As you might have read recently, the Tennessee legislature is considering passing a law that would require “adult oriented establishments” to post warning signs on their premises. These signs would warn prospective patrons and passersby that the forms of entertainment and expression found within are the source of a variety of societal ills – and that by frequenting such establishments, duly warned readers of the sign are effectively branding themselves contributors to human trafficking, sexual assault, domestic violence and other societal ills.
As noted in the article I linked to above, there are two different versions of the sign verbiage being considered.
One version reads: “Attention: By engaging in this type of entertainment, you may be contributing to an increase in domestic assault, rape or sexual assault, and human trafficking.”
The other version is: “Attention: By purchasing, borrowing, or using this pornographic material, you may be contributing to an increase in domestic assault, rape, or sexual assault, and human trafficking.”
Don’t worry, though; no reputable public health agency or serious anti-trafficking organization has endorsed the conclusions that would be required on these signs, should one of these bills become law. These signs would merely convey the beliefs of some elected officials – and some of those who voted for them as well, presumably.
The people pushing for the warning labels might believe the things they want to force adult businesses to say are true, or they might just be trying to foist their moral vision of how the world ought to be – and, crucially, how the rest of usought to view matters of sexuality.
This is far from the first time a government has sought to steer consumers away from content to which it objects. Censorship, in all its ugly forms, is a near-universal phenomenon. Even in countries with a seemingly libertine disposition, governments routinely seek to limit their citizens’ access to certain ideas, depictions and forms of expression.
In the U.S., our freedom of expression is guaranteed under the First Amendment. Unfortunately, one of the few limitations of the First Amendment’s protections is “obscene” speech, which creates the circumstances in which we now find ourselves, where there’s tension between the expansive nature of the First Amendment’s text –“Congress shall make no law… abridging the freedom of speech” after all – and the more restrictive interpretation of that text the courts have adopted over the decades.
Thankfully, for the most part, U.S. courts have rejected as unconstitutional several previous attempts to force people to affix warning labels to their expressive materials, including the federal court that enjoined HB 1181, the Texas law that not only mandated age-verification measures for adult sites, but also contained provisions requiring adult sites to carry warning labels. To give you an idea of how much confidence Texas had in the constitutionality of the warning label provisions, its legal team didn’t appeal that part of the court’s ruling, so the Supreme Court upholding HB 1181 does not mean adult sites must now carry those warnings.
To be fair to Tennessee, the warning labels Texas wanted adult sites to carry were even worse than the ones being considered in the Volunteer State, in that Texas wanted to force adult business to outright lie, as opposed to merely forcing them to parrot highly disputed anti-porn talking points.
Back in 2023, when the trial court enjoined HB 1181, US District Court Judge David Ezra took one look at the labeling provisions in the law and declared that the law “unconstitutionally compels speech.”
“There is no doubt that HB 1181 forces the adult video companies into compelled speech,” Ezra wrote. After describing the three required warning labels, Ezra concluded, simply: “This is compelled speech.”
“The government is forcing commercial sites to speak and broadcast a proposition that they disagree with,” the judge noted. “The Supreme Court has ‘held time and again that freedom of speech includes both the right to speak freely and the right to refrain from speaking at all.’… Even if, as the defendant argues, the law compels only commercial speech, it does not pass constitutional muster.”
And, as Ezra observed in another part of his order, while the warnings would have required websites to attribute the labels’ findings to the Texas Health and Human Services, the “Texas Health and Human Services Commission has not made these findings or announcements.”
A government compelling a business to say a particular thing is bad enough. A government compelling a business to proclaim things that simply aren’t true at all is a whole other level of wrong. Who knows; perhaps Texas recognized this after the fact and that’s why they didn’t challenge the injunction with respect to the labels.
Look, I get it: Everyone has their hangups, the things they’d rather not see, hear, read or to which they’d otherwise prefer not to be exposed. I don’t like horror movies, for example – and I really can’t abide by depictions of terrible things happening to people’s eyes.
Rather than lobby governments to pass laws prohibiting the depiction of eye trauma, I use the following novel technique: I try to avoid such depictions on my own, without government assistance. It’s crazy, I know, but it’s an approach that has served me well for over 50 years now and I stand by it.
Ultimately, the only sort of warning label I can abide by is the sort employed by the late, great Frank Zappa, who crafted a warning for his Barking Pumpkin record label that he cobranded as a “guarantee.” The warning is worth reading in full, not only for the humor, but the serious point the humor is employed to make.
“WARNING/GUARANTEE: This album contains material which a truly free society would neither fear nor suppress. In some socially retarded areas, religious fanatics and ultra-conservative political organizations violate your First Amendment Rights by attempting to censor rock & roll albums. We feel that this is un-Constitutional and un-American. As an alternative to these government-supported programs (designed to keep you docile and ignorant). Barking Pumpkin is pleased to provide stimulating digital audio entertainment for those of you who have outgrown the ordinary. The language and concepts contained herein are GUARANTEED NOT TO CAUSE ETERNAL TORMENT IN THE PLACE WHERE THE GUY WITH THE HORNS AND POINTED STICK CONDUCTS HIS BUSINESS. This guarantee is as real as the threats of the video fundamentalists who use attacks on rock music in their attempt to transform America into a nation of check-mailing nincompoops (in the name of Jesus Christ). If there is a hell, its fires wait for them, not us.”
Honestly, if Tennessee wanted adult businesses to post a warning like that, I could probably get on board.
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