A cleaner version, with notes and all, is available at:
http://works.bepress.com/john_brigham/doctype.html
Saturday, May 3, 2008
Thursday, May 1, 2008
Sex in Context
Sex in Context:
The Constitution and Images
John Brigham
Department of Political Science
University of Massachusetts, Amherst
April 1, 2008
Abstract:
This paper examines the changing context for sexual images and the details that give law meaning. The details are evident in Congressional efforts to regulate sex on the Internet and the Supreme Court’s response as well as various contexts for encountering forbidden images from stag films and peep shows to the local public library and sex sites on the web. The paper is part of a larger project on seeing law and the idea of “Blind Justice.” It was originally developed for an issue of Law, Text, Culture that was called “Trouble With Pictures” where the focus was on pictures we are not supposed to see.
Prepared for the New England Political Science Meeting, Providence, RI, April 2008.
An earlier version was presented at the panel on “New Struggles Over the First Amendment,” American Political Science Meeting, Philadelphia, PA August 31, 2006. My thanks in advance to the panel discussants Bradley C. Canon and Judith A. Baer and to colleagues with whom I have discussed these issues, Christine B. Harrington, Lori Beth Way and Sarah Marusek.
An article in The New Yorker recently observed that Hugh Hefner became rich by selling images of “the girl next door with her clothes off.” His Playboy magazine has sold well for fifty years because it has been a relatively safe way to get a forbidden peek at women with their clothes off. While The New Yorker is not generally thought of as having the same appeal, the magazine ran a full page of Playboy nudes along with its story on Hefner. Although each picture was quite small, this mini-centerfold had a traditional appeal. It was also pretty good evidence that sexual images are indeed ubiquitous in the West and that this ubiquity has changed the relationship between pornography and the law.
In the past, pornographic images required immersion in an alien, sometimes threatening context, which highlighted the transgression associated with the forbidden images. Today images with no tease or ritualization of the disorderly prelude are at least as close as one’s desk and probably ones lap. Crude sexual images pop up without invitation and absent the contextual warnings of old. Even where they are sought, the meaning of revelry, the consequences of consumption are seldom clear. In this climate, it is not even always evident what it means to possess an image. The law, in this state, is without many of the important and instructive contextual clues that help to draw the lines on what is forbidden and what is not. Yet, as with other contemporary elements of legal authority its facelessness appears to suggest law continues to be a powerful force in social life. And, in the case of the forbidden images that deal with sex, the power of the law lurks with new significance just out of sight.
The Fine Grained Details
Life contains details that are the key to grasping the meaning, authority and significance of law in general, the First Amendment, and the limits on protections accorded to viewing sexual images. The detail adds up to a context in which we understand what it is acceptable to see. The context is how we know the part that constitutional law and enforcement plays in delineating legitimate viewing. Images appear in context and limits on what can be viewed have to be understood at least in part with reference to that context. The contextual details are a key to constitutional law and inquiry into the way that images in the purview of the First Amendment may be seen helps in understanding the constitutive character of stable legal systems.
In this sense, or at least in a sense that is only a minor tangent, law is like the city. Real cities, we have recently been reminded, as we lament the passing of New Orleans, contain “the small-grained details of everyday life.” These have been built up over decades and they can’t be reproduced by even well planned suburbs and certainly not the cookie cutter housing and theme parks that are so common in the United States. It is not that a city can’t be reconstructed in a cookie cutter fashion but, as is the case with New Orleans, it is clear that a great deal will be lost. Law as it ordinarily operates has more in common with the odd building, seemingly ephemeral graffiti or incidental passing of a police cruiser than students of constitutional law are inclined to acknowledge. In the case of the First Amendment, what it means to “know something when we see it” can be taken as a reference to the act of seeing in context with all the helpful clues that entails.
Like the shopping arcades of Paris for cultural theorist Walter Benjamin, the specifics that constitute law form structures and practices determining its reach and constituting its authority. British historian E. P. Thompson, writing in the 1960s about the details of medieval legal reality, offered a vivid picture of law. He saw it operating as both idea and reality. The “Foreword” to his Whigs and Hunters defined the dualism of law and transcended some of the relativism prevalent at the time. In spite of the rich context, the feudal authority, the brutal conditions of life, the law also existed in the mind as consciousness. In this formulation, and that of Douglas Hay, it was not the hangings that solidified law’s authority but the power to pardon, or imprison. One of the challenges that hasn’t quite been met in the last four decades is the synthesis of detail or context and the more abstract dimensions of authority and obedience.
In the context of constitutional law and the First Amendment, the details deserve more attention. In the public law part of contemporary political science we first saw the detail in society as “impact.” This was the sometimes-puzzling attempt to find out if anyone cared what the Supreme Court had to say. Subsequently, the “law and society” approach, though it paid little attention to constitutional law, broadened consideration of the social dimensions of law, particularly lawyers, local courts and police. The growth of this academic movement paralleled a reemergence of interest in pornography as misogynous and, in this context, the local dimensions of pornography. So, while the Supreme Court was becoming somewhat less interested in the topic, local contexts from city halls to schools and colleges were attending to the “New Politics of Pornography”.
Academic and intellectual inquiry into the meaning of law in general parallels these reflections on the First Amendment. In the last fifty years there has been considerable flux. Gray, writing in The New Yorker about the 1950s, described striptease as a world with style, complexity and multiple meanings where women controlled male lust. A world on its way out, she notes. This was the period in which First Amendment protection emerged. The 60’s, a period of liberation, were followed by the reactions of the Meese commission while the U.S. Supreme Court continued to expand constitutional protection. The feminist attack on pornography in the 1980s incorporated an attack on liberalism and the idea that a façade of law could exist outside the sexual lives and social relations of men and women. That attack itself came under scrutiny from liberals in the academy and the legal profession and conservative capture of the government brought new legislation at the same time that the new digital technologies presented new contexts for viewing sexual images.
Distinctions drawn in society between art and pornography are associated with taste and ultimately reflect social class. In some circles, sexual commentary is open and images of the body that would be offensive or forbidden in other contexts are flaunted. The New Yorker’s extensive review of Playboy centerfolds has been mentioned earlier and The New York Times, in an article on art revealing the body, articulated the aesthetic contention that defines one of the boundaries of acceptable images. Professor Lynda Nead, who co-edited the book Law and the Image, treats these cultural classifications that determine what is legitimate to see as resting “…largely on the judgments of men of taste.” Her focus is Sir Kenneth Clark’s book The Nude: A Study of Ideal Art where the TV host and connoisseur writes that the function of the nude is to give man the opportunity to “feel like a god…” to be ”close to divinity in those flashes of self-identification when, through our own bodies, we seem to be aware of a universal order.” Its aspiration to perfection allows the “man of taste” to separate the naked from the nude. But, in her formulation, encountering the obscene presents challenges and art can’t handle too much of it. For Clark, as discussed by Nead, these men of taste ultimately must manage arousal by controlling access to the public.
Obscenity prosecution is a concern for the public rather than the connoisseur. When Justice William Brennan outlined what would be protected under the First Amendment in the 1957 case, Roth v. United States, he suggested that art, politics and science would render the portrayal of sex protected speech and that which seemed simply to arouse would be unprotected. In this foundational argument for modern constitutional law on pornography, the use to which an image is put, the context, became the basis for drawing the lines between the acceptable and the prohibited. Thus, the law operates without the burden of connoisseurship at the other end of the taste spectrum. With the widespread sexual images available on the Internet, the place and potential imposition of law has little to do with appreciation. Indeed, it is harder to appreciate itself.
Not Seeing in Law
For the British law professor Costas Douzinas and contributors to the collection he edited with Lynda Nead, there is a split between law and the image in the modern state. For, roughly, the last 500 years, the authority of law has been abstracted from the details. In this framework, law draws its authority from the facelessness at the heart of state power. This is what Douzinas, in an essay on the power of what is not seen in law, refers to as the “anti-prosopon.” The “anti-prosopon,” or non-face of law refers to the five hundred year old effort in the West to emphasize the abstract and non-visual dimensions of law. We are taught to turn away from the details to appreciate the abstractions that are conventionally associated with law. The traditional imagelessness of law lets it transcend reality. Indeed, in the guise of legal realism, the amorphous sense of law as words and concepts allow “it” to avoid attention to the social structures and institutions on which the authority of law depends.
The reality that is governed by the unseen is what the late British law professor H.L.A. Hart seemed to be after in proposing important “secondary rules” that would rescue positivism from meaningless abstractions and situate it more fully in experience. Rather than obedience to the grand abstraction of “Law” we are obedient to intervening forces on a smaller scale that is more present in our lives. The police officer, of course, and the various ways we know we must treat him or her. In the guise of secondary rules, what we see as a “Stop” sign is red and octagonal and it radiates the authority of the police officer waiting to appear from nowhere. Similarly the lawyer’s office with its visual display of legal authority in titles, on book shelves and in proximity to the court is a veritable smorgasbord of images that stem from the all-important “secondary rules”.
In another manifestation of realism, abstraction allows law to seem to be “all over”. This profound insight, associated with a body of “Law and Society” scholarship, deserves serious attention. While it is slow to break the stranglehold that Supreme Court and constitutional law scholarship has on Political Science, its suggestion of the importance of focusing outside the courts is particularly exciting for scholars outside the legal profession. Law can operate on a pervasive realist foundation and even, in some senses be “all over” while still being authoritative, at least in part because it is faceless. Law is the absence of image in the very references to “law” as an eminent abstraction that animates prosecutions, judgments and punishments.
The tension between law and image is confronted here at the very point at which the law is under pressure to change and incorporate the image in the contemporary West. The image can be very present while getting all mixed up in the “complexity” of some post-modern commentary about law. Images are everywhere in the convoluted, hyper-realism of relativistic interpretivism, one of the poles in a movements that has its own positivistic divide. Relativistic interpretivism is consistent with the pluralism of American public policy where the work and the image of law’s authority are not without details. In fact pluralism revels in the details to herald the importance of interpretation while obfuscating the nature of laws authority.
Not seeing is what the law of forbidden images, of the obscene and the pornographic, is all about. What we are allowed to see is the subject of continuing Supreme Court litigation and law review analysis. With Stanley v. Georgia, the home had been beyond the gaze of the law with regard to the obscene. In itself, the center of domestic life was a sanctuary, a space away. The wired home is no longer separate. With Internet access it has become connected to the digital world. While it has been clear about children and pornography, the law has become more abstract in the context of digital communication and the Internet. In US v. Thomas (1996), an early computer pornography case from the 6th Circuit involving GIF files, the justices declined to accept the argument that the files were anything other than the images that they began with, before they were scanned, or ended with, after they were printed. In general sexual images are not forbidden unless they involve children as performers or consumers. But, context has become more important as it has become more confusing. Sexual images and performances may be regulated, particularly when they involve media that may at times be assaultive.
In Reno v. American Civil Liberties Union (1997), the Supreme Court invalidated the Communications Decency Act (CDA) of 1996 that had sought to protect minors from “patently offensive” and “indecent” communication on the Internet. The opinion by Justice Stevens spoke for essentially the entire Court. The only dissenting opinion, by Justice O’Connor, was partial, and only the former Chief Justice joined with her. While the Court decided on the vagueness of the legislation, they gave considerable attention to the nature of the Internet as it was developing in its infancy. In particular, the Court distinguished the Internet from radio. Although both were seen as easily accessed by minors, traditional regulation of radio focused on individual programs and monitoring by the FCC. The Justices, writing early in the history of the Web, felt the discovery of sexually explicit material would seldom be accidental as it might be when walking into a room where the radio was on.
These details and how they played out in the regulation of pornography on the Internet were central to the debates over the Child Internet Pornography Act (CIPA) in 2000. Where the U.S. Congress had regulated access to the Internet in libraries receiving federal money, the libraries claimed that the regulation denied them their traditional responsibility for providing reading and research material. This professional resistance from librarians seems to be very different from what we would expect from the public. In some sense the regulation, which is largely hidden, and which would hide the images, is characteristic of law’s operation.
But how is it that we miss the very important presence of the librarian in the regulation of access to the Internet?
When Congress passed and President Bill Clinton signed CIPA, they clearly had in mind not allowing kids to see pornography. The Supreme Court heard a challenge to the law in 2003. Solicitor General Theodore B. Olson, speaking for the government, defended the statute. He said that the issue before the Court was the same as the decisions libraries make about the selection of books. Paul M. Smith, who argued against the legislation for the librarians, suggested the distinctive quality of the Internet. He asserted that by shear magnitude the Internet was not like a collection of books and that filters excluded much more than pornographic material. The subtext was that the librarians could control their own space. Not only did many not see this argument because the Supreme Court prohibits cameras in its courtroom but the justices ruled in favor of filters and against seeing the offending images.
The ruling on the CIPA was grounded in federal funding to public libraries, particularly the Library Services and Technology Act. Justices Rehnquist, O’Connor, Scalia and Thomas wrote an opinion and were joined in their holding that the CIPA is constitutional by Justices Kennedy and Breyer who indicated that part of the constitutionality of the act depended upon the ability to turn the blocking mechanisms off. This was the optimistic position taken by the American Library Association in response to the decision.
In the Chief Justice’s opinion he says, “A library can set such software to block categories of material, such as “Pornography” and “Violence.” The Chief Justice draws from the position taken by the Solicitor General during oral argument that the free speech issues are easily avoided because adult library patrons can ask to have the filters disabled or sites unblocked without even giving reasons. Justice Kennedy begins his concurrence with this same observation drawn from the government’s position at Oral Argument. In the District Court opinion, which had struck down CIPA, public libraries were considered public fora, like town squares or parks, where speech was protected most fully. They felt that asking to have the filters removed put patrons in potentially embarrassing situations, which was itself a deprivation of free expression. To the former Chief Justice, the risk of embarrassment was not something the Constitution protected against.
There is not much in any of the plurality opinions to address the technologies used to block the obscene and the pornographic. The most explicit formulation is from Justice Stevens in dissent where he speaks of the “key words” used in blocking software as being a relatively cumbersome methodology. He further presents the paradox, drawn from the District Court opinion, that the blocking is guided by key words while CIPA is concerned about images. Thus, one aspect of the decision seems to be a propensity in dissent to discuss the technology in detail and for the majority to gloss over it. The District Court opinion and the Stevens dissent also look extensively at alternative forms of regulation such as those described in detail below.
The Excess of Detail
An engaging discussion of law and images from an interpretivist perspective with some attention to the constitutive dimensions of sociological jurisprudence is that by Alison Young, a professor of Criminology at Melbourne University. In her book, Judging the Image, she offers “…a reading of the law/art relation that circumvents this central paradox and concentrates instead on what she characterizes as “…the embedded and enfolded relation of law and art.” For Young, “…law founds its authority in a system of the imaginary.” This perspective is in opposition to that of Douzinas and Nead.
Writing about graffiti, Young operates at the interstices of art and law. She presents graffiti from the perspective of these two worlds clashing. She writes of an arrest outside a Manhattan gallery showing the works of graffiti artists and notes “The very quality which writers identify as its merit is confirmation of its illegitimacy.” All this is a little confusing. She provides little commentary on how law is constituted but in considerable attention to detail she chooses to emphasize instead the complexity caused by the analytical separation of law and art when it is not separated in life. The intellectually or rhetorically separated is joined in life. The graffiti artist is an outlaw. The intellectual is part of the state apparatus.
In the arrest, “…the bodies of artists are transformed into the bodies of criminals,” we start with two bodies. But that can’t be true since the graffiti artist is part criminal. Interestingly, I suspect that it is not so easy to say the converse about the law. The police officers MAY see the graffiti artist or they may simply see the vandal. Clearly they see the perp hanging with the better classes but one can also presume, from the culture of Manhattan, that the police suspect the authority of those classes a good deal more than they puzzle over the clash of art and law in the body of the graffiti artist.
Pornography, like graffiti, is transgressive. Placed on the laptop or the desktop, it involves risk. Always the risk is much less obvious than the risk in the “old days.” This was the risk of hanging out in Red Light districts. The risk of getting mugged, arrested, infected or just embarrassed. But in avoiding pornography, very likely because it is “dirty” and tainted, Young contributes to our inability to see the “all over” quality of the law. Foucault is one place scholars have looked for the last 20 years. Even popular commentary takes this as a reasonable foundation.
Like Benjamin’s Paris Arcades, the details that constitute law form a structure that might at first seem random or fluid but in the end we can learn to understand them as constitutive. Northeastern University law professor Karl Klare first illuminated the tradition of seeing law this way in contemporary sociolegal scholarship. Later, scholars such as Robert Gordon, Alan Hunt and Lucy Salyer commented on this idea, at the same time that Klare and much of the Critical Legal Studies Movement adopted the relativism of the interpretivist critique.
That this sphere has become highly charged and partisan in the last decade is evident in a pair of cases dealing with former Attorney General John Ashcroft and federal anti-pornography legislation. In the first case, Ashcroft v. Free Speech Coalition (2002), the Supreme Court addressed “virtual” child pornography as regulated by the Child Pornography Protection Act (CPPA) of 1996. By a 7-2 majority they held that a ban on virtual or computer-generated images was over broad and unconstitutional. In Ashcroft v. ACLU (2003), the justices laid the foundations for the now pervasive credit card checks in regulating children’s access to pornography on the Internet. This regulatory mechanism is one of the most obvious interventions of law on the Web. The Court is split in these cases but there is also an evolution toward stricter regulation. This seems likely to be a result of greater conservative control over the judiciary along with the executive and the congress.
For Douzinas, “We are surrounded by laws but we do not know where the Law is.” This is because, often, we can’t see it. For Young, we are surrounded by law, see it everywhere, and deny that it has authority except as background to the play of politics. For comedian Dave Chappelle, in a spectacular satire about sex on the Internet, we are surrounded by sex there.
Keeping an Eye Out
The physical space where law resides matters a good deal. Since the advent of the Internet some notions of space are different and others are very much the same. Vivid virtual realities present new challenges while some very traditional physical aspects of space remain important. A few years ago, Nathan Rawding, a student at the University of Massachusetts, Amherst, decided to study the response of librarians to the Internet Protection Act, the legislation that required libraries receiving federal money to filter Internet access. The act had been attacked as not comprehending the way the Internet worked and the way that it is different from a library. Rawding pointed that viewing the Internet in a public library was highly regulated by the physical space configuration in which access was provided. Thus, the architecture of libraries controlled the space in which all Internet sources, including porn, was to be viewed.
Stanford University law professor Lawrence Lessig’s 1999 book Code: and Other Law of Cyberspace makes a number of prescient observations. They begin with the idea that the Internet has altered how space is constituted and what it means to publish or disseminate information.
“The tolled, single-purpose network of telephones was displaced by the untolled and multipurpose network of packet-switched data. And thus the old one-to-many architectures of publishing (television, radio, newspapers, books) were supplemented by a world where everyone could be a publisher.”
As with the best of legal scholarship, Lessig’s reformulation of publishing has implications for the legal ordering of that activity. He sees in the codes that drive the Internet a kind of constitution.
“…[B]y “constitution”…. I mean an architecture – not just a legal text but a way of life – that structures and constrains social and legal power, to the end of protecting fundamental values – principles and ideals that reach beyond the compromises of ordinary politics.”
New ways of governance that determine the context for a great deal of what we see on the Internet are evident in the ways Google operates. In the way the search engine works lies much of the power of the company and ultimately the “law” that delineates the availability of expression. Cofounders Sergey Brin and Larry Page, must negotiate the worldwide reach of the companies search engines. Begun in 1998 with the message to “help computer users find exactly what they want on the Internet,” it was said to be simple and intuitive, shunning the “portal” model used by ecommerce at the time. In 2003 three, 4 out of 5 searches used Google. The search engine, purity in its structure, avoids pop-ups and other bells and whistles including overly negative sites. But the constitution of physical space means that it needs to deal with the governments where it operates. The distinctive feature of the Google response to these challenges is reliance on the motto, “Don’t be evil.” And evil, according to Google CEO Eric Schmidt “is what Sergey [Brin] says is evil.”
There are important reasons to look beyond the Supreme Court to places where we live and work for the meaning of the Constitution. A recent treatment of this issue is Grinnell College professor Ira Strauber’s book, Neglected Policies. According to Strauber, many of us are too devoted to “lawyerly methods and legal, political, and moral abstractions as they are ordinarily deployed in doctrinal analysis, jurisprudence, and legal philosophy.” His approach “calls for commentary that mixes and merges these methods and abstractions with commonplace contingent and/or circumstantial social-fact, social-scientific, and consequentialist considerations.” This he characterizes in terms of a “willingness to be situated ‘on the outside looking in’ on the law.” This is the position we find ourselves in when law is considered in political science where, until recently, constitutional law was studied primarily by non-lawyers.
Increasingly, even lawyers are seeking to minimize control of the constitutional environment by the courts and their profession. Georgetown University law professor Mark Tushnet, for instance, characterizes institutions and principles in public life as constitutional when they provide “the structure within which ordinary political contention occurs”. A constitutional order is one that has a “reasonably stable set of institutions” and “principles that guide those decisions.” These institutions and principles are evident in cultural practice. We can find them in judicial opinions but we also find them in oral argument and in the way institutions like libraries function.
The Supreme Court has treated the Internet as if it were an ordinary library and digital files as if they are ordinary pictures but those who use them know they are different. Sometimes, as when it operates in a library, the Internet may be subject to the very traditional constraints administered by the librarian. But, at other times and in other contexts, its capacities can make the digital world unique.
Images on the Lap(top)
Among the forbidden images I have seen, some were in a movie forty years ago in Santa Barbara, California. The place where I lived at college, a fraternity, was having a “stag night.” I had been sent, along with another fraternity member, to pick up the movie. We drove from campus to an intersection at the edge of the city and pulled up next to a parked car. A reel of 16 mm film was handed to us, through the window. It was in a metal canister, about 3/4 of an inch thick and six inches in diameter. On it was written, in black marker, “The Poker Game”. From the moment we had gone to get the film this experience was characterized by the marks and features of the forbidden image. The movie, shown later that night, was in black and white and watched by fifty college men and women it was more transgressive than erotic. The transgressive dimension was part of the excitement.
The interest in forbidden images remains strong, especially, it seems, in males, but the context seems so different. A few months ago a friend was using her teenage son’s computer to transfer some photographs from the Internet and she discovered what she described as a large cache of sexually explicit pictures. The discovery seemed akin to a Mom finding a stack or Playboy magazine under the bed a generation or two ago or a crumpled snapshot a few years before that. But of course the pictures were more explicit. They existed on the screen but not as hard copies. And the existence of the Internet mooted, or at least circumscribed, the issue of where they came from. The fact that they appeared out of the same cute iBook on which the boy did his homework only added to the confusion.
Representation of sexual images on the Internet is increasingly discussed in terms of the intimacy and sense of seduction that appears to be possible in this virtual medium where women are not simply naked but appear to be coaxed or seduced to reveal their bodies. Political Science professor Lori Beth Way of California State University, Chico, who has consulted with the Department of Justice about sex industry recruiting on college campuses calls attention to the framing of images that gives them meaning. She is concerned about the context in which they are seen. What she calls, “the frame outside of the frame.” Because it is not constructed by the creator but is the material context in which the creation is presented.
Conservative control of the government leading to more vigorous anti-pornography prosecution is evident in a combined Department of Justice, Department of Homeland Security’s Immigration and Customs Enforcement crack-down on digital child pornography that began in the fall of 2003 and was announced in May of 2004. The target was “peer to peer” networks, the mechanism for file sharing that it at the heart of some of the most dynamic uses of the Internet. In the press release the nexus between child pornography and Homeland Security is not clear but a significant enforcement effort, which began with 1,000 investigations, is being directed from the government and involves digital transmission of sexually explicit material. The government’s announced quarry is pedophiles and the suggestion is that the Internet is their new superhighway.
With regard to the reach of law in the area of Internet pornography, little is confidently known. Some will imagine that there is no harm in seeing pornography but looking at it for a significant amount of time is what might get you in trouble. But, how much looking? A minute? Or is downloading required? Or saving? The warnings would suggest that you have to enter a web site to be guilty of the kind of engagement that spells legal trouble, but those warnings are on websites that promise the images are not children. Some, citing the case of Who guitarist Pete Townsend indicate that you can beat a pornography prosecution by arguing pure intent, like a crusade against child molestation. Socially that is a little hard to accept but legally, a jury would have to decide.
The Iconography of Nothing
Law professor Peter Goodrich, in an article from the collection Law and the Image, explains the significance of the absence in legal authority of images of law. He examines the painting “Edward VI and the Pope” which is by an unknown artist and is dated from 1570. In the painting a dying King Edward VI is surrounded by counselors including the Pope, a figure troublesome for the English monarchy at the time. In the picture there are a number of blank spaces that appear unfinished, as if the artist still had work to do. Some are framed as if they could be scrolls not yet filled in. In an analysis of the painting, Goodrich calls attention to the blank spaces, which he says are intentional representations of the authority of law as the absence of image. He argues that blank spaces or “nothing” is one of the aspects of law’s authority.
The absences described by Goodrich and evident in law as a blank check, a legal form or the judges chamber share family resemblances with the mysterious sense that law can not be seen in the story of Joseph K in The Trial by Franz Kafka. But in Goodrich’s treatment the blank space that is at the heart of law’s authority is there to be filled in. On the web, we see the law’s warnings that stop access to web sites. Perhaps, like the keeper at the door in Kafka’s story the websites are guarded by the credit card as a key to access. My colleagues in Legal Studies at the University of Massachusetts relied on Kafka’s critique of law for more than a generation to build a legal studies program. The result is reaffirmation of the positivist framework rather than development of a constitutive perspective on law. More appropriately, following the strong interpretivism that is in the constitutive tradition, I have suggested here that law is in the details.
