Written Testimony of the Woodhull Freedom Federation
Submitted to the Subcommittee on Constitution, Civil Rights and Property Rights
Of the Judiciary Committee of the United States Senate February 15, 2005
The Woodhull Freedom Federation (WFF) is an international human rights organization whose purpose is to affirm sexual freedom as a fundamental human right. WFF focuses on building a sexual freedom movement and changing antiquated and unjust sex laws.
The Woodhull Freedom Federation is deeply concerned that this Subcommittee has proceeded to hearing without inviting the adult entertainment industry to participate. Regulation without dialog results in flawed legislation which often falls short of achieving its legitimate objectives and risks invalidation under our Constitution.
WFF believes that it is fundamental to a free and democratic society that adults choose for themselves what they say, hear, read and see. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey.
We fully support the mandate that adult-themed expression be strictly limited to adults and applaud the efforts of the Free Speech Coalition, the only organization which offers up to $10,000 annually for information leading to the conviction of manufacturers or distributors of child pornography.
Obscenity prosecutions uniquely threaten the ability of the adult entertainment industry to respond to Americans’ demand for sexually oriented expression. It is a well-settled proposition of our American constitutional law that all expression, including that addressing sexual themes, is presumed to be protected by the First Amendment. We recognize that the courts have also held that material fitting the strict legal definition of obscenity is not so protected. But no given work can be deemed to be legally obscene until after the government has proven that it meets the constitutionally required definition, beyond a reasonable doubt in a criminal case. Numerous features of the governing obscenity definition make it difficult, if not impossible, to predict in advance what works will be prosecuted or ultimately deemed obscene.
Child pornography laws, federal and state, are very severe. Child pornography is regularly, vigorously, and consistently prosecuted throughout the United States, as it should be. The reason this prosecution is so successful and consistent is that child pornography laws are well defined and carefully targeted to address a specific social ill.
Obscenity laws, in direct contrast to child pornography laws, are virtually standardless, and often regulate expression solely between consenting adults. Additionally, because of the vague nature of the laws, they are frequently used to discriminate against alternative sexual expressions and for selective enforcement against sexual minorities.
Whether in the marketplace of goods or in the marketplace of ideas, individuals retain the autonomy to select that which has value to them. This is not to say that individuals can impose their preferences upon others. Thus those who would avoid sexually oriented expression altogether cannot prevent others from reading or seeing it. Likewise, those who enjoy such expression and find it worthwhile may not expose it to the unwilling.
The decision in the Extreme Associates case expressly protects children and unwilling exposed adults from obscene sexual expression. Had that case involved either minors or nonconsenting adults, it would not have been dismissed.
The ruling in the Extreme Associates case represents the appropriate line to draw. It is a line required by our constitutional protections and fully consistent with our most basic social and legal traditions. Sexually explicit expression is inappropriate for the billboard, the unsolicited mailing, and Internet spam. It is inappropriate when directed at or involving children. But for more than three decades we have recognized the right of adults to read and see any material, even the obscene, in the privacy of the home. This results not only from our profound commitment to freedom of speech and of the press but also from our careful concern for individual privacy and autonomy in intimate matters. The decision in the Extreme Associates case does no more than recognize our basic commitments and concerns.
Americans rely on the commercial marketplace to produce and distribute their goods and services, including those to which they are constitutionally entitled. That marketplace has a swift justice of its own. Products of little value to Americans will quickly disappear from our markets. It is not the role of government to interfere with this process, especially in the realm of expression and ideas.
Quoting Lawrence v. Texas, “In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (KENNEDY, J., concurring).”
