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Ashcroft v. Free Speech Coalition - Wikipedia

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Porn-free relationships are stronger, with a lower rate of infidelity. You might want to keep that in mind if you've been watching the hard stuff or if you've. A porn addiction is a compulsive behavior that can do harm to on your cell phone during work or in social situations where you might be seen. Ashcroft v. Free Speech Coalition, U.S. (), is a U.S. Supreme Court case which The Court extended Ferber to mere possession of child pornography in Osborne Ferber expressly allowed virtual child pornography as an alternative that could preserve whatever literary value child pornography might arguably.

Although the CPPA's objective was to prohibit illegal conduct, it went well beyond that goal by restricting speech available to law-abiding adults. And if the goal was to eliminate the market for all child pornography, the Court ruled that the government could not accomplish that goal by eliminating lawful speech in the process.

The burden should not, however, fall on the speaker to prove that his speech is lawful, instead of on the government to prove that it is not. Furthermore, such an affirmative defense is "incomplete on its own terms" because it "allows persons to be convicted in some instances where they can prove children were not exploited in the production.

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Dissenting opinion[ edit ] Chief Justice Rehnquist put forth a dissenting opinionwhich began with a concern that rapidly advancing technology would soon make it very difficult, if not impossible, to distinguish between pornography made with actual children and pornography made with simulated images of children. But it had not done so, and Rehnquist believed that the statute did not need to be construed to allow the government to do so.

Rehnquist observed that the CPPA banned only depictions of minors engaged in actual sexual activity, not mere suggestions of sexual activity. CPPA simply outlawed "computer-generated images virtually indistinguishable from real children in sexually explicit conduct. And as for the "conveys the impression" provision, Rehnquist categorized this provision as merely an anti-pandering provision. Because one could, by definition, only pander obscenity, and that which the panderer knew to be obscenity in any event, that provision also did not violate the First Amendment.

In some instances, Feinberg suggests, we also need an offense principle that can guide public censure. The basic idea is that the harm principle sets the bar too high and that we can legitimately prohibit some forms of expression because they are very offensive.

Offending is less serious than harming so any penalties imposed should not be severe. As Feinberg notes, this has not always been the case and he cites a number of instances in the U. Feinberg's principle reads as follows: Such a principle is hard to apply because many people take offense as the result of an overly sensitive disposition, or worse, because of bigotry and unjustified prejudice.

A further difficulty is that some people can be deeply offended by statements that others find mildly amusing. The furore over the Danish cartoons brings this starkly to the fore. Despite the difficulty of applying a standard of this kind, something like the offense principle operates widely in liberal democracies where citizens are penalized for a variety of activities, including speech, that would escape prosecution under the harm principle.

Wandering around the local shopping mall naked, or engaging in sexual acts in public places are two obvious examples. Given the specific nature of this essay, I will not delve into the issue of offensive behavior in all its manifestations, and I will limit the discussion to offensive forms of speech.

Feinberg suggests that many factors need to be taken into account when deciding whether speech can be limited by the offense principle. These include the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community.

Given the above criteria, Feinberg argues that books should never be banned because the offensive material is easy to avoid. If one is unaware of the content and should become offended in the course of reading the text, the solution is simple-close the book. A similar argument would be applied to erotic films. The French film Baise-Moi was in essence banned in Australia in because of its supposed offensive material it was denied a rating which meant that it could not be shown in cinemas.

It would seem, however, that the offense principle outlined by Feinberg would not permit such prohibition because it is very easy to avoid being offended by the film. It should also be legal to advertise the film, but some limits could be placed on the content of the advertisement so that sexually explicit material is not placed on billboards in public places because these are not easily avoidable.

At first glance it might seem strange to have a more stringent speech code for advertisements than for the thing being advertised; the harm principle would not provide the grounds for such a distinction, but it is a logical conclusion of the offense principle.

What of pornography i.

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In this case the offense is more profound: The difficulty here is that bare knowledge, i. If we allow that films should be banned because some people are offended, even when they do not have to view them, consistency demands that we allow the possibility of prohibiting many forms of expression. A lot of people find strong attacks on religion, or t. Feinberg argues that even though some forms of pornography are profoundly offensive to many people, they should not be prohibited on these grounds.

