John Roberts on Porn

The following exchange took place yesterday between Supreme Court Chief Justice nominee John Roberts and anti-porn advocate Sen. Mike DeWine (R-Ohio).

DEWINE: Since you’ve talked about the Internet, let me turn to a disturbing trend in regards to the Internet. And that has, quite frankly, to do with pornography.

We have passed several bills in Congress — Communications Decency Act — to protect our children. The Supreme Court struck it down. I’m not going to ask you to comment about that.

A few years later, we passed the Child Online Protection Act, again, with the intent to protect our children. Again, the court struck it down.

Unlike the traditional public square, the Internet has really become a place for the distribution of some, I find, very troubling material, and that is pornography.

And I guess what bothers me about these cases is they failed to account for something that, to me, at least, is very relatively simple. And that is that at the core of the First Amendment is, to me, at least, the protection of political speech, speech on matters of public concern I have talked about this before.

But it seems to me that pornography is different, particularly pornography that children can easily access. It seems to me that that should be treated differently than political speech.

Famous case: Young v. American Mini Theatres. In that case, the court upheld zoning regulations on adult theaters. Justice Stevens, hardly a right-winger, had this to say, and I quote, Even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials and have some arguably artistic value, it is manifest that society’s interest in protecting this type of expression is of a wholly different and lesser magnitude than the interest in untrammeled political debate.

Few of us would march our sons and daughter off to war to preserve the citizens’ right to see, quote, ‘specified sexual activities,’ end of quote, exhibited in the theaters of our choice, end of quote. DEWINE: Judge, in light of that question, here are my questions.

Are there or should there be different levels of speech under the First Amendment? Should pornography, for instance, be treated with less regard than Mark Twain’s Huck Finn ? And how would you, if confirmed to the Supreme Court, decide what protection, if any, certain kinds of expressions are entitled to under the First Amendment?

ROBERTS: Well, Senator, it’s my understanding, under the Supreme Court’s doctrine, that pornographic expression is not protected to the same extent, at least, as political and core speech. And the difficulty that the court has addressed in these different areas, of course, is always defining what is or is not pornography and what is entitled to protection under the First Amendment and what is not.

That question is, sort of, antecedent to the question of what the level of protection is, to determine whether it’s entitled to First Amendment protection in the first place. And certain types of speech, like child pornography, the court has determined are not entitled to protection under the First Amendment.

There are different categories, and the court has struggled over the years in figuring out how to determine those categories and what belongs in what category. And beyond that, I don’t think I can give a more precise answer.

Be the first to comment

Leave a Reply