Our Government: Powerless to Outlaw Guns, Able to Outlaw Sexual Expression

By Dr. Marty Klein, Sexual Intelligence. Posted July 2, 2008.

The Supreme Court recently ruled that the government has virtually no right to regulate guns in Washington, D.C.

You may also have read about yet another obscenity bust in Florida, which ended in a deal that puts more people in jail for selling videos of adults having (consensual, enthusiastic) sex with adults.

If you expect logic from America about sex, the juxtaposition is bewildering. If you're more realistic, it's simply enraging.

Our Constitution says (2nd Amendment) that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

Our Constitution also says (1st Amendment) that "Congress shall make no law ... abridging the freedom of speech, or of the press."

To put it simply, Americans can own guns, and Americans can express themselves as they wish.

So if the government can't restrict the first, why is it allowed to restrict the second? Oh, for a similar decision affirming our unrestricted right to free expression!

The right to watch what we want on TV without FCC interference; to buy adult porn without FBI or Andy-of-Mayberry sheriffs busting producers; to see strippers close up and nude without county ordinances requiring tape measures and pasties; to enjoy swingers clubs without city councils closing them by inventing health emergencies out of thin air.

We're used to reasonable limits on our rights of free expression, embodied in the famous prohibition on yelling fire in a crowded theater. Justice Oliver Wendell Holmes used the analogy in banning (for better or worse) anti-war leaflets during World War I as presenting a "clear and present danger" to the Republic. A restriction on speech was legitimate if and only if it prevented an obvious threat to public safety.

So why can't you show a picture of a fire in a crowded theater? What about yelling "fuck" in a nearly empty theater? Or your home theater?

Obscenity law started centuries ago not focused on sex, but on power: as a tool to prevent people from making fun of their ruler, opposing religion, or inciting resistance to the state. Censorship protected rulers from the people.

In this century the goal of censorship has become protecting people from themselves and each other. But inevitably, when government attempts to protect people from each other -- or from themselves -- it's an expression of political ideology.

Our government has decided what's not good for us -- our sexuality. Sex is the political agenda of our federal, state, and local governments. And so they continue prosecuting business people, large and small, who provide adults with sexually explicit images of other adults.

This week, the Supreme Court ruled that the government is powerless to regulate something demonstrably dangerous, something provably implicated in tens of thousands of deaths each year. The very same government, however, can regulate pictures and words used in the privacy of one's home, in an activity that hurts no one.

George Carlin said, "I don't understand why prostitution is illegal. Selling is legal. Screwing is legal. Why isn't selling screwing legal?"

We demand an answer to the same question about sexual imagination: selling is legal. Imagining sex is legal. Why is selling someone's imagination about sex illegal?

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Dr. Marty Klein is a Licensed Marriage & Family Therapist, Certified Sex Therapist, and sociologist with a special interest in public policy and sexuality. He has written 6 books and over 100 articles about sexuality.

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