Ultimately, the spaces that define law by what we cannot see have more in common with the new technologies identified by Marshall McLuhan and Lawrence Lessig. The Internet is full of images and arguments for the deployment of graphic images. The television that goes on and off in our bedroom bringing law into our most intimate spaces and the computers through which we do our work place the forbidden and ultimately the authority of law at our desks or in our laps. Jurisprudentially the significance of these non-traditional places of law is at least partly a function of past expectations.
Goodrich’s blank spaces of law are not so much absences as they are bounded and structured realms or aspects or ordinary life. They are before us and they wield authority because they are set up in the textures or details of life. Whether it be the fences that at the same time shield and delineate property boundaries, the designated spaces in a printed bank check or the blank monitor set up just in front of the librarian’s desk, the spaces that may become full of necessarily bounded details of the law, images are more often than not the creatures of law.
The traditional places of law in America, its courthouses and lawyers offices, are no longer the pivotal places of law in the lives of her citizens. Courthouses are important to those who use them; but in most instances, law constitutes through being woven into our lives, by becoming the context in which we live. In the case of the Internet, and images that arouse, the signs are less clear about the capacity of the law to constitute our sense of what is forbidden and what is not. And while the lore is still that there is a sphere of privacy and particularly domestic sanctuary beyond the reach of the law the current climate of policy and law suggests otherwise. Just as the domestic is now widely understood as a sphere of violence the desktop and the home have become spheres of pornography. While we see much more, it also seems that the law on what we see is much less clear than it once was.
Forbidden images, once unambiguously associated with legal transgression and intensified as outside the law now flood ordinary private spaces. Without seeming to have much to do with the law they bring its potential for disruption into realms once private and domestic.
The Constitution and Images
John Brigham
Department of Political Science
University of Massachusetts, Amherst
April 1, 2008
Abstract:
This paper examines the changing context for sexual images and the details that give law meaning. The details are evident in Congressional efforts to regulate sex on the Internet and the Supreme Court’s response as well as various contexts for encountering forbidden images from stag films and peep shows to the local public library and sex sites on the web. The paper is part of a larger project on seeing law and the idea of “Blind Justice.” It was originally developed for an issue of Law, Text, Culture that was called “Trouble With Pictures” where the focus was on pictures we are not supposed to see.
Prepared for the New England Political Science Meeting, Providence, RI, April 2008.
An earlier version was presented at the panel on “New Struggles Over the First Amendment,” American Political Science Meeting, Philadelphia, PA August 31, 2006. My thanks in advance to the panel discussants Bradley C. Canon and Judith A. Baer and to colleagues with whom I have discussed these issues, Christine B. Harrington, Lori Beth Way and Sarah Marusek.
An article in The New Yorker recently observed that Hugh Hefner became rich by selling images of “the girl next door with her clothes off.” His Playboy magazine has sold well for fifty years because it has been a relatively safe way to get a forbidden peek at women with their clothes off. While The New Yorker is not generally thought of as having the same appeal, the magazine ran a full page of Playboy nudes along with its story on Hefner. Although each picture was quite small, this mini-centerfold had a traditional appeal. It was also pretty good evidence that sexual images are indeed ubiquitous in the West and that this ubiquity has changed the relationship between pornography and the law.
In the past, pornographic images required immersion in an alien, sometimes threatening context, which highlighted the transgression associated with the forbidden images. Today images with no tease or ritualization of the disorderly prelude are at least as close as one’s desk and probably ones lap. Crude sexual images pop up without invitation and absent the contextual warnings of old. Even where they are sought, the meaning of revelry, the consequences of consumption are seldom clear. In this climate, it is not even always evident what it means to possess an image. The law, in this state, is without many of the important and instructive contextual clues that help to draw the lines on what is forbidden and what is not. Yet, as with other contemporary elements of legal authority its facelessness appears to suggest law continues to be a powerful force in social life. And, in the case of the forbidden images that deal with sex, the power of the law lurks with new significance just out of sight.
The Fine Grained Details
Life contains details that are the key to grasping the meaning, authority and significance of law in general, the First Amendment, and the limits on protections accorded to viewing sexual images. The detail adds up to a context in which we understand what it is acceptable to see. The context is how we know the part that constitutional law and enforcement plays in delineating legitimate viewing. Images appear in context and limits on what can be viewed have to be understood at least in part with reference to that context. The contextual details are a key to constitutional law and inquiry into the way that images in the purview of the First Amendment may be seen helps in understanding the constitutive character of stable legal systems.
In this sense, or at least in a sense that is only a minor tangent, law is like the city. Real cities, we have recently been reminded, as we lament the passing of New Orleans, contain “the small-grained details of everyday life.” These have been built up over decades and they can’t be reproduced by even well planned suburbs and certainly not the cookie cutter housing and theme parks that are so common in the United States. It is not that a city can’t be reconstructed in a cookie cutter fashion but, as is the case with New Orleans, it is clear that a great deal will be lost. Law as it ordinarily operates has more in common with the odd building, seemingly ephemeral graffiti or incidental passing of a police cruiser than students of constitutional law are inclined to acknowledge. In the case of the First Amendment, what it means to “know something when we see it” can be taken as a reference to the act of seeing in context with all the helpful clues that entails.
Like the shopping arcades of Paris for cultural theorist Walter Benjamin, the specifics that constitute law form structures and practices determining its reach and constituting its authority. British historian E. P. Thompson, writing in the 1960s about the details of medieval legal reality, offered a vivid picture of law. He saw it operating as both idea and reality. The “Foreword” to his Whigs and Hunters defined the dualism of law and transcended some of the relativism prevalent at the time. In spite of the rich context, the feudal authority, the brutal conditions of life, the law also existed in the mind as consciousness. In this formulation, and that of Douglas Hay, it was not the hangings that solidified law’s authority but the power to pardon, or imprison. One of the challenges that hasn’t quite been met in the last four decades is the synthesis of detail or context and the more abstract dimensions of authority and obedience.
In the context of constitutional law and the First Amendment, the details deserve more attention. In the public law part of contemporary political science we first saw the detail in society as “impact.” This was the sometimes-puzzling attempt to find out if anyone cared what the Supreme Court had to say. Subsequently, the “law and society” approach, though it paid little attention to constitutional law, broadened consideration of the social dimensions of law, particularly lawyers, local courts and police. The growth of this academic movement paralleled a reemergence of interest in pornography as misogynous and, in this context, the local dimensions of pornography. So, while the Supreme Court was becoming somewhat less interested in the topic, local contexts from city halls to schools and colleges were attending to the “New Politics of Pornography”.
Academic and intellectual inquiry into the meaning of law in general parallels these reflections on the First Amendment. In the last fifty years there has been considerable flux. Gray, writing in The New Yorker about the 1950s, described striptease as a world with style, complexity and multiple meanings where women controlled male lust. A world on its way out, she notes. This was the period in which First Amendment protection emerged. The 60’s, a period of liberation, were followed by the reactions of the Meese commission while the U.S. Supreme Court continued to expand constitutional protection. The feminist attack on pornography in the 1980s incorporated an attack on liberalism and the idea that a façade of law could exist outside the sexual lives and social relations of men and women. That attack itself came under scrutiny from liberals in the academy and the legal profession and conservative capture of the government brought new legislation at the same time that the new digital technologies presented new contexts for viewing sexual images.
Distinctions drawn in society between art and pornography are associated with taste and ultimately reflect social class. In some circles, sexual commentary is open and images of the body that would be offensive or forbidden in other contexts are flaunted. The New Yorker’s extensive review of Playboy centerfolds has been mentioned earlier and The New York Times, in an article on art revealing the body, articulated the aesthetic contention that defines one of the boundaries of acceptable images. Professor Lynda Nead, who co-edited the book Law and the Image, treats these cultural classifications that determine what is legitimate to see as resting “…largely on the judgments of men of taste.” Her focus is Sir Kenneth Clark’s book The Nude: A Study of Ideal Art where the TV host and connoisseur writes that the function of the nude is to give man the opportunity to “feel like a god…” to be ”close to divinity in those flashes of self-identification when, through our own bodies, we seem to be aware of a universal order.” Its aspiration to perfection allows the “man of taste” to separate the naked from the nude. But, in her formulation, encountering the obscene presents challenges and art can’t handle too much of it. For Clark, as discussed by Nead, these men of taste ultimately must manage arousal by controlling access to the public.
Obscenity prosecution is a concern for the public rather than the connoisseur. When Justice William Brennan outlined what would be protected under the First Amendment in the 1957 case, Roth v. United States, he suggested that art, politics and science would render the portrayal of sex protected speech and that which seemed simply to arouse would be unprotected. In this foundational argument for modern constitutional law on pornography, the use to which an image is put, the context, became the basis for drawing the lines between the acceptable and the prohibited. Thus, the law operates without the burden of connoisseurship at the other end of the taste spectrum. With the widespread sexual images available on the Internet, the place and potential imposition of law has little to do with appreciation. Indeed, it is harder to appreciate itself.
Not Seeing in Law
For the British law professor Costas Douzinas and contributors to the collection he edited with Lynda Nead, there is a split between law and the image in the modern state. For, roughly, the last 500 years, the authority of law has been abstracted from the details. In this framework, law draws its authority from the facelessness at the heart of state power. This is what Douzinas, in an essay on the power of what is not seen in law, refers to as the “anti-prosopon.” The “anti-prosopon,” or non-face of law refers to the five hundred year old effort in the West to emphasize the abstract and non-visual dimensions of law. We are taught to turn away from the details to appreciate the abstractions that are conventionally associated with law. The traditional imagelessness of law lets it transcend reality. Indeed, in the guise of legal realism, the amorphous sense of law as words and concepts allow “it” to avoid attention to the social structures and institutions on which the authority of law depends.
The reality that is governed by the unseen is what the late British law professor H.L.A. Hart seemed to be after in proposing important “secondary rules” that would rescue positivism from meaningless abstractions and situate it more fully in experience. Rather than obedience to the grand abstraction of “Law” we are obedient to intervening forces on a smaller scale that is more present in our lives. The police officer, of course, and the various ways we know we must treat him or her. In the guise of secondary rules, what we see as a “Stop” sign is red and octagonal and it radiates the authority of the police officer waiting to appear from nowhere. Similarly the lawyer’s office with its visual display of legal authority in titles, on book shelves and in proximity to the court is a veritable smorgasbord of images that stem from the all-important “secondary rules”.
In another manifestation of realism, abstraction allows law to seem to be “all over”. This profound insight, associated with a body of “Law and Society” scholarship, deserves serious attention. While it is slow to break the stranglehold that Supreme Court and constitutional law scholarship has on Political Science, its suggestion of the importance of focusing outside the courts is particularly exciting for scholars outside the legal profession. Law can operate on a pervasive realist foundation and even, in some senses be “all over” while still being authoritative, at least in part because it is faceless. Law is the absence of image in the very references to “law” as an eminent abstraction that animates prosecutions, judgments and punishments.
The tension between law and image is confronted here at the very point at which the law is under pressure to change and incorporate the image in the contemporary West. The image can be very present while getting all mixed up in the “complexity” of some post-modern commentary about law. Images are everywhere in the convoluted, hyper-realism of relativistic interpretivism, one of the poles in a movements that has its own positivistic divide. Relativistic interpretivism is consistent with the pluralism of American public policy where the work and the image of law’s authority are not without details. In fact pluralism revels in the details to herald the importance of interpretation while obfuscating the nature of laws authority.
Not seeing is what the law of forbidden images, of the obscene and the pornographic, is all about. What we are allowed to see is the subject of continuing Supreme Court litigation and law review analysis. With Stanley v. Georgia, the home had been beyond the gaze of the law with regard to the obscene. In itself, the center of domestic life was a sanctuary, a space away. The wired home is no longer separate. With Internet access it has become connected to the digital world. While it has been clear about children and pornography, the law has become more abstract in the context of digital communication and the Internet. In US v. Thomas (1996), an early computer pornography case from the 6th Circuit involving GIF files, the justices declined to accept the argument that the files were anything other than the images that they began with, before they were scanned, or ended with, after they were printed. In general sexual images are not forbidden unless they involve children as performers or consumers. But, context has become more important as it has become more confusing. Sexual images and performances may be regulated, particularly when they involve media that may at times be assaultive.
In Reno v. American Civil Liberties Union (1997), the Supreme Court invalidated the Communications Decency Act (CDA) of 1996 that had sought to protect minors from “patently offensive” and “indecent” communication on the Internet. The opinion by Justice Stevens spoke for essentially the entire Court. The only dissenting opinion, by Justice O’Connor, was partial, and only the former Chief Justice joined with her. While the Court decided on the vagueness of the legislation, they gave considerable attention to the nature of the Internet as it was developing in its infancy. In particular, the Court distinguished the Internet from radio. Although both were seen as easily accessed by minors, traditional regulation of radio focused on individual programs and monitoring by the FCC. The Justices, writing early in the history of the Web, felt the discovery of sexually explicit material would seldom be accidental as it might be when walking into a room where the radio was on.
These details and how they played out in the regulation of pornography on the Internet were central to the debates over the Child Internet Pornography Act (CIPA) in 2000. Where the U.S. Congress had regulated access to the Internet in libraries receiving federal money, the libraries claimed that the regulation denied them their traditional responsibility for providing reading and research material. This professional resistance from librarians seems to be very different from what we would expect from the public. In some sense the regulation, which is largely hidden, and which would hide the images, is characteristic of law’s operation.
But how is it that we miss the very important presence of the librarian in the regulation of access to the Internet?
When Congress passed and President Bill Clinton signed CIPA, they clearly had in mind not allowing kids to see pornography. The Supreme Court heard a challenge to the law in 2003. Solicitor General Theodore B. Olson, speaking for the government, defended the statute. He said that the issue before the Court was the same as the decisions libraries make about the selection of books. Paul M. Smith, who argued against the legislation for the librarians, suggested the distinctive quality of the Internet. He asserted that by shear magnitude the Internet was not like a collection of books and that filters excluded much more than pornographic material. The subtext was that the librarians could control their own space. Not only did many not see this argument because the Supreme Court prohibits cameras in its courtroom but the justices ruled in favor of filters and against seeing the offending images.
The ruling on the CIPA was grounded in federal funding to public libraries, particularly the Library Services and Technology Act. Justices Rehnquist, O’Connor, Scalia and Thomas wrote an opinion and were joined in their holding that the CIPA is constitutional by Justices Kennedy and Breyer who indicated that part of the constitutionality of the act depended upon the ability to turn the blocking mechanisms off. This was the optimistic position taken by the American Library Association in response to the decision.
In the Chief Justice’s opinion he says, “A library can set such software to block categories of material, such as “Pornography” and “Violence.” The Chief Justice draws from the position taken by the Solicitor General during oral argument that the free speech issues are easily avoided because adult library patrons can ask to have the filters disabled or sites unblocked without even giving reasons. Justice Kennedy begins his concurrence with this same observation drawn from the government’s position at Oral Argument. In the District Court opinion, which had struck down CIPA, public libraries were considered public fora, like town squares or parks, where speech was protected most fully. They felt that asking to have the filters removed put patrons in potentially embarrassing situations, which was itself a deprivation of free expression. To the former Chief Justice, the risk of embarrassment was not something the Constitution protected against.
There is not much in any of the plurality opinions to address the technologies used to block the obscene and the pornographic. The most explicit formulation is from Justice Stevens in dissent where he speaks of the “key words” used in blocking software as being a relatively cumbersome methodology. He further presents the paradox, drawn from the District Court opinion, that the blocking is guided by key words while CIPA is concerned about images. Thus, one aspect of the decision seems to be a propensity in dissent to discuss the technology in detail and for the majority to gloss over it. The District Court opinion and the Stevens dissent also look extensively at alternative forms of regulation such as those described in detail below.
The Excess of Detail
An engaging discussion of law and images from an interpretivist perspective with some attention to the constitutive dimensions of sociological jurisprudence is that by Alison Young, a professor of Criminology at Melbourne University. In her book, Judging the Image, she offers “…a reading of the law/art relation that circumvents this central paradox and concentrates instead on what she characterizes as “…the embedded and enfolded relation of law and art.” For Young, “…law founds its authority in a system of the imaginary.” This perspective is in opposition to that of Douzinas and Nead.
Writing about graffiti, Young operates at the interstices of art and law. She presents graffiti from the perspective of these two worlds clashing. She writes of an arrest outside a Manhattan gallery showing the works of graffiti artists and notes “The very quality which writers identify as its merit is confirmation of its illegitimacy.” All this is a little confusing. She provides little commentary on how law is constituted but in considerable attention to detail she chooses to emphasize instead the complexity caused by the analytical separation of law and art when it is not separated in life. The intellectually or rhetorically separated is joined in life. The graffiti artist is an outlaw. The intellectual is part of the state apparatus.
In the arrest, “…the bodies of artists are transformed into the bodies of criminals,” we start with two bodies. But that can’t be true since the graffiti artist is part criminal. Interestingly, I suspect that it is not so easy to say the converse about the law. The police officers MAY see the graffiti artist or they may simply see the vandal. Clearly they see the perp hanging with the better classes but one can also presume, from the culture of Manhattan, that the police suspect the authority of those classes a good deal more than they puzzle over the clash of art and law in the body of the graffiti artist.
Pornography, like graffiti, is transgressive. Placed on the laptop or the desktop, it involves risk. Always the risk is much less obvious than the risk in the “old days.” This was the risk of hanging out in Red Light districts. The risk of getting mugged, arrested, infected or just embarrassed. But in avoiding pornography, very likely because it is “dirty” and tainted, Young contributes to our inability to see the “all over” quality of the law. Foucault is one place scholars have looked for the last 20 years. Even popular commentary takes this as a reasonable foundation.
Like Benjamin’s Paris Arcades, the details that constitute law form a structure that might at first seem random or fluid but in the end we can learn to understand them as constitutive. Northeastern University law professor Karl Klare first illuminated the tradition of seeing law this way in contemporary sociolegal scholarship. Later, scholars such as Robert Gordon, Alan Hunt and Lucy Salyer commented on this idea, at the same time that Klare and much of the Critical Legal Studies Movement adopted the relativism of the interpretivist critique.
That this sphere has become highly charged and partisan in the last decade is evident in a pair of cases dealing with former Attorney General John Ashcroft and federal anti-pornography legislation. In the first case, Ashcroft v. Free Speech Coalition (2002), the Supreme Court addressed “virtual” child pornography as regulated by the Child Pornography Protection Act (CPPA) of 1996. By a 7-2 majority they held that a ban on virtual or computer-generated images was over broad and unconstitutional. In Ashcroft v. ACLU (2003), the justices laid the foundations for the now pervasive credit card checks in regulating children’s access to pornography on the Internet. This regulatory mechanism is one of the most obvious interventions of law on the Web. The Court is split in these cases but there is also an evolution toward stricter regulation. This seems likely to be a result of greater conservative control over the judiciary along with the executive and the congress.
For Douzinas, “We are surrounded by laws but we do not know where the Law is.” This is because, often, we can’t see it. For Young, we are surrounded by law, see it everywhere, and deny that it has authority except as background to the play of politics. For comedian Dave Chappelle, in a spectacular satire about sex on the Internet, we are surrounded by sex there.
Keeping an Eye Out
The physical space where law resides matters a good deal. Since the advent of the Internet some notions of space are different and others are very much the same. Vivid virtual realities present new challenges while some very traditional physical aspects of space remain important. A few years ago, Nathan Rawding, a student at the University of Massachusetts, Amherst, decided to study the response of librarians to the Internet Protection Act, the legislation that required libraries receiving federal money to filter Internet access. The act had been attacked as not comprehending the way the Internet worked and the way that it is different from a library. Rawding pointed that viewing the Internet in a public library was highly regulated by the physical space configuration in which access was provided. Thus, the architecture of libraries controlled the space in which all Internet sources, including porn, was to be viewed.
Stanford University law professor Lawrence Lessig’s 1999 book Code: and Other Law of Cyberspace makes a number of prescient observations. They begin with the idea that the Internet has altered how space is constituted and what it means to publish or disseminate information.
“The tolled, single-purpose network of telephones was displaced by the untolled and multipurpose network of packet-switched data. And thus the old one-to-many architectures of publishing (television, radio, newspapers, books) were supplemented by a world where everyone could be a publisher.”
As with the best of legal scholarship, Lessig’s reformulation of publishing has implications for the legal ordering of that activity. He sees in the codes that drive the Internet a kind of constitution.
“…[B]y “constitution”…. I mean an architecture – not just a legal text but a way of life – that structures and constrains social and legal power, to the end of protecting fundamental values – principles and ideals that reach beyond the compromises of ordinary politics.”
New ways of governance that determine the context for a great deal of what we see on the Internet are evident in the ways Google operates. In the way the search engine works lies much of the power of the company and ultimately the “law” that delineates the availability of expression. Cofounders Sergey Brin and Larry Page, must negotiate the worldwide reach of the companies search engines. Begun in 1998 with the message to “help computer users find exactly what they want on the Internet,” it was said to be simple and intuitive, shunning the “portal” model used by ecommerce at the time. In 2003 three, 4 out of 5 searches used Google. The search engine, purity in its structure, avoids pop-ups and other bells and whistles including overly negative sites. But the constitution of physical space means that it needs to deal with the governments where it operates. The distinctive feature of the Google response to these challenges is reliance on the motto, “Don’t be evil.” And evil, according to Google CEO Eric Schmidt “is what Sergey [Brin] says is evil.”
There are important reasons to look beyond the Supreme Court to places where we live and work for the meaning of the Constitution. A recent treatment of this issue is Grinnell College professor Ira Strauber’s book, Neglected Policies. According to Strauber, many of us are too devoted to “lawyerly methods and legal, political, and moral abstractions as they are ordinarily deployed in doctrinal analysis, jurisprudence, and legal philosophy.” His approach “calls for commentary that mixes and merges these methods and abstractions with commonplace contingent and/or circumstantial social-fact, social-scientific, and consequentialist considerations.” This he characterizes in terms of a “willingness to be situated ‘on the outside looking in’ on the law.” This is the position we find ourselves in when law is considered in political science where, until recently, constitutional law was studied primarily by non-lawyers.
Increasingly, even lawyers are seeking to minimize control of the constitutional environment by the courts and their profession. Georgetown University law professor Mark Tushnet, for instance, characterizes institutions and principles in public life as constitutional when they provide “the structure within which ordinary political contention occurs”. A constitutional order is one that has a “reasonably stable set of institutions” and “principles that guide those decisions.” These institutions and principles are evident in cultural practice. We can find them in judicial opinions but we also find them in oral argument and in the way institutions like libraries function.
The Supreme Court has treated the Internet as if it were an ordinary library and digital files as if they are ordinary pictures but those who use them know they are different. Sometimes, as when it operates in a library, the Internet may be subject to the very traditional constraints administered by the librarian. But, at other times and in other contexts, its capacities can make the digital world unique.
Images on the Lap(top)
Among the forbidden images I have seen, some were in a movie forty years ago in Santa Barbara, California. The place where I lived at college, a fraternity, was having a “stag night.” I had been sent, along with another fraternity member, to pick up the movie. We drove from campus to an intersection at the edge of the city and pulled up next to a parked car. A reel of 16 mm film was handed to us, through the window. It was in a metal canister, about 3/4 of an inch thick and six inches in diameter. On it was written, in black marker, “The Poker Game”. From the moment we had gone to get the film this experience was characterized by the marks and features of the forbidden image. The movie, shown later that night, was in black and white and watched by fifty college men and women it was more transgressive than erotic. The transgressive dimension was part of the excitement.
The interest in forbidden images remains strong, especially, it seems, in males, but the context seems so different. A few months ago a friend was using her teenage son’s computer to transfer some photographs from the Internet and she discovered what she described as a large cache of sexually explicit pictures. The discovery seemed akin to a Mom finding a stack or Playboy magazine under the bed a generation or two ago or a crumpled snapshot a few years before that. But of course the pictures were more explicit. They existed on the screen but not as hard copies. And the existence of the Internet mooted, or at least circumscribed, the issue of where they came from. The fact that they appeared out of the same cute iBook on which the boy did his homework only added to the confusion.
Representation of sexual images on the Internet is increasingly discussed in terms of the intimacy and sense of seduction that appears to be possible in this virtual medium where women are not simply naked but appear to be coaxed or seduced to reveal their bodies. Political Science professor Lori Beth Way of California State University, Chico, who has consulted with the Department of Justice about sex industry recruiting on college campuses calls attention to the framing of images that gives them meaning. She is concerned about the context in which they are seen. What she calls, “the frame outside of the frame.” Because it is not constructed by the creator but is the material context in which the creation is presented.
Conservative control of the government leading to more vigorous anti-pornography prosecution is evident in a combined Department of Justice, Department of Homeland Security’s Immigration and Customs Enforcement crack-down on digital child pornography that began in the fall of 2003 and was announced in May of 2004. The target was “peer to peer” networks, the mechanism for file sharing that it at the heart of some of the most dynamic uses of the Internet. In the press release the nexus between child pornography and Homeland Security is not clear but a significant enforcement effort, which began with 1,000 investigations, is being directed from the government and involves digital transmission of sexually explicit material. The government’s announced quarry is pedophiles and the suggestion is that the Internet is their new superhighway.
With regard to the reach of law in the area of Internet pornography, little is confidently known. Some will imagine that there is no harm in seeing pornography but looking at it for a significant amount of time is what might get you in trouble. But, how much looking? A minute? Or is downloading required? Or saving? The warnings would suggest that you have to enter a web site to be guilty of the kind of engagement that spells legal trouble, but those warnings are on websites that promise the images are not children. Some, citing the case of Who guitarist Pete Townsend indicate that you can beat a pornography prosecution by arguing pure intent, like a crusade against child molestation. Socially that is a little hard to accept but legally, a jury would have to decide.