The discomfort caused to the targets of such attacks cannot be shrugged off easily. As with violent pornography, the offense that is caused by the march through Skokie cannot be avoided simply by staying off the streets because offense is taken over the bare knowledge that the march is taking place. As we have seen, however, bare knowledge does not seem sufficient grounds for prohibition.

But in respect to some of the other factors regarding offensive speech mentioned above, Feinberg suggests that the march through Skokie does not do very well: These reasons also hold for violent pornography which Feinberg suggests should not be prohibited for reasons of offense.

A key difference, however, is the intensity of the offense; it is particularly acute with hate speech because it is aimed at a relatively small and specific audience. The motivations of the speakers in the Skokie example seemed to be to incite fear and hatred and to directly insult members of the community through the use of Nazi symbols. Nor, according to Feinberg, was there any political content to the speech.

The distinction between violent pornography and the Skokie example of hate speech is that a particular group of people were targeted and the message of hate was paraded in such a way that it could not be easily avoided.

It is for these reasons that Feinberg suggests hate speech can be limited by the offense principle.

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He also claims that when fighting words are used to provoke people who are prevented by law from using a fighting response, the offense is profound enough to allow for prohibition. If pornographers engaged in the same behaviour and paraded through neighborhoods where they were likely to meet great resistance and cause profound offense, they too should be prevented from doing so. It is clear, therefore, that the crucial component of the offense principle is whether the offense can be avoided.

Feinberg's principle means that many forms of hate speech will still be allowed if the offense is easily avoidable. It still allows Nazis to meet in private places, or even in public ones that are easily bypassed.

Advertisements for such meetings can be edited because they are less easy to avoid but should not be banned. It seems Feinberg thinks that hate speech does not, in and of itself, cause direct harm to the rights of the targeted group he is not claiming that offence equals harm and he would be troubled by some of the prohibitions on speech in the U.

Most support some form of the offense principle. Some liberal philosophers are willing to extend the realm of state interference further and argue that hate speech should be banned even if it does not cause harm or unavoidable offense. The reason it should be banned is that it is inconsistent with the underlying values of liberal democracy to brand some citizens as inferior on the grounds of race, religion, gender or sexual orientation. The same applies to pornography; it should be prevented because it is incompatible with democratic citizenship to portray women as submissive sexual objects, who seem to enjoy being violently mistreated.

Rae Langton, for example, starts from the liberal premise of equal concern and respect and concludes that it is justifiable to remove certain speech protections for pornographers. She avoids basing her argument on harm: Working within the framework of arguments supplied by Ronald Dworkin, who is opposed to prohibitive measures, she tries to demonstrate that egalitarian liberals such as Dworkin should support the prohibition of pornography. Because she is not basing her argument on the harm principle, she does not have to show that women are harmed by pornography.

For the argument to be persuasive, however, one has to accept that permitting pornography does mean that women are not treated with equal concern and respect. It also seems that the argument can be applied to non-pornagraphic material that portrays women in a demeaning way that undermines their status as equals. This is a sensible approach according to Stanley Fish.

He suggests that the task we face is not to arrive at hard and fast principles that prioritise all speech. Instead, we have to find a workable compromise that gives due weight to a variety of values. Supporters of this view will remind us that when we are discussing free speech, we are not dealing with it in isolation; what we are doing is comparing free speech with some other good. We have to decide whether it is better to place a higher value on speech than on the value of privacy, security, equality, or the prevention of harm.

Is speech promoting or undermining our basic values?

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The task is not to come up with principles that always favors expression, but rather, to decide what is good speech and what is bad speech. Is it more in keeping with the values of a democratic society, in which every person is deemed equal, to allow or prohibit speech that singles out specific individuals and groups as less than equal?

These kinds of justification for prohibitions on hate speech suggest that the permissive approach undermines free speech properly understood. Even if hate speech or pornography does not cause harm in Mill's sense or offense, it has to be limited because it is incompatible with democracy iteslf. The argument from democracy contends that political speech is essential not only for the legitimacy of the regime, but for providing an environment where people can develop and exercise their goals, talents, and abilities.

If hate speech and pornography curtail the development of such capacities in certain sections of the community, we have an argument, based on reasons used to justify free speech, for prohibition.

According to Fish, the boundaries of free speech cannot be set in stone by philosophical principles. It is the world of politics that decides what we can and cannot say guided, but not hidebound, by the world of abstract philosophy. Fish suggests that free speech is about political victories and defeats. The very guidelines for marking off protected from unprotected speech are the result of this battle rather than truths in their own right: Speech always takes place in an environment of convictions, assumptions, and perceptions i.

