The Texas Republican Party platform of 2010 called for an outright ban on pornography: “We urge more stringent legislation to prohibit all pornography including virtual pornography and operation of sexually–oriented businesses.” While expressing support for the principle of free speech in theory, Texas Republicans seek to limit free speech in practice.
Free speech means exactly that—the freedom to express one’s ideas without restrictions or reprisal from government, no matter how obnoxious or unpopular those ideas may be. Those who express ideas that are accepted and supported by the majority have little fear of such reprisal. It is those who express ideas that are unpopular that have such fear. The purpose of the First Amendment is the protection of unpopular ideas, not merely those ideas embraced by the majority. The call to ban pornography is more than an attack on free speech. It is also an attack on property rights.
The right to property means the right to own, use, keep, and dispose of material values. The right to property means that individuals may use their property—including printing presses and websites—for whatever purpose they choose, so long as they respect the mutual rights of others. If an individual chooses to use his property to show X-rated movies or to print sexually explicit pictures, that is his right, and government should protect his freedom to do so. Those who do not want to watch or view pornography are equally free to refrain from doing so.
Texas’s obscenity laws attack both free speech and property rights on the grounds of “community standards”—the views of the majority. The law offers the following definitions:
(1) “Obscene” means material or a performance that:
(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;
(B) depicts or describes:
(i) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and
(C) taken as a whole, lacks serious literary, artistic, political, and scientific value.
(2) “Material” means anything tangible that is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound, or in any other manner, but does not include an actual three dimensional obscene device.
(3) “Performance” means a play, motion picture, dance, or other exhibition performed before an audience.
(4) “Patently offensive” means so offensive on its face as to affront current community standards of decency.
In 2008, the United States District Appellate Court ruled on the Texas obscenity law and remanded the case. The court noted that state’s “primary justifications for the statute are ‘morality based.’ The asserted interests include ‘discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation and prohibiting the commercial sale of sex.’” In other words, Texas sought to discourage sexual activities that were not intended for procreation, including masturbation.
Both the statute and the state’s defense of it are founded on the premise that private, voluntary actions are subject to state regulation. Individuals may not “affront current community standards of decency,” even if those actions involve consenting adults and take place in private. Indeed, the law prohibits individuals from engaging in certain activities even if they are alone in their home.
While the statute addresses sexual activities, the same prohibitions could be applied to virtually any activity and speech. For example, Christians could argue that Islam and atheism are an “affront current community standards of decency.” The majority Republicans could argue that the minority Democrats violate “contemporary community standards.” Government officials could argue that individuals who protest government policies are offensive to the standards set by a democratic majority. If the state can regulate or restrict speech regarding one topic under this collectivist premise, then speech on all topics can also be regulated and restricted on the same premise.
To use “current community standards of decency” of what is and is not acceptable is to make the individual subservient to the collective. If the majority in the community finds an idea “indecent,” according to the state of Texas, it is valid and proper for the community to silence the offender. Such a view holds that it is proper to throw an individual in jail for espousing ideas that the majority finds offensive. The individual is to conform to the views of the majority, even in him most private affairs. That is not freedom of speech. It is a tyranny of the majority.