Pornography and the Constitution

"Is Sexually Explicit Material Protected by the Bill of Rights?"

By
Nathan Albright

A few months ago, the United States Supreme Court blocked the enforcement of the 1998 Child Protection Act. This legislation would have banned online pornography accessible to children, and set heavy penalties on those who would purvey it to any minor. The court concluded that such a law was unenforceable and therefore should be removed. However, some justices disagreed and argued that not only was the law enforceable but that the Government had already installed mechanisms to ensure that only adults could access sexually explicit material which now dominates the internet.

Perhaps the greatest tragedy rendered by this esteemed community of jurists is revealed in what they did not do. Sadly, there were no votes asserting that pornography was horribly wrong and posed a clear and present danger to this country. But lo, it seems that these nine justices who preside over the judicial branch of our government believe that even smut is a protected form of speech. But is this really the case?

To better grasp this issue, it would be helpful to examine pornography in a historical context. Let us begin by attempting to define the term. Pornography comes from the Greek words “pornea” and “graphe.” “Pornea” is a broad term that is used to describe a variety of sexual sins ranging from adultery to fornication to homosexuality and even worse. “Graphe” means to write. Hence, pornography refers to literary materials of an illicit sexual nature. Today this term also includes other methods of conveyance such as movies and/or music.

In the view of most professing Christians, the term pornography refers to something that is egregiously sinful by biblical standards, and God’s word bears this out. Throughout the scriptures the Eternal’s people are warned to refrain from all sexual immorality. Additionally, the children of Israel were commanded by Him to execute anyone who trespassed in this area. It was literally a capital crime. Imaging what our world would be like if it held to the same view as God imparted to ancient Israel.

Pornography in Antiquity

According to some authorities, pornography itself first developed as an “art form” in the Roman period (although it is possible the Greeks may have invented it earlier). Wall drawings in Pompeii containing erotic poses and actions are considered to be the oldest surviving example of erotica. However, some sexually explicit literature is even older, going back to numerous pagan myths such as the Egyptian account of creation, which contains references to masturbation. Additionally, certain references to sexually explicit actions in the ancient world can be seen in popular literature like the Kama Sutra, or pagan activities such as ritual prostitution practiced in Canaan in the biblical period. The point here is that pornography has been a corrosive influence on societies for millennia.

We now come to the Constitution and its relationship to laws regarding sexually explicit materials vs. freedom of speech. However, before we go there, let us examine this topic from the standpoint of a higher legal and moral authority, the Bible.

The Bible speaks with great force regarding sexual immorality (pornea) and to suggest that God simply opposes it is a huge understatement. God HATES this sin! He abhors it! He does so in part because it goes totally contrary to His purpose for mankind. God invented sex and revealed its proper use. Consider what Jesus Himself said when explaining why God created man and woman in the first place. When speaking to the religious leaders of His day, Jesus said: “Have you not read, that He which made them at the beginning made them male and female, For this reason shall a man leave his father and mother, and cleave unto his wife: and they twain shall be one flesh” (Mt.19:4-5). The words the Messiah used when speaking to the Pharisees at this time were taken from the very first marriage ceremony in history. They were used in the Garden of Eden when God joined Adam and Eve together as husband and wife (Gen. 2:24).

Later the apostle Paul used the identical words spoken by Jesus, and explained that the God ordained purpose for marriage was to picture the relationship between Jesus Christ and His church (Eph.5:31-32). Imagine that! God designed sex and marriage to picture something divine. Marriage involves intimacy and trust and contrary to what some may argue, pornography doesn’t advance either of these wonderful qualities. Pornography is a wrecker of lives, a thief of innocence, and a destroyer of civilizations. It is an enemy that man would be wise to avoid because despite what so many contend, this is one thing that cannot be done in moderation. In the United States sexual addiction has reached epidemic proportions and the numbers keep growing. Despite this fact, our culture can’t seem to get enough of it. One only has to go to the Internet to find virtually thousands of examples of smut and filth laid “bare” in the name of freedom.

At this point, it is important to understand that mankind was created in the very image of God Himself. With this in mind, what does the exploitation of sex say to that Creator? Does it reinforce His purpose for love and family or does it mock that purpose? Does it show deference to the Eternal God of heaven or does it mock Him (Gal.6:7). Mankind may be ambivalent when it comes to sexual immorality but God most definitely is not. Here is what He says about such things: Jesus said adultery “defiles the man” (Matt.15:19). In the Old Testament God declared to Israel that it was a capital offense (Lev.20:10). In the New Testament the apostle Paul called it a work of the flesh (Gal.5:9).