The thing to do, according to Fish, is get out there and argue for one's position. We should ask three questions according to Fish: He suggests that the answers we arrive at will vary according to the context. Free speech will be more limited in the military, where the underlying value is hierarchy and authority, than it will be at a university where one of the main values is the expression of ideas.

Even on campus, there will be different levels of appropriate speech. Spouting off at the fountain in the centre of campus should be less regulated than what a professor can say during a lecture. It might well be acceptable for me to spend an hour of my time explaining to passers-by why Manchester United is a great football team but it would be completely inappropriate and open to censure to do the same thing when I am supposed to be giving a lecture on Thomas Hobbes. Almost all places in which we interact are governed by underlying values and speech will have to fit in with these ideals: Thinking of speech in this way removes a lot of its mystique.

Whether we should ban hate speech is another problem, albeit more serious, similar to whether we should allow university professors to talk about football in lectures.

There are arguments, however, that suggest speech can be limited to prevent harm being done to the speaker. The argument here is that the agent might not have a full grasp of the consequences of her actions whether it be speech or some other form of behavior and hence can be prevented from engaging in the act. Arguments used in the Skokie case would fit into this category and there is evidence to suggest that watching pornography can cause psychological damage the viewer.

Most liberals are wary of such arguments because they take us into the realm of paternalistic intervention where it is assumed that the state knows better than the individual what is in his or her best interests.

Mill, for example, is an opponent of paternalism generally, but he does believe there are certain instances when intervention is warranted. He suggests that if a public official is certain that a bridge will collapse, he can prevent a person crossing. If, however, there is only a danger that it will collapse the public can be warned but not coerced from crossing.

The decision here seems to depend on the likelihood of personal injury; the more certain injury becomes, the more legitimate the intervention.

Prohibiting freedom of speech on these grounds is very questionable for liberals in all but extreme cases it was not persuasive in the Skokie case because it is very rare that speech would produce such a clear danger to the individual. We have examined some of the options regarding limitations on free speech and one cannot be classed as a liberal if one is willing to stray much further into the arena of state intervention than already discussed. Liberals tend to be united in opposing paternalistic and moralistic justifications for limiting free expression.

They hold a strong presumption in favor of individual liberty because, it is argued, this is the only way that the autonomy of the individual can be respected. Feinberg suggests that to prohibit speech for reasons other than those already mentioned means: Many arguments against pornography take the form that such material is wrong because of the moral harm it does to the consumer.

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Liberals oppose such views because they are not impressed by states trying to mold the moral character of citizens. Back to the Harm Principle We began this examination of free speech with the harm principle; let us end with it. The principle suggests that we need to distinguish between legal sanction and social disapprobation as means of limiting speech.

As already noted, the latter does not ban speech but it makes it more uncomfortable to utter unpopular statements.

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Mill does not seem to support the imposition of legal penalties unless they are sanctioned by the harm principle. As one would expect, he also seems to be worried by the use of social pressure as a means of limiting speech. Chapter III of On Liberty is an incredible assault on social censorship, expressed through the tyranny of the majority, because he claims it produces stunted, pinched, hidebound and withered individuals: It is quite a surprise, therefore, to find that he also seems to embrace a fairly encompassing offense principle when the sanction does involve social disapprobation: Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners and, coming thus within the category of offenses against others, may rightly be prohibited.

In the latter parts of On Liberty Mill also suggests that distasteful people can be held in contempt, that we can avoid them as long as we do not parade itthat we can warn others about them, and that we can persuade, cajole and remonstrate with those we deem offensive.

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These actions are legitimate as the free expression of anyone who happens to be offended as long as they are done as a spontaneous response to the person's faults and not as a form of punishment.

But those who exhibit cruelty, malice, envy, insincerity, resentment and crass egoism are open to the greater sanction of disapprobation as a form of punishment, because these faults are wicked and other-regarding. It may be true that these faults have an impact on others, but it is difficult to see how acting according to malice,envy or resentment necessarily violates the rights of others.

The only way that Mill can make such claims is to incorporate an offense principle and hence give up on the harm principle as the only legitimate grounds for interference with behavior. Overall, Mill's arguments about ostracism and disapprobation seem to provide little protection for the individual who may have spoken in a non-harmful manner but who has nevertheless offended the sensibilities of the masses. It does, however, remain a crucial part of the liberal defense of individual freedom.

