Kumiko-san, I know this forum is not the best place to discuss about legal issues. However since you did ask for different opinion, I have several quick comments about the interpretation of the First Amendment.
Contrary to what many Americans would like to believe, the sanctity of “freedom of speech and expression” is not (and should not) be absolute in many circumstances. For example, if the defendant is intended to 1) achieve particular criminal consequences [known in criminal law as “specific intent”] 2)present a “clear and present danger”, and 3)result in objective amounted to a grave evil, then the defense of First Amendment right will not withstand the scrutiny of the Court.
To put it in a real-world perspective, do you think it is criminal to shout the “n” word in a black congregated church? You bet it is. How about airing hardcore porn in public channel? Yep. In terms of freedom of artistic expression, I remembered an incident in British Columbia where two men were arrested for conducting their “artistic” project in the middle of a local public park. This “project” involved one man taking pictures of his partner, who was holding the head of a cock (the animal) in one hand while “fidgeting” his own cock (the organ) with the other hand. What do you guys think? Is it a crime or an art?
The fact is that there are adverse societal effects (the economic parlance of negative externality) in certain individual activities. Just like smoking, prostitution, and gambling, statutory rape even between consensual partners IS a crime. The last thing why I consider pedophilia a crime is concern over morality.
One quick note, individual states are within their constitutionally enumerated power to impose behavioral standard to citizens of their own state (known as “Police Power”).
My other point is that the First Amendment has been perversely manipulated by certain social groups. During the 1960s, the issue of privacy was argued successfully in the Burger Court by the social progressive as part of First Amendment right. Without getting into the specific, they essentially argued that certain rights in the First Amendment were unattainable without the assurance of privacy. Therefore, the right of privacy was guaranteed “implicitly” in the First Amendment. Now I am not against privacy, but its ludicrious to believe the legal interpretation of this argument because nowhere in the Bill of Right does the word “privacy” exist. The proper way to do it is to enact a constitutional amendment on the issue of privacy.
All in all, I just want to challenge Kumiko-san’s categorical advocacy for unfettered artistic right. Granted that there must be a delicate balance between individalism run amok and totalitarian police state, the concept of sacrosanct self-expression right sometime must yield to the promotion of social welfare.
Just a final food for thought, do you think its a good idea to let people buy grenade launcher freely for an ostensibly “artistic” reason? Sure, it might be true that 99.99% of grenade launchers’ owners are responsible owners who won’t go out and do a Rambo-style stunt, just like players of “kichiku” games won’t necessary go out and rape/molest people. However, if anyone can honestly think of another purpose of those two products beside conveying the message of harm and malice, let me know.
Phi
[This message has been edited by Phibrizzo (edited 08-21-2001).]