I've been thinking a lot about the controversy surrounding Gab and their fight against the proliferation of porn on their platform. The libertarian in me thinks they were in the wrong on this issue, but I could not remove this nagging feeling that there was some bigger and more fundamental problem this was pointing toward. My first reaction was "of course porn can be included as free speech, it is a form of expression", but this led me to a problematic question: If any act can be considered a form of expression, by what right can we censure it at all, even in the very streets we walk on?
Think about it, if two people decided to go and start having consensual sex in the PHYSICAL public square, as long as they say they are using it as a form of expression of protest of some sort, do we or the government have the right to stop them? Can the answer to that question actually be 'no', given how this would OBVIOUSLY turn all public spaces into 'sanctuary zones' for all manner of people with voyeuristic tendencies. Flashers can flash anyone, even children with impunity... as a form of protest. People can organize flash orgies... as a form of protest. Men and women can openly masturbate while leering at every passerby... as a form of protest. I'm sure everyone with a bit of sense can see how this would make our already disjointed and increasing fractured society and precarious social cohesion come apart at the seams. There is no way we could have ANY kind of functional society as long as the mandate for 'free EXPRESSION' is held as sacrosanct.
Now don't misunderstand me, I am not advocating a repeal of the first amendment, but I can see no other way around this problem except for one: we must take the right of free SPEECH literally. You are allowed to SAY and WRITE whatever you like (we can include sign language and the distribution of writings of course), but that does not, and cannot, include the right to ACT, or PERFORM, or DRAW, whatever you like and present it in the public square. For private or paid consumption, anything goes, but as far as PUBLIC presentation, only SPEECH will be held as an absolute.
Some may argue that 'expression' is just as important as 'speech', but I think it is important to look to the original intent of the 1st Amendment to see why this is not so. When the Constitution was written, it was understood that the first amendment was designed to prevent the government from restricting the transmission of ideas, news, and beliefs between people. When you speak or write words, you are making some declarative statements about what you think, or information you wish to make known, or a belief or concept you wish to instill in another. While it is true there are some today who would like to pretend otherwise, words have inherent meanings and definitions, which are generally agreed upon by nearly all the speakers of a language. Even in the case where a word or phrase can possibly be interpreted in different ways, there is always the ability to use further words and discourse to clarify the meaning and make clear what is meant. With performance or artistic works this is not so. It is a feature of these forms of expression that ideas and feelings be conveyed NOT through defined words or symbols, and that everyone may freely interpret and extract their OWN meaning from the works in question. A work of art may evoke fear in one person and love in another, and BOTH are equally valid interpretations of the work. As such there are no concrete ideas being conveyed, but merely FEELINGS, and though we are entitled to our feelings, we are obviously NOT free to express our feelings in ANY manner we choose.
If you doubt that it is so that we all know that we are not free to 'express' our feelings liberally, would you be willing to have someone 'express' their frustration with you by defecating in front of your house every morning when you are leaving to go to work (assuming they will clean it up)? How about if they wish to 'express' their anger by having a 'performance' in which they repeatedly stab dolls made to slightly resemble your children in front of you and them every day as you come into the public street to take them to school? These are all modes of expression, which can always be said to mean something totally different from what is obviously implied. "That defecation was a one-man protest against pollution, and had nothing to do with you at all!", says the man who squats in front of your house daily. "Stabbing the dolls is CLEARLY a protest against the abuse of children in general, it's not MY fault you and your kids just happen to be around when I do my daily performance.", says the psychotic who clearly wants you to fear for the life of your children with a smug grin. What argument could you have against such people under the free 'expression' principle? At least with speech, it is easy to point out that saying he wants to stab my children is an unambiguous threat, or that telling me to eat sh*t as I leave my house is obvious personally targeted harassment.
In case you doubt my intentions, please understand that I wrote these words with no joy. I tried diligently to poke holes in my argument, but failed utterly to justify any alternative that does not simply either allow everything (which I've already explained leads to a completely dissolved social structure), or leaves nothing as absolutely allowable (which means we are all in danger of having ourselves stifled). By officially separating 'Speech' from 'Expression', we can secure our ability to disseminate information without leaving ourselves open to the inevitable disintegration of our social fabric that makes our civilization possible. Perhaps someone can dissuade me of such a notion. I look forward to your corrections.