The Iconography of Nothing
Law professor Peter Goodrich, in an article from the collection Law and the Image, explains the significance of the absence in legal authority of images of law. He examines the painting “Edward VI and the Pope” which is by an unknown artist and is dated from 1570. In the painting a dying King Edward VI is surrounded by counselors including the Pope, a figure troublesome for the English monarchy at the time. In the picture there are a number of blank spaces that appear unfinished, as if the artist still had work to do. Some are framed as if they could be scrolls not yet filled in. In an analysis of the painting, Goodrich calls attention to the blank spaces, which he says are intentional representations of the authority of law as the absence of image. He argues that blank spaces or “nothing” is one of the aspects of law’s authority.
The absences described by Goodrich and evident in law as a blank check, a legal form or the judges chamber share family resemblances with the mysterious sense that law can not be seen in the story of Joseph K in The Trial by Franz Kafka. But in Goodrich’s treatment the blank space that is at the heart of law’s authority is there to be filled in. On the web, we see the law’s warnings that stop access to web sites. Perhaps, like the keeper at the door in Kafka’s story the websites are guarded by the credit card as a key to access. My colleagues in Legal Studies at the University of Massachusetts relied on Kafka’s critique of law for more than a generation to build a legal studies program. The result is reaffirmation of the positivist framework rather than development of a constitutive perspective on law. More appropriately, following the strong interpretivism that is in the constitutive tradition, I have suggested here that law is in the details.
Ultimately, the spaces that define law by what we cannot see have more in common with the new technologies identified by Marshall McLuhan and Lawrence Lessig. The Internet is full of images and arguments for the deployment of graphic images. The television that goes on and off in our bedroom bringing law into our most intimate spaces and the computers through which we do our work place the forbidden and ultimately the authority of law at our desks or in our laps. Jurisprudentially the significance of these non-traditional places of law is at least partly a function of past expectations.
Goodrich’s blank spaces of law are not so much absences as they are bounded and structured realms or aspects or ordinary life. They are before us and they wield authority because they are set up in the textures or details of life. Whether it be the fences that at the same time shield and delineate property boundaries, the designated spaces in a printed bank check or the blank monitor set up just in front of the librarian’s desk, the spaces that may become full of necessarily bounded details of the law, images are more often than not the creatures of law.
The traditional places of law in America, its courthouses and lawyers offices, are no longer the pivotal places of law in the lives of her citizens. Courthouses are important to those who use them; but in most instances, law constitutes through being woven into our lives, by becoming the context in which we live. In the case of the Internet, and images that arouse, the signs are less clear about the capacity of the law to constitute our sense of what is forbidden and what is not. And while the lore is still that there is a sphere of privacy and particularly domestic sanctuary beyond the reach of the law the current climate of policy and law suggests otherwise. Just as the domestic is now widely understood as a sphere of violence the desktop and the home have become spheres of pornography. While we see much more, it also seems that the law on what we see is much less clear than it once was.
Forbidden images, once unambiguously associated with legal transgression and intensified as outside the law now flood ordinary private spaces. Without seeming to have much to do with the law they bring its potential for disruption into realms once private and domestic.
The Supreme Court and the Closet
“The Rest of the Closet?”
John Brigham
February 13, 2004
For volume on Lawrence v. Texas, Harry Hirsch, editor.
This chapter is about the Supreme Court learning what it means to be gay. This happened between the Court’s rulings on the Georgia sodomy law in Bowers v. Hardwick and the Texas law in Lawrence. Oral argument is placed at the center of this process, particularly the work of Paul M. Smith who argued against the constitutionality of the Texas law. Attorney Smith, described as openly gay, was a law clerk to Supreme Court Justice Lewis Powell in 1980-81. Powell’s reassessment of his vote to uphold the Georgia law in Bowers laid the foundation for the way Lawrence was handled. I will examine the significance of the Court’s public embrace of Smith’s sexual orientation against the backdrop of denial and homophobia that was Bowers.
On December 4, 2002, a few days after the Supreme Court decided to hear the gay rights of Lawrence v. Texas and affirmative action cases from Michigan that would define the Court’s 2002-2003 term, Linda Greenhouse of The New York Times speculated, in print, on the impact that a justice’s personal life has on his opinions. In particular she focused on Justice Lewis F. Powell, Jr. and his lack of experience with gays, or, in the words of the Lawrence argument, persons who have intimate same-sex relationships. This acknowledged lack of familiarity was prescient, prophetic, and, because it was The Times, perhaps determinative. It was also about intimacy and intimate in its own way. Ultimately, the case of Lawrence v. Texas would be argued by Paul M. Smith, an experienced appellate advocate who has made a point of being openly gay and who is a former clerk to Justice Powell.
As it turned out, in the opinion there is a noticeable shift in the Court’s sensitivity to homosexuality. This leads some to speculate that in the period since Bowers the Supreme Court had been transformed and that the familiarity is institutional. It was now comfortable with -- some would even say sensitive to -- the gay community. This chapter examines the institutional dimensions of what seems like a sort of institutional gaydar.
The Court and the Closet
Ms. Greenhouse told her readers, with the gay rights cases of Bowers v. Hardwick and Lawrence v. Texas in mind, that we should draw “lessons on how life informs” opinions from recent history, particularly the life history of Justice Powell (Greenhouse, 2002). This was an uncompromising reflection on judicial motivation from The Times’ senior reporter at the Court. But, it also left a bit to the imagination with regard to its own motivation and what it was suggesting.
The piece was a thoughtful article that incorporated commentary from recent scholarship on the Court and its members. It reflected upon the enduring question of how free the justices can be from their bodies. The article also played on the lore of the institution. This included the robing closet that sits just behind the courtroom where oral arguments are held. The closet is the place where the justices have traditionally shaken each other by the hand before going into public to hear arguments on the great constitutional issues of the day. It is the closet that they come out of when they part the purple curtain and take their seats behind the bench in the courtroom.
Between Bowers and Lawrence, scholars Joyce Murdoch and Deb Price published an important book. Their Courting Justice chronicles the relationship between the Court and the gay community as an increasingly open engagement. Their story begins in what they call the “hyper-closeted days” of the 50s and traces the interaction of the gay and lesbian community with the Court, a place they say “eventually” comes to terms with the forces that blow through American society. They trace the homosexual cases from Justice Frank Murphy’s tortured relationships with women and Tom Clark’s tortured handling of Rosenberg v. Fleuti in 1963 to Bowers, Boy Scouts v. Dale and Romer v. Evans. They make it almost to Lawrence, as it turns out. The authors have the Court reacting to the growing legitimacy of legal claims brought by the gay and lesbian community. These legal scholars get into the institutional life of the Court as they report on 22 homosexual former Supreme Court clerks, 18 gay men and four lesbians.
Rethinking Bowers
In The New York Times, Greenhouse was addressing, specifically, how Justice Lewis Powell had dealt with the issue of same-sex intimacy himself after participating in the decision in Bowers v. Hardwick. Powell came to the Court in 19 and he participated in more that two dozen homosexual cases by the time the justices considered Bowers. He retired from the Court at the end of the 1986-87 Term, a few days after participating in the gay Olympics decision.
According to biographer and former clerk, John C. Jeffries, Jr., Powell had remarked that he had never known a homosexual. Greenhouse has him saying, “I don’t believe I’ve ever met a homosexual,” Justice Powell told one of his clerks while the Bowers case was pending before the Court. The clerk, who was gay, replied “Certainly you have, but you just don’t know that they are.”
A few years later, on October 18, 1990, in the question period following the James Madison Lecture at New York University Law School which took place after he had retired, Powell had famously commented to the effect that he had made a mistake in that case. Asked about reconciling his Bowers and his Roe opinions he said about Bowers “I think I probably made a mistake on that one.” Jefferies reports that Lawrence Tribe tried to get Powell to put it in writing but the Justice declined.
Murdoch and Price’s Courting Justice came out a decade later and the impact mentioned above was part of the politics of transformation that led to this extraordinary book. Like Bob Woodward and Scott Armstrong’s The Brethren and Edward Lazarus’ Closed Chambers before it, the book is full of insider information drawn from interviews with clerks to the Supreme Court’s justices. And like books such as David Garrow’s Liberty and Sexuality, Courting Justice is attentive to the interplay of personal relations, political interests and legal thought that leads to the development of constitutional doctrine.
Addressing the matter of Justice Powell’s contact with the gay community, Murdoch and Price state that in each of six consecutive terms in the 1980s one of Justice Powell’s four law clerks was gay. But, they support the notion that he did not acknowledge homosexuality. They describe a situation later in his life when one of his former clerks died of AIDS and they indicate that he would not face the disease and its implications. Jefferies also examines Powell’s understanding of homosexuality. He makes the distinction between Powell knowing homosexuals and acknowledging them to be homosexuals. This is the sort of distinction that is at the heart of the institutions embrace of homosexuality in Lawrence.
What can we say about presenting the experience of being gay, or the human quality of homosexuality, to the Supreme Court (and about how the Court responds)? Necessarily the institution becomes the context rather than the individual justice. The analytic issue becomes how Justices, clerks, secretaries and institutional hangers on convey the message of gayness. It becomes a matter, in this sense, of how the Court comes in contact with the culture. It is a sort of ontology of the closet. Rumors of Justice Frank Murphy’s homosexuality or those that have swirled around the bachelorhood of Justice David Souter do not constitute the orientation of the Court. That is a matter of institutional action.
Murdoch and Price’s reporting is framed by institutional analysis. Much of the discussion calls attention to individual predispositions in a fashion similar to that suggested by Greenhouse. For instance, Courting Justice has an extensive discussion of Justice Tom Clark’s treatment of homosexuality in Boutilier v. INS, where he wrote the majority opinion. This was a 1966 case that considered the constitutionality of a federal statute that barred homosexuals from admission to the United States. Clark coined the phrase “afflicted with homosexuality” to uphold the statute. Murdoch and Price draw on interviews with Clark’s children, including former Attorney General Ramsey Clark, to demonstrate that personally Tom Clark was aware of homosexuality and supportive of a much loved nephew who was gay.
The buzz around Paul M. Smith was significant by the time he stood up before the bench in 2003. But when we say or others have said that the gayness of attorney Paul Smith reached the Justices we start with the fact that the Court, as an institution, knew Paul Smith.
Smith graduated from Amherst College in 1976 and received his JD from Yale in 1979. Smith was a clerk for James L. Oakes of the Second Circuit whose clerkships in cozy Brattleboro, Vermont were known as an entrée to the Supreme Court. They are also famously communal in the relationships established between the clerks and Judge Oakes and his family. Smith was a clerk at the Supreme Court for the 1980-81 Term, five years before Bowers so it’s pretty clear that Smith was not out to Justice Powell, who he served, but who said even years after that he had not met a gay person.
As an openly gay lawyer he came out at some point after he left the Court and came back to argue the case as a gay man. He was described at a Stonewall Bar dinner as an “openly gay partner” at Jenner and Block.
For “the Court” or even a few of the Justices to know the advocate is certainly an asset in any oral argument before the Supreme Court. Familiarity is what gives celebrity its buzz and movie stars their cache. In the case of the Court the unknown attorney presenting before the bench is not without precedent. In many cases, the prestige of an appearance before the Court pushes attorneys to accept the assignment when others are more experienced. The results are mixed with the Justices often complaining about the quality of advocacy. Yet, Sarah Weddington, who argued Roe, was unknown and quite young when she stood before the bench. She famously held on to the job when others would eagerly have bumped her for the prestigious assignment.
Oral Argument
Oral argument, though often of interest to the public, has not been a focus of much scholarly attention because, in general, the arguments have not been readily available and they are not part of the formal, official record of the cases. There are exceptions. David O’Brien quotes Chief Justice Hughes and Justice Brennan on how much argument meant to them. He mentions that arguments come at a crucial time and “focus the minds of the justices and present the possibility for fresh perspectives on a case.” He also says that arguments were more important in the 19th century when they were more extensive and the amount of printed submission was quite a bit less voluminous. I have examined the institutional practices that constitute what I called “the Cult of the Court,” and discussed the unique public phenomenon of oral argument. Later, in 1994, after legal historian Peter Irons had made materials on many of the greatest Supreme Court arguments available, in spite of the preferences of the Court, social science scholars did a panel on oral argument at the Political Science Meeting in New York City in which we discussed ethnographic considerations.
At the very formal and outwardly staid Supreme Court, the justices engage in behavior during oral argument that, in most contexts, would simply seem rude. Attorneys making the most important appearances of their career are routinely and mercilessly interrupted as they “argue” their side in the dispute. Attorneys before the Court are well aware of the tradition although some seem inadequately prepared. The attorneys must shift focus and build on interests expressed by the justices in brief but pithy exchanges. This makes the experience not only intense because of its magnitude but tricky because of the spontaneity involved. This rewards experienced practitioners and the best make a great deal of money for their few minutes before the bench. Indeed, as I argued in The Cult of the Court, “practices like oral argument… determine more than who wins and who loses. They affect the substance and the quality of the Court’s work, and …what we take to be the law.”
Court arguments are spontaneous and interactive. I think of them as improvisations. The arguments are sometimes funny and often engaging. There is always an element of theater. But, this is a theater of law and the drama is a function of the stakes and the setting. It is not dramatic in the sense of a Broadway play and the relationship between the Justices and the audience seems to be entirely different. The humor is sometimes intentional but often arises from mistakes. The spontaneity is a function of the practice of proceeding more like a seminar than a lecture. This is important to those who wish the law to be rooted in academic practice or at least to those for whom academic practice is related to inquiry and intelligence. It is also interesting because this somewhat arcane discursive practice has a bearing on the issue of broadcasting these arguments.
The argument in Bowers was examined carefully by Jefferies. He felt that Bowers might have been a replay of Bakke with Justice Powell playing a pivotal role, except that he joined the majority. This was a move by Powell that Jefferies calls “the greatest mystery of his career.”
There is considerable debate currently as to whether oral arguments should be televised. The full blown visual performance is not available because the justices have not wanted it to be. My analysis of the performance of oral argument suggests that it shouldn’t be televised. However, with available technology and access, you can hear the justices talking about law during arguments. The qualities of law as a linguistic activity are more precisely and unmitigatedly evident during oral argument than they are in the written opinions. Argument serves today the way the presentation of opinion in open court did years ago. It links the justices to the ideas and concepts of the law. There is an element of performance but, unlike in the theater, the justices are not directly appealing to the audience in the room. The audience appears to be the other justices and the attorneys as in a conversation. This is why it makes such little sense to televise the proceedings.
In thinking about televising the proceeding and why the Court resists, the distinctive character of this activity deserves note. Like athletics, where the outcome is not known prior to playing the game and like “talk” shows where unscripted things are meant to happen, argument before the Court takes form as improvisation. There is a tradition at the Court closely related to that of improvisational theater. The huge difference is that the audience, in the traditional sense, has relatively little influence on the proceedings and huge significance for future events. Argument is more like a rehearsal or even a script conference. Some of the commentary that is to follow will address how the Court improvises with reference to the nature of debate on the Constitution and the implications for more media attention to this part of the governing process.
The oral argument in Lawrence took place March 26, 2003. Paul M. Smith argued for the petitioners and Charles A. Rosenthal for Texas. The selections that follow are chosen with an eye to the issue of coming out to the Court, of representing sexual orientation to the Justices so that they might know someone who is gay.
For John G. Lawrence: Paul M. Smith
MR. SMITH: The one thing, that I submit the court, the state should not be able to come in to say is: We are going to permit ourselves, the majority of people in our society, full and free rein to make these decisions for ourselves, but there's one minority of people [who] don't get that decision and the only reason we're going to give you is we want it that way. We want them to be unequal in their choices and their freedoms, because we think we should have the right to commit adultery, to commit fornication, to commit sodomy. And the state should have no basis for intruding into our lives, but we don't want those people over there to have the same right.
In one sense, the subtlety of Smith’s use of terms relating to sex, particularly who is doing it, is significant for what he presents to the Justices who might be expected to discuss them with some awkwardness. Justice Scalia, on the other hand just weighs in, showing a zest for the delicate give and take.
JUSTICE ANTONIN SCALIA: So the same-sex/other-sex aspect doesn’t come into it…
MR. SMITH: I think it does come into it, because if you are going to suggest that the state of the law on the books in the 19th century is the touchstone you have to take into account that in the 19th century at least on the face of the law married couples were regulated in terms of their forms of sexual intimacy that were created for them.
In dealing with Justice Scalia there is evidence of the tradition that the argument is focused at the center of the Court. That framework taken in the context of the issue here suggests that Smith might be less interested in coming out to Justice Scalia though sometimes to be subject to his assaults can win favor in other corners, as when Justice Ginsburg follows the above exchange with a much more supportive intervention of her own.
Of course, in most places in the argument, Attorney Smith is not representing gayness. He is demonstrating legal expertise. He is very good at putting a social and political discussion into the language of constitutional rights, but this is the point about how the institution confronts homosexuality in the context of oral argument and the institutional engagement for which it is the centerpiece. For instance, early in the argument Smith had this exchange.
JUSTICE ANTONIN SCALIA: these moral judgments. You can make it sound very puritanical, the, you know, the laws against bigamy. I mean, who are you to tell me that I can't have more than one wife, you blue-nose bigot? Sure, you can make it sound that way, but these are laws dealing with public morality. They've always been on the book; nobody has ever told them they're unconstitutional simply because there are moral perceptions behind them. Why is this different from bigamy?
MR. SMITH: First of all, the first law that's appeared on the books in the states of this country that singles out only same-sex sodomy appeared in the 60's and the 70's, and it did not — and it does not — go way back, this kind of discrimination.
Now, bigamy involves protection of an institution that the state creates for its own purposes, and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these people's behaviors, we include a criminal law which is where the most heightened form of people protection analysis ought to apply.
This case is very much like McLaughlin, Your Honor, where you have a statute that said, we’re going to give a specially heightened penalty to cohabitation, but only when it involves a white person with a black person. That interracial cohabitation is different, and the state there made the argument, we’re merely regulating a particular form of conduct, and that's a different form of conduct than interracial cohabitation. And this court very clearly said, No, you're classifying people; and that classification has to be justified.
And this court at many times said a merely disapproval of one group of people, whether it be the hippy communes in Moreno or the mentally retarded in Cleburne, or indeed gay people….
It is a bit unusual for Justice Scalia to listen this patiently once he has engaged with an attorney on a point of law. Scalia represents the old view of homosexuality and what turns out to be the Court’s view is dependent on how much or how little he influences his colleagues.
JUSTICE SCALIA: A justification is the same that's alluded to here, disapproval of homosexuality.
MR. SMITH: Well, I think it would be highly problematic, such a custody case.
JUSTICE SCALIA: Yes, it would?
MR. SMITH: If that were the only justification that could be offered, there was no some showing that there would be any more concrete harm to the children in the school. . . .
Smith’s expertise in privacy law and the ways of the Supreme Court seem to have overshadowed his representativeness. He also argued the important case pitting the American Library Association against federal law requiring access to the internet be filtered in Libraries that received federal funds. The following term, in the fall of 2003, Smith argued the political gerrymandering case, Vieth v. Jubelier, which is likely to be one of the years most important.
In April, a few weeks after the argument, Pennsylvania Republican Senator Rick Santorum compared homosexuality to incest, bigamy and adultery, saying “If you have a right to homosexual sex in your home…you have a right to anything.” The comments have become known more for the outrage they produced than the credibility or stature of Santorum’s position. His comment, “I have no problem with homosexuality. I have a problem with homosexual acts,” in particular, suggested some confusion in this Republican leader about the nature of homosexuality.
The controversy does, however, speak to the characteristic relationship and sometimes tension between the personal and the institutional. A powerful example came up in the context of the Massachusetts legislature’s debate over how to respond to the states Supreme Court ruling that homosexuals must be given the opportunity to be married. During the debate the week of February 9-13, 2004, Representative Shaun P. Kelly attempted to draw his colleagues to his side by personalizing the discussion. Beginning with “Liz, this is for you,” he invoked his colleague Elizabeth Malia who had spoken of the challenges she would face as a lesbian if her partner of 30 years were to die.
Conclusion
In this collection, others will comment on the decision handed down on sodomy and privacy at the end of June 2003 but the tone much spoken about in Justice Kennedy’s majority opinion reflects the sort of change in the Court’s position that might well be attributed to sensitivities developed in the Court and personified in the evolution of Justice Powell’s thinking, an evolution reflected in the out of body collective expression that is a ruling of the Court written, in this case, by Justice Kennedy.
Bibliography
Greenhouse, Linda “Black Robes Don’t Make the Justice, but the Rest of the Closet Just Might,” NYT 12/4/2002 A23.
Jeffries, John C. Jr. Justice Lewis F. Powell, Jr. (New York: Charles Scribner’s Sons, 1994).
Levi, Jennifer “The Court and Civil Rights: Strange Classmates, Stranger Bedfellows,” Supreme Court Review Conference, October 18, 2003, Western New England College of Law, Springfield, Massachusetts.
Murdoch, Joyce and Deb Price, Courting Justice (Basic Books, 2001).
Supreme Court, Oral Argument Transcripts, http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html.
Thomas, Kendall "Beyond the Privacy Principle," Columbia Law Review 92 (October 1992): 1431-1515.
John Brigham
February 13, 2004
For volume on Lawrence v. Texas, Harry Hirsch, editor.
This chapter is about the Supreme Court learning what it means to be gay. This happened between the Court’s rulings on the Georgia sodomy law in Bowers v. Hardwick and the Texas law in Lawrence. Oral argument is placed at the center of this process, particularly the work of Paul M. Smith who argued against the constitutionality of the Texas law. Attorney Smith, described as openly gay, was a law clerk to Supreme Court Justice Lewis Powell in 1980-81. Powell’s reassessment of his vote to uphold the Georgia law in Bowers laid the foundation for the way Lawrence was handled. I will examine the significance of the Court’s public embrace of Smith’s sexual orientation against the backdrop of denial and homophobia that was Bowers.
On December 4, 2002, a few days after the Supreme Court decided to hear the gay rights of Lawrence v. Texas and affirmative action cases from Michigan that would define the Court’s 2002-2003 term, Linda Greenhouse of The New York Times speculated, in print, on the impact that a justice’s personal life has on his opinions. In particular she focused on Justice Lewis F. Powell, Jr. and his lack of experience with gays, or, in the words of the Lawrence argument, persons who have intimate same-sex relationships. This acknowledged lack of familiarity was prescient, prophetic, and, because it was The Times, perhaps determinative. It was also about intimacy and intimate in its own way. Ultimately, the case of Lawrence v. Texas would be argued by Paul M. Smith, an experienced appellate advocate who has made a point of being openly gay and who is a former clerk to Justice Powell.
As it turned out, in the opinion there is a noticeable shift in the Court’s sensitivity to homosexuality. This leads some to speculate that in the period since Bowers the Supreme Court had been transformed and that the familiarity is institutional. It was now comfortable with -- some would even say sensitive to -- the gay community. This chapter examines the institutional dimensions of what seems like a sort of institutional gaydar.
The Court and the Closet
Ms. Greenhouse told her readers, with the gay rights cases of Bowers v. Hardwick and Lawrence v. Texas in mind, that we should draw “lessons on how life informs” opinions from recent history, particularly the life history of Justice Powell (Greenhouse, 2002). This was an uncompromising reflection on judicial motivation from The Times’ senior reporter at the Court. But, it also left a bit to the imagination with regard to its own motivation and what it was suggesting.
The piece was a thoughtful article that incorporated commentary from recent scholarship on the Court and its members. It reflected upon the enduring question of how free the justices can be from their bodies. The article also played on the lore of the institution. This included the robing closet that sits just behind the courtroom where oral arguments are held. The closet is the place where the justices have traditionally shaken each other by the hand before going into public to hear arguments on the great constitutional issues of the day. It is the closet that they come out of when they part the purple curtain and take their seats behind the bench in the courtroom.
Between Bowers and Lawrence, scholars Joyce Murdoch and Deb Price published an important book. Their Courting Justice chronicles the relationship between the Court and the gay community as an increasingly open engagement. Their story begins in what they call the “hyper-closeted days” of the 50s and traces the interaction of the gay and lesbian community with the Court, a place they say “eventually” comes to terms with the forces that blow through American society. They trace the homosexual cases from Justice Frank Murphy’s tortured relationships with women and Tom Clark’s tortured handling of Rosenberg v. Fleuti in 1963 to Bowers, Boy Scouts v. Dale and Romer v. Evans. They make it almost to Lawrence, as it turns out. The authors have the Court reacting to the growing legitimacy of legal claims brought by the gay and lesbian community. These legal scholars get into the institutional life of the Court as they report on 22 homosexual former Supreme Court clerks, 18 gay men and four lesbians.
Rethinking Bowers
In The New York Times, Greenhouse was addressing, specifically, how Justice Lewis Powell had dealt with the issue of same-sex intimacy himself after participating in the decision in Bowers v. Hardwick. Powell came to the Court in 19 and he participated in more that two dozen homosexual cases by the time the justices considered Bowers. He retired from the Court at the end of the 1986-87 Term, a few days after participating in the gay Olympics decision.
According to biographer and former clerk, John C. Jeffries, Jr., Powell had remarked that he had never known a homosexual. Greenhouse has him saying, “I don’t believe I’ve ever met a homosexual,” Justice Powell told one of his clerks while the Bowers case was pending before the Court. The clerk, who was gay, replied “Certainly you have, but you just don’t know that they are.”
