“Pornographic materials . . . receive full First Amendment protection when in the possession of ordinary adults.” So wrote Judge Susan L. Carney in the recently decided Second Circuit case, United States v. Eaglin. She did so in striking down a ban―imposed on a sex offender―on possessing adult material.
I am not sure James Madison had this situation in mind when he wrote the First Amendment in 1791.
For the last century, the Supreme Court has struggled to clarify pornography’s connection to the First Amendment’s declaration that “Congress shall make no law . . . abridging the freedom of speech.” In theory, “obscene” material falls under one of several categories that receive no free speech protection. However, the question of what obscenity entails has dogged the Court. In cases such as Roth v. United States (1957), Memoirs v. Massachusetts (1966), and Miller v. California (1973), the Court articulated a series of tests to try to give standards for what the concept includes and excludes. The results have pleased few. By now, the Court has so tightly defined obscenity that lower courts do not categorize all pornography within it. Instead, district and circuit judges distinguish between most pornography and what is called the obscene variety—such as that involving underage children. Therefore Judge Carney can assert that the First Amendment protects the possession of pornography, as though this were a basic, settled point of law.
Frankly, the creeping (and creepy) expansion of pornography rights shows that our discussion of free speech could use a reset. We should consider anew the underlying purpose and context for the right. Doing so would better determine its application in our political life today.
The work of Aristotle provides a helpful place to start. Looking to an ancient Greek when discussing America’s First Amendment may seem strange, but Aristotle presents one of the earliest discussions of speech—both in itself and in relation to a political community. His works were read widely by the Founders. His views are already implied in certain court precedents, and they point a path forward. In this essay, I look to Aristotle’s Politics, where we find a discussion of the nature, end, and context of speech. This discussion then provides a basis for considering the grounds of free speech, putting speech’s relationship to pornography in a very different light.
To defend free speech, we first must understand speech. In Book 1 of the Politics, Aristotle describes speech as a characteristic unique to human beings. Beasts possess voice, through which they “signal . . . to each other” in a manner that “indicates the painful or pleasant.” They thereby communicate merely their reactions to physical sensation. Speech involves more than these reactions; it is also the external manifestation of reason. Unlike animals, we humans―through reason―can think: we can contemplate abstract concepts and follow complex trains of logic from premise to conclusion.
This distinction places speech in a special category, because its exercise both affirms and declares our humanity. At times, the courts have recognized this truth is some way. In his concurrence in Procunier v. Martinez, for instance, Justice Thurgood Marshall wrote that “The First Amendment serves . . . the needs . . . of the human spirit—a spirit that demands self-expression. Such expression is an integral part of the development of ideas.” In other words, speech serves a fundamental need in humans that includes the use of reason for “the development of ideas.”
Aristotle’s definition of speech informs his discussion of its purpose. What do we talk about with our reasoned communication? Obviously, our speech must do more than signal our sensations of pleasure and pain.
Aristotle argues that humans use their speech to discuss the “advantageous and the harmful, and hence also the just and the unjust.” Man alone communicates regarding these topics, because man alone possesses the capacity to think about them. Only the use of reason allows humans “[to perceive] good and bad and just and unjust and the other things of this sort.” Only reason can perceive “things of this sort” because they exist outside our immediate physical sensations. To know justice, for example, we must consider what principles define right relations. While these right relations must apply to particular circumstances, they involve the capacity to distinguish in general between what is and what ought to be.
Still, in theory, humans could exercise our reason solely by thinking about concepts like justice and what is advantageous. But we do more: we also communicate our thoughts to others. Here we move toward a fuller account of speech’s purpose. In speech, we make our insights concerning justice and the advantageous known to others. Why would we wish to do so? Because we hope to inform and to persuade. Through our speech, we want others to come to know and to concur with our own conclusions. We also want to gain further knowledge for ourselves: we wish to be persuaded by the speech of others.
The Supreme Court has recognized that persuasion regarding matters of justice is an essential purpose of free speech. For example, in Snyder v. Phelps, the case involving a lawsuit against the infamous Westboro Baptists, Chief Justice Roberts recites numerous precedents in his discussion of the core principles of the Free Speech Clause. He notes that “speech on ‘matters of public concern’ . . . is ‘at the heart of the First Amendment ’s protection.’” In his view, “The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,’” and “that is because ‘speech concerning public affairs is more than self-expression; it is the essence of self-government.’” We speak so that others might not only hear but be affected. We listen to speech so that we ourselves might know better.
Aristotle declares that our capacity for and use of speech make us “political animals.” We communicate our reasoned thoughts for the purpose of persuading others about what is just and advantageous. That purpose in itself contains a political component. But our attempts to convince others include a further goal: we speak in order to call others to action. Aristotle says that “community in these things is what makes . . . a city.” Through speech, we form constitutions, laws, and other structures built on our understanding of justice and advantage: we seek to create and to sustain political communities.
This point, too, we see articulated by federal courts. In Eaglin, Judge Carney placed the defendant’s free speech rights in the context of the community. She asserted that “to consign an individual to a life virtually without access to the Internet is to exile that individual from society.” In contemporary times, a person who lacks access to the Internet―one of the most used media of speech―is cut off from the community. Similarly, in the Supreme Court case of Packingham v. North Carolina (2017), Justice Anthony Kennedy’s majority opinion declared that a “fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” Again, speech takes place in a community, and it serves as a means of persuading others within that community to act.
Speech, therefore, is essential to the formation and the continuation of human communities. And because political life is essential to our humanity, Aristotle declares, the “city (polis) is . . . prior by nature . . . to each of us,” for through it—including the speech that takes place in it—we are fully human.
Free Speech Redux
Aristotle’s understanding of speech sets up a case for why it must be free. First, speech is an essential element of our humanity, because it is an expression of our reason―our distinctively human trait. Therefore, to prohibit a person from speaking is to declare that person to be outside mankind. Second, speech is a fundamental part of our common life. Through it, we discuss and decide matters of justice, and thereby protect the principles and persons that we love. The only alternative for creating a common life is to use brute force: to replace the liberty of the voice and the pen with the tyranny of the sword.
Thus, wide latitude should be given to speech that addresses matters of common concern. We must encourage the exercise of this most human and communal capacity, not seek ways to undermine it. We must grant a broad leeway for the form this speech may take as well, whether it be a monologue or a poem, an armband or a play. We may place some limits on its time and place—as the courts have recognized—but these should be the exception, not the rule.
Pornography Undermines True Speech
These points establish limits on what speech may be protected. With these limits in place, we can reassess the status of pornography. We first must ask: what does pornography say? According to what we have discussed above, it says nothing. It is not speech but action. Any speech within it that might deserve protection would be accidental to it, not essential. That fact alone would place it outside the protections of the First Amendment.
Yet we can go further. Aristotle’s discussion of speech not only pegs pornography as non-speech; it also demonstrates that pornography damages and undermines real speech. Aristotle notes that “without virtue, he [man] is the most unholy and the most savage of the animals.” In particular, humans are “the worst with regard to sex and food.” Aristotle recognizes the power that sex holds over human beings. Like food, it fulfills both a necessity (sustaining and creating life) and a desire (for pleasure). Because sex touches on the primal, even animalistic part of us, indulging it without restriction places the physical senses and passions in control of the person. Unrestricted sexual desire either denies our reason altogether or makes reason its slave. Far from being an exercise of self-expressive freedom, as some suggest, pornography binds its viewer internally. It addicts and consumes its consumer under a tyranny of license both brutal and total. It denies our humanity as well as our liberty by reducing our capacity for speech and leaving us with a merely bestial voice.
The unrestricted sexual license that pornography promotes belittles and destroys community—the context in which speech occurs. It subverts the most intimate of communities—the family—replacing those essential bonds in ways that debase the viewer and dehumanize the viewed. It leads its viewers in turn to debase and dehumanize their fellow citizens—to objectify them. And when we objectify each other, we lose the mutual respect that reasoned discussion requires.
Aristotle argues, by contrast, that law must channel human behavior in the context of a community. He writes that “man is the best of the animals when completed,” meaning when he lives in a just political community and participates in its speech. When he does so, man experiences true liberty through self-government and true humanity through community life.
In Aristotle’s thought, we see a path for free speech that differs starkly from that found in Eaglin and like cases. At the same time, we find the elements of Aristotle’s understanding already implied in our jurisprudence. Courts past and present have affirmed that speech is an articulation of reason, meant to persuade others on matters of justice, in the context of forming and sustaining political communities based in self-government. Incorporating Aristotle’s perspective more explicitly into free speech jurisprudence would strip that jurisprudence of its dross and help the courts apply its principles more consistently. In so doing, the courts may do more than be consistent. They may also reject a view of liberty as license, humanity as bestial, and our common life as selfish gratification through objectification. In this way, the courts may contribute to a vision of speech that is more fully free, more fully communal, and more fully human.