When it comes to fornication the scriptures are just as clear in their condemnation. Paul called it a sin against the body (1Cor.6:18). Jesus indicated that it was grounds for annulling a marriage (Mt.5:32). But it doesn’t end there. The Bible also speaks powerfully against other sexual sins that are frequently seen in pornography. For example: pornographic depictions of homosexuality have become very popular in the western world. However, once again God’s word thunders His indictment against this perversion. The apostle Paul called homosexuals “lawless and disobedient” (1Tim.1:10). The book of Deuteronomy states that their sacrifices were not acceptable to God (Dt.23:17-18). In the Old Testament the penalty for such behavior was death (Lev.20:13). In the New Testament the pronouncement is even worse. When writing to the church at Corinth, Paul included homosexuals among those who would not enter God’s Kingdom (1Cor.6:9). Clearly the God of the Bible understands promiscuity to be a mortal threat to man’s happiness and as such condemns it in all its forms.

But what does this have to do with the Constitution – and the freedoms Americans hold so dear? The answer: more than you might think. First of all, In 1986 the US government’s Meese Commission established an official definition of pornography. It defined it as "any depiction of sex to which the person using the word objects." Hence it is not only entirely appropriate but also legally justifiable to view sexually explicit material as pornographic. The point here is that our government does have the power to make moral judgements. It has both the authority and the responsibility to define what is obscene. Contrary to the assertions of porn advocates, there are limitations on freedom. There is a place where even the Constitution will provide no refuge. And despite the rulings of a timid judiciary, pornographers reside in that place. But what about the first amendment? Doesn’t it protect the publishing of sexually explicit materials?

To understand this issue one needs only to look at the context in which the Constitution was written. First it is important to understand that the founding fathers of this country were very religious even if not churchgoing. For them, freedom of religion did not mean freedom from religion. The great architects of this nation did not see God as a threat to the republic as many do today, but rather as a sustaining force on which the moral underpinnings of this nation were anchored. Their letters and speeches are filled with biblical invocations to virtue as well as numerous scriptural citations. To illustrate this point consider the words of Thomas Jefferson.

God, who gave us life, gave us liberty. And can the liberties of a nation be secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are a gift of God.

This is only one of virtually thousands of references to God as a great benefactor of this land and the moral cornerstone of this country. This being the case one can only conclude that any protected speech for them would have to come from a moral perspective. It is simply disingenuous to suggest otherwise. However, some may argue that freedom of speech is just that, FREE! No restrictions! No limits! After all it’s in the Constitution. You know -- the Bill of Rights.

With this in mind, let us consider the purpose of the First Amendment of our nation’s most cherished document in order to understand what kind of speech it was intended to protect. When James Madison with the aid of others wrote the Bill of Rights it was done so to safeguard American citizen as well as states from the potential tyranny of a centralized federal government. Free Speech was designed to protect people who disagreed with the constituted authority of the country. It was a safeguard against the threat of governmental pressure or punishment. In other words, the right to free speech was meant to protect legitimate ideas, even descent. What it was never intended to do was to protect sin. Despite some problems with Sedition laws in 1898 and 1917, this understanding held true until the 1960’s.

It was during this very permissive decade that pornography sought legitimacy and protection as free speech. At first it was a stretch to persuade the courts that smut deserved such protection. After all speech was always regarded as something cognitive. In other words, it was intended to affect the intellect or the emotions of those it touched. Pornography did neither. Its purpose was to cater to the baser side of man. It wasn’t intended to make one think or feel. It did not inspire hope or fear or anything else. Even the distributors of pornography understood this truth. This was made evident by the fact that sexually explicit movies and magazines were routinely promoted by the porn industry as “the filthiest” or “the dirtiest” thing you will ever see.

However, when it became apparent that no judge would consider such material as anything other than pornographic, smut peddlers took a new approach. They referred to their product as art. Pornographic movies became “art films.” Magazines began to offer advice to gentlemen. And strip joints became clubs. This approach satisfied two needs of the porn industry. First it reached out to a broader range of potential consumers. And second, it satisfied the legal arguments that threatened it. In a very real sense this new packaging of sex was nothing more than a cynical attempt to circumvent the law. Tragically, it worked. As a result we live in a nation that is incapable of distinguishing between decency and indecency. It is hard to imagine that the founding fathers would struggle with such an issue. Perhaps it is because they were moral men. Oh, to be sure they had flaws. But they were resolute patriots who spoke with great moral clarity. To suggest that the Constitution they so valiantly labored over could be profaned by man so base is an insult to decency and a slap in the face of freedom.

A Final Thought

There was once a time in our nation’s rich history when pornography was recognized for what it really was—a moral sin. However, once American courts caved in to the lowest moral voice, pornography’s availability (in print and Internet form) became a fact of life. However, its consequences have also become all too familiar on the American landscape. Its scars have been tragic and widespread—ranging from increased sexual activity, to diseases, to broken homes and mangled lives. It is something that has enslaved virtually millions of Americans. Oh well, so much for freedom.