A few years later, on October 18, 1990, in the question period following the James Madison Lecture at New York University Law School which took place after he had retired, Powell had famously commented to the effect that he had made a mistake in that case. Asked about reconciling his Bowers and his Roe opinions he said about Bowers “I think I probably made a mistake on that one.” Jefferies reports that Lawrence Tribe tried to get Powell to put it in writing but the Justice declined.
Murdoch and Price’s Courting Justice came out a decade later and the impact mentioned above was part of the politics of transformation that led to this extraordinary book. Like Bob Woodward and Scott Armstrong’s The Brethren and Edward Lazarus’ Closed Chambers before it, the book is full of insider information drawn from interviews with clerks to the Supreme Court’s justices. And like books such as David Garrow’s Liberty and Sexuality, Courting Justice is attentive to the interplay of personal relations, political interests and legal thought that leads to the development of constitutional doctrine.
Addressing the matter of Justice Powell’s contact with the gay community, Murdoch and Price state that in each of six consecutive terms in the 1980s one of Justice Powell’s four law clerks was gay. But, they support the notion that he did not acknowledge homosexuality. They describe a situation later in his life when one of his former clerks died of AIDS and they indicate that he would not face the disease and its implications. Jefferies also examines Powell’s understanding of homosexuality. He makes the distinction between Powell knowing homosexuals and acknowledging them to be homosexuals. This is the sort of distinction that is at the heart of the institutions embrace of homosexuality in Lawrence.
What can we say about presenting the experience of being gay, or the human quality of homosexuality, to the Supreme Court (and about how the Court responds)? Necessarily the institution becomes the context rather than the individual justice. The analytic issue becomes how Justices, clerks, secretaries and institutional hangers on convey the message of gayness. It becomes a matter, in this sense, of how the Court comes in contact with the culture. It is a sort of ontology of the closet. Rumors of Justice Frank Murphy’s homosexuality or those that have swirled around the bachelorhood of Justice David Souter do not constitute the orientation of the Court. That is a matter of institutional action.
Murdoch and Price’s reporting is framed by institutional analysis. Much of the discussion calls attention to individual predispositions in a fashion similar to that suggested by Greenhouse. For instance, Courting Justice has an extensive discussion of Justice Tom Clark’s treatment of homosexuality in Boutilier v. INS, where he wrote the majority opinion. This was a 1966 case that considered the constitutionality of a federal statute that barred homosexuals from admission to the United States. Clark coined the phrase “afflicted with homosexuality” to uphold the statute. Murdoch and Price draw on interviews with Clark’s children, including former Attorney General Ramsey Clark, to demonstrate that personally Tom Clark was aware of homosexuality and supportive of a much loved nephew who was gay.
The buzz around Paul M. Smith was significant by the time he stood up before the bench in 2003. But when we say or others have said that the gayness of attorney Paul Smith reached the Justices we start with the fact that the Court, as an institution, knew Paul Smith.
Smith graduated from Amherst College in 1976 and received his JD from Yale in 1979. Smith was a clerk for James L. Oakes of the Second Circuit whose clerkships in cozy Brattleboro, Vermont were known as an entrée to the Supreme Court. They are also famously communal in the relationships established between the clerks and Judge Oakes and his family. Smith was a clerk at the Supreme Court for the 1980-81 Term, five years before Bowers so it’s pretty clear that Smith was not out to Justice Powell, who he served, but who said even years after that he had not met a gay person.
As an openly gay lawyer he came out at some point after he left the Court and came back to argue the case as a gay man. He was described at a Stonewall Bar dinner as an “openly gay partner” at Jenner and Block.
For “the Court” or even a few of the Justices to know the advocate is certainly an asset in any oral argument before the Supreme Court. Familiarity is what gives celebrity its buzz and movie stars their cache. In the case of the Court the unknown attorney presenting before the bench is not without precedent. In many cases, the prestige of an appearance before the Court pushes attorneys to accept the assignment when others are more experienced. The results are mixed with the Justices often complaining about the quality of advocacy. Yet, Sarah Weddington, who argued Roe, was unknown and quite young when she stood before the bench. She famously held on to the job when others would eagerly have bumped her for the prestigious assignment.
Oral Argument
Oral argument, though often of interest to the public, has not been a focus of much scholarly attention because, in general, the arguments have not been readily available and they are not part of the formal, official record of the cases. There are exceptions. David O’Brien quotes Chief Justice Hughes and Justice Brennan on how much argument meant to them. He mentions that arguments come at a crucial time and “focus the minds of the justices and present the possibility for fresh perspectives on a case.” He also says that arguments were more important in the 19th century when they were more extensive and the amount of printed submission was quite a bit less voluminous. I have examined the institutional practices that constitute what I called “the Cult of the Court,” and discussed the unique public phenomenon of oral argument. Later, in 1994, after legal historian Peter Irons had made materials on many of the greatest Supreme Court arguments available, in spite of the preferences of the Court, social science scholars did a panel on oral argument at the Political Science Meeting in New York City in which we discussed ethnographic considerations.
At the very formal and outwardly staid Supreme Court, the justices engage in behavior during oral argument that, in most contexts, would simply seem rude. Attorneys making the most important appearances of their career are routinely and mercilessly interrupted as they “argue” their side in the dispute. Attorneys before the Court are well aware of the tradition although some seem inadequately prepared. The attorneys must shift focus and build on interests expressed by the justices in brief but pithy exchanges. This makes the experience not only intense because of its magnitude but tricky because of the spontaneity involved. This rewards experienced practitioners and the best make a great deal of money for their few minutes before the bench. Indeed, as I argued in The Cult of the Court, “practices like oral argument… determine more than who wins and who loses. They affect the substance and the quality of the Court’s work, and …what we take to be the law.”
Court arguments are spontaneous and interactive. I think of them as improvisations. The arguments are sometimes funny and often engaging. There is always an element of theater. But, this is a theater of law and the drama is a function of the stakes and the setting. It is not dramatic in the sense of a Broadway play and the relationship between the Justices and the audience seems to be entirely different. The humor is sometimes intentional but often arises from mistakes. The spontaneity is a function of the practice of proceeding more like a seminar than a lecture. This is important to those who wish the law to be rooted in academic practice or at least to those for whom academic practice is related to inquiry and intelligence. It is also interesting because this somewhat arcane discursive practice has a bearing on the issue of broadcasting these arguments.
The argument in Bowers was examined carefully by Jefferies. He felt that Bowers might have been a replay of Bakke with Justice Powell playing a pivotal role, except that he joined the majority. This was a move by Powell that Jefferies calls “the greatest mystery of his career.”
There is considerable debate currently as to whether oral arguments should be televised. The full blown visual performance is not available because the justices have not wanted it to be. My analysis of the performance of oral argument suggests that it shouldn’t be televised. However, with available technology and access, you can hear the justices talking about law during arguments. The qualities of law as a linguistic activity are more precisely and unmitigatedly evident during oral argument than they are in the written opinions. Argument serves today the way the presentation of opinion in open court did years ago. It links the justices to the ideas and concepts of the law. There is an element of performance but, unlike in the theater, the justices are not directly appealing to the audience in the room. The audience appears to be the other justices and the attorneys as in a conversation. This is why it makes such little sense to televise the proceedings.
In thinking about televising the proceeding and why the Court resists, the distinctive character of this activity deserves note. Like athletics, where the outcome is not known prior to playing the game and like “talk” shows where unscripted things are meant to happen, argument before the Court takes form as improvisation. There is a tradition at the Court closely related to that of improvisational theater. The huge difference is that the audience, in the traditional sense, has relatively little influence on the proceedings and huge significance for future events. Argument is more like a rehearsal or even a script conference. Some of the commentary that is to follow will address how the Court improvises with reference to the nature of debate on the Constitution and the implications for more media attention to this part of the governing process.
The oral argument in Lawrence took place March 26, 2003. Paul M. Smith argued for the petitioners and Charles A. Rosenthal for Texas. The selections that follow are chosen with an eye to the issue of coming out to the Court, of representing sexual orientation to the Justices so that they might know someone who is gay.
For John G. Lawrence: Paul M. Smith
MR. SMITH: The one thing, that I submit the court, the state should not be able to come in to say is: We are going to permit ourselves, the majority of people in our society, full and free rein to make these decisions for ourselves, but there's one minority of people [who] don't get that decision and the only reason we're going to give you is we want it that way. We want them to be unequal in their choices and their freedoms, because we think we should have the right to commit adultery, to commit fornication, to commit sodomy. And the state should have no basis for intruding into our lives, but we don't want those people over there to have the same right.
In one sense, the subtlety of Smith’s use of terms relating to sex, particularly who is doing it, is significant for what he presents to the Justices who might be expected to discuss them with some awkwardness. Justice Scalia, on the other hand just weighs in, showing a zest for the delicate give and take.
JUSTICE ANTONIN SCALIA: So the same-sex/other-sex aspect doesn’t come into it…
MR. SMITH: I think it does come into it, because if you are going to suggest that the state of the law on the books in the 19th century is the touchstone you have to take into account that in the 19th century at least on the face of the law married couples were regulated in terms of their forms of sexual intimacy that were created for them.
In dealing with Justice Scalia there is evidence of the tradition that the argument is focused at the center of the Court. That framework taken in the context of the issue here suggests that Smith might be less interested in coming out to Justice Scalia though sometimes to be subject to his assaults can win favor in other corners, as when Justice Ginsburg follows the above exchange with a much more supportive intervention of her own.
Of course, in most places in the argument, Attorney Smith is not representing gayness. He is demonstrating legal expertise. He is very good at putting a social and political discussion into the language of constitutional rights, but this is the point about how the institution confronts homosexuality in the context of oral argument and the institutional engagement for which it is the centerpiece. For instance, early in the argument Smith had this exchange.
JUSTICE ANTONIN SCALIA: these moral judgments. You can make it sound very puritanical, the, you know, the laws against bigamy. I mean, who are you to tell me that I can't have more than one wife, you blue-nose bigot? Sure, you can make it sound that way, but these are laws dealing with public morality. They've always been on the book; nobody has ever told them they're unconstitutional simply because there are moral perceptions behind them. Why is this different from bigamy?
MR. SMITH: First of all, the first law that's appeared on the books in the states of this country that singles out only same-sex sodomy appeared in the 60's and the 70's, and it did not — and it does not — go way back, this kind of discrimination.
Now, bigamy involves protection of an institution that the state creates for its own purposes, and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these people's behaviors, we include a criminal law which is where the most heightened form of people protection analysis ought to apply.
This case is very much like McLaughlin, Your Honor, where you have a statute that said, we’re going to give a specially heightened penalty to cohabitation, but only when it involves a white person with a black person. That interracial cohabitation is different, and the state there made the argument, we’re merely regulating a particular form of conduct, and that's a different form of conduct than interracial cohabitation. And this court very clearly said, No, you're classifying people; and that classification has to be justified.
And this court at many times said a merely disapproval of one group of people, whether it be the hippy communes in Moreno or the mentally retarded in Cleburne, or indeed gay people….
It is a bit unusual for Justice Scalia to listen this patiently once he has engaged with an attorney on a point of law. Scalia represents the old view of homosexuality and what turns out to be the Court’s view is dependent on how much or how little he influences his colleagues.
JUSTICE SCALIA: A justification is the same that's alluded to here, disapproval of homosexuality.
MR. SMITH: Well, I think it would be highly problematic, such a custody case.
JUSTICE SCALIA: Yes, it would?
MR. SMITH: If that were the only justification that could be offered, there was no some showing that there would be any more concrete harm to the children in the school. . . .
Smith’s expertise in privacy law and the ways of the Supreme Court seem to have overshadowed his representativeness. He also argued the important case pitting the American Library Association against federal law requiring access to the internet be filtered in Libraries that received federal funds. The following term, in the fall of 2003, Smith argued the political gerrymandering case, Vieth v. Jubelier, which is likely to be one of the years most important.
In April, a few weeks after the argument, Pennsylvania Republican Senator Rick Santorum compared homosexuality to incest, bigamy and adultery, saying “If you have a right to homosexual sex in your home…you have a right to anything.” The comments have become known more for the outrage they produced than the credibility or stature of Santorum’s position. His comment, “I have no problem with homosexuality. I have a problem with homosexual acts,” in particular, suggested some confusion in this Republican leader about the nature of homosexuality.
The controversy does, however, speak to the characteristic relationship and sometimes tension between the personal and the institutional. A powerful example came up in the context of the Massachusetts legislature’s debate over how to respond to the states Supreme Court ruling that homosexuals must be given the opportunity to be married. During the debate the week of February 9-13, 2004, Representative Shaun P. Kelly attempted to draw his colleagues to his side by personalizing the discussion. Beginning with “Liz, this is for you,” he invoked his colleague Elizabeth Malia who had spoken of the challenges she would face as a lesbian if her partner of 30 years were to die.
Conclusion
In this collection, others will comment on the decision handed down on sodomy and privacy at the end of June 2003 but the tone much spoken about in Justice Kennedy’s majority opinion reflects the sort of change in the Court’s position that might well be attributed to sensitivities developed in the Court and personified in the evolution of Justice Powell’s thinking, an evolution reflected in the out of body collective expression that is a ruling of the Court written, in this case, by Justice Kennedy.
Bibliography
Greenhouse, Linda “Black Robes Don’t Make the Justice, but the Rest of the Closet Just Might,” NYT 12/4/2002 A23.
Jeffries, John C. Jr. Justice Lewis F. Powell, Jr. (New York: Charles Scribner’s Sons, 1994).
Levi, Jennifer “The Court and Civil Rights: Strange Classmates, Stranger Bedfellows,” Supreme Court Review Conference, October 18, 2003, Western New England College of Law, Springfield, Massachusetts.
Murdoch, Joyce and Deb Price, Courting Justice (Basic Books, 2001).
Supreme Court, Oral Argument Transcripts, http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html.
Thomas, Kendall "Beyond the Privacy Principle," Columbia Law Review 92 (October 1992): 1431-1515.
Tuesday, April 29, 2008
Sex in Context
Sex in Context:
The Constitution for Images
John Brigham
Department of Political Science
University of Massachusetts, Amherst
April 1, 2008
Abstract:
This paper examines the changing context for sexual images and the details that give law meaning. The details are evident in Congressional efforts to regulate sex on the Internet and the Supreme Court’s response as well as various contexts for encountering forbidden images from stag films and peep shows to the local public library and sex sites on the web. The paper is part of a larger project on seeing law and the idea of “Blind Justice.” It was originally developed for an issue of Law, Text, Culture that was called “Trouble With Pictures” where the focus was on pictures we are not supposed to see.
Prepared for the New England Political Science Meeting, Providence, RI, April 2008.
An earlier version was presented at the panel on “New Struggles Over the First Amendment,” American Political Science Meeting, Philadelphia, PA August 31, 2006. My thanks in advance to the panel discussants Bradley C. Canon and Judith A. Baer and to colleagues with whom I have discussed these issues, Christine B. Harrington, Lori Beth Way and Sarah Marusek.
An article in The New Yorker recently observed that Hugh Hefner became rich by selling images of “the girl next door with her clothes off.” His Playboy magazine has sold well for fifty years because it has been a relatively safe way to get a forbidden peek at women with their clothes off. While The New Yorker is not generally thought of as having the same appeal, the magazine ran a full page of Playboy nudes along with its story on Hefner. Although each picture was quite small, this mini-centerfold had a traditional appeal. It was also pretty good evidence that sexual images are indeed ubiquitous in the West and that this ubiquity has changed the relationship between pornography and the law.
In the past, pornographic images required immersion in an alien, sometimes threatening context, which highlighted the transgression associated with the forbidden images. Today images with no tease or ritualization of the disorderly prelude are at least as close as one’s desk and probably ones lap. Crude sexual images pop up without invitation and absent the contextual warnings of old. Even where they are sought, the meaning of revelry, the consequences of consumption are seldom clear. In this climate, it is not even always evident what it means to possess an image. The law, in this state, is without many of the important and instructive contextual clues that help to draw the lines on what is forbidden and what is not. Yet, as with other contemporary elements of legal authority its facelessness appears to suggest law continues to be a powerful force in social life. And, in the case of the forbidden images that deal with sex, the power of the law lurks with new significance just out of sight.
The Fine Grained Details
Life contains details that are the key to grasping the meaning, authority and significance of law in general, the First Amendment, and the limits on protections accorded to viewing sexual images. The detail adds up to a context in which we understand what it is acceptable to see. The context is how we know the part that constitutional law and enforcement plays in delineating legitimate viewing. Images appear in context and limits on what can be viewed have to be understood at least in part with reference to that context. The contextual details are a key to constitutional law and inquiry into the way that images in the purview of the First Amendment may be seen helps in understanding the constitutive character of stable legal systems.
In this sense, or at least in a sense that is only a minor tangent, law is like the city. Real cities, we have recently been reminded, as we lament the passing of New Orleans, contain “the small-grained details of everyday life.” These have been built up over decades and they can’t be reproduced by even well planned suburbs and certainly not the cookie cutter housing and theme parks that are so common in the United States. It is not that a city can’t be reconstructed in a cookie cutter fashion but, as is the case with New Orleans, it is clear that a great deal will be lost. Law as it ordinarily operates has more in common with the odd building, seemingly ephemeral graffiti or incidental passing of a police cruiser than students of constitutional law are inclined to acknowledge. In the case of the First Amendment, what it means to “know something when we see it” can be taken as a reference to the act of seeing in context with all the helpful clues that entails.
Like the shopping arcades of Paris for cultural theorist Walter Benjamin, the specifics that constitute law form structures and practices determining its reach and constituting its authority. British historian E. P. Thompson, writing in the 1960s about the details of medieval legal reality, offered a vivid picture of law. He saw it operating as both idea and reality. The “Foreword” to his Whigs and Hunters defined the dualism of law and transcended some of the relativism prevalent at the time. In spite of the rich context, the feudal authority, the brutal conditions of life, the law also existed in the mind as consciousness. In this formulation, and that of Douglas Hay, it was not the hangings that solidified law’s authority but the power to pardon, or imprison. One of the challenges that hasn’t quite been met in the last four decades is the synthesis of detail or context and the more abstract dimensions of authority and obedience.
In the context of constitutional law and the First Amendment, the details deserve more attention. In the public law part of contemporary political science we first saw the detail in society as “impact.” This was the sometimes-puzzling attempt to find out if anyone cared what the Supreme Court had to say. Subsequently, the “law and society” approach, though it paid little attention to constitutional law, broadened consideration of the social dimensions of law, particularly lawyers, local courts and police. The growth of this academic movement paralleled a reemergence of interest in pornography as misogynous and, in this context, the local dimensions of pornography. So, while the Supreme Court was becoming somewhat less interested in the topic, local contexts from city halls to schools and colleges were attending to the “New Politics of Pornography”.
Academic and intellectual inquiry into the meaning of law in general parallels these reflections on the First Amendment. In the last fifty years there has been considerable flux. Gray, writing in The New Yorker about the 1950s, described striptease as a world with style, complexity and multiple meanings where women controlled male lust. A world on its way out, she notes. This was the period in which First Amendment protection emerged. The 60’s, a period of liberation, were followed by the reactions of the Meese commission while the U.S. Supreme Court continued to expand constitutional protection. The feminist attack on pornography in the 1980s incorporated an attack on liberalism and the idea that a façade of law could exist outside the sexual lives and social relations of men and women. That attack itself came under scrutiny from liberals in the academy and the legal profession and conservative capture of the government brought new legislation at the same time that the new digital technologies presented new contexts for viewing sexual images.
Distinctions drawn in society between art and pornography are associated with taste and ultimately reflect social class. In some circles, sexual commentary is open and images of the body that would be offensive or forbidden in other contexts are flaunted. The New Yorker’s extensive review of Playboy centerfolds has been mentioned earlier and The New York Times, in an article on art revealing the body, articulated the aesthetic contention that defines one of the boundaries of acceptable images. Professor Lynda Nead, who co-edited the book Law and the Image, treats these cultural classifications that determine what is legitimate to see as resting “…largely on the judgments of men of taste.” Her focus is Sir Kenneth Clark’s book The Nude: A Study of Ideal Art where the TV host and connoisseur writes that the function of the nude is to give man the opportunity to “feel like a god…” to be ”close to divinity in those flashes of self-identification when, through our own bodies, we seem to be aware of a universal order.” Its aspiration to perfection allows the “man of taste” to separate the naked from the nude. But, in her formulation, encountering the obscene presents challenges and art can’t handle too much of it. For Clark, as discussed by Nead, these men of taste ultimately must manage arousal by controlling access to the public.
Obscenity prosecution is a concern for the public rather than the connoisseur. When Justice William Brennan outlined what would be protected under the First Amendment in the 1957 case, Roth v. United States, he suggested that art, politics and science would render the portrayal of sex protected speech and that which seemed simply to arouse would be unprotected. In this foundational argument for modern constitutional law on pornography, the use to which an image is put, the context, became the basis for drawing the lines between the acceptable and the prohibited. Thus, the law operates without the burden of connoisseurship at the other end of the taste spectrum. With the widespread sexual images available on the Internet, the place and potential imposition of law has little to do with appreciation. Indeed, it is harder to appreciate itself.
Not Seeing in Law
For the British law professor Costas Douzinas and contributors to the collection he edited with Lynda Nead, there is a split between law and the image in the modern state. For, roughly, the last 500 years, the authority of law has been abstracted from the details. In this framework, law draws its authority from the facelessness at the heart of state power. This is what Douzinas, in an essay on the power of what is not seen in law, refers to as the “anti-prosopon.” The “anti-prosopon,” or non-face of law refers to the five hundred year old effort in the West to emphasize the abstract and non-visual dimensions of law. We are taught to turn away from the details to appreciate the abstractions that are conventionally associated with law. The traditional imagelessness of law lets it transcend reality. Indeed, in the guise of legal realism, the amorphous sense of law as words and concepts allow “it” to avoid attention to the social structures and institutions on which the authority of law depends.
The reality that is governed by the unseen is what the late British law professor H.L.A. Hart seemed to be after in proposing important “secondary rules” that would rescue positivism from meaningless abstractions and situate it more fully in experience. Rather than obedience to the grand abstraction of “Law” we are obedient to intervening forces on a smaller scale that is more present in our lives. The police officer, of course, and the various ways we know we must treat him or her. In the guise of secondary rules, what we see as a “Stop” sign is red and octagonal and it radiates the authority of the police officer waiting to appear from nowhere. Similarly the lawyer’s office with its visual display of legal authority in titles, on book shelves and in proximity to the court is a veritable smorgasbord of images that stem from the all-important “secondary rules”.
In another manifestation of realism, abstraction allows law to seem to be “all over”. This profound insight, associated with a body of “Law and Society” scholarship, deserves serious attention. While it is slow to break the stranglehold that Supreme Court and constitutional law scholarship has on Political Science, its suggestion of the importance of focusing outside the courts is particularly exciting for scholars outside the legal profession. Law can operate on a pervasive realist foundation and even, in some senses be “all over” while still being authoritative, at least in part because it is faceless. Law is the absence of image in the very references to “law” as an eminent abstraction that animates prosecutions, judgments and punishments.
The tension between law and image is confronted here at the very point at which the law is under pressure to change and incorporate the image in the contemporary West. The image can be very present while getting all mixed up in the “complexity” of some post-modern commentary about law. Images are everywhere in the convoluted, hyper-realism of relativistic interpretivism, one of the poles in a movements that has its own positivistic divide. Relativistic interpretivism is consistent with the pluralism of American public policy where the work and the image of law’s authority are not without details. In fact pluralism revels in the details to herald the importance of interpretation while obfuscating the nature of laws authority.
Not seeing is what the law of forbidden images, of the obscene and the pornographic, is all about. What we are allowed to see is the subject of continuing Supreme Court litigation and law review analysis. With Stanley v. Georgia, the home had been beyond the gaze of the law with regard to the obscene. In itself, the center of domestic life was a sanctuary, a space away. The wired home is no longer separate. With Internet access it has become connected to the digital world. While it has been clear about children and pornography, the law has become more abstract in the context of digital communication and the Internet. In US v. Thomas (1996), an early computer pornography case from the 6th Circuit involving GIF files, the justices declined to accept the argument that the files were anything other than the images that they began with, before they were scanned, or ended with, after they were printed. In general sexual images are not forbidden unless they involve children as performers or consumers. But, context has become more important as it has become more confusing. Sexual images and performances may be regulated, particularly when they involve media that may at times be assaultive.
In Reno v. American Civil Liberties Union (1997), the Supreme Court invalidated the Communications Decency Act (CDA) of 1996 that had sought to protect minors from “patently offensive” and “indecent” communication on the Internet. The opinion by Justice Stevens spoke for essentially the entire Court. The only dissenting opinion, by Justice O’Connor, was partial, and only the former Chief Justice joined with her. While the Court decided on the vagueness of the legislation, they gave considerable attention to the nature of the Internet as it was developing in its infancy. In particular, the Court distinguished the Internet from radio. Although both were seen as easily accessed by minors, traditional regulation of radio focused on individual programs and monitoring by the FCC. The Justices, writing early in the history of the Web, felt the discovery of sexually explicit material would seldom be accidental as it might be when walking into a room where the radio was on.
These details and how they played out in the regulation of pornography on the Internet were central to the debates over the Child Internet Pornography Act (CIPA) in 2000. Where the U.S. Congress had regulated access to the Internet in libraries receiving federal money, the libraries claimed that the regulation denied them their traditional responsibility for providing reading and research material. This professional resistance from librarians seems to be very different from what we would expect from the public. In some sense the regulation, which is largely hidden, and which would hide the images, is characteristic of law’s operation.
