Over the past few years, I’ve often written about how the real challenge the Constitution creates for us is the problem of when rights are in conflict. A quick way to start an argument is to muse about the Second Amendment and how far that fundamental freedom goes. Few would argue no one can ever have a gun, but few would argue that you can have a personal anti-aircraft battery. The question becomes one of how to balance one person’s rights against another’s, within the larger society.

And I’ve also oft reported on the really good “Out West Roundup” section here on Colorado Politics, wherein we can learn about the goings on in our neighbor states here in the great American West. 

And sometimes, in a lucky break for a columnist prone to writer’s block, these two areas of pondering combine, as is the case with a recent edition of the Roundup. It is not often that nuclear waste and pornography appear side by side in a column, but here you go. 

It seems the state of New Mexico is in court, suing the federal government over a plan to create a storage area for nuclear waste in a facility to be built near Carlsbad, which is already home to an existing federal nuke waste site. States are typically happy about multibillion-dollar investments within their borders, but nuclear waste appears to be the exception.  The old “not-in-my-back-yard” or NIMBY, phenomenon has popped up, as it often does with the storage of nasty stuff, like coal sludge, nuclear waste, and old DVDs of the Bill Cosby Show.

Which, of course, brings me to Utah’s new law about what you can see on your phone…

The Roundup also reports on a new law signed by the Beehive State’s governor, which requires all cell phones and tablets sold in Utah to automatically block pornography from being viewed. The governor stated that the measure would, as he put it, send an “important message” about preventing children from accessing explicit online content. 

Now, from time to time, I am asked why I am a Democrat rather than a Republican, given my military career and such. I usually answer, only partially tongue-in-cheek, that it requires less hypocrisy to be a Dem. 

Today’s GOP seems content to shout from the rooftops about too much government intruding into people’s lives, while apparently wanting that same government to be able to peek into your windows (hopefully only metaphorically) and see what you are up to. They want to protect you from voter fraud, which doesn’t exist, by making it actually harder for people to vote (at least in heavily Democratic areas) and they sure as heck don’t want you to be able to look at material that they see as inappropriate (even as a certain GOP congressman seems to have shared such images on his own phone, but I digress…). This “limiting freedom” stratagem requires a certain two-faced hypocrisy that today’s GOP seems quite happy with.

Look, there is no disagreement that children should be protected from lots of things that are only for adults. We don’t want kids having access to a bottle of whiskey, nor do we want them to be able to get their hands on guns, and they shouldn’t have access to porn. But the real question, at least as it seems to me, is who is responsible for such protections. My kids are all grown up, but when they were little, my late wife and I saw such protections as our responsibility, not the governments, even as we lived on military bases. I never expected the government to help me parent my kids by controlling what they can see and do.

And the new Utah law brings up the apparently eternal question of what, exactly, should be considered explicit and therefore “ban-able” by the government. Way back in 1964, Supreme Court Justice Potter Stewart famously said, in a pornography case, that he couldn’t really define what was pornographic, but “I know it when I see it.” But less famously reported in that same case, Jacobellis v. Ohio, Justice Hugo Black declared that all such speech is protected, and it doesn’t really matter whose particular sensibilities were offended, it is all OK, under the Constitution, lest we start a long and dangerous slide down a very slippery slope. I really like Hugo Black.

Europeans are often shocked by the attitudes in the U.S. toward what should be censored and what is OK. They often see the U.S. as uptight (old guy word, meaning “nervous”) about sex, but we don’t seem to have any problem with quite explicit violence being broadcast around the nation. I tend to agree.

But the larger issue, it seems to me, is whether the state of Utah (and other states, should they pick up this issue) have the right to legislate what Americans can see and do with their own property in the privacy of their own homes. Now, of course we do in areas like robbing banks and stealing cars, but we both know that’s not what Utah is talking about.

The real test of whether you believe in freedom, I used to tell my students, is not whether you defend the right of someone to say or do something you agree with, it is whether you defend the free speech rights of those whom you find deeply offensive. 

It seems to me that Utah has failed that important test.