Brown V: California, and Why The First Amendment is Fading Fast

As has been well-documented on this website, the Supreme Court has overturned Bill 1179 (2005) of the California state legislature. A great amount of cautious celebration is now occurring in some circles of our subculture: celebratory because the decision overturned the bill, cautious because of the path to a new bill highlighted by Justice Alito. But there's a more serious threat to the First Amendment of the United States Constitution which has gone ignored for far too long. It's called the Miller Test.
 
The so-called Miller Test, named such after a publisher (Miller) was charged for sending unsolicited mail of a sexually-explicit nature to a the owner of a restaurant, sets out 3 criteria which must be met for states or the federal government to take your First Amendment right away:
 
1: Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
2: Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
3: Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
 
These standards are part and parcel of modern American jurisprudence: subjectivity abounds. With these criteria, judges in first amendment cases are no longer being asked to be impartial, they're being asked to become literary critics. Let's discover how by examining the 3 criteria piece by piece.
 
1: Who is an average person? What makes them average, and what standard elevates their tastes to the level where a society-wide weapon (government force) can be used on those people whose works they don't like? Also, how are community standards defined? Doesn't the phrase 'community standard' itself imply a majority- (or at least, plurality-)centred definition of what can be expressed and what can't? Doesn't the first amendment exist to protect unpopular opinions in the first place?
 
2: How are we to discover what is 'patently offensive'? In some communities, the depiction of a woman being penetrated by two penises simultaneously would not be offensive at all, while the depiction of a child reading a Bible verse he doesn't understand would trigger moral outrage, so how do we resolve it? Poll the community, and ban that which is found by the community to be offensive? Again, isn't the philosophy behind a constitution that defines rights first and obligations second one of inoculating the minority from the disease of orthodoxy?
 
3: This is the most despicable of the three criteria, this is what I was alluding to when I said the Miller test turns judges into art critics. Questions of value are not the purview of judges in the chambers of American courthouses, they are the purview of every person who must make decisions that affect their lives. Thankfully the portion of the decision quoted in Klepek's article reflects understanding that this third criterion is not legitimate, but that isn't true of every judge or every supreme court justice; isn't there an aspect of value missing in this criterion? I'll reiterate them now to see if I can jog your cognitive faculties: "literary, artistic, political, or scientific". Nothing? Okay, well let me put it to you this way, who would find these aspects of value important? The producer or consumer? The answer is the latter. Only those consuming content would define the dimensions of value they obtained from a piece of content in this way. The producer might make the claim that the content has value in any of the stated dimensions, but they would not be able to defend that claim without supporting consumer testimony. This is the key problem with this criterion. In order for you to have the right to say something, you have to be able to find someone who wants to hear you say it. Again, this wholly undermines the core principle of the U.S. Constitution in the first place, the protection of the individual. Moreover, by omitting the dimension of economic value in this third criterion, the courts have established a precedent that communications upon which a person or persons can build their livelihood is not protected. Without this aspect of speech being protected by U.S. case law, the freedom to speak is entirely masturbatory.
 
Until American jurisprudence begins to trim its century-plus of subjective fat, the courthouses of the United States will be the gallows whereby your individual rights are strung up and slaughtered publicly, and yes, the noose will be placed around the video game industry's neck once again.

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