To anyone who has been following First Amendment jurisprudence in the past 40 or 50 years, the recent Supreme Court decision (United States v. Stevens, April 20) striking down a statute criminalizing the production and sale of videos depicting animal cruelty in a manner intended to satisfy a particular “sexual fetish” will come as no surprise.
The proverbial ordinary citizen, however, may be surprised to learn that, according to Chief Justice John Roberts’ majority opinion, the First Amendment must be read to allow the production and dissemination of so called “crush videos,” videos (and I quote from Roberts’ opinion) that “feature the intentional torture and killing of helpless animals” often by women wearing high-heeled “spike” shoes who slowly “crush animals to death” while talking to them in “a kind of dominatrix patter” as they scream and squeal “in great pain.” How has it come to this?
Part of the answer can be found in the history of First Amendment theory. (What follows is the quick and dirty version.) At the beginning of the 20th century, the reigning theory was called “bad tendency.” Speech that was thought to have a tendency to undermine authority or corrupt morals could be regulated, even in the absence of any evidence that sedition or immorality had in fact been produced.
But then, in a series of cases, Justices Oliver Wendell Holmes and Louis D. Brandeis developed a theory, called the “clear and present danger” theory, that was more sensitive to actual patterns of cause and effect. It said that even speech advocating the overthrow of the government must be protected unless the danger is imminent. “The question in every case,” Holmes explained, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (Schenck v. United States, 1919).
This test was not without its problems: some feared that waiting until the danger was almost upon us would leave too little time to prevent it; others feared that the state could too easily decide that a particular instance of speech harbored a danger it had the right and duty to forestall. But all parties to these arguments agreed that the judicial task was to assess the likely consequences of various kinds of speech before determining whether they deserve constitutional protection.
In essence, speech was regarded in this period as a form of behavior (albeit a particularly favored one), and like any form of behavior speech could have both good and bad effects. The trick was to determine whether a particular effect was so bad that the cost to freedom of speech of regulating it was less than the cost of allowing it to flourish. The formula was given its definitive formulation by Judge Learned Hand: “In each case . . . ask whether the gravity of the evil . . . justifies such invasion of free speech as is necessary to avoid the danger.”
This balancing test, which measured effect, was joined (implicitly and sometimes explicitly) by a content test, which measured value. Some speech is an essential contribution to the marketplace of ideas; some speech contributes nothing to the marketplace and even pollutes it. Utterances of the latter kind, the Court said in Chaplinsky v. New Hampshire (1942), “have never been thought to raise any Constitutional problem,” for they are “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
Put together speech that has deleterious effects with speech of no redeeming value and what do you have? You have videos depicting helpless kittens being tortured by leather-clad sadists. Case closed (if it ever got to the courts in the first place).
So what happened ? The short answer is that New York Times v. Sullivan (1964) happened. In that case (beloved by free-speech purists), the Court decided, in the context of a libel action brought against this newspaper for publishing an advertisement containing erroneous statements, that “neither factual nor defamatory content” removed the shield of constitutional protection” from speech even if it is false. The Court’s reasoning? “Debate on public issues should be uninhibited, robust and wide open,” and therefore considerations of “truth” and “social utility” are no longer to the point. Nor, added Justice Arthur Goldberg in a concurrence, are considerations of effect, for the right the Court now declares — “to speak one’s mind about public officials and affairs” — must be upheld “despite the harm which may flow from excesses and abuses.”
This is still a long way from constitutionalizing “crush videos,” but the path to United States v. Stevens is now open because speech has been declared to be a value in and of itself, no matter what its content or effect. A new question is asked; not does this speech have any intrinsic worth or does it benefit or harm society, but is it speech? Is it “expressive activity”? And if the answer is yes, the presumption of constitutional protection is very strong and more often than not the court will find a way to save the speech in question, however meretricious it might be.
Thus, in Hustler Magazine v. Falwell (1988), the Court decided that Jerry Falwell could not recover damages for an “ad” depicting the evangelist having sex with his drunken mother in an outhouse. At the bottom of the ad, in small print, one could (barely) read, “ad-parody — not to be taken seriously,” an obvious legal strategy that was itself not to be taken seriously as Larry Flynt, Hustler’s publisher, demonstrated in an interview when he declared that it had been his intention to wound and indeed “kill” Falwell’s reputation. After noting that there was no libel involved because the ad was a piece of fiction and therefore asserted no facts (Philip Sidney lives), the Court declared that this “gross and repugnant” (its words) verbal production was nevertheless a contribution to “the free interchange of ideas and ascertainment of truth” and was a “distant cousin” of the political cartoons that exaggerated “Franklin D. Roosevelt’s “jutting jaw and cigarette holder.” (“Distant” is too weak a word unless one means the distance between galaxies.) So the ad asserts nothing and cannot be taken seriously, but it is a serious enough assertion to merit constitutional protection. Go figure.
Decisions like Hustler v. Falwell exhibit a pattern. Before coming down on the side of the speech the government tries to regulate, the Court declares its distaste and even revulsion in the face of what it must, according to its lights, permit, as if to say, “we are on the right moral side, we regret having to do this, but, hey, it’s the First Amendment.”
This “rhetoric of regret” is on display in spades in the famous Skokie case (Smith v. Collin, 1978), in which a 7th circuit court declares that a march by a band of neo-Nazis through a neighborhood populated by Holocaust survivors must be allowed even though, as the Court concedes, emotional and mental distress would be inflicted upon elderly people who had already suffered more than enough. The Court even acknowledges that the ideas put forward by the would-be-marchers threaten to tear away the “thin coating” of civilization, and it feels “compelled” to express “repugnance at the doctrine which the appellees wish to profess.” (Hardly a consolation.)
In another 7th circuit case (American Booksellers v. Hudnut, 1986), the speech at issue is pornography and the Court assents to the description of pornography as “an aspect of dominance,” which, by putting certain images of women into the world, is more than an “idea” and is in fact an “injury.” Nevertheless, the Court rules against a city anti-pornography ordinance not despite its injurious effects but because of them, for “if the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech.” No, that would be the end of freedom of speech as an all-purpose get-out-of-jail card. It would not be the end of freedom of speech if forms of speech that were part of a benign “conditioning” were protected while malign forms were treated with the negative caution they deserve.
How malign or benign is flag burning? What is its value? In Texas v. Johnson (1989), the Supreme Court decides that the act of burning and spitting on the flag is valuable because by permitting it we honor the history and tradition the flag symbolizes: “We do not consecrate the flag by punishing its desecration, for in so doing we dilute the freedom that this cherished emblem represents.” Get it? We cherish the emblem by burning and spitting on it.
There are dissents to some of these decisions and they tend to make the same point that Justices William H Rehnquist and John Paul Stevens make in their dissents to Texas v. Johnson: “Flag burning is the equivalent of an inarticulate grunt” (Rehnquist). It has nothing do with ideas, but is simply “disagreeable conduct” (Stevens). Obviously, this attempt to deny or downplay the “expressive element” of the act does not carry the day, as it does not in the crush video case where a version of it is put forward both by Solicitor General Elena Kagan in her brief for the government and by the lone dissenter, Justice Samuel Alito (the new odd couple).
In his majority opinion, Roberts acknowledges that in child pornography cases the argument that the market for the “product” was integrally related to the incidence of child abuse was found “persuasive.” Alito and Kagan try the same argument in response to the point that while the actions depicted in the crush videos are certainly illegal, depicting them is not because the portrayal of illegal acts is not itself an infringement of law.
Not true, Kagan and Alito reply: the illegal acts occur in large part because there is a market for the videos that depict them; take away the traffic in videos and you will reduce the number of crimes. Indeed, says Alito, those “criminal acts . . . cannot be prevented without targeting . . . the creation, sale, and possession for sale of depictions of animal torture.” Moreover, the effect of the ban “on trafficking in crush videos” would also help “to enforce the criminal laws and to ensure that criminals do not profit from their crimes.” Not to mention, Kagan adds, preventing “the harm to living animals occurring in the creation of the depictions, as well as associated harms arising from the acts of violence.”
But Roberts isn’t having any. He simply invokes the post-New York Times v. Sullivan mantra and flatly rejects any “balancing of relative social costs and benefits “when it comes to speech. “The First Amendment,” he declares, “reflects a judgment by the American people that the benefits of its restrictions . . . outweigh the costs,” a judgment that he insists can not be revised “simply on the basis that some speech is not worth it.” In short, the balancing Roberts rejects has already occurred in the empyrean of First Amendment theory and the conclusion, given in advance, is that, aside from a direct incitement to violence or an act of treason, no expressive activity can be worthless enough to forfeit its constitutional protection. So much for the kittens.
One often-heard objection to religion is that horrible acts are done in its name. It is an irony of history that the First Amendment, opposed by Justice Jackson in a famous passage to the establishment of any orthodoxy, has itself become an orthodoxy, a religion, a veritable deity, and one that demands an absolute fidelity. And, sure enough, in its name (and under the injunction that thou shalt have no other gods before me), any number of horrible “expressive” acts — depictions of torture, marches designed to intimidate not inform, false caricatures of someone’s mother, representations of women as the passive vessels of male needs — are performed and then declared constitutional. Glory be to God.
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