But how is it that we miss the very important presence of the librarian in the regulation of access to the Internet?
When Congress passed and President Bill Clinton signed CIPA, they clearly had in mind not allowing kids to see pornography. The Supreme Court heard a challenge to the law in 2003. Solicitor General Theodore B. Olson, speaking for the government, defended the statute. He said that the issue before the Court was the same as the decisions libraries make about the selection of books. Paul M. Smith, who argued against the legislation for the librarians, suggested the distinctive quality of the Internet. He asserted that by shear magnitude the Internet was not like a collection of books and that filters excluded much more than pornographic material. The subtext was that the librarians could control their own space. Not only did many not see this argument because the Supreme Court prohibits cameras in its courtroom but the justices ruled in favor of filters and against seeing the offending images.
The ruling on the CIPA was grounded in federal funding to public libraries, particularly the Library Services and Technology Act. Justices Rehnquist, O’Connor, Scalia and Thomas wrote an opinion and were joined in their holding that the CIPA is constitutional by Justices Kennedy and Breyer who indicated that part of the constitutionality of the act depended upon the ability to turn the blocking mechanisms off. This was the optimistic position taken by the American Library Association in response to the decision.
In the Chief Justice’s opinion he says, “A library can set such software to block categories of material, such as “Pornography” and “Violence.” The Chief Justice draws from the position taken by the Solicitor General during oral argument that the free speech issues are easily avoided because adult library patrons can ask to have the filters disabled or sites unblocked without even giving reasons. Justice Kennedy begins his concurrence with this same observation drawn from the government’s position at Oral Argument. In the District Court opinion, which had struck down CIPA, public libraries were considered public fora, like town squares or parks, where speech was protected most fully. They felt that asking to have the filters removed put patrons in potentially embarrassing situations, which was itself a deprivation of free expression. To the former Chief Justice, the risk of embarrassment was not something the Constitution protected against.
There is not much in any of the plurality opinions to address the technologies used to block the obscene and the pornographic. The most explicit formulation is from Justice Stevens in dissent where he speaks of the “key words” used in blocking software as being a relatively cumbersome methodology. He further presents the paradox, drawn from the District Court opinion, that the blocking is guided by key words while CIPA is concerned about images. Thus, one aspect of the decision seems to be a propensity in dissent to discuss the technology in detail and for the majority to gloss over it. The District Court opinion and the Stevens dissent also look extensively at alternative forms of regulation such as those described in detail below.
The Excess of Detail
An engaging discussion of law and images from an interpretivist perspective with some attention to the constitutive dimensions of sociological jurisprudence is that by Alison Young, a professor of Criminology at Melbourne University. In her book, Judging the Image, she offers “…a reading of the law/art relation that circumvents this central paradox and concentrates instead on what she characterizes as “…the embedded and enfolded relation of law and art.” For Young, “…law founds its authority in a system of the imaginary.” This perspective is in opposition to that of Douzinas and Nead.
Writing about graffiti, Young operates at the interstices of art and law. She presents graffiti from the perspective of these two worlds clashing. She writes of an arrest outside a Manhattan gallery showing the works of graffiti artists and notes “The very quality which writers identify as its merit is confirmation of its illegitimacy.” All this is a little confusing. She provides little commentary on how law is constituted but in considerable attention to detail she chooses to emphasize instead the complexity caused by the analytical separation of law and art when it is not separated in life. The intellectually or rhetorically separated is joined in life. The graffiti artist is an outlaw. The intellectual is part of the state apparatus.
In the arrest, “…the bodies of artists are transformed into the bodies of criminals,” we start with two bodies. But that can’t be true since the graffiti artist is part criminal. Interestingly, I suspect that it is not so easy to say the converse about the law. The police officers MAY see the graffiti artist or they may simply see the vandal. Clearly they see the perp hanging with the better classes but one can also presume, from the culture of Manhattan, that the police suspect the authority of those classes a good deal more than they puzzle over the clash of art and law in the body of the graffiti artist.
Pornography, like graffiti, is transgressive. Placed on the laptop or the desktop, it involves risk. Always the risk is much less obvious than the risk in the “old days.” This was the risk of hanging out in Red Light districts. The risk of getting mugged, arrested, infected or just embarrassed. But in avoiding pornography, very likely because it is “dirty” and tainted, Young contributes to our inability to see the “all over” quality of the law. Foucault is one place scholars have looked for the last 20 years. Even popular commentary takes this as a reasonable foundation.
Like Benjamin’s Paris Arcades, the details that constitute law form a structure that might at first seem random or fluid but in the end we can learn to understand them as constitutive. Northeastern University law professor Karl Klare first illuminated the tradition of seeing law this way in contemporary sociolegal scholarship. Later, scholars such as Robert Gordon, Alan Hunt and Lucy Salyer commented on this idea, at the same time that Klare and much of the Critical Legal Studies Movement adopted the relativism of the interpretivist critique.
That this sphere has become highly charged and partisan in the last decade is evident in a pair of cases dealing with former Attorney General John Ashcroft and federal anti-pornography legislation. In the first case, Ashcroft v. Free Speech Coalition (2002), the Supreme Court addressed “virtual” child pornography as regulated by the Child Pornography Protection Act (CPPA) of 1996. By a 7-2 majority they held that a ban on virtual or computer-generated images was over broad and unconstitutional. In Ashcroft v. ACLU (2003), the justices laid the foundations for the now pervasive credit card checks in regulating children’s access to pornography on the Internet. This regulatory mechanism is one of the most obvious interventions of law on the Web. The Court is split in these cases but there is also an evolution toward stricter regulation. This seems likely to be a result of greater conservative control over the judiciary along with the executive and the congress.
For Douzinas, “We are surrounded by laws but we do not know where the Law is.” This is because, often, we can’t see it. For Young, we are surrounded by law, see it everywhere, and deny that it has authority except as background to the play of politics. For comedian Dave Chappelle, in a spectacular satire about sex on the Internet, we are surrounded by sex there.
Keeping an Eye Out
The physical space where law resides matters a good deal. Since the advent of the Internet some notions of space are different and others are very much the same. Vivid virtual realities present new challenges while some very traditional physical aspects of space remain important. A few years ago, Nathan Rawding, a student at the University of Massachusetts, Amherst, decided to study the response of librarians to the Internet Protection Act, the legislation that required libraries receiving federal money to filter Internet access. The act had been attacked as not comprehending the way the Internet worked and the way that it is different from a library. Rawding pointed that viewing the Internet in a public library was highly regulated by the physical space configuration in which access was provided. Thus, the architecture of libraries controlled the space in which all Internet sources, including porn, was to be viewed.
Stanford University law professor Lawrence Lessig’s 1999 book Code: and Other Law of Cyberspace makes a number of prescient observations. They begin with the idea that the Internet has altered how space is constituted and what it means to publish or disseminate information.
“The tolled, single-purpose network of telephones was displaced by the untolled and multipurpose network of packet-switched data. And thus the old one-to-many architectures of publishing (television, radio, newspapers, books) were supplemented by a world where everyone could be a publisher.”
As with the best of legal scholarship, Lessig’s reformulation of publishing has implications for the legal ordering of that activity. He sees in the codes that drive the Internet a kind of constitution.
“…[B]y “constitution”…. I mean an architecture – not just a legal text but a way of life – that structures and constrains social and legal power, to the end of protecting fundamental values – principles and ideals that reach beyond the compromises of ordinary politics.”
New ways of governance that determine the context for a great deal of what we see on the Internet are evident in the ways Google operates. In the way the search engine works lies much of the power of the company and ultimately the “law” that delineates the availability of expression. Cofounders Sergey Brin and Larry Page, must negotiate the worldwide reach of the companies search engines. Begun in 1998 with the message to “help computer users find exactly what they want on the Internet,” it was said to be simple and intuitive, shunning the “portal” model used by ecommerce at the time. In 2003 three, 4 out of 5 searches used Google. The search engine, purity in its structure, avoids pop-ups and other bells and whistles including overly negative sites. But the constitution of physical space means that it needs to deal with the governments where it operates. The distinctive feature of the Google response to these challenges is reliance on the motto, “Don’t be evil.” And evil, according to Google CEO Eric Schmidt “is what Sergey [Brin] says is evil.”
There are important reasons to look beyond the Supreme Court to places where we live and work for the meaning of the Constitution. A recent treatment of this issue is Grinnell College professor Ira Strauber’s book, Neglected Policies. According to Strauber, many of us are too devoted to “lawyerly methods and legal, political, and moral abstractions as they are ordinarily deployed in doctrinal analysis, jurisprudence, and legal philosophy.” His approach “calls for commentary that mixes and merges these methods and abstractions with commonplace contingent and/or circumstantial social-fact, social-scientific, and consequentialist considerations.” This he characterizes in terms of a “willingness to be situated ‘on the outside looking in’ on the law.” This is the position we find ourselves in when law is considered in political science where, until recently, constitutional law was studied primarily by non-lawyers.
Increasingly, even lawyers are seeking to minimize control of the constitutional environment by the courts and their profession. Georgetown University law professor Mark Tushnet, for instance, characterizes institutions and principles in public life as constitutional when they provide “the structure within which ordinary political contention occurs”. A constitutional order is one that has a “reasonably stable set of institutions” and “principles that guide those decisions.” These institutions and principles are evident in cultural practice. We can find them in judicial opinions but we also find them in oral argument and in the way institutions like libraries function.
The Supreme Court has treated the Internet as if it were an ordinary library and digital files as if they are ordinary pictures but those who use them know they are different. Sometimes, as when it operates in a library, the Internet may be subject to the very traditional constraints administered by the librarian. But, at other times and in other contexts, its capacities can make the digital world unique.
Images on the Lap(top)
Among the forbidden images I have seen, some were in a movie forty years ago in Santa Barbara, California. The place where I lived at college, a fraternity, was having a “stag night.” I had been sent, along with another fraternity member, to pick up the movie. We drove from campus to an intersection at the edge of the city and pulled up next to a parked car. A reel of 16 mm film was handed to us, through the window. It was in a metal canister, about 3/4 of an inch thick and six inches in diameter. On it was written, in black marker, “The Poker Game”. From the moment we had gone to get the film this experience was characterized by the marks and features of the forbidden image. The movie, shown later that night, was in black and white and watched by fifty college men and women it was more transgressive than erotic. The transgressive dimension was part of the excitement.
The interest in forbidden images remains strong, especially, it seems, in males, but the context seems so different. A few months ago a friend was using her teenage son’s computer to transfer some photographs from the Internet and she discovered what she described as a large cache of sexually explicit pictures. The discovery seemed akin to a Mom finding a stack or Playboy magazine under the bed a generation or two ago or a crumpled snapshot a few years before that. But of course the pictures were more explicit. They existed on the screen but not as hard copies. And the existence of the Internet mooted, or at least circumscribed, the issue of where they came from. The fact that they appeared out of the same cute iBook on which the boy did his homework only added to the confusion.
Representation of sexual images on the Internet is increasingly discussed in terms of the intimacy and sense of seduction that appears to be possible in this virtual medium where women are not simply naked but appear to be coaxed or seduced to reveal their bodies. Political Science professor Lori Beth Way of California State University, Chico, who has consulted with the Department of Justice about sex industry recruiting on college campuses calls attention to the framing of images that gives them meaning. She is concerned about the context in which they are seen. What she calls, “the frame outside of the frame.” Because it is not constructed by the creator but is the material context in which the creation is presented.
Conservative control of the government leading to more vigorous anti-pornography prosecution is evident in a combined Department of Justice, Department of Homeland Security’s Immigration and Customs Enforcement crack-down on digital child pornography that began in the fall of 2003 and was announced in May of 2004. The target was “peer to peer” networks, the mechanism for file sharing that it at the heart of some of the most dynamic uses of the Internet. In the press release the nexus between child pornography and Homeland Security is not clear but a significant enforcement effort, which began with 1,000 investigations, is being directed from the government and involves digital transmission of sexually explicit material. The government’s announced quarry is pedophiles and the suggestion is that the Internet is their new superhighway.
With regard to the reach of law in the area of Internet pornography, little is confidently known. Some will imagine that there is no harm in seeing pornography but looking at it for a significant amount of time is what might get you in trouble. But, how much looking? A minute? Or is downloading required? Or saving? The warnings would suggest that you have to enter a web site to be guilty of the kind of engagement that spells legal trouble, but those warnings are on websites that promise the images are not children. Some, citing the case of Who guitarist Pete Townsend indicate that you can beat a pornography prosecution by arguing pure intent, like a crusade against child molestation. Socially that is a little hard to accept but legally, a jury would have to decide.
The Iconography of Nothing
Law professor Peter Goodrich, in an article from the collection Law and the Image, explains the significance of the absence in legal authority of images of law. He examines the painting “Edward VI and the Pope” which is by an unknown artist and is dated from 1570. In the painting a dying King Edward VI is surrounded by counselors including the Pope, a figure troublesome for the English monarchy at the time. In the picture there are a number of blank spaces that appear unfinished, as if the artist still had work to do. Some are framed as if they could be scrolls not yet filled in. In an analysis of the painting, Goodrich calls attention to the blank spaces, which he says are intentional representations of the authority of law as the absence of image. He argues that blank spaces or “nothing” is one of the aspects of law’s authority.
The absences described by Goodrich and evident in law as a blank check, a legal form or the judges chamber share family resemblances with the mysterious sense that law can not be seen in the story of Joseph K in The Trial by Franz Kafka. But in Goodrich’s treatment the blank space that is at the heart of law’s authority is there to be filled in. On the web, we see the law’s warnings that stop access to web sites. Perhaps, like the keeper at the door in Kafka’s story the websites are guarded by the credit card as a key to access. My colleagues in Legal Studies at the University of Massachusetts relied on Kafka’s critique of law for more than a generation to build a legal studies program. The result is reaffirmation of the positivist framework rather than development of a constitutive perspective on law. More appropriately, following the strong interpretivism that is in the constitutive tradition, I have suggested here that law is in the details.
Ultimately, the spaces that define law by what we cannot see have more in common with the new technologies identified by Marshall McLuhan and Lawrence Lessig. The Internet is full of images and arguments for the deployment of graphic images. The television that goes on and off in our bedroom bringing law into our most intimate spaces and the computers through which we do our work place the forbidden and ultimately the authority of law at our desks or in our laps. Jurisprudentially the significance of these non-traditional places of law is at least partly a function of past expectations.
Goodrich’s blank spaces of law are not so much absences as they are bounded and structured realms or aspects or ordinary life. They are before us and they wield authority because they are set up in the textures or details of life. Whether it be the fences that at the same time shield and delineate property boundaries, the designated spaces in a printed bank check or the blank monitor set up just in front of the librarian’s desk, the spaces that may become full of necessarily bounded details of the law, images are more often than not the creatures of law.
The traditional places of law in America, its courthouses and lawyers offices, are no longer the pivotal places of law in the lives of her citizens. Courthouses are important to those who use them; but in most instances, law constitutes through being woven into our lives, by becoming the context in which we live. In the case of the Internet, and images that arouse, the signs are less clear about the capacity of the law to constitute our sense of what is forbidden and what is not. And while the lore is still that there is a sphere of privacy and particularly domestic sanctuary beyond the reach of the law the current climate of policy and law suggests otherwise. Just as the domestic is now widely understood as a sphere of violence the desktop and the home have become spheres of pornography. While we see much more, it also seems that the law on what we see is much less clear than it once was.
Forbidden images, once unambiguously associated with legal transgression and intensified as outside the law now flood ordinary private spaces. Without seeming to have much to do with the law they bring its potential for disruption into realms once private and domestic.
The Constitution for Images
John Brigham
Department of Political Science
University of Massachusetts, Amherst
April 1, 2008
Abstract:
This paper examines the changing context for sexual images and the details that give law meaning. The details are evident in Congressional efforts to regulate sex on the Internet and the Supreme Court’s response as well as various contexts for encountering forbidden images from stag films and peep shows to the local public library and sex sites on the web. The paper is part of a larger project on seeing law and the idea of “Blind Justice.” It was originally developed for an issue of Law, Text, Culture that was called “Trouble With Pictures” where the focus was on pictures we are not supposed to see.
Prepared for the New England Political Science Meeting, Providence, RI, April 2008.
An earlier version was presented at the panel on “New Struggles Over the First Amendment,” American Political Science Meeting, Philadelphia, PA August 31, 2006. My thanks in advance to the panel discussants Bradley C. Canon and Judith A. Baer and to colleagues with whom I have discussed these issues, Christine B. Harrington, Lori Beth Way and Sarah Marusek.
An article in The New Yorker recently observed that Hugh Hefner became rich by selling images of “the girl next door with her clothes off.” His Playboy magazine has sold well for fifty years because it has been a relatively safe way to get a forbidden peek at women with their clothes off. While The New Yorker is not generally thought of as having the same appeal, the magazine ran a full page of Playboy nudes along with its story on Hefner. Although each picture was quite small, this mini-centerfold had a traditional appeal. It was also pretty good evidence that sexual images are indeed ubiquitous in the West and that this ubiquity has changed the relationship between pornography and the law.
In the past, pornographic images required immersion in an alien, sometimes threatening context, which highlighted the transgression associated with the forbidden images. Today images with no tease or ritualization of the disorderly prelude are at least as close as one’s desk and probably ones lap. Crude sexual images pop up without invitation and absent the contextual warnings of old. Even where they are sought, the meaning of revelry, the consequences of consumption are seldom clear. In this climate, it is not even always evident what it means to possess an image. The law, in this state, is without many of the important and instructive contextual clues that help to draw the lines on what is forbidden and what is not. Yet, as with other contemporary elements of legal authority its facelessness appears to suggest law continues to be a powerful force in social life. And, in the case of the forbidden images that deal with sex, the power of the law lurks with new significance just out of sight.
The Fine Grained Details
Life contains details that are the key to grasping the meaning, authority and significance of law in general, the First Amendment, and the limits on protections accorded to viewing sexual images. The detail adds up to a context in which we understand what it is acceptable to see. The context is how we know the part that constitutional law and enforcement plays in delineating legitimate viewing. Images appear in context and limits on what can be viewed have to be understood at least in part with reference to that context. The contextual details are a key to constitutional law and inquiry into the way that images in the purview of the First Amendment may be seen helps in understanding the constitutive character of stable legal systems.
In this sense, or at least in a sense that is only a minor tangent, law is like the city. Real cities, we have recently been reminded, as we lament the passing of New Orleans, contain “the small-grained details of everyday life.” These have been built up over decades and they can’t be reproduced by even well planned suburbs and certainly not the cookie cutter housing and theme parks that are so common in the United States. It is not that a city can’t be reconstructed in a cookie cutter fashion but, as is the case with New Orleans, it is clear that a great deal will be lost. Law as it ordinarily operates has more in common with the odd building, seemingly ephemeral graffiti or incidental passing of a police cruiser than students of constitutional law are inclined to acknowledge. In the case of the First Amendment, what it means to “know something when we see it” can be taken as a reference to the act of seeing in context with all the helpful clues that entails.
Like the shopping arcades of Paris for cultural theorist Walter Benjamin, the specifics that constitute law form structures and practices determining its reach and constituting its authority. British historian E. P. Thompson, writing in the 1960s about the details of medieval legal reality, offered a vivid picture of law. He saw it operating as both idea and reality. The “Foreword” to his Whigs and Hunters defined the dualism of law and transcended some of the relativism prevalent at the time. In spite of the rich context, the feudal authority, the brutal conditions of life, the law also existed in the mind as consciousness. In this formulation, and that of Douglas Hay, it was not the hangings that solidified law’s authority but the power to pardon, or imprison. One of the challenges that hasn’t quite been met in the last four decades is the synthesis of detail or context and the more abstract dimensions of authority and obedience.
In the context of constitutional law and the First Amendment, the details deserve more attention. In the public law part of contemporary political science we first saw the detail in society as “impact.” This was the sometimes-puzzling attempt to find out if anyone cared what the Supreme Court had to say. Subsequently, the “law and society” approach, though it paid little attention to constitutional law, broadened consideration of the social dimensions of law, particularly lawyers, local courts and police. The growth of this academic movement paralleled a reemergence of interest in pornography as misogynous and, in this context, the local dimensions of pornography. So, while the Supreme Court was becoming somewhat less interested in the topic, local contexts from city halls to schools and colleges were attending to the “New Politics of Pornography”.
Academic and intellectual inquiry into the meaning of law in general parallels these reflections on the First Amendment. In the last fifty years there has been considerable flux. Gray, writing in The New Yorker about the 1950s, described striptease as a world with style, complexity and multiple meanings where women controlled male lust. A world on its way out, she notes. This was the period in which First Amendment protection emerged. The 60’s, a period of liberation, were followed by the reactions of the Meese commission while the U.S. Supreme Court continued to expand constitutional protection. The feminist attack on pornography in the 1980s incorporated an attack on liberalism and the idea that a façade of law could exist outside the sexual lives and social relations of men and women. That attack itself came under scrutiny from liberals in the academy and the legal profession and conservative capture of the government brought new legislation at the same time that the new digital technologies presented new contexts for viewing sexual images.
Distinctions drawn in society between art and pornography are associated with taste and ultimately reflect social class. In some circles, sexual commentary is open and images of the body that would be offensive or forbidden in other contexts are flaunted. The New Yorker’s extensive review of Playboy centerfolds has been mentioned earlier and The New York Times, in an article on art revealing the body, articulated the aesthetic contention that defines one of the boundaries of acceptable images. Professor Lynda Nead, who co-edited the book Law and the Image, treats these cultural classifications that determine what is legitimate to see as resting “…largely on the judgments of men of taste.” Her focus is Sir Kenneth Clark’s book The Nude: A Study of Ideal Art where the TV host and connoisseur writes that the function of the nude is to give man the opportunity to “feel like a god…” to be ”close to divinity in those flashes of self-identification when, through our own bodies, we seem to be aware of a universal order.” Its aspiration to perfection allows the “man of taste” to separate the naked from the nude. But, in her formulation, encountering the obscene presents challenges and art can’t handle too much of it. For Clark, as discussed by Nead, these men of taste ultimately must manage arousal by controlling access to the public.
Obscenity prosecution is a concern for the public rather than the connoisseur. When Justice William Brennan outlined what would be protected under the First Amendment in the 1957 case, Roth v. United States, he suggested that art, politics and science would render the portrayal of sex protected speech and that which seemed simply to arouse would be unprotected. In this foundational argument for modern constitutional law on pornography, the use to which an image is put, the context, became the basis for drawing the lines between the acceptable and the prohibited. Thus, the law operates without the burden of connoisseurship at the other end of the taste spectrum. With the widespread sexual images available on the Internet, the place and potential imposition of law has little to do with appreciation. Indeed, it is harder to appreciate itself.
Not Seeing in Law
For the British law professor Costas Douzinas and contributors to the collection he edited with Lynda Nead, there is a split between law and the image in the modern state. For, roughly, the last 500 years, the authority of law has been abstracted from the details. In this framework, law draws its authority from the facelessness at the heart of state power. This is what Douzinas, in an essay on the power of what is not seen in law, refers to as the “anti-prosopon.” The “anti-prosopon,” or non-face of law refers to the five hundred year old effort in the West to emphasize the abstract and non-visual dimensions of law. We are taught to turn away from the details to appreciate the abstractions that are conventionally associated with law. The traditional imagelessness of law lets it transcend reality. Indeed, in the guise of legal realism, the amorphous sense of law as words and concepts allow “it” to avoid attention to the social structures and institutions on which the authority of law depends.
The reality that is governed by the unseen is what the late British law professor H.L.A. Hart seemed to be after in proposing important “secondary rules” that would rescue positivism from meaningless abstractions and situate it more fully in experience. Rather than obedience to the grand abstraction of “Law” we are obedient to intervening forces on a smaller scale that is more present in our lives. The police officer, of course, and the various ways we know we must treat him or her. In the guise of secondary rules, what we see as a “Stop” sign is red and octagonal and it radiates the authority of the police officer waiting to appear from nowhere. Similarly the lawyer’s office with its visual display of legal authority in titles, on book shelves and in proximity to the court is a veritable smorgasbord of images that stem from the all-important “secondary rules”.
In another manifestation of realism, abstraction allows law to seem to be “all over”. This profound insight, associated with a body of “Law and Society” scholarship, deserves serious attention. While it is slow to break the stranglehold that Supreme Court and constitutional law scholarship has on Political Science, its suggestion of the importance of focusing outside the courts is particularly exciting for scholars outside the legal profession. Law can operate on a pervasive realist foundation and even, in some senses be “all over” while still being authoritative, at least in part because it is faceless. Law is the absence of image in the very references to “law” as an eminent abstraction that animates prosecutions, judgments and punishments.
The tension between law and image is confronted here at the very point at which the law is under pressure to change and incorporate the image in the contemporary West. The image can be very present while getting all mixed up in the “complexity” of some post-modern commentary about law. Images are everywhere in the convoluted, hyper-realism of relativistic interpretivism, one of the poles in a movements that has its own positivistic divide. Relativistic interpretivism is consistent with the pluralism of American public policy where the work and the image of law’s authority are not without details. In fact pluralism revels in the details to herald the importance of interpretation while obfuscating the nature of laws authority.
Not seeing is what the law of forbidden images, of the obscene and the pornographic, is all about. What we are allowed to see is the subject of continuing Supreme Court litigation and law review analysis. With Stanley v. Georgia, the home had been beyond the gaze of the law with regard to the obscene. In itself, the center of domestic life was a sanctuary, a space away. The wired home is no longer separate. With Internet access it has become connected to the digital world. While it has been clear about children and pornography, the law has become more abstract in the context of digital communication and the Internet. In US v. Thomas (1996), an early computer pornography case from the 6th Circuit involving GIF files, the justices declined to accept the argument that the files were anything other than the images that they began with, before they were scanned, or ended with, after they were printed. In general sexual images are not forbidden unless they involve children as performers or consumers. But, context has become more important as it has become more confusing. Sexual images and performances may be regulated, particularly when they involve media that may at times be assaultive.
