FCD — Sun, 14 Sep 2008 19:15:31 -0700

"Third, the prosecutors relied on assertions about causal relationship between porn and all manner of social ills without being able to prove any of them."

Not only were they unable to prove that assertion, they weren't even asked to support it. It was just accepted as a given, as far as I can tell.

"Fourth, the prosecutors relied on claims about the underage-appearance of the women in the film. Of course there are two big problems with these claims."

Allow me to posit a third. There is no possible objective standard by which to measure "looks old enough" or "looks underage". Any such assertion is merely opinion. Whose opinion holds sway? Should you be arrested because I, a complete stranger, walk into your store and decide your performers "look too young"? Last week my precalc teacher mentioned in passing that her college years and teaching career together added up to ten years. My response: "When did you start college? When you were 12?" My perception of her apparent age was quite obviously flawed, and yet classmates of mine had guessed incorrectly in the other direction. Who gets to decide if a performer "looks old enough"? What's the standard?

"Yet with 'community standards' as the guiding principle it is inevitable that some of the porn he stocks is offensive to some of his neighbors,..."

It seems salient that the offended neighbors upon whose opinion the ephemeral "community standards" are based have in all likelihood not seen the porn in question and are therefore incapable of offering an informed opinion on it. It seems rather tenuous to curtail the First Amendment rights of an individual on claims of offense by someone who could not possibly have been offended.

The heart of it

JanieBelle — Tue, 22 Jul 2008 17:58:00 -0700

It comes down to this: The federal government should not allow its official picture of the nation to be drawn inaccurately because of religious disagreements about the morality of homosexuality.

Yes, this is exactly the heart of the matter. You have nailed the issue in this post. From ignoring legal marriages to spinning, editing, and outright lying about science on climate science to stem cell research, to promoting prosyletization through government funded programs, our elected officials, most notably the current administration and its cohorts but not excluding the current members of Congress, are not only violating the establishment clause of the first amendment, but are attempting to legislate reality. It is very Orwellian in nature, and theocratic in its leanings. I, quite frankly, do not care for this artificial reality they are trying to establish.

Well thought out and well written, Elizabeth. There is no justifiable reason why same-sex marriages should not be counted in the states wherein they are legal and recognized.

On faith in the government

Elizabeth — Tue, 11 Mar 2008 12:42:36 -0700

Exactly, Lisa. My faith is shaken by their spending priorities, to be sure, but I can't say it's the sexual transactions I question the most!

clarification

Lisa_M — Tue, 11 Mar 2008 12:23:49 -0700

Actually, I don't think other anti-prostitution laws should be on the books. It's just that the Mann Act (a.k.a. White-Slave Traffic Act) has a particularly sordid history of aiding and abetting Jim Crow, and it's a wonder that it has survived.

In any case, it now looks as if a legal case against Spitzer would focus on whether he concealed how he paid for the services. http://www.nytimes.com/2008/03/11/nyregion/11spitzer.html?pagewanted=1&_...

Predictably the Times cites a lobbyist saying, in reference to Spitzer, "This is why people lose faith in government"--as if we'd all be delighted with the status quo if only politicians kept their pants up.

Remember Vitter

Lisa_M — Mon, 10 Mar 2008 18:19:13 -0700

It's a shame that Spitzer will probably get worse treatment than Louisiana Republican Senator David Vitter, a family values and abstinence-only-ed champion, whom two madams identified as an erstwhile regular client last July. Vitter escaped criminal charges due to the statute of limitations and is still in the Senate. Spitzer faces much more serious charges under the 1910 Mann Act, a vestige of Progressive Era moral panic that shouldn't even be on the books.

Apologies!

Elizabeth — Sat, 01 Mar 2008 06:29:19 -0800

Stacey, I am so sorry that this post got lost in the forums list for so many days. Thank you for your patience and a big thank you to Chris for figuring out how to solve the problem and get the post to show up in the forum topics list! I hope that it will now get the attention that it deserves!

Great post!

kerwynk — Wed, 27 Feb 2008 13:49:23 -0800

Just wanted to thank Stacey for such a great post! Kudos! :)

Economic exploitation

Elizabeth — Tue, 26 Feb 2008 15:38:47 -0800

Stacey, it seems to me that you put your finger on something very important: the broader problem of global labor exploitation and its connection to the unsustainable American consumer market. It puts me in mind of something Debbie Nathan said about the day care sex abuse panics of the 80s, and that sociologists have pointed out about other panics: that is, they tend to happen during periods of some great cultural uncertainty/anxiety.

What you're suggesting is much the same, and I think rightly so. We must have to work awfully hard to be blind to the level of exploitation that is necessary to sustain our intensely consumer-oriented lifestyles, and one way to ease that strain -- and the dramatic uncertainty around how long we can continue to live this way -- is to panic about something that seems completely separate from it. That not only makes us feel better because we don't have to think about exploited labor more broadly, but as Ren and others have pointed out it actually diverts resources away from addressing the root problem.

I'd love to draw some immigrant-rights advocates and economic justice folks into this discussion so that we can put more of the pieces together. Thanks for a post that puts them all on the table!

To me it is amazing the

RenegadeEvolution — Mon, 25 Feb 2008 19:26:05 -0800

To me it is amazing the amount of time and resources that are wasted on hunting down and harassing the willing when those things could and should be better put to helping victims.

Age bracketing

Elizabeth — Fri, 22 Feb 2008 06:21:28 -0800

That's an interesting issue, Charles. What kinds of age brackets would seem proper?

As Looong as...

Charles Masterson — Thu, 21 Feb 2008 20:51:05 -0800

Provided the ages are bracketed properly, sex workshops should work out OK. I'm not for cross aging.

It does come off

JanieBelle — Thu, 03 Jan 2008 10:35:45 -0800

as dismissive of both of them, but then the topic being discussed is of direct relevance to the groups depicted.

That said, I've tentatively made my choice of presidential candidate (by process of elimination, unfortunately), and I think I can safely say that none of these types of (intentional or otherwise) subliminal messages has affected that decision. It's just not been a very close descision for me because of the blatant violation of my own particular deal-breakers that I already had in place.

I've already posted (at UDoJ) that every one of the Republicans is right out (and why - including my list of deal-breakers).

I'll be getting to the Democrats shortly.

Reminds me of boarding

Alex — Sun, 23 Dec 2007 20:07:16 -0800

Reminds me of boarding school, where we were wheeled out as a rent-a-crowd for any school occasion. I'll bet that the New York Time photographer has about 20 other shots that can't be used because some of the students in them are asleep.

Oprah is not to be dismissed....

Elizabeth — Sun, 23 Dec 2007 19:34:55 -0800

...and yet the NYT pairing of middle school boys and Sen. Obama, and high school cheerleaders with Sen. Clinton's husband seems dismissive of both. Is it clear which is more dismissive?