8.1 The Right to Condemn and the Right to Speak

Part: 
Two
Chapter: 
8

We are a government commission, and thus most of what we have to say is addressed to government. Yet it is simply mistaken to assume that citizen concerns need be exclusively or even largely channeled into governmental action. We feel it appropriate, therefore, to spend some time in this Report addressing the issue of how citizens might appropriately and lawfully put into practice their own concerns.

At the outset, it should be clear that citizens have every right to condemn a wide variety of material that is protected, and properly so, by the First Amendment. That governmental action against a certain variety of communication is unwise and unconstitutional does not mean that the communication is valuable, and does not mean that society is better off for having it. Earlier in this Report we used the examples of the Nazis and the Ku Klux Klan to illustrate this point, and we could add many more examples to this list. That the Communist Party is a lawful organization does not prevent most Americans from finding its tenets abhorrent, and the same holds true for a wide variety of sexually oriented material. Much of that material is, as we have explained, protected by the First Amendment, but it does not follow that the material is harmless, or that its proliferation is good for society.

The act of condemnation, of course, is itself central to what the First Amendment is all about. Just as speaking out against government has long been part of what citizens are both entitled and indeed encouraged to do, so too is speaking out on matters of concern not directly related to the functioning of government. Expressing a point of view about sexually explicit materials in general, or about particular sexually explicit materials, is plainly the very kind of activity that First Amendment properly protects. To the extent that citizens have concerns about the kinds of sexually explicit material that are available in contemporary America, they should not only recognize that the First Amendment protects and encourages their right to express these concerns loudly and often, but should as well appreciate the fact that in many aspects of our lives to keep quiet is to approve. Moreover, communities are made by what people say and do, by what people approve and what people disapprove, and by what people tolerate and what people reject. For communities, and for the sense of community, community acceptance and community condemnation are central to what a community is.

Although we are concerned here primarily with protest or related action against materials that citizens find harmful, immoral, or objectionable, we do not wish to discount the value of protest directed at government when citizens wish government to do something it is not currently doing. Protest and related activities are entirely appropriate if citizens are dissatisfied with the work of their law enforcement officials, their prosecutors, their administrators and executives, their legislators and their judges. It is certainly appropriate for citizens to protest the work of this Commission. We encourage citizens to be actively involved in what their government is doing, and if they feel that the government is not doing enough, or is doing too much, with respect to prosecution of prosecutable materials, then they should make their wishes known to those who have the power to make changes.