The Oregon Supreme Court issued an opinion on September 29, 2005 which declares that live sex acts performed in front of an audience are Constitutionally protected free speech.

The opinion’s length and density suggests we’re watching very smart people do what they do best if they lack restraint or common sense: reason their way into anything they want. The majority protests too much to push an ideology of free-expression absolutism. Civil libertarians always fret about the “slippery slope.” The majority has slid off the slippery strip-tease pole in so-called gentlemen’s clubs.

That becomes clear in Justice Paul J. De Muniz short — and withering — dissent. He says any “conundrum” is of the majority’s making. Even if there was a tension between Blackstone, the 18th-century British legal theorist, and more libertarian natural-rights adherents — and there wasn’t because Blackstone was “a natural-rights thinker of the first rank,” and the majority can offer no evidence that natural-rights adherents believed the constitution’s free-speech protections extended to such conduct — Blackstone’s adherents actually won the debate.

But De Muniz isn’t done: “The idea that the Victorian-era drafters and ratifiers of the Oregon Constitution sought to bring public masturbation and sexual intercourse within the purview of constitutional free-speech protection is difficult to comprehend . . . [A]t the time the Oregon Constitution was adopted, pornography, nudity, lewd behavior and ‘bawdy-houses’ were accepted targets of regulation that enjoyed no constitutional protection based on expressive content.”

This is what happens when you have activist judges who have an agenda. The majority in this case spent page after page rationalizing their opinion that the performance of a sex act in front of an audience constitutes the expression of an idea, and therefore is protected under the Oregon Constitution. Justice De Muniz, however, skewers the majority’s rationalization in a dozen short paragraphs.

Activist judges are a real danger to American society, mostly because they can enact policies without having to get the consent of the people, as a legislature does. I have absolutely no doubt that given the chance, the vast majority of the population of Oregon would have voted against a measure to legalize live sex-act shows in public. However, since this was enacted via judicial fiat, the public has almost no recourse, except to vote these idiots out in the next election and hope that this issue comes up again.

Not surprisingly, the Oregon chapter of the ACLU tendered a friend of the court brief advocating the position the Court held. Here is how they put it on their website:

Ciancanelli raises specifically the issue of whether Article 1, section 8 of the Oregon Constitution that protects freedom of speech and expression protects persons who participate in or produce live sex shows for adults only, in private settings. More importantly, Ciancanelli raises the issue of whether local or state governments in Oregon can prohibit people in a performance, including a play, ballet, or a musical, from engaging in “sexual conduct� during the performance. Sexual conduct is defined in Oregon law to include “any touching of the genitals, pubic areas or buttocks of the human male or female…in an act of apparent sexual stimulation or gratification.� Under the statute, ORS 167.062, performers do not have to be nude to be guilty of engaging in “apparent sexual stimulation or gratification.� For example, two ballet dancers who give the appearance of sexual touching and stimulation, two actors doing the same on a couch in a play, or two performers in a musical, bumping and grinding to rock music, could be guilty of violating this law.

You notice how they frame the argument as two actors in a play, two performers in a musical and two ballet dancers. They never once say, “two naked adults performing a live sex-act show.” Of course, you’d expect nothing less from the people who are defending the rights of NAMBLA.

Freedom is a great and treasured thing. It is part of what makes America great. The other part is responsibility. Freedom without responsibility is chaos.

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This entry was posted on Wednesday, October 12th, 2005 at 1:48 pm by Nick, and is filed under Government, Law. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.