Some opponents of adult-use zoning claim that since porn involves speech, the Constitution written by the founders of our country requires us to avoid regulating the porn business in any way.
Debates over how to interpret the Constitution have arisen before, of course, most notably at the time of the Civil War. Union general (and later US president) Ulysses S. Grant gives us a more balanced view…
The framers were wise in their generation and wanted to do the very best possible to secure their own liberty and independence, and that also of their descendants to the latest days. It is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen emergencies. At the time of the framing of our constitution…the application of steam to propel vessels against both wind and current, and machinery to do all manner of work had not been thought of. The instantaneous transmission of messages around the world by means of electricity would probably at that day have been attributed to witchcraft or a league with the Devil. Immaterial circumstances had changed as greatly as material ones. We could not and ought not to be rigidly bound by the rules laid down under circumstances so different for emergencies so utterly unanticipated. The fathers themselves would have been the first to declare that their prerogatives were not irrevocable.
Ulysses S. Grant, Grant: Memoirs and Selected Letters, p.147.
15 thoughts on “Ulysses S. Grant: Matching the Constitution to Present Realities”
Ulysses S. Grant was a wonderful general. But he was maybe the worst president we’ve ever had. And although Lincoln held the Union together, his abuses of the constitution during the Civil War are well-known and shameful. Not only censorship, but suspsension of the writ of habeas corpus. I don’t really take comfort in the fact that you’d cite these guys as evidence that fears of constitutional abuses are unfounded.
As with Andrea Dworkin, we don’t necessarily agree with everything Grant said or did. However, when they make sense, they make sense.
I doubt those who wrote the constitution envisioned porn merchants abusing the First Amendment to fend off reasonable commercial regulations. It is the duty of the living to step in and keep competing values (safety, prosperity, freedom) in balance.
The Framers could not have anticipated the 21st century porn store. That much is true. They probably also didn’t anticipate the use of zoning laws to suppress businesses who sell offensive material.
Whose side would Grant be on? Grant doesn’t say. He just says that the Framers intended the Constitution to be a “living document” that changes with the times. A fact which all educated people have known since they were 10. Thanks for the civics lesson, but you can’t really infer from Grant’s remarks here that he’d be on your side.
The point is there are some “First Amendment Is Absolute” folks out there whose approach to the Constitution is unreasonable.
What about having awesome machines to do our work for us has anything to do with free speech? I don’t see the connection. And anyways, it would be nice to know which kinds of speech are protected, and which aren’t. Perhaps you could explain. I’d like to see the amendment to the Constitution you propose that would prohibit some kinds of speech but protect other kinds.
Doug, in case you’re not aware, it’s illegal to possess child porn. Also, even the ACLU accepts that certain kinds of “fighting words” and libel are not protected by the Constitution.
Times change, callous people emerge to talk advantage of our society’s rules in ways those who wrote them could not have anticipated. Values have to be weighed, balanced and rebalanced all the time. For this we have public forums and the courts. There is no one rule good for all time.
Adam, thanks for another enlightening civics lesson.
Regular porn is not child porn, and is legal. Child porn is illegal because children aren’t legally autonomous. They aren’t savvy enough to responsibly look out for their own interests, and can easily be taken advantage of by more sophisticated adults. Adult porn performers are adults and are legally autonomous. Adults are legally able to make decisions for themselves.
The ACLU link you provided hurts your case more than it helps. Fighting words are unprotected only when they are *immediately* damaging or immediately lead to violence. So fighting words that lead to harm or violence over the long run are *protected.* And libel is only unprotected if it is a) demonstrably false, and b) demonstrably malicious. I don’t see how any C/V material fits either bill—even if it’s harmful and incites violence, it only does so over the long run.
According to the 1973 /Miller v. California/ decision, a speech act must meet the following three standards in order to count as obscene, and therefore be unprotected by the first amendment: 1) it must appeal to the average person’s prurient interest, 2) it must depict sexual conduct in a “patently offensive way” as defined by community standards, and 3) taken as a whole, it must lack serious literary, artistic, political or scientific value.
I’m willing to grant that items (1) and (3) are satisfied by the stuff that Capitol Video sells. I think these materials appeal to prurient interests and lack artistic or social value. But I deny that (2) is satisfied. I deny it on the grounds that there are several shops in Northampton that are permitted to sell these types of material, and who are deliberately unaffected by the recent change in the zoning law. I cite Oh My!, Pride and Joy, and the Movie Gallery. Obviously, since the community tolerates the sale of this material in a number of locations throughout the community, and that these establishments thrive, and are seen by many as an important, integral part of the fabric of our community, the materials are not judged to depict sexuality in a “patently offensive way” by the standards of this community.
I realize that you have various reasons for opposing C/V while not opposing the other places, but you must realize that none of these reasons have anything to do with the nature of the material that they sell. So I think you’re going to have a tough time making the case that C/V’s material is not protected by the first amendment, no matter what vague, barely relevant writings of General Grant you may cite.
The ACLU site also has this to say about obscenity: “Unfortunately, the relatively narrow obscenity exception… has been abused by government authorities and private pressure groups.” I wasn’t there, but I suspect that they might have people like you in mind when they mention “private pressure groups.”
Our point still stands. The first amendment is not and has never been absolute. Also, US courts accept that trivial impediments to speech are acceptable when they advance important social goals.
Grant’s opinion about the Constitution is admirable because it shows a realistic appreciation of how the world and human nature work. Many arguments against adult-use zoning, by contrast, are naive at best.
The point still stands. Nothing Grant says here, and nothing the ACLU says in the link you provide, nothing the Supreme Court said in any of the cases you’ve mentioned, and nothing you have said anywhere, shows that the first amendment does not apply to anything Capital Video says, does, produces, or sells.
Sure the First Amendment is relevant, but so are other values, among them compassion for porn shop neighbors, compassion for porn workers, and compassion for the spouses of porn addicts and their children.
But according to the Supreme Court, the activities of the porn shop are protected under the first amendment unless: 1) the activities lead *immediately* to harm or violence, or 2) the activities are judged to be patently offensive under local standards (so the standards of some neighborhood in Los Angeles are irrelevant), or 3) the relevant speech act is demonstrably false and demonstrably malicious.
Since the activities of C/V don’t meet any of the three conditions, their activities are protected. The condition that comes closest to being violated if your arguments are sound is (1). But even if the C/V’s activities are harmful, they’re not *immediately* harmful. Even if they incite violence, they don’t *immediately* incite it.
Sorry, C/V is protected.
You are incorrect. Cities may zone adult uses due to their secondary effects. See the Supreme Court’s Alameda decision.
Yeah, I read that article. It was far from clear to me that the Court was consistently applying its own standards.
Furthermore, even if it is consistently applying its own standards (which I don’t grant, but will suppose for the sake of argument), it’s still not clear that the zoning ordinance Northampton recently passed is legal. There are several problems:
One is that, in order to be legal, the purpose of the law and the reason for passing it must be limited to curtailing adverse secondary effects. In particular, the purpose law cannot be to curtail unpopular or offensive speech. While I think it’s clear that the recent zoning ordinance was passed *in part* as an effort to curtail adverse secondary effects, it is far from clear that the offensiveness of the material C/V sells wasn’t also part of the motive. You, for example, are always talking about the “vile” porn C/V sells. If the purpose of the law is partly to supress porn because of its vileness, the ordinance is illegal.
Another problem with the application of the Alameda decision to our case is that the standards for “patently offensive” sexual depictions is supposed to vary locally from community to community, according to the 1973 /Miller v. California/ decision. Since we don’t live in Los Angeles, the standards that apply in the Alameda case don’t apply here. I think that since Oh My! sells the same vile porn that C/V does, and since Oh My! is thought to be an important member of the local business community, and since Oh My! was deliberately excluded from the zoning ordinance, I think that our standards for decency here in Northampton permit that kind of material.
Finally, it seems to me that we should take a cautious attitude when it comes to limiting speech by passing zoning ordinances. The Always Controversial Peter told me that by Mass. law, adult uses of land can’t be grandfathered in by zoning. So if we permitted the C/V store and started having problems, we could then simply pass a zoning ordinance banning that use in that location (being sure to avoid the appearance of “spot zoning,” of course), and that would be that. Of course, the reality is that it would be tougher than what I’ve described, but in light of the fact that C/V hasn’t changed its plan in response to the current zoning ordinance, I think that this is going to be just as tough.
Anyway, that’s the way I see it. I don’t think you’ve really made your case here.
Capital Video’s long track record leaves me with no desire to give them the benefit of the doubt to see how it turns out. This is a company that fights removing the doors from porn viewing booths (Kittery) when it’s obvious to all that unsafe sex is taking place there.
It’s well known that zoning before a use is established is much more straightforward than zoning afterward. Northampton’s city solicitor said publicly that it’s wise for legislators to be proactive in this area.
The Northampton City Council properly confined itself to considering secondary effects when crafting its new adult-use zoning ordinances. As private citizens, NoPornNorthampton is free to go beyond this and criticize vile speech as vile. I think those who wrote our Constitution would applaud vigorously.
Our petition, signed by over 1,000 Northampton residents, demonstrates that many in the community wanted the stronger adult-use zoning we now have. To date, an opposing petition from Talk Back Northampton has just 27 signatures.
Thanks alot – your answer solved all my porblems after several days struggling