Conclusion Liberals tend to justify freedom generally, and free speech in particular, for a variety of reasons. According to Mill, free speech fosters authenticity, genius, creativity, individuality and human flourishing. He tells us that if we ban speech the silenced opinion may be true, or contain a portion of the truth, and that unchallenged opinions become mere prejudices and dead dogmas that are inherited rather than adopted. These are empirical claims that require evidence.

Is it likely that we enhance the cause of truth by allowing hate speech or violent and degrading forms of pornography? It is worth pondering the relationship between speech and truth. If we had a graph where one axis is truth and the other is free speech, would we get one extra unit of truth for every extra unit of free speech? How can such a thing even be measured?

It is certainly questionable whether arguments degenerate into prejudice if they are not constantly challenged. Devil's advocates are often tedious rather than useful interlocutors. Sometimes supporters of free speech, like its detractors, have a tendency to make assertions without providing compelling evidence to back them up.

None of this is meant to suggest that free speech is not vitally important: But regardless of how good these arguments are, some limits will have to be placed on speech. We have found that the harm principle provides reasons for limiting free speech when doing so prevents direct harm to rights. This means that very few speech acts should be prohibited. It might be possible to broaden the scope of this principle, as Waldron attempts to do, to include things other than harmful rights violations.

Feinberg's version of the offense principle has a wider reach than the harm principle, but it still recommends very limited intervention in the realm of free speech. All forms of speech that are found to be offensive but easily avoidable should go unpunished. This means that much pornography and hate speech will escape censure. If these arguments are acceptable, it seems reasonable to extend them to other forms of behavior. Public nudity, for example, does not cause serious harm and if it does offend some people it is at most a bit embarrassing, and is avoided by averting one's eyes.

The same goes with nudity, sex, and coarse language on television. Turning off the television provides instant relief from the offense. Neither the harm or the offense principles as outlined by Mill and Feinberg support criminalizing most drug use, nor the enforcement of seat belts, crash helmets and the like. Some argue that speech can be limited for the sake of other liberal values, particularly the concern for democratic equality. This argument, unlike those based on harm and offense, has the potential to allow significant limits on pornography and hate speech.

The claim is not that speech should always lose out when it clashes with equality, but it certainly should not be automatically privileged. To extend prohibitions on speech and other actions beyond this point requires an argument for a form of legal paternalism that suggests the state can decide what is acceptable for the safety and moral instruction of citizens, even if it means limiting actions that do not cause harm or unavoidable offense and which do not undermine democratic equality.

It has certainly been the practice of most societies, even liberal-democratic ones, to impose some paternalistic restrictions on behavior and to limit speech that causes avoidable offense. Hence the freedom of expression supported by the harm principle as outlined in Chapter One of On Liberty and by Feinberg's offense principle has yet to be realised.

It is up to the reader to decide if such a society is an appealing possibility. Speaking Respect, Respecting Speech, Chicago: University of Chicago Press.

Trials of the First Amendment, London: Yale University Press Alexander, L. Is There a Right to Freedom of Expression? Cambridge Studies in Philosophy and Law. Freeing the first Amendment: New York University Press. Human Liberty and Freedom of Speech, Oxford: Private Right or Public menace? Freedom of Speech, 2nd edition, Oxford: The Tolerant Society, Oxford: Free Speech in the Modern Era, Chicago: A pornographic work is characterized as hardcore if it has any hardcore content, no matter how small.

Both forms of pornography generally contain nudity. Softcore pornography generally contains nudity or partial nudity in sexually suggestive situations, but without explicit sexual activity, sexual penetration or "extreme" fetishism[47] while hardcore pornography may contain graphic sexual activity and visible penetration, [48] including unsimulated sex scenes. Subgenres Pornography encompasses a wide variety of genres.

Pornography featuring heterosexual acts composes the bulk of pornography and is "centred and invisible", marking the industry as heteronormative. However, a substantial portion of pornography is not normative, featuring more nonconventional forms of scenarios and sexual activity such as "'fat' porn, amateur porn, disabled porn, porn produced by women, queer porn, BDSM, and body modification.

Reality and voyeur pornography, animated videos, and legally prohibited acts also influence the classification of pornography.