The Taken as a Whole Standard to Determine the Obscene



I am not a feminist, nor would I be identified as a feminist, but if I hear many more presentations like those which preceded mine, I might become one. I am a first amendment absolutist on the issues of expression and advocacy of ideas, and I do not think the Constitution should be interpreted to allow any restrictions on the expression or the advocacy of any idea, irrespective of how popular or repulsive it is. On the other hand, I do not think that that authorizes one to express any idea by any means available. To claim that the only way that certain ideas can be expressed is through the use of obscenity is absurd. This was recently recognized by the Supreme Court in F.C.C. v. Pacifica–the “seven dirty words” case-where it was pointed out that there is a difference between the form of an idea and the expression of an idea.

I am finding it increasingly difficult to remain very cool and collected. But as I see the real life situation, when I get my nose out of the law books, when I stop theorizing, when I stop focusing on the strict interpretation of constitutional principles, it becomes a little difficult to remain totally unemotional. Just recently, I met with a little girl who between the ages of three and five had been sexually molested by her pedophiliac father. Seeing the trauma that she is going through and seeing that in spite of all efforts, the courts have awarded full custody of that child to the pedophiliac father makes it very difficult not to get emotional.

What I want to emphasize is that the pictures that you have seen on the screen are not just isolated remote instances. We’re talking about things that occur in Memphis, Tennessee. We are talking about a serious problem. I think the Constitution allows us plenty of leeway to deal with this problem. If our society is so weak, if we are a big dog that can be wagged by such a little tail in the name of constitutionality, our Constitution is in serious trouble.

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