Not a First Amendment issue
October 10, 2007
GrassRoots TV in Aspen has made a wise decision to hold an open meeting on the issue of screening a Holocaust-denial DVD. Holocaust denial is protected by the First Amendment (unlike in Germany and Austria, where it is illegal); so is pornography. Aspen public access TV apparently has a policy against screening pornography on a community channel.
If a governmental entity were to forbid the distribution of pornographic DVDs, that would be a constitutional issue. This does not mean that every commercial outlet for DVDs is constitutionally obligated to sell those that are pornographic. If the government prevents a Holocaust denier from publishing or speaking, that is a constitutional issue. It is not a violation of the First Amendment for a public access channel to decline to screen material it deems inconsistent with its mission of community broadcasting.
The First Amendment is one of our great bulwarks against the Nazi mentality that Holocaust deniers are trying to perpetuate. There is, however, a school of thought that would apply to hate speech, hate sites, hate broadcasts and hate films the words of Justice Oliver Wendell Holmes: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.”
Fortunately, these are not issues with which GrassRoots TV need be concerned, because it is not a governmental agency and therefore able to make an autonomous decision about screening cruelly offensive hatemongering material that is not only totally devoid of socially redeeming value but malevolent in its intent.
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