Defending the Disgusting
The judicial history of free speech in America is the story of how Supreme Court justices—whom the Constitution designates to check and balance the power of Congress and the president—are instead unwilling to act against them, lest a backlash against judicial activism ensue. As FDR put it while trying to pack the Court in 1937, the American people expect the unelected third branch of government to fall in line behind the elected other two.[1] Of course, the judiciary is a deliberately antidemocratic body; as the last bulwark against the tyranny of the majority, it tempers democracy’s excesses. In this way, judges should ensure that government’s powers remain wedded strictly to the protection of the Constitution, which, regarding free speech, means the protection of the First Amendment. The specific purpose of that Amendment, then, is the protection of minorities and dissent.
Alas, from its inception, the Supreme Court has viewed the First Amendment as subject, if not subordinate, to majority rule, or “democratic deliberation.” To be sure, the Court sometimes protects offensive speech, always lauds the value of free speech, and elevates the First Amendment above other constitutional guarantees. Yet the Court simultaneously undercuts free speech by acknowledging a higher value. That value goes by different names—“social utility” and “community standards” summarize them—and mandates the categorization of speech into “political” vs. “commercial” pigeonholes. This technicalized morass is today’s state of the First Amendment.
Now, just as we can best measure the strength of steel under stress, so the best tests of principle come over the most nauseating examples. As philosopher Ayn Rand observed, although it is uninspiring to “fight for the freedom of the purveyors of pornography or their customers . . . in the transition to statism, every infringement of human rights has begun with the suppression of a given right’s least attractive practitioners . . . [T]he disgusting nature of the offenders makes . . . a good test of one’s loyalty to a principle.”[2] The test here is Ashcroft v. Free Speech Coalition (2002), in which the latter challenged the constitutionality of the 1996 Child Pornography Prevention Act (C.P.P.A.). The C.P.P.A. criminalized sexually explicit images that depict minors but were produced, typically via computer imaging, without using any actual children.
C.P.P.A. supporters argue, in the Court’s summary, that “harm flows from the content of the images, not from the means of their production” (3). In other words, virtual child pornography threatens children in “less direct, ways” than real-life child pornography (3). For instance, by increasing the chance that pedophiles become molesters, virtual images “whet the appetites of child molesters” (4).
But any way one rationalizes the C.P.P.A., such images fail to intrinsically harm any flesh and blood minor; the Ferber test requires an “intrinsic” connection. Viewing, after all, does not necessitate acting; one can be a pedophile but not a child molester. Similarly, whereas viewing virtual images coerces nobody and involves only the viewer and the producer, viewing real images, as per New York v. Ferber (1982), constitutes criminal coercion of children. The C.P.P.A. collapses these distinctions—distinctions that Ferber relied on as a major reason for its verdict—but the “casual link,” as the Court notes, “is contingent and indirect” (12); the government needs a “significantly stronger, more direct connection” (15-16).
Furthermore, the government’s arguments turn, not on any actual coercion, but on potential coercion; this is why the C.P.P.A. resorts to such hesitating, noncommittal words as images that appear to show minors in sexually explicit conduct (3), or that convey that impression (4). The cardinal principle of liberty, however, must always take precedence: so long as one refrains from directly initiating force against others, one must be free to pursue one’s own version of happiness—including, however despicable, taking pleasure from virtual pedophilia.
C.P.P.A. supporters argue next that child pornography “as a whole . . . lacks serious literary, artistic, political, or scientific value” (8). Any redeeming values are de minimis, since kiddie porn only perpetuates prurience, pedophilia, and child molestation. Yet however indecent one’s values may be—with the exception of child molestation, which necessitates coercion—freedom does not mean upholding a social consensus, but the autonomy of each individual to choose his own values. No, one’s man treasure is not another’s trash, but using the government to ban certain trash necessarily foists the values of some, usually the majority, on others, usually a minority. American history is rife with examples. The Comstock Act (1873) criminalized as pornography any information concerning birth control. The National Endowment for the Arts continually funds “art” that many would taxpayers consider unworthy of that name. In Vietnam and in Iraq today, we try to impose Western values on many who simply do not want them (at least without their own adaptations).
Indeed, it is sheer folly to make government the arbiter of whether books, magazines, newspapers, radio, television, theater and film have value, let alone “literary, artistic, political, or scientific” value—or, most ominous of all, “serious value.”[3] Judges call such speech lacking “unprotected,” but this is the zenith of censorship. For when government takes it upon itself to decree which of its citizens’ values have value—to dictate which words deserve freedom and which make you a criminal—it exceeds its job of impartiality and assumes arbitrary power. As such, the First Amendment no longer derives from the Constitution but from popular predilections.
And yet, in his dissent, Chief Justice Rehnquist observes that although the “C.P.P.A. has been on the books, and has been enforced, since 1996,” movies produced thereafter, like American Beauty (2000) and Traffic (2001), which the defendants argue the C.P.P.A. would have banned, nonetheless proceeded unabated—and won Academy Awards (Rehnquist, dis. op., 5). Rehnquist thus argues that the C.P.P.A. “need not be” construed to ban such movies (Rehnquist, dis. op., 7). Of course, this is Rehnquist’s construal; one can easily envisage how Attorney General John Ashcroft, or some like-minded zealous puritan, would think otherwise. After all, America is not Alice in Wonderland, and words do not mean, as Humpty Dumpty said, “what I choose [them] to mean.” Rather—if we are to have a government of laws, not a government of men—words must mean what they actually say.
Finally, since laws are rarely repealed, ideological organizations have become notorious for mining case law digests to unearth some obscure precedent, whose language they construe, years if not decades later, to push for a ban on something else—and then something else.[4] Therefore, the alleged limits on censorship, the legalistic conditions of where and when, are insignificant. While the high court today may ban “only” nonvirtual child pornography, using the same nonabsolutist precedents, a future Court may well ban gay porn, and still another Court may ban pornography altogether. Since we have already surrendered such power, the principle has been established, and, as Ayn Rand observed, the “rest is only a matter of details—and of time.”[5] Censorship is the canary in the political coalmine, and the anti-minority, collectivist rationales, however piecemeal and whatever pullbacks, bring us ever-closer to a Fahrenheit 451 society. Do not say “it” cannot happen in America. Having already criminalized defamation and “fighting words”—and with a legal history including Dred Scott, Prohibition, Bowers v. Hardwick, the Patriot Act, and now the Federal Marriage Amendment—it already has.
Footnotes
[1] The “American people . . . expect the third horse to pull in unison with the other two.” Franklin D. Roosevelt, Fireside Chat 46, March 9, 1937.
[2] Ayn Rand, “Censorship: Local and Express,” Ayn Rand Letter, August 13, 1973.
[3] Mark Henry Holzer, Sweet Land of Liberty? The Supreme Court and Individual Rights.
[4] For instance, the Federal Vocational Rehabilitation Act of 1973 prohibits discrimination against otherwise qualified handicapped people. Although the act did not address the specific issue of HIV and AIDS discrimination, subsequent court cases have held that the act protects AIDS as a handicap. See the movie Philadelphia (1993).
[5] Ayn Rand, “Censorship: Local and Express,” Ayn Rand Letter, August 13, 1973.
Unpublished Notes
Thus, banning such personless, harmless speech criminalizes mere thoughts and constitutes preemptive law.
Small but significant
the deep-seated, indelible destruction of pure and innocent children.
Virtual child porn is “neither obscene under Miller nor child pornography under Ferber” (2). Hence?
Possession of nonvirtual child pornography is a federal crime, and soliciting and sexual relations with minors constitutes statutory rape.
Higher Interest
In Chaplinsky v. New Hampshire (1942), the Court affirmed: “[A]ny benefit that may be derived from [such utterances] is clearly outweighed by the social interest in order and morality.”
Meaning of Free Speech
As Voltaire said (actually, it was Evelyn Beatrice Hall, under the pseudonym S[tephen] G. Tallentyre, in The Friends of Voltaire [1906]): “I disapprove of what you say, but I will de-fend to the death your right to say it.”
Marketplace of ideas theory of free speech: ideational diversity is an essential ingredient, the stew out of which bubble the best ideas, if not eventually truth itself.
Counterargument
Additionally, repealing the C.P.P.A. would embolden molesters, who if indicted for vir-tual child pornography, could evade liability because their images are computer-generated (Con-ner, 5).
Absolutism
In Dennis v. United States (1950), the Supreme Court declared: “[C]ertain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes.” Yet the First Amendment reads that “Congress shall make no law . . . abridging the freedom of speech.” Common sense tells you that these words constitute an absolute. The Amendment does not say no law except in wartime, or except when the speech gainsays community standards, or except when it lacks redeeming value, or social utility, or fails to serve a public interest.
Granted, the framers never intended the First Amendment to allow, nor has any Supreme Court allowed, absolute free speech. Yet the bottom line is if speech is not absolute, it is arbi-trary.
And don’t tell me that me the slope may slippery, but we can be reasonable about where it slides. The ever-growing number of restrictions show otherwise.
If from the very first days of the republic restraints on speech were commonplace, if no less a patriot than Thomas Jefferson believed that states could censor speech and that a selective prosecution now and then of an unpopular speaker was just, if during World War One antidraft activists could be incarcerated for quoting the Ninth and Thirteenth Amendments, if American communists could be incarcerated not for throwing bombs but for merely agreeing to organize and advocate—if there are no absolutes—then it should not surprise that truly free speech has never existed in America, albeit the country that has the fewest restrictions thereon.
Indeed, if the First Amendment says that “Congress shall pass no laws . . . abridging the freedom of speech,” then Congress should pass no such laws, period.
The genie, once out of the bottle, can never be coaxed or stuffed back inside.
As Chief Justice Frankfurter explained in Dennis v. United States (1951): “The language of the [Constitution] is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed?”
“’[P]rotecting the children,’” as columnist Robert Tracinksi puts it, “is no excuse for muzzling the adults.”
Theoretically, in a democratic republic, politicians are supposed to represent the views of their constituents. Hence, if people disagree with how our representatives are voting, we can vote them out of office. But this principle assumes limited government in the classical liberal sense, not the leviathan we have today.
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