In Reno v. American Civil Liberties Union (1997), the Supreme Court invalidated the Communications Decency Act (CDA) of 1996 that had sought to protect minors from “patently offensive” and “indecent” communication on the Internet. The opinion by Justice Stevens spoke for essentially the entire Court. The only dissenting opinion, by Justice O’Connor, was partial, and only the former Chief Justice joined with her. While the Court decided on the vagueness of the legislation, they gave considerable attention to the nature of the Internet as it was developing in its infancy. In particular, the Court distinguished the Internet from radio. Although both were seen as easily accessed by minors, traditional regulation of radio focused on individual programs and monitoring by the FCC. The Justices, writing early in the history of the Web, felt the discovery of sexually explicit material would seldom be accidental as it might be when walking into a room where the radio was on.
These details and how they played out in the regulation of pornography on the Internet were central to the debates over the Child Internet Pornography Act (CIPA) in 2000. Where the U.S. Congress had regulated access to the Internet in libraries receiving federal money, the libraries claimed that the regulation denied them their traditional responsibility for providing reading and research material. This professional resistance from librarians seems to be very different from what we would expect from the public. In some sense the regulation, which is largely hidden, and which would hide the images, is characteristic of law’s operation.
But how is it that we miss the very important presence of the librarian in the regulation of access to the Internet?
When Congress passed and President Bill Clinton signed CIPA, they clearly had in mind not allowing kids to see pornography. The Supreme Court heard a challenge to the law in 2003. Solicitor General Theodore B. Olson, speaking for the government, defended the statute. He said that the issue before the Court was the same as the decisions libraries make about the selection of books. Paul M. Smith, who argued against the legislation for the librarians, suggested the distinctive quality of the Internet. He asserted that by shear magnitude the Internet was not like a collection of books and that filters excluded much more than pornographic material. The subtext was that the librarians could control their own space. Not only did many not see this argument because the Supreme Court prohibits cameras in its courtroom but the justices ruled in favor of filters and against seeing the offending images.
The ruling on the CIPA was grounded in federal funding to public libraries, particularly the Library Services and Technology Act. Justices Rehnquist, O’Connor, Scalia and Thomas wrote an opinion and were joined in their holding that the CIPA is constitutional by Justices Kennedy and Breyer who indicated that part of the constitutionality of the act depended upon the ability to turn the blocking mechanisms off. This was the optimistic position taken by the American Library Association in response to the decision.
In the Chief Justice’s opinion he says, “A library can set such software to block categories of material, such as “Pornography” and “Violence.” The Chief Justice draws from the position taken by the Solicitor General during oral argument that the free speech issues are easily avoided because adult library patrons can ask to have the filters disabled or sites unblocked without even giving reasons. Justice Kennedy begins his concurrence with this same observation drawn from the government’s position at Oral Argument. In the District Court opinion, which had struck down CIPA, public libraries were considered public fora, like town squares or parks, where speech was protected most fully. They felt that asking to have the filters removed put patrons in potentially embarrassing situations, which was itself a deprivation of free expression. To the former Chief Justice, the risk of embarrassment was not something the Constitution protected against.
There is not much in any of the plurality opinions to address the technologies used to block the obscene and the pornographic. The most explicit formulation is from Justice Stevens in dissent where he speaks of the “key words” used in blocking software as being a relatively cumbersome methodology. He further presents the paradox, drawn from the District Court opinion, that the blocking is guided by key words while CIPA is concerned about images. Thus, one aspect of the decision seems to be a propensity in dissent to discuss the technology in detail and for the majority to gloss over it. The District Court opinion and the Stevens dissent also look extensively at alternative forms of regulation such as those described in detail below.
The Excess of Detail
An engaging discussion of law and images from an interpretivist perspective with some attention to the constitutive dimensions of sociological jurisprudence is that by Alison Young, a professor of Criminology at Melbourne University. In her book, Judging the Image, she offers “…a reading of the law/art relation that circumvents this central paradox and concentrates instead on what she characterizes as “…the embedded and enfolded relation of law and art.” For Young, “…law founds its authority in a system of the imaginary.” This perspective is in opposition to that of Douzinas and Nead.
Writing about graffiti, Young operates at the interstices of art and law. She presents graffiti from the perspective of these two worlds clashing. She writes of an arrest outside a Manhattan gallery showing the works of graffiti artists and notes “The very quality which writers identify as its merit is confirmation of its illegitimacy.” All this is a little confusing. She provides little commentary on how law is constituted but in considerable attention to detail she chooses to emphasize instead the complexity caused by the analytical separation of law and art when it is not separated in life. The intellectually or rhetorically separated is joined in life. The graffiti artist is an outlaw. The intellectual is part of the state apparatus.
In the arrest, “…the bodies of artists are transformed into the bodies of criminals,” we start with two bodies. But that can’t be true since the graffiti artist is part criminal. Interestingly, I suspect that it is not so easy to say the converse about the law. The police officers MAY see the graffiti artist or they may simply see the vandal. Clearly they see the perp hanging with the better classes but one can also presume, from the culture of Manhattan, that the police suspect the authority of those classes a good deal more than they puzzle over the clash of art and law in the body of the graffiti artist.
Pornography, like graffiti, is transgressive. Placed on the laptop or the desktop, it involves risk. Always the risk is much less obvious than the risk in the “old days.” This was the risk of hanging out in Red Light districts. The risk of getting mugged, arrested, infected or just embarrassed. But in avoiding pornography, very likely because it is “dirty” and tainted, Young contributes to our inability to see the “all over” quality of the law. Foucault is one place scholars have looked for the last 20 years. Even popular commentary takes this as a reasonable foundation.
Like Benjamin’s Paris Arcades, the details that constitute law form a structure that might at first seem random or fluid but in the end we can learn to understand them as constitutive. Northeastern University law professor Karl Klare first illuminated the tradition of seeing law this way in contemporary sociolegal scholarship. Later, scholars such as Robert Gordon, Alan Hunt and Lucy Salyer commented on this idea, at the same time that Klare and much of the Critical Legal Studies Movement adopted the relativism of the interpretivist critique.
That this sphere has become highly charged and partisan in the last decade is evident in a pair of cases dealing with former Attorney General John Ashcroft and federal anti-pornography legislation. In the first case, Ashcroft v. Free Speech Coalition (2002), the Supreme Court addressed “virtual” child pornography as regulated by the Child Pornography Protection Act (CPPA) of 1996. By a 7-2 majority they held that a ban on virtual or computer-generated images was over broad and unconstitutional. In Ashcroft v. ACLU (2003), the justices laid the foundations for the now pervasive credit card checks in regulating children’s access to pornography on the Internet. This regulatory mechanism is one of the most obvious interventions of law on the Web. The Court is split in these cases but there is also an evolution toward stricter regulation. This seems likely to be a result of greater conservative control over the judiciary along with the executive and the congress.
For Douzinas, “We are surrounded by laws but we do not know where the Law is.” This is because, often, we can’t see it. For Young, we are surrounded by law, see it everywhere, and deny that it has authority except as background to the play of politics. For comedian Dave Chappelle, in a spectacular satire about sex on the Internet, we are surrounded by sex there.
Keeping an Eye Out
The physical space where law resides matters a good deal. Since the advent of the Internet some notions of space are different and others are very much the same. Vivid virtual realities present new challenges while some very traditional physical aspects of space remain important. A few years ago, Nathan Rawding, a student at the University of Massachusetts, Amherst, decided to study the response of librarians to the Internet Protection Act, the legislation that required libraries receiving federal money to filter Internet access. The act had been attacked as not comprehending the way the Internet worked and the way that it is different from a library. Rawding pointed that viewing the Internet in a public library was highly regulated by the physical space configuration in which access was provided. Thus, the architecture of libraries controlled the space in which all Internet sources, including porn, was to be viewed.
Stanford University law professor Lawrence Lessig’s 1999 book Code: and Other Law of Cyberspace makes a number of prescient observations. They begin with the idea that the Internet has altered how space is constituted and what it means to publish or disseminate information.
“The tolled, single-purpose network of telephones was displaced by the untolled and multipurpose network of packet-switched data. And thus the old one-to-many architectures of publishing (television, radio, newspapers, books) were supplemented by a world where everyone could be a publisher.”
As with the best of legal scholarship, Lessig’s reformulation of publishing has implications for the legal ordering of that activity. He sees in the codes that drive the Internet a kind of constitution.
“…[B]y “constitution”…. I mean an architecture – not just a legal text but a way of life – that structures and constrains social and legal power, to the end of protecting fundamental values – principles and ideals that reach beyond the compromises of ordinary politics.”
New ways of governance that determine the context for a great deal of what we see on the Internet are evident in the ways Google operates. In the way the search engine works lies much of the power of the company and ultimately the “law” that delineates the availability of expression. Cofounders Sergey Brin and Larry Page, must negotiate the worldwide reach of the companies search engines. Begun in 1998 with the message to “help computer users find exactly what they want on the Internet,” it was said to be simple and intuitive, shunning the “portal” model used by ecommerce at the time. In 2003 three, 4 out of 5 searches used Google. The search engine, purity in its structure, avoids pop-ups and other bells and whistles including overly negative sites. But the constitution of physical space means that it needs to deal with the governments where it operates. The distinctive feature of the Google response to these challenges is reliance on the motto, “Don’t be evil.” And evil, according to Google CEO Eric Schmidt “is what Sergey [Brin] says is evil.”
There are important reasons to look beyond the Supreme Court to places where we live and work for the meaning of the Constitution. A recent treatment of this issue is Grinnell College professor Ira Strauber’s book, Neglected Policies. According to Strauber, many of us are too devoted to “lawyerly methods and legal, political, and moral abstractions as they are ordinarily deployed in doctrinal analysis, jurisprudence, and legal philosophy.” His approach “calls for commentary that mixes and merges these methods and abstractions with commonplace contingent and/or circumstantial social-fact, social-scientific, and consequentialist considerations.” This he characterizes in terms of a “willingness to be situated ‘on the outside looking in’ on the law.” This is the position we find ourselves in when law is considered in political science where, until recently, constitutional law was studied primarily by non-lawyers.
Increasingly, even lawyers are seeking to minimize control of the constitutional environment by the courts and their profession. Georgetown University law professor Mark Tushnet, for instance, characterizes institutions and principles in public life as constitutional when they provide “the structure within which ordinary political contention occurs”. A constitutional order is one that has a “reasonably stable set of institutions” and “principles that guide those decisions.” These institutions and principles are evident in cultural practice. We can find them in judicial opinions but we also find them in oral argument and in the way institutions like libraries function.
The Supreme Court has treated the Internet as if it were an ordinary library and digital files as if they are ordinary pictures but those who use them know they are different. Sometimes, as when it operates in a library, the Internet may be subject to the very traditional constraints administered by the librarian. But, at other times and in other contexts, its capacities can make the digital world unique.
Images on the Lap(top)
Among the forbidden images I have seen, some were in a movie forty years ago in Santa Barbara, California. The place where I lived at college, a fraternity, was having a “stag night.” I had been sent, along with another fraternity member, to pick up the movie. We drove from campus to an intersection at the edge of the city and pulled up next to a parked car. A reel of 16 mm film was handed to us, through the window. It was in a metal canister, about 3/4 of an inch thick and six inches in diameter. On it was written, in black marker, “The Poker Game”. From the moment we had gone to get the film this experience was characterized by the marks and features of the forbidden image. The movie, shown later that night, was in black and white and watched by fifty college men and women it was more transgressive than erotic. The transgressive dimension was part of the excitement.
The interest in forbidden images remains strong, especially, it seems, in males, but the context seems so different. A few months ago a friend was using her teenage son’s computer to transfer some photographs from the Internet and she discovered what she described as a large cache of sexually explicit pictures. The discovery seemed akin to a Mom finding a stack or Playboy magazine under the bed a generation or two ago or a crumpled snapshot a few years before that. But of course the pictures were more explicit. They existed on the screen but not as hard copies. And the existence of the Internet mooted, or at least circumscribed, the issue of where they came from. The fact that they appeared out of the same cute iBook on which the boy did his homework only added to the confusion.
Representation of sexual images on the Internet is increasingly discussed in terms of the intimacy and sense of seduction that appears to be possible in this virtual medium where women are not simply naked but appear to be coaxed or seduced to reveal their bodies. Political Science professor Lori Beth Way of California State University, Chico, who has consulted with the Department of Justice about sex industry recruiting on college campuses calls attention to the framing of images that gives them meaning. She is concerned about the context in which they are seen. What she calls, “the frame outside of the frame.” Because it is not constructed by the creator but is the material context in which the creation is presented.
Conservative control of the government leading to more vigorous anti-pornography prosecution is evident in a combined Department of Justice, Department of Homeland Security’s Immigration and Customs Enforcement crack-down on digital child pornography that began in the fall of 2003 and was announced in May of 2004. The target was “peer to peer” networks, the mechanism for file sharing that it at the heart of some of the most dynamic uses of the Internet. In the press release the nexus between child pornography and Homeland Security is not clear but a significant enforcement effort, which began with 1,000 investigations, is being directed from the government and involves digital transmission of sexually explicit material. The government’s announced quarry is pedophiles and the suggestion is that the Internet is their new superhighway.
With regard to the reach of law in the area of Internet pornography, little is confidently known. Some will imagine that there is no harm in seeing pornography but looking at it for a significant amount of time is what might get you in trouble. But, how much looking? A minute? Or is downloading required? Or saving? The warnings would suggest that you have to enter a web site to be guilty of the kind of engagement that spells legal trouble, but those warnings are on websites that promise the images are not children. Some, citing the case of Who guitarist Pete Townsend indicate that you can beat a pornography prosecution by arguing pure intent, like a crusade against child molestation. Socially that is a little hard to accept but legally, a jury would have to decide.
The Iconography of Nothing
Law professor Peter Goodrich, in an article from the collection Law and the Image, explains the significance of the absence in legal authority of images of law. He examines the painting “Edward VI and the Pope” which is by an unknown artist and is dated from 1570. In the painting a dying King Edward VI is surrounded by counselors including the Pope, a figure troublesome for the English monarchy at the time. In the picture there are a number of blank spaces that appear unfinished, as if the artist still had work to do. Some are framed as if they could be scrolls not yet filled in. In an analysis of the painting, Goodrich calls attention to the blank spaces, which he says are intentional representations of the authority of law as the absence of image. He argues that blank spaces or “nothing” is one of the aspects of law’s authority.
The absences described by Goodrich and evident in law as a blank check, a legal form or the judges chamber share family resemblances with the mysterious sense that law can not be seen in the story of Joseph K in The Trial by Franz Kafka. But in Goodrich’s treatment the blank space that is at the heart of law’s authority is there to be filled in. On the web, we see the law’s warnings that stop access to web sites. Perhaps, like the keeper at the door in Kafka’s story the websites are guarded by the credit card as a key to access. My colleagues in Legal Studies at the University of Massachusetts relied on Kafka’s critique of law for more than a generation to build a legal studies program. The result is reaffirmation of the positivist framework rather than development of a constitutive perspective on law. More appropriately, following the strong interpretivism that is in the constitutive tradition, I have suggested here that law is in the details.
Ultimately, the spaces that define law by what we cannot see have more in common with the new technologies identified by Marshall McLuhan and Lawrence Lessig. The Internet is full of images and arguments for the deployment of graphic images. The television that goes on and off in our bedroom bringing law into our most intimate spaces and the computers through which we do our work place the forbidden and ultimately the authority of law at our desks or in our laps. Jurisprudentially the significance of these non-traditional places of law is at least partly a function of past expectations.
Goodrich’s blank spaces of law are not so much absences as they are bounded and structured realms or aspects or ordinary life. They are before us and they wield authority because they are set up in the textures or details of life. Whether it be the fences that at the same time shield and delineate property boundaries, the designated spaces in a printed bank check or the blank monitor set up just in front of the librarian’s desk, the spaces that may become full of necessarily bounded details of the law, images are more often than not the creatures of law.
The traditional places of law in America, its courthouses and lawyers offices, are no longer the pivotal places of law in the lives of her citizens. Courthouses are important to those who use them; but in most instances, law constitutes through being woven into our lives, by becoming the context in which we live. In the case of the Internet, and images that arouse, the signs are less clear about the capacity of the law to constitute our sense of what is forbidden and what is not. And while the lore is still that there is a sphere of privacy and particularly domestic sanctuary beyond the reach of the law the current climate of policy and law suggests otherwise. Just as the domestic is now widely understood as a sphere of violence the desktop and the home have become spheres of pornography. While we see much more, it also seems that the law on what we see is much less clear than it once was.
Forbidden images, once unambiguously associated with legal transgression and intensified as outside the law now flood ordinary private spaces. Without seeming to have much to do with the law they bring its potential for disruption into realms once private and domestic.
Sunday, April 20, 2008
Freedom
Chapter 2
FREEDOM
A FREEDOM OF EXPRESSION
A Right Emerges
On to the Founding Period
The Nineteenth Century
The Modern Period
Tests and Standards
Clear and Present Danger
Schenck v. United States (1919)
Gitlow v. New York (1925)
Balancing Tests
Dennis v. United States (1951)
Absolute and Pure Tolerance
Tinker v. Des Moines (1969)
RAV v. Minneapolis (1992) (see chapter 1, pp. xx)
Symbolic Speech and Expressive Conduct
Texas v. Johnson (1989)
Limits on Speech, Assembly and Association
Subversion
Threats to Public and Private Orders
Pruneyard Shopping Center v. Robins (1980)
American Civil Liberties Union Brief in Schenck v. Pro-Choice Network (1997)
Boy Scouts of America v. Dale (2000)
Institutional Threats
UNPROTECTED EXPRESSION
Obscenity
The Roth Test
Roth v. United States (1957)
The Contemporary Standard
Miller v. California (1973)
Law and Limits
American Booksellers Association v. Hudnut (1984)
City of Renton v. Playtime Theatres, Inc. (1986)
Pope v. Illinois (1987)
Ashcroft v. Free Speech Coalition (2002)
Commercial Speech
Cincinnati v. Discovery Network (1993)
Bad Frog Brewery, Inc. v. New York Liquor Authority (1998)
FREEDOM OF THE PRESS
The Press and Previous Restraint
Near v. Minnesota (1931)
New York Times v. Sullivan (1964)
Context and the Constitution
De Facto Freedoms
De Jure Freedoms
The Traditional and the Professional
Prior Restraint
Special Privileges
FREEDOM OF RELIGION
Free Exercise
West Virginia v. Barnette (1943)
Wisconsin v. Yoder (1972)
Bob Jones University v. United States (1983)
Church of Lukumi Babalu Aye v. Hialeah (1992)
Non-Establishment
Engel v. Vitale (1962)
Lemon v. Kurtzman (1971)
Lynch v. Donnelly (1984)
Kiryas Joel v. Grumet (1994)
Zelman v. Simmons-Harris (2002)
McCreary County, Kentucky v. American Civil Liberties Union of Kentucky (2005)
Chapter 2
FREEDOM
In the gloriously named case of the Church of Lukumi Babalu Aye v. Hialeah (1992), the Supreme Court took up the issue of animal sacrifices as practiced by the Santeria religion. The religion comes from the Caribbean (with roots in Africa) and has been secretly practiced in South Florida since the 1980s. The church clashed with the city when Hialeah passed an ordinance against animal sacrifice. The dispute involved constitutional freedom and the issues were framed in terms of religious liberty, a cornerstone of Constitutional rights and liberties. The city tried to portray its ordinance in “neutral” terms, simply as government regulation of animal sacrifice. The Supreme Court, reviewing the records of the city’s action, saw the ordinance as a restraint on religious freedom and declared it to be an unconstitutional violation of the protections guaranteed by the First Amendment. The core ideas about freedom of religion, expression, assembly, and the press associated with this first amendment to the Constitution constitute freedom in the United States. They are among the best known constitutional rights. This chapter explores the disputes that have defined the meaning of constitutional freedom.
The First Amendment is a multifaceted guarantee with a number of specific rights delineating constitutional freedom. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Active debate and judicial commentary gives meaning to these words. Although its roots lie in struggles over religion, modern First Amendment developments have been most dynamic in the area of secular, political expression. In only half of a century, protection for expressing controversial opinions has expanded to levels of toleration barely imaginable two or three generations back. This development has influenced the scope and treatment of all the First Amendment freedoms.
The chapter begins with a historical by description of major changes in constitutional freedom. Perceived danger to U.S. interests governs the development of modern rights to free speech and assembly and leaves some expressions unprotected by the Constitution. Discussion of speech and assembly precedes discussion of the special case of freedom of the press, which has been influenced by the beliefs and professional organization of journalists. The chapter concludes with constitutional protection for religious freedom, by placing particular emphasis on how this right has developed according to the separation of a guarantee of free expression and a provision against the establishment of religion in the First Amendment.
A FREEDOM OF EXPRESSION
Mark Twain, the nineteenth century novelist, joked about protection for expression on a number of occasions. At one point, in Pudd’nhead Wilson’s New Calendar he wrote, “It is by the goodness of God in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either.” Twain is speaking for the majority and is thus only partly right. For many obstreperous, contrary and often deeply expressive Americans have actually tested the right of free expression on many occasions. In the process they have defined its meaning and often their place outside the norms of the community. The history of this right is one that tests the limits on expression set by government.
In spite of the rhetoric surrounding the First Amendment and the individualist mantra that we can “say anything we want,” some forms of expression have always been subject to limitation. In U.S. constitutional practice, “freedom of speech” has never meant the freedom to say anything you want at any time and place without regard for whether saying it will hurt other people. The constitutional right is based on distinctions between speech that poses a threat to legitimate interests such as life and property and speech that does not. Some, however, impute to constitutional freedom a pure form that precludes critical attention to the substance of expression and fosters a myth that all expression is protected. Freedom of expression is more appropriately viewed as practices that define the limits of tolerance.
Constitutional freedom of expression has been among the most dramatic rights in its evolution and the most completely defined. In its history, the concept has shifted from the intolerance of the Puritans, to broad protection for highly controversial forms of expression such as burning the U.S. flag or the symbolic crosses of the Klu Klux Klan. Constitutional freedom has led to a conception that denies the capacity of government to set limits on speech and suggests the irrelevance of community standards in this area. This widespread conception of “pure tolerance” has puzzling implications that are considered in the chapter.
A Right Emerges
Freedom of expression in the United States has its roots in seventeenth century England. The period’s great plea for toleration, John Milton’s Areopagetica, came near the end of a generation of violent religious conflict as a speech in support of unlicensed printing. In 1644, Milton argued before the English Parliament that he “Who kills a man kills a reasonable creature . . . but he who destroys a good book, kills reason itself” (Milton, 1644/1927:5). For many, however, toleration in England was not enough. Their religious sects were citadels of intolerance raging against the corruption around them. They sought religious purity in North America, and for a while, they found their purity in the colonies in the Western Hemisphere. But, by the second generation, factions began to emerge in colonial America. The result was an American creation, an indigenous version of tolerance. It appeared in Roger Williams’s Bloody Tenet of Persecution (1644), published the same year as Milton’s piece. Williams, like Milton, was a righteous partisan. Having escaped the persecutions of the Massachusetts Bay Colony, he held that men could not be so confident of the truth as to have a right to impose it on others by civil authority. “There is a civil sword,” he said, “called the sword of civil justice, which . . . cannot extend to spiritual and soul causes, spiritual and soul punishment, which belongs to that spiritual sword with two edges . . . the Word of God” (Miller, 1953:133). Although the civil sword was used by others for less significant matters, Williams wielded the Word of God as a sword in the cause of religious righteousness.
The Founding Period. Legal views just prior to the Declaration of Independence depended heavily on the English Common Law. The source for many colonial practitioners was William Blackstone’s Commentaries. In 1758, the Commentaries defined freedom of expression as prohibiting the laying of any “previous restraints upon publication.” The rule against previous restraints meant, for instance, that a printer could not be jailed before he could start the presses. Thus the right allowed all views to be presented to the public but did not protect against subsequent punishment. If the expression turned out to be improper, mischievous, or otherwise illegal the printer could be jailed or fined for what he had printed. Freedom, conceived in this way, became an issue in the ratification process, and many states sought to have it included in the Constitution as part of a Bill of Rights. Freedom, of speech, assembly, religion and the press, was one of the limits that defined the scope of the new government. In general, the freedom, however, assumed a public right to judge and to punish the content of expression.
The perception, around the Founding was that constitutional freedom of expression only meant not preventing prior restraint of expression; it had no bearing on subsequent punishment for that expression. Thomas Jefferson’s criticism of the Sedition Acts of 1798 focused on state and federal prerogatives, not on the punishment itself. Jefferson would have left the power to punish sedition with the states. In 1801, he wrote: “. . . we have nothing to fear from the demoralizing reasonings of some, if others are free to demonstrate their errors. And especially when the law stands ready to punish the first criminal act produced by the false reasoning” (letter to Elijah Boardman). James Madison disagreed. He thought it unjust and paradoxical to be “free” to say something for which one could be punished. With this reading, Madison anticipated the shift in constitutional doctrine that would occur within one hundred years.
