A few years ago I bought a video that has been banned at certain times in history. It was not X-rated either. It was 'Birth of a Nation' by D. W. Griffith.
In 1915 the US Supreme Court upheld a ban on this movie by the state of Ohio. It declared that motion pictures could not be considered a part of this nation's press. This ruling clearly has
not stood the test of time. That decision is described in a supplement to this video, entitled 'The Making of Birth of a Nation.'
Oliver Wendell Holmes once declared that "the First Amendment protects the speech we hate." The aforesaid video has messages that you or I could hate. In one scene a black man tells a young white woman he wants to marry her. She jumps off a cliff to her death to save her honor. Then the Ku Klux Klan comes upon the scene. ‘Saved the day’, I suppose.
The First Amendment spells out no exception allowing a ban on 'Birth of a Nation.' It speaks of freedom of speech and the press, not of an equitable regulation thereof. What is equitable?
That I say, depends on who is talking. This First Amendment takes government out of the business of regulating speech. An underlying premise is that censorship is a problem, not a solution.
I would add another premise: the audience is responsible for its actions, not the speaker. What exceptions should there be? The text of the First Amendment actually spells out none. Some speech, having an element of deception, could keep any government from working at all. There is speech that is an intrinsic part of a larger nefarious act. That should cover falsely shouting "fire" in a crowded theater, also "give me your money or I will blow your head off." I have long belonged to the ACLU and once served on the board of the Houston chapter. The 2 conditions I just cited seem to me consistent with ACLU positions.
Felix Frankfurter once proposed a balancing test, of a balance between freedom of expression and other aspects of the public good, but this has not evolved into a clear standard. I do not see
this as a definitive standard at all. What is the public good? One thing for the Medici, something else for Savonarola. Do you believe the public good is harmed if anti-war demonstrations hurt
the morale of our boys in Vietnam? Oliver Wendell Holmes once said the Constitution was written for people of diverse ideologies.
What is the public good with respect to Michelangelo's statue of David? The Medici could say that it brought more travelers and more money to the Republic of Florence. I suspect Savonarola would say the statue was an affront to public decency.
I take the First Amendment to mean that government must be kept agnostic about what is good speech and what is bad speech. I do not see government as having the omniscience to decide what is good speech and what is bad speech.
I have heard it said the Bill of Rights is a legacy from the 18th century. Rather it was a response to despotisms that flourished on the European continent. Hitler and Stalin did not live in the 18th century!