I could go further and discuss the cases that touch on pornography and obscenity, also part of our moral ecology. For decades, communities in America have tried to shore up common decency, have tried to guard their collective moral capital, by regulating smut. Congress has likewise responded to Americans’ moral sensibilities by attempting to regulate broadcast media and the Internet. But time and again over the past generation America’s communities and Congress have run up against a Supreme Court intent to side against the American people and with the pornographers. The Court’s doctrine has been that virtually all efforts to regulate smut run afoul of the First Amendment, which the Court says protects all individuals’ “freedom of expression.”
Senator Rick Santorum, the junior United States senator from Pennsylvania, Chairman of the Senate Republican Conference, and the third-highest-ranking Republican in the U.S. Senate in an excerpt, A Perfect Storm from It Takes a Family. It would be frightening if this criticism of the Supreme Court’s appreciation of the First Amendment came from a disaffected journalist, but form a United States Senator, is simply appalling. A man who has done everything in his privileged position of power to change the Constitution lacks the moral authority to determine decency.
In an interview with Fox News, Santorum said:
…every church has a ruling council of some sort that defines what the faith is. And, you know, my feeling is that I have a right as a Catholic politician to uphold the values that I believe are important to me, and important, that I believe, for this country. And I think in this case they're consistent.
But I think it's important to have moral leaders speak out. I mean, that's their right, to speak out and to let politicians, as well as every other American, know what they believe the moral imperatives are for our society.
The Senator is attempting to have it both ways. The First Amendment is not designed to accommodate only what Rick Santorum believes is appropriate. His religious beliefs should not impact those who do not ascribe to them, any more than he should be forced to look at “pornographic” images he has the right and capability to refrain from. Further, his attempt to construct a speech hierarchy -- to distinguish among speech that is written versus imagery is an affront to every artist, photographer, singer, musician, performance artist, mime and on and on and on...
But you may have noticed that in pornography the words aren’t really the point, are they? “Speech” implies words, rationally intelligible discussion and argument, communication. Pictures also can be “worth a thousand words,” of course: Sometimes images are central to a political or social cause. But America’s huge porn industry is not about political debate; it is not about the communication of ideas. It’s about the commercial production of objects of titillation for profit. Based on the text of the Constitution, the courts should have recognized a hierarchy of protected “speech,” with political speech and writing receiving the greatest constitutional protection, commercial speech less protection, and mere titillation the least of all. Yet in the topsy-turvy world of the new court-approved morality, limits on political speech like the recently passed McCain-Feingold campaign finance bill are just fine, but congressional restrictions on Internet pornographers are seen as violating the First Amendment and are therefore struck down.
Thankfully, Mr. Santorum is merely a Senator and neither an artist nor a Supreme Court Justice. America, is stronger and smarter than that, one hopes.
On the issue of the Supreme Court, The Reporters Committee for Freedom of the Press has constructed an overview of free press issues on record by Supreme Court nominee, John Roberts.