The Nineteenth Century. In the nineteenth century tolerance was rarely put to the test. A few instances of critical discourse revealed a grudging willingness to tolerate some diversity. Years ago, constitutional historian Paul Murphy (1972) suggested that freedom of expression was taken for granted during the century of continental expansion from 1790–1890. Where curtailment of civil liberties did occur, such as in the South after the Civil War, the situational limits were part of the right and not “a massive precedent from which the government would expand its power to cover the behavior of all citizens” (Murphy, 1979:34–35). In addition, because the First Amendment right applied only to federal legislation, the possibility of clashes over local restrictions did not exist (see Incorporation in chapter 1).
The entrepreneurial spirit that characterized late nineteenth century U.S. thought influenced the conception of freedom under the Constitution. Confidence in the economic marketplace included a conception of individualism that would become a basis for freedom in the United States. The most important example of this thinking came from England in John Stuart Mill’s On Liberty, published in 1859. Mill hoped that truth would surface in open debate. His doctrines emphasized the “struggle between Liberty and Authority” and his model of free exchange gave individual rights a central place (Mill, 1859/1975:3). In the United States, this liberal manifesto helped to transform the protection in the Bill of Rights into an expression of individualism in law. Propositions such as Mill’s idea that the sole end for which “mankind are warranted . . . in interfering with the liberty of action of any of their number, is self-protection” (Mill, 1859/1975:10) expanded the bounds of protected expression and associated the right with limited government. This theory was popular where confidence in the market was the prevailing ideology. For Mill, the first freedom was “liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects” (Mill, 1859/1975:13). This was similar to the interpretation of the First Amendment that emerged in the United States fifty years later and came to define the meaning of First Amendment freedom.
The Modern Period. Although this theory appeared in the nineteenth century, it did not come to prominence as a basis for the right to free expression in the twentieth century without some dramatic changes in U.S. society. Political violence, from the Haymarket riot of 1886 to the assassination of President McKinley in 1901, exemplified the serious discord at the turn of the century in the United States. The influx of new people and ideas before World War I ended the relative cultural homogeneity that had been characteristic of the new societies in the Western Hemisphere. The propertied classes and those who represented them at the center of power initially associated free expression with radical groups such as the International Workers of the World (IWW) and the Free Speech League. The view among lawmakers seemed to be that these activists were attempting to hide the subversive nature of their cause by invoking principles of freedom. In fact, pushing those very principles was an acknowledged strategy of these groups that they hoped would bring attention to their cause. What has not readily been apparent as a foundation for change was the extent to which older liberals attacked the radicals and their demand for free expression.
The repression against anti-war and anti-draft activity during World War I created a receptivity, if not a longing, for an expanded freedom of expression. Following the war, a consensus began to develop in the legal community concerning the value of toleration. Pluralism in social and political life led to greater legal tolerance of expression as a way of drawing a new line in the sand in the hopes of containing centrifugal social forces. The standard, articulated by Justice Oliver Wendell Holmes, Jr., reflects the capacity of the legal community to change the basis for constitutional protection. The result was that the First Amendment became an alternative to using force against dissent. The new standard for expression softened and rationalized the legal limits on “free” expression. The standard matured into the dominant constitutional practice in this area.
Movement away from a tradition that prohibited prior restraints on publication but allowed subsequent punishment came early in the twentieth century. When the First Amendment was introduced in a 1907 Colorado case involving publication of articles and a cartoon critical of the Colorado Supreme Court, Justice John Marshall Harlan argued that its protection should not be limited to prior restraint, but should apply to punishment as well. His opinion was a dissent from the majority in Patterson v. Colorado (1907). For the majority, Justice Holmes upheld conviction for contempt because the First Amendment did not apply to the states. Its purpose, he added, was simply “to prevent all such previous restraints upon publications as had been practiced by other governments.” Holmes, along with his brethren, did not believe that the First Amendment was meant to prevent subsequent punishment. For Holmes, the meaning of free speech was influenced by the tradition of punishment for libel and slander and other common law doctrines. Holmes amplified this view in the following way: “The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false” (Patterson, 1907:462). Holmes traced his early views to Blackstone, the common law, and the tradition of prosecution for attempted crime whether or not it succeeded (1881:54–55). Speech that could be proscribed—in Patterson, it was contemptuous speech—could be considered criminal action.
In the summer of 1918, Holmes began an exchange with Judge Learned Hand who, because of his influence on doctrinal developments, would often be referred to as the “tenth justice.” Hand argued that “opinions are at best provisional hypotheses” and thus should not be subject to punishment. Holmes replied that free speech is not different than freedom from vaccination,” that is, it is subject to reasonable limitations. But Holmes’s position had already begun to weaken. In subsequent cases, Holmes defined a new relationship between the power of government and the right to speak. The shift, initially a means of legitimizing government repression, expanded the realm of protected discourse. Doctrinal struggles would continue to be waged over the status, meaning, and implications of the new freedom.
Tests and Standards
The expansion of the right by Justice Holmes enlarged the sphere of free expression by extending its boundary “out” from prior restraint and associating this boundary with dangers and threats to legitimate interests. This was a significant expansion, but there were real limits that remained. These limits, as they are related to the well-being of the state, concern various dangers, the press, and unprotected speech (for example, obscenity). These have been handled through tests that define free expression and determine the standards for prosecution. The historical movement from the clear and present danger doctrine deals first with variants on that test, including bad tendency, imminence of danger, and the “evil discounted by its improbability.” These tests vie for interpretive authority, while a general pattern of balanced interests emerges. This becomes the foundation for a more aggressive interpretation of a pure tolerance that moves from the Court to the population generally as the framework for understanding First Amendment rights. The tests reveal the values behind this right. The result is a setting in which the interests of the government became associated with censorship, whereas the meaning of the First Amendment was associated with the absence of limits.
Clear and Present Danger. In 1919, in Schenck v. United States, the Supreme Court ruled on the extent of congressional power to proscribe speech or advocacy. The case involved members of the Socialist party who had clashed with federal authorities responsible for conducting a draft during World War I. The Socialists had circulated a document alleged to be “intended to cause insubordination and obstruction of the draft” to men called and accepted for military service. A federal prosecution was brought against the Socialists under the Espionage Act of 1917.
Justice Oliver Wendell Holmes, Jr., announced the opinion in the case. Included in that opinion was Holmes’s formula, which set the parameters for suppression of speech under the Constitution with a vivid metaphor: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” This picture has defined the relationship between the government and expression by setting the context within which adjudication takes place. As the doctrine emerged in Schenck: “The question in every case 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 substantial evils that Congress has a right to prevent.” The boundary for free speech had been expounded, and the courts were given a vision of how to patrol it. A threat to the community or its interests was thus a basis for limiting speech.
Pressure on the Supreme Court to protect expression grew as external threats diminished. In the November 16, 1918 issue of The New Republic, Zechariah Chafee, a law professor, proposed an expanded protection for speech, and the next year, as a result of the article, he was able to present his position directly to Holmes in a private meeting arranged for the express purpose of such an exchange. The view appeared in the dissent by Justices Holmes and Brandeis in Abrams v. United States (1919), a case that arose under the Sedition Act of 1918. Here the justices took the extent of the threat to national security as a matter for factual determination at trial. In assessing the threat, Holmes and Brandeis looked to the proximity of the danger to legitimate interests and introduced a new realism into adjudication. This was an early step in delineating the present law on free expression. The leaflets in the Abrams case were not found to be a danger to the war effort. The context became the relevant consideration, and the right began to be conditioned by perception of the threat. Similarly, Frohwerk v. United States (1919) and Debs v. Unites States (1919), which were both also decided in the same period and which involved the Espionage Act of 1917, were influenced by the belligerent context in which they arose.
It is possible to distinguish the development of a right from the outcomes of cases when describing doctrinal evolution. The defendants in Schenck went to jail, as did those in Frohwerk, Abrams, and Debs. In fact, throughout the first years of the new era (1919–1927), all those whose claims contributed to an expanded right failed to avoid punishment. In Gitlow v. New York (1925), the defendant was convicted under a criminal anarchy statute for publishing a newspaper, The Revolutionary Age. Holmes and Brandeis would have freed Gitlow because they saw no immediate danger. The majority, however, judged the danger sufficient for conviction because they looked to a “tendency” that the newspaper would foment revolution; and consequently, Gitlow is associated with the “bad tendency” test. In all these cases the perceived propensity toward revolution influenced the justices’ treatment of the threat, but there was also disagreement on the Court about the measure of proof the Constitution required.
The case of Whitney v. California (1927) was provoked by Charlotte Whitney, a native San Franciscan and Wellesley graduate who was active in suffragist and socialist causes.
Charlotte Anita Whitney
(1867–1955), suffragist and political radical
Born in San Francisco, California, on July 7, 1867, Charlotte Whitney was the daughter of a lawyer and a niece of Supreme Court justice Stephen J. Field and of financier Cyrus W. Field. In 1889 she graduated from Wellesley College. A visit to the College Settlement House in New York City in 1893 turned her to social work, and she soon returned to California to work in the slums of Oakland.
From 1901 to 1906 Whitney was secretary of the Council of Associated Charities of Alameda County. She led a campaign for a woman suffrage amendment to the California constitution and subsequently joined in similar campaigns in Oregon, Nevada, and Connecticut. At the same time, she became involved in the free-speech fights of the International Workers of the World.
Whitney joined the Socialist Party in 1914 and five years later helped lead the defection of the party’s radical wing and the founding of the Communist Labor Party (later the Communist Party). In November 1919, during the height of the postwar “Red Scare,” she was arrested after a public address at the Oakland Center of the California Civic League (of which she was president from its founding that year) on five counts of criminal syndicalism. Convicted on one count, Whitney was sentenced to 1 to 14 years in prison. Because of ill health she served only 11 days of her sentence; however, her appeals of the conviction dragged on for nearly eight years before she was pardoned by the governor in June 1927.
In 1924 Whitney ran for state treasurer of California on the Communist ballot and polled more than 100,000 votes. In 1935 she was convicted of distributing radical literature, lecturing without a permit, and falsely attesting Communist election petitions. She was named national chairman of the Communist Party in 1936 and ran unsuccessfully for a seat in the U.S. Senate from California in 1950. She died on February 4, 1955, in San Francisco.
Copyright © 1999 Encyclopædia Britannica, Inc.
In 1919 she was arrested after giving a speech in Oakland to the California Civil League and charged with five counts of criminal syndicalism. She was convicted and sentenced to 1 to 14 years in prison. She only served 11 days of her sentence as her appeals dragged on for eight years. In her case before the Supreme Court, Justice Brandeis held that the danger of violence or illegal action should be a matter considered at the trial yet the Court upheld her conviction. (She was ultimately pardoned by the governor of California.) The same day, in Fiske v. Kansas (1927), the Court announced that it would uphold a First Amendment claim for the first time. Fiske, an organizer for the Industrial Workers of the World (IWW), was convicted under a Kansas law for soliciting new members and advocating syndicalism. The justices found reliance on statements in the IWW constitution (which urged a struggle between workers and employers) to be insufficient evidence of a danger. Although there were no ringing calls for tolerance, the Supreme Court, for the first time, made freedom of speech really mean freedom from jail.
The implications of the Holmes-Brandeis formulation are puzzling. The new doctrine broadened protection, yet it also constrained expression. A boundary was established that shifted from previous restraint to an approach with greater room for expression. The distinction between protected and unprotected speech set the parameters for the constitutional right and remains the key principle in this area of law.
Balancing Tests. The sociolegal constitutive approach emphasizes the similarity among free speech adjudication of subversion cases since World War I. Tests, such as “bad tendency” or “sliding scale” (Funston, 1978:179) have so much in common with “clear and present danger” as to be almost indistinguishable. The difference between these cases is not a matter of constitutional ideology. Rather it is a difference in the politics of the time and the perceptions of the participants. In these instances, the justices are participants, and they share the popular phobias.
The balance struck between expression and legitimate public concerns by the clear and present danger test was upset by the 1950s hysteria about the so-called “red menace.” When the conviction of Eugene Dennis and other leaders of the American Communist party was upheld by Judge Learned Hand on the 2nd Circuit Court of Appeals, the judge referred to “abundant evidence to show that [the defendants] were all engaged in an extensive and concerted action to teach . . . the doctrines of Marxism-Leninism” (Dennis v. United States, 1951:206). The case set the pattern for treatment of dangerous speech in the post-World War II period. In the Dennis case, Chief Justice Fred Vinson incorporated Judge Hand’s position. Hand’s contribution was a “discounting formula” to elaborate the clear and present danger standard. The emphasis was on the “evil, discounted by its improbability.” The result was a version of the clear and present danger test, which was similar in structure to earlier formulations, but weakened in practice by the prevailing paranoia about communism.
After the hysteria had subsided, in Yates v. United States (1957), the clear and present danger doctrine showed compelling authority. In Yates, the Court reversed the convictions of fourteen Communist party officials for conspiring to overthrow the government in violation of the Smith Act. In this case the justices looked for more than just an abstract doctrine of violent revolution and required the teaching of “concrete action” to justify conviction.
Another decade passed before constitutional tolerance reached full strength in Brandenburg v. Ohio (1969). The case stemmed from a situation in which a leader of the Ku Klux Klan (KKK) had declared at a rally that “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some vengeance taken.” He was convicted for what he said and the Ohio Supreme Court upheld the conviction, but the American Civil Liberties Union (ACLU) took up the case, and their defense of the KKK epitomized the commitment to a right of free expression without regard to the substance involved. The decision was overturned by the U.S. Supreme Court in a short opinion holding to a standard of “incitement to imminent lawless action.” The justices made it clear that mere advocacy of violence was not enough to sustain a conviction. Concurrences by Justices Black and Douglas lamented “manipulation” of the clear and present danger doctrine. The result was less a doctrinal shift than a move away from the paranoia of the previous decade and a confident expression that the nation could survive without substantive limits on discourse. For the most part, this confidence withstood the divisiveness that characterized debate over the Vietnam War during the 1960s. The most celebrated case, United States v. Spock (1969), discussed in the section on subversion, was dismissed at the Court of Appeals level and never reached the Supreme Court.
The historical legacy has broader significance. The confidence in the search for truth that characterized the early right to freedom of expression was becoming associated with ambivalence about any substantive evaluation of speech. This model created from the tradition of constitutional interpretation influenced public perception that the First Amendment prevented critical evaluation of speech. The model is referred to here as “pure tolerance,” and upon close examination, its relationship to what has taken place under the Constitution is problematic.
Absolute and Pure Tolerance. The interpretation of “clear and present danger” has been the pragmatic application of the guide concerning “shouting fire in a theatre and causing a panic.” Expression that requires protection inevitably threatens something, and attention to the threat is conditioned by how real it seems. In most free-speech contexts, there is a countervailing value that sets the stage for interpretation. These include concerns about subversive activity, a vigorous press, and a “decent” society. The interpretation itself has taken different forms within the general framework. The strongest tradition—that is, the one most favorable to expression—has looked for real threats; a weaker stance balances the interests at issue. In each instance the line is drawn with reference to a structure that juxtaposes other governmental interests against the interest in free and unfettered expression.
An exception to the pragmatic tradition, however, is an “absolutist” or literal interpretation. Although it has seldom commanded a majority of the Court, it reflects the public perception of what First Amendment freedom is all about. This is theoretically grounded in the work of Alexander Meikeljohn, who was a major contributor to ideas about free speech between the world wars. The influence of the “pure tolerance” or absolutist position on the Court came from the stance of Hugo Black and, to a lesser extent, William O. Douglas. According to Meikeljohn, “the First Amendment to the Constitution, as we all know, forbids the federal Congress to make any law which shall abridge the freedom of speech.” He argues that we cannot help but be startled by the absoluteness of the amendment because “[t]hat prohibition holds good in war as in peace, in danger as in security . . . the words meant literally what they say” (Meikeljohn, 1948:17). The ACLU believes in this interpretation of free expression and their reading has dominated interpretation in this realm (Emerson, 1970).
This position is associated with toleration and was explored in Robert Paul Wolff’s volume A Critique of Pure Tolerance (1968). In his essay, Wolff wrote that the virtue of tolerance is an aspect of pluralist democracy. He argued that although traditional liberalism focuses on the relation between the individual and the state, pluralism reflects the reality of corporations, unions, and interest groups that have become “necessary evils in a heterodox society”. This system integrates the interests in society and plays down their differences. The pure tolerance perspective, without any admixture of interests, has come to characterize modern social cohesion. The concept draws its strength from a refusal to make distinctions over the value of speech. One of the classic cases of this occurred in 1979. It was evident in the ACLU position that Nazis marching in Skokie, Illinois, a predominantly Jewish community, must be protected so that other radical groups, like Communists or the KKK, would be protected and able to march when and where they wanted to. The strength of the protection was seen, by its proponents, in the diverse albeit unattractive mix. Pure concepts such as tolerance or nondiscrimination ultimately become ends in themselves. They represent aspirations standing above policy choices and are presented as principles from which the polity as a whole can benefit.
The myth of purity developed while distinctions were being made in practice. Alexander Meikeljohn considered issues such as libel, slander, incitement, sedition, and treason to be largely outside the protection of the First Amendment. A similar stance offering no protection to speech that was tied up with action was evident in Justice Black’s holding that his absolute position would “not invalidate laws resting upon the premise that where speech is an integral part of an unlawful conduct . . . the speech can be used to illustrate, emphasize and establish the unlawful conduct” (Konigsberg v. State Bar of California, 1957). Black, like Douglas, did not watch the allegedly obscene films that came to the Supreme Court for review. He believed that they were protected speech, but he allowed prosecution of libel. As a result, the speech/action distinction, though associated with absolute protection for expression, often made its proponents less generous than some of their colleagues when it came to demonstrations (see Adderly v. Florida, 1967).
Protection for free expression may be strongest where it is implicit that the ideas do not matter, or that they are only expressions rather than action. In Tinker v. Des Moines (1969), the Court articulated the position that pure speech acts, such as students wearing black armbands to protest the war in Vietnam, were protected under the First Amendment. It is in this sense that the pure tolerance basis for protection of expression, the tolerance that protects communists and fascists, feminists and Dr. Laura, diminishes the significance of the expression. This was the philosopher Herbert Marcuse’s criticism in the essay Repressive Tolerance (1968). Marcuse claimed that the objective of tolerance could not be fulfilled without a foundation of social equality. The refusal to take sides, which is the premise of pure tolerance, mainly serves to protect the machinery of discrimination because it seems to neutralize opposition and “flatten” discourse. Marcuse’s position is illustrated by the cross-burning case, R.A.V. v. St. Paul (1992; see page xx, supra) in which burning a cross on the lawn of a black family is analogous to burning a flag in a political protest at a national party nominating convention. To paraphrase author Philip Roth (1983), who compared countries that do not have this kind of freedom with the United States, it seemed to him that in those countries, “nothing goes and everything matters,” whereas in the United States “everything goes and nothing matters.”
A freedom that fosters social agnosticism is at odds with democracy and social cohesion. The school library censorship cases provide an example of this sort of consequence. When books are challenged by outraged parents because they are “un-Christian, anti-Semitic, or racist” (Board of Education v. Pico, 1982), the response has become a neutral or “pure” freedom to read, rather than a substantive defense of the materials or a discussion of their educational significance. This response may reveal a kind of drift (or lack) of values, rather than the higher value of tolerance it is sometimes presented as.
In the end, expression has always been subordinate to the interests of society and the state. Even in the most liberal settings, there have been limits to expression in order to preserve the social order. Recognition of this fact of social life is part of the practice of U.S. constitutional politics. Paradoxically, such recognition has been inhibited by contemporary First Amendment scholars, who make up a rather ahistorical and generally intolerant group when it comes to opposing interpretations of what the First Amendment has meant. They believe that the absence of limits on expression is the only thing that is permissible to be confident about, maybe the only legitimate object of intolerance. The result of this position has been that much political debate has lost its cutting edge. Recognition of the political and social reality of freedom of expression may give expression back its cutting edge and, ultimately, increase its capacity to produce meaningful political and social change.
Symbolic Speech and Expressive Conduct. The area of First Amendment free speech law known as “symbolic speech” or “expressive conduct” has an interesting political history. Some of it is revealed in Supreme Court cases, such as Tinker and R.A.V. (both discussed above). It should be recog¬nized that symbolic speech comes largely out of protest movements that do not have access to media coverage or the public forum. Put another way, the “marketplace” for the exchange of ideas is not open to all political protest movements. And when demonstrations are covered by the national network media, such as the 1999 “Battle of Seattle” challenging the authority of the World Trade Organization to determine global policies, the number of people arrested is reported far more often then the substantive views of the protesters. Symbolic speech is an attempt to communicate, to reach an audience primarily through the medium; as Marshall McLuhan’s book, The Medium is the Message (1967; see also marshallmcluhan.com), coined the phrase. When anti-war protesters seeking to dramatize the killings in Vietnam poured blood on draft files, or when David O’Brien expressed his opposition to that war by publicly burning his draft card, anti-war political speech received much greater media coverage. O’Brien was arrested and charged with interfering with the U.S. Selective Service process. O’Brien alleged that the particular administrative regulation he was charged with violating interfered with his expression rights protected by the First Amendment. In an 8–1 decision, the Court upheld O’Brien’s conviction, reasoning that the purpose of the Selective Service regulation was not to regulate the content of O’Brien’s speech, but rather to maintain the smooth functioning of the selective service process.
The boundary between protecting a significant governmental interest and protecting symbolic speech is far from self-evident and remains a subject of political as well as legal controversy. The case Clark v. Community for Creative Non-Violence (1984) makes this point clear. Demonstrators protesting the plight of the homeless under the Reagan Administration were arrested for violating a National Parks Service regulation that prohibited camping in Lafayette Park and the Mall in Washington, D.C. The Park Service issued a permit to the Community for Creative Non-Violence (CCNV) to conduct a winter demonstration by erecting 2 “tent cities” (20 tents in Lafayette Park for 50 people and 40 tents in the Mall for up to 100 people). However, the Park Service did not allow the demonstrators to sleep in the tents. CCNV argued that the regulation was unconstitutionally vague, had been discriminatorily applied, and violated their First Amendment rights. Justice White, writing for the seven-member majority, held that “tent city” was “expressive conduct” protected to some extent by the First Amendment, but that expressions, oral, written, or symbolized by conduct are subject to reasonable “time, place, and manner” restrictions. These restric¬tions, White argued, are valid so long as they are “justified without reference to the content of the regulated speech; narrowly tailored to serve a significant governmental interest; and they leave open ample alternative channels for communication.” Justice White held that there was a significant governmental interest in maintaining the parks “in the heart of our capital in an attractive and intact conditions, readily available to the millions of people who wish to see and enjoy them by their presence.” In the Court’s view, securing this governmental interest outweighed protecting the symbolic expression of homeless demonstrators. The two dissenters in the case, Justices Marshall and Brennan, took issue with the majority’s approach to regulating expressive conduct, arguing that the majority failed to properly apply the “time, place, and manner” test by not subjecting the government’s interest to the degree of scrutiny required to ensure that expressive activity protected by the First Amendment remains free of unnecessary limitations.
Specifically, the dissenters argued that the “majority’s approach denatures respondents’ asserted right and thus makes an all too easy identification of the government’s interest sufficient to warrant its abridgement. A realistic appraisal of the competing interest at stake in this case requires a closer look at the nature of the expres¬sive conduct at issue and the context in which that conduct would be displayed.” Alternatively, Justices Marshall and Brennan argued, judges must look at the “surrounding context” of the expressive speech and determine whether it merits protection. The dissenters’ focus on the primary purpose of the demonstration—-to increase public consciousness about homelessness—would be unconstitutionally limited if the permits granted denied homeless demonstrators access to sleep in the park. Justices Marshall and Brennan thought the majority should have followed Spence v. Washington (1974), a flag display case where the Court upheld the free speech rights of students who tapped a black peace symbol to a flag. In Spence v. Washington, the Court looked to the “intent of the speaker to convey a particular message” and “whether the likelihood was great that the message would be understood by those who viewed it.” The important socio-legal issue raised by the dissent in Clark v. Community for Creative Non-Violence is that the “surrounding context” of symbolic speech (a homeless tent city across from the White House) is the content of the expression.
When it comes to expressive conduct involving the U.S. flag, there has been considerable debate because this particular symbol is considered both a cherished national symbol and a target for vilification when U.S. policies are challenged at home or abroad. After publicly burning a U.S. flag outside of the Dallas convention hall to protest the Republican Party platform, Gregory Lee Johnson was arrested and convicted of desecrating a flag in violation of Texas law. In Texas v. Johnson (1989), the Court narrowly held (5–4) that the Texas statue violated Johnson’s free speech rights protected under the Constitution. Subsequent to this case Congress passed the Flag Protection Act, seeking to challenge the Court’s position in Texas v. Johnson. Again in a 5–4 decision, with Justice Brennan writing the opinion, the Court struck down the federal statue in United States v. Eichman (1990). The Eichman ruling essentially bolstered Texas v. Johnson, finding that the government’s interest in protecting the flags status as a national symbol was related to the suppression of free expression and could not justify infringement on First Amendment rights. Although conceding that the new law, unlike the Texas statute in Johnson, contained no explicit content-based limitation on the scope of prohibition conduct, the majority held the federal statue still suffered from the same fundamental flaw as the Texas law, namely that it could not be justified without reference to the content of the regulated speech. Justice Brennan summed up the Court’s view by saying that “punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”
The Eichman decision sparked an immediate response by President Bush and others who called for a constitutional amendment against flag desecration. The proposed amendment was defeated in both houses of Congress in 1990, but with the Republican election victories in 1994, which gave them control of both houses of Congress of the first time in 40 years, the amendment passed the House by the required two-thirds supermajority. Thus far, however, it has failed to gain a two-thirds vote in the Senate.
LIMITS ON SPEECH AND ASSEMBLY
Constitutional interpretation starts with cases, and there cannot be a freedom of expression case unless the government is concerned enough about an activity to prosecute those who engage in it. Thus, there must be speech or assembly, and official action to stop or hinder it. The noise must be too loud, the content too offensive, the movies too risqué, or the pamphlets too shocking. People have to be unhappy and/or the government has to be engaged in order for a claim to arise. There are a number of “dangers” that governments have sought to repress. They are threats to the government itself, as well as situations that present a threat because of the institutional setting. These include issues of subversion and advocacy of revolutionary action, conflicts over public assembly, and concerns that take their meaning from places or contexts where special requirements for conduct are presumed (for example, outside hospitals or inside prisons).
There have long been efforts to expand the range of freedom of expression under the Constitution, as a response to legal limits. The doctrine that some expression is dangerous replaced the doctrine of “no prior restraint,” which had long been the norm. The modern idea that speech and assembly can be prohibited when they are dangerous is the basis for the new limits on expression. Justice Holmes redefined the character of political authority in his proposition that some challenges to governmental interests need be tolerated, but not all. The key to understanding the rights associated with expression therefore lies not in the dynamic of freedom, but in the nature of the limits that delineate freedom in practice. We begin with the most significant of those limits: limits against subversion.
Subversion
Arguably the first challenge to civil liberties in the new republic was the Alien and Sedition Act controversy at the end of the Adams administration in 1798. The Federalists controlling Congress had sought to use the government to put pressure on those who disagreed with them. The legislation prompted expressions of dissent from Thomas Jefferson and the Virginia and Kentucky legislatures and the controversy itself did indeed threaten the new government. The claim that one’s opponents threaten the very existence of the government underscores the significance of the First Amendment in cases where Americans face the charge of sedition.
Societies exist where there is some agreement on fundamental issues. Any group of people living together must maintain a degree of consensus in order to survive. Although survival might seem assured where dissent is most restricted, liberal societies nonetheless place great weight on the value of open discussion and public discourse because debate and open disagreement are said to be healthy, serving as safety valves. As part of this tradition, governments can restrict expression where the existence of the institutions themselves is threatened (Emerson, 1970:Ch. 3). Whatever its pretense, it is hard to imagine a government acting in any other way. First Amendment tradition follows these lines: interpretation of the Constitution has been sensitive to diverse opinion tempered by the extent to which it poses a threat.
During the first period in the development of modern free speech doctrine, danger to some legitimate interest became the basis for constitutional prosecution of speech. The interests were internal and external security, and the fears were of subversion. The result was legislation such as the Espionage Act of 1917 and the Sedition Act of 1918, which were both aimed at radicals and political activists outside the mainstream. Prosecutions, from Schenck v. United States (1919) to Whitney v. California (1927), led to constitutional standards for repression and protection from subversion. Although this period followed the disruptions of World War I, immigration, and the social unrest of the early twentieth century, there was still pressure for a pluralist practice, as well as the necessary space for the doctrine to develop.
When Charles Evans Hughes was appointed Chief Justice in 1930, modern practice entered a new phase that lasted until World War II. The most important case during these years may well be De Jonge v. Oregon (1937). The speaker in De Jonge was convicted under the Oregon Criminal Syndicalism law for presiding at a meeting of the Communist Party because “the CP” was viewed as advocating political violence and revolution. In 1937, the Court overturned De Jonge’s conviction because the meeting at which he appeared was peaceful. According to Chief Justice Hughes, laws must deal with particular abuses because of “the need to preserve inviolate the Constitutional rights of free speech” (De Jonge, 1937:364–365). Hughes did not explicitly invoke clear and present danger, but he extended protection to speech that did not involve “incitement” to violence.
The first peacetime sedition law passed since the Alien and Sedition Acts of 1798 was the Alien Registration Act of 1940, known as the “Smith Act.” This legislation was a source of federal prosecutions for the next twenty years and set the pattern for the constitutional practice that developed. Section 2 of the act, dealing with advocacy, conspiracy, and membership, aroused the most controversy. These provisions made it illegal for any person to advocate the overthrow of the government by force, hold membership in any group dedicated to such purposes, and print or disseminate written matter advocating such overthrow. As Emerson noted, however, “whatever problems of internal security may have been in 1940, they did not arise from any public advocacy that the government be overthrown by force or violence” (Emerson, 1970:111). This was an earlier practice no longer in vogue. The Act was invoked twice during World War II against socialists (Dunne v. United States, 1943) and against pro-Nazis, but it did not get a hearing in the Supreme Court until the Dennis case in 1951.
Dennis showed how a focus on constitutional politics may distract students from an investigation into the ideological authority of the Constitution. The political fact is that the conviction of Dennis was upheld. The ideological fact is that a legal framework had been established for evaluating government efforts to protect against subversion. In Dennis, the Court is said to have “bridged the gap” between the clear and present danger standard and the fact that there was not demonstrable danger (Grossman & Wells, 1980:1226). This was a balancing act, as already discussed. The justices were inclined to uphold the convictions of communists during the Cold War. A focus on outcomes and judicial motivation sometimes misses the expectations implicit in the Constitution. The outcome, or the choice by a justice of the argument on one side or the other, is not determined by the Constitution, nor in the case at hand. The symbolic environment of the Constitution is not an ordinary framework. In Dennis, the framework evaluated the right of expression in terms of the danger it posed. The Constitution is responsible for the case being considered, for an issue to be seen in a certain way, but the Constitution can not determine the outcome. The right to free expression helps explain why affronts to many people, such as burning a U.S. flag, are tolerated.
Loyalty oaths and employment in sensitive jobs were two of the subversion-related areas governed by the right to free expression in the Vietnam era. During this period and under the authority of the justices of the Warren Court, some of the internal security legislation of the Cold War was declared unconstitutional. For example, loyalty oaths were declared unconstitutional in Keyishian v. Board of Regents (1967) when they were no longer considered useful. And in United States v. Robel (1967), the justices turned to the freedom of association guaranteed by the First Amendment to protect the right of a member of the Communist Party to work in a defense plant. This may have been the height of actual sensitivity to free expression. Subsequent references to the limitations on the “war power” discussed in this opinion have more often come in dissent (Rostker v. Goldberg, 1981). Although it may have surprised ordinary observers, the Warren Court’s concern in the area of subversive activities was in the tradition of the modern right to free expression.
Few of the celebrated draft cases of the 1960s reached the Supreme Court, but the doctrinal stance was evident in the lower courts. Wartime dissent is sometimes thought to involve external rather than internal security. It reached a particularly high level over Vietnam, and the “danger” it posed was a matter of contention at the time. In United States v. Spock, five leading opponents of the Vietnam War, including pediatrician Benjamin Spock, were indicted for conspiracy to “counsel, aid and abet . . . Selective Service registrants to evade the draft” (Spock, 1969:192). The convictions of these anti-war activists were dismissed by the Court of Appeals for insufficient evidence of intent to participate in an illegal conspiracy. The government did not appeal to the Supreme Court, fearing, perhaps, the embarrassment of an adverse ruling at that level.
Threats to Public and Private Order
The American Nazi party and other groups outside the mainstream have made some of the most dramatic “contributions” to the right to assemble. One of the most dramatic confrontations in U.S. history came in 1979 when American Nazis planned a march through Skokie, Illinois. This is a predominantly Jewish suburb of Chicago, where 7,000 of the residents had been confined in German concentration camps during World War II. The march was presumed to involve not only an affront to the residents, but the threat of violent retaliation. The situation became a rallying point for the American Civil Liberties Union in their campaign to foster the pure tolerance form of freedom of expression. The conflict was described by David Goldberger who represented the Nazis for the ACLU:
The case began when the Nazis [sic] scattered requests to several Chicago suburbs seeking permits to hold a rally in their towns. . . . Many of the towns that received the Nazis’ request just ignored it. Skokie did not. Skokie responded by obtaining a court order banning the rally. . . . The Nazis asked us to defend their right to hold the rally, and to challenge one of the laws prohibiting it. Though I detested their beliefs, I went into court to defend the First Amendment.
The complex, but classic, issues in the Skokie case severely tested the resolve of many civil libertarians.
The right to assemble has come to include not only the right to gather but also the right to associate for political purposes (Abernathy, 1981). Perhaps the first “modern” encounter with the freedom to assemble and the issues surrounding it came before the Supreme Court in Hague v. Congress of Industrial Organizations (CIO) in 1939. In that case, Jersey City had prohibited assemblies in the streets, parks, or public buildings without a permit. When the mayor denied the CIO permission for a rally, the labor union successfully challenged the decision. Justice Roberts ruled that streets and parks have been “held in trust for the use of the public” and that their use may be regulated, but it may not be abridged or denied in the guise of regulation.
Assembly raises issues that are characterized in law as concerning the time, place, and manner” of the gathering. Official concern that raises these issues of time, place, and manner is usually about keeping the streets open for travel and preserving peace in the community. Justice Black, who was a champion of free expression for speech and writing alone, but not necessarily assembly, allowed the government broad regulatory powers where action and conduct were involved. But the tension in the right to assemble is that any regulation requires the government to show respect for free expression. In Cox v. New Hampshire (1941), the Supreme Court upheld the conviction of the Jehovah’s Witnesses, who had marched without a permit. The Court has held that “public passages” can be kept open (Cameron v. Johnson, 1965), noisy demonstrations outside schools proscribed (Grayned v. Rockford, 1972), the tranquility of federal courts preserved (Cox v. Louisiana, 1965), and the grounds of a county jail closed to demonstrations (Adderly v. Florida, 1966). Each of these cases set limits on expression in public places.
Three decades after Cox, in Shuttlesworth v. Birmingham (1969), the justices announced that a procedure for acquiring a permit cannot delegate too much power to public officials who might base their decision on the purpose of the assembly. In United States v. Grace (1983), the Court ruled that the First Amendment gives people the right to picket or distribute leaflets on the public sidewalks surrounding the Supreme Court building and content and purpose were fused in Watt v. Community for Creative Non-Violence (1983).
Some of the most difficult “assembly” issues involve quasi-public property, such as shopping centers and airports. Although the presumption has been that purely private property is not open to public demonstrations, the Court upheld the right of a labor union to picket a store in a shopping center as a reasonable way to convey the facts of a labor dispute in Logan Valley Plaza v. Amalgamated Food Employees Union Local 509 (1968). The justices relied on a 1946 precedent (Marsh v. Alabama), where a right to distribute religious literature in a “company” town had been upheld. And in Pruneyard Shopping Center v. Robins (1980), a shopping center owner had appealed from a judgment of the California Supreme Court holding that the California Constitution protects speech and petitioning, exercised in a reasonable way, in privately owned shopping centers. The decision by Justice Rehnquist held that the ruling did not deny owners rights under the Fifth Amendment or the free speech rights associated with the ownership of property and upheld the decision of the California court.
Abortion clinics have become magnets for protest since the anti-abortion movement turned violent (following the Supreme Court’s decision in Roe v. Wade). In particular, the tactics of a “right-to-life” group known as Operation Rescue has focused on stopping abortions by aggressive protest around clinics that provided abortions. In 1994, a case from Florida reached the Supreme Court, Madsen v. Women’s Health Center. The justices, in a 6–3 decision, upheld an injunction by a local judge who had created a 36-foot buffer zone around abortion clinics that was meant to keep protestors away from entrances to clinics in order to limit the harassment of women seeking abortions. Their holding, reiterated three years later in Schenck v. Pro-Choice Network, stipulated that “standard time, place, and manner analysis is not sufficiently rigorous” for evaluating content neutral injunctions that restrict speech, and held, instead, that the test is “whether the challenged provisions . . . burden no more speech than necessary to serve a significant government interest” (Id., at 765, pp. 12–14). Schenck struck down “floating buffer zones” as violating this standard. The ACLU Brief in Schenck v. Pro-Choice Network (1997) elaborates upon the central dilemma between constitutional protection of political speech and threats to public safety.
Airports are another setting posing particular challenges in the regulation of expression. The Supreme Court, in both Board of Airport Commissioners v. Jews for Jesus (1987) and Lee v. International Society for Krishna Consciousness (1992), overturned local restrictions on soliciting and advocating. The current law allows more regulation of expression than in the traditional public forum. Activists may be limited to particular places and may be required to register and carry official badges. Since September 11, 2001, airports and, in particular, airplanes have become some of the most highly regulated places in the United States with regard to expression. Here, the consequences of a casual joke involving bombs or planes crashing can range from mild inconvenience to significant jail time. But you can still joke in print and constitutionalist George Carlin does in his usual pointed way when he says “Airport security is a stupid idea, it’s a waste of money, and it’s there for only one reason: to make white people feel safe!” (Napalm and Silly Putty, 2001: p. 48).
Controversies within private associations can turn into constitutional battles, such as in Boy Scouts of America v. Dale (2000). Dale, a scout leader and long-time member of the Boy Scouts of America, alleged that the Boy Scouts violated New Jersey’s public accommodations statute when they revoked his membership solely because of his homosexual orientation. The Boy Scouts of America maintained that their anti-homosexual position was protected under the First Amendment freedom of expressive association and prevented the government from forcing the Boy Scouts to accept Dale as an adult leader. Chief Justice Rehnquist, writing for the majority, held that the First Amendment’s protection of expressive association is not reserved for advocacy groups, whether they be public or private, and the First Amendment prohibits the state from imposing anti-discrimination requirements on groups through the application of its public accommodations law. This case marks another example of how the Supreme Court in recent times has overturned legislative acts directed at prohibiting discrimination on First Amendment grounds. But for an even longer time the reach of constitutional protections have been limited by claims of private association.
Institutional Order
Institutions such as schools, prisons, and workplaces have all been subject to free speech litigation. In each case “expression” is dependent on the nature of the institution and how its prerogatives are viewed.
When state governments began providing public education in the nineteenth century, the First Amendment right to expression was applied to the schools. In Meyer v. Nebraska (1923), the Court ruled that wartime legislation in Nebraska that forbade the teaching of German in schools was unconstitutional. The holding was that the right to teach this subject is a protected “liberty.” Two years later, the Court invalidated a Ku Klux Klan-backed Oregon law that prohibited students from attending private (thus parochial) schools (Pierce v. Society of Sisters, 1925). The Court based this action on a “property right” to choose a particular form of education. Thus, both liberty and property rights have contributed to freedom of expression, suggesting closely related interests relevant to how this right is shaped. Moreover, because institutions place special requirements on individuals, matters of conscience often arise in these contexts. For example, compulsory flag salute was invalidated in 1943 (West Virginia State Board of Education v. Barnette) after such a challenge.
In the 1950s, the perception that there were communists everywhere was the popular basis for assessing the danger of expression in institutions. The Taft-Hartley Act, the nation’s major postwar labor legislation, required a union member to file an affidavit stating that he or she was not a member of the Communist Party. In 1950 (American Communications Association v. Douds), the Supreme Court ruled that the act simply kept those whose beliefs were deemed dangerous from holding office in labor unions. Eleven years later (In re Anastaplo, 1961), the justices focused on George Anastaplo’s refusal to answer questions about prior membership in the Communist Party. These had been made a basis for admission to the bar in Illinois. The Court held that professional groups, such as lawyers and doctors, could question prospective members and impose a higher standard of conduct than might be appropriate in other contexts. The result, in the case of Anastaplo, was a career in political science rather than law.
Free speech, such as due process and equal protection, has been closely associated with the educational setting. Free speech is said to be “vital” to the contest between views that characterizes the educational enterprise at its best (Keyishian v. Board of Regents, 1967). At the same time, free speech has traditionally been balanced against authority over the educational process. Thus, the right may become an issue when administrators assert authority over teaching personnel, as in the case of loyalty oaths, and it often involves the authority of administrators over student expression. In Tinker v. Des Moines School District (1969), students had been suspended for wearing black armbands as a protest against the Vietnam War after school officials had forbidden the gesture. The controversy focused on the extent to which official authority had been compromised by the violation of the ban on armbands. The justices ruled against the authorities in Des Moines and reminded them that “state operated schools may not be enclaves of totalitarianism.” The Court ruled that preventing a disturbance was not a strong enough foundation to justify suspension and laced the opinion with exhortations to the effect that, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In 1988, the Court held that administrators could censor a high school student newspaper that criticized them (Hazelwood School District v. Kuhlmeier, 1988). This suggests the more conservative interpretations we have seen over the last thirty years.
Another area of school law deals with institutional authority over the curriculum and administrative decisions. Evolution, sex education, and the literature in school libraries have all raised First Amendment challenges. In Island Trees v. Pico (1982), Justice Brennan commented on the limits a school board faced regarding library books and he prevented removal simply because the board disapproved of the political ideas or philosophies expressed in the books. In Board of Regents of the University of Wisconsin System v. Southworth (2000) the Court upheld university policy where students had challenged mandatory university fees that were distributed to groups they did not approve of. The Court’s holding was that the programs were part of general support for student activities and not an unwarranted imposition on student freedom.
In the workplace, a number of conditions limit individual freedom of expression. The Supreme Court has ruled that even though a union had been designated the exclusive bargaining agent for a group of schoolteachers, this did not bar a union member from giving the employer her or his own views on upcoming labor negotiations (Madison School District v. Wisconsin Employee Relations Commission, 1976). The Court held that, at a bargaining session about wages, a teacher as a union member could not speak directly to the school board but must allow the union to speak for him. However, the teacher, as a citizen of the town, could speak to the board at a public meeting. The teacher was not only a union member bound to obey his union but a citizen entitled to speak to his elected representatives.
Like society as a whole, institutions have particular values and conventional modes of operation. As with schools, in certain circumstances institutional purposes should enhance freedom of expression. In most cases, however, the prerogatives of an institution limit the amount of expression that is constitutionally protected. Thus, the institutional context is an important structural dimension of this right. Empirical evidence on the persistence of university hate-speech codes—despite court rules overturning them—underscores the importance of paying attention to how institutional context shapes the meaning and practice of rights. Jon B. Gould’s study found widespread noncompliance by universities with the courts’ interpretations. Polls of college students also suggest that “whatever legal precedent the court decisions may have created, they have not persuaded students that hate speech restrictions are improper or unconstitutional” (Gould, 2005: 387–8).
UNPROTECTED EXPRESSION
The prevailing interpretation of the First Amendment views some speech as unprotected because of its substantive content—content that society determines be offensive. Its classic expression came in the middle of the twentieth century in Chaplinsky v. New Hampshire (1942). The majority opinion, written by Justice Murphy, the Court’s most consistent civil libertarian, found that “certain well-defined and narrowly limited classes of speech” had never raised constitutional problems. For these forms of speech, prevention and punishment had been assumed. They included “the lewd and obscene, the profane, the libelous and the insulting or ‘fighting words.’” Justice Murphy reasoned that these “utterances” are neither essential to any “exposition of ideas” nor a “step to truth.” Any benefit they might have was outweighed by society’s interest in preventing the evils associated with these forms of speech. From this judicial proclamation on the clash of social values, a distinction has developed that is clear in its outlines, but ambiguous in its details.
The kind of unprotected speech that sparked the controversy in Chaplinsky, “fighting words,” is the least litigated, although the relevance of the “clear and present danger” framework is obvious. The initial case involved the Jehovah’s Witnesses. A witness by the name of Chaplinsky had been proselytizing in a New Hampshire town and was being taken to the police station for causing a disturbance when he called a town official “a goddamned racketeer” and “a damned Fascist.” Mr. Chaplinsky was prosecuted for the references, and conviction was upheld by the Supreme Court. This case identified the category “fighting words.” Some of the subsequent cases, such as Terminiello v. Chicago (1949), following events where a riot occurred, held the speaker responsible, but more often it has been the audience or the authorities who are expected to keep order in the face of public expression (Feiner v. New York, 1951). As a matter of constitutional interpretation, “fighting words” have been subsumed within the more general contextual issues surrounding regulation of the time, place, and manner of expression. Libel is related to “fighting words” but it is also closely associated with press freedoms and will be discussed in that context.
The study of constitutional rights benefits from attention to values behind the rights. In the case of unprotected expression, countervailing values place the expression outside the scope of the First Amendment. The public peace is protected from incitement to riot. The value of reputation and, again, the public peace both justify traditional exclusion of libel from protection. Two areas of unprotected expression, obscenity and commercial speech, deserve special attention. Obscenity is conceptually challenging because it represents the clash between tolerance of expression and the values of a community. The discussion traces the evolution of a modern doctrine, explores the issue of things considered bad in themselves, and concludes with a discussion of the prospects for a response to obscenity consistent with First Amendment doctrine. Commercial speech is a huge area of regulation with its own standards having less to do with what are traditionally considered community values than the principles of a regulated economy.
Obscenity
Americans have known limits to expression from colonial times. The original European Americans fled persecution in England but were not themselves a particularly tolerant group. Yet, the colonial leadership faced few challenges to their moral and political authority. It was only as the society diversified that such challenges to the dominant morality became an issue. The first U.S. obscenity case, Commonwealth v. Holmes (1821), involved a Massachusetts prosecution of John Cleland’s Memoirs of a Woman of Pleasure (also known as Fanny Hill). The book was a perennial subject of litigation in Massachusetts that was often banned. Legislative responses to pornography and subsequent prosecution increased dramatically in the mid- to late nineteenth century due to a more restrictive moral climate and the crusading spirit of moralists such as Anthony Comstock, whose “Comstock Laws” established regulation of abortion prior to the Supreme Courts decision in Roe v. Wade. In the 1890s, prosecutions intensified with publication of a new brand of fiction epitomized by George Bernard Shaw’s Mrs. Warren’s Profession and Theodore Dreiser’s The Genius (Lewis, 1975). The works were frank, and they explicitly examined sexual and moral conduct. Although prosecutions were brought on substantive grounds delineating offensiveness, the defense could not yet turn to the pure tolerance of the First Amendment for protection.
Until the middle of the twentieth century, the judicial standard for determining obscenity was the Hicklin rule (Regina v. Hicklin, 1868), which asked whether the material at issue tended to deprave and corrupt the minds of those most open to such influences. This was obviously not a standard that encouraged a wide range of expression. As social diversity in the United States increased the pressure for a more tolerant standard, Judge Learned Hand suggested dropping the Hicklin rule, seeing it as a throwback to Victorian morality (United States v. Kennerley, 1913). But the influence of this extraordinary judge did not become evident in the higher federal courts until 1934, when a U.S. Court of Appeals suggested a concern for “obscenity as the dominant effect” (United States v. Ulysses, 1934) and the Supreme Court began to drift toward a standard that would look beyond the “most easily depraved.” The obscenity question was first raised before the Supreme Court in Doubleday v. New York (1948). In this case, the justices were equally divided on the applicability of First Amendment protection. The result of the case was an affirmance of a conviction under a New York obscenity statute for “The Princess with the Golden Hair” from Memoirs of Hecate County by Edmund Wilson. This left the obscenity question outside the limits of the First Amendment until 1957. As the reach of constitutional tolerance broadened generally, attention turned to a new standard for distinguishing protected from unprotected expression in the obscenity area.
The Roth Test. The constitutional foundation for freedom of expression in this area was established in Roth v. United States (1957). Roth had a business in New York that published books, photographs, and magazines that federal agents claimed violated the federal obscenity statute. He was accused of publishing “obscene, lewd, lascivious, or filthy book(s) . . . or other publications of an indecent character” (18 U.S. Code 1461). Judge Jerome Frank, one of the dominant legal theorists of his time, writing for the lower court, asked for help from the Supreme Court in setting a standard. When the case was decided, Justice William Brennan, who would speak for the Court for nearly a decade on these matters, wrote the opinion. The logic of his decision and the specific tests he offered established the framework for subsequent discourse about pornography.
Starting where Chaplinsky left off, Brennan depicted a history of limited freedom evident in laws against blasphemy or profanity in nearly all of the original states. He noted that it was a crime in the Massachusetts Bay Colony to publish a filthy, obscene, or profane song, pamphlet, libel, or mock sermon in imitation or mimicking of religious services. Brennan’s argument was that obscenity “is not within the area of constitutionally protected speech.” He defined the obscene as that which involved those lascivious longings associated with a perverse interest in sex rather than a “healthy” predisposition. He believed the obscene was “that form of immorality which has relation to sexual impurity and a tendency to excite lustful thoughts,” a subclass of material on sex that offended common decency.
Brennan’s second contribution was the construction of a test to safeguard legitimate expression from intrusion by the government. The test would be used by juries in determining the violation of statutes and by legislatures in writing laws on pornography. The new test would look to the average person, rather than the most susceptible (as had been the case under Hicklin), and it would apply standards consistent with how the community would assess the material. The community would be defined later. Prurient interest would be revealed by a tendency to excite lustful thoughts, and it would be considered unprotected speech. According to Brennan’s test, the material would have to be taken as a whole, rather than focusing on the most sexually stimulating part. Juries would be the obscenity filter, in lieu of an explicit definition of material not protected by the First Amendment. In each case, the jury would determine what was obscene.
Justices Black and Douglas dissented in Roth. They felt that the new standard punished thought that was protected by the First Amendment even though it was offensive. Douglas argued that erotic thoughts were normal, and as a condition for placing the expression that stimulated them outside the protection of the First Amendment, he wanted to be shown that obscene material would cause illegal conduct such as rape. He looked to social research for a connection between sexual arousal and delinquency, although the search was somewhat facetious because he obviously doubted that evidence for the connection existed. This was the beginning of an ongoing debate over whether pornography causes crimes that is as lively today as it was forty years ago. The problem is that there are many more individuals who get “turned on” than commit sex crimes. For Justices Douglas and Black, the protection of the First Amendment was all the more important when ideas were offensive to the community.
For the majority in Roth, all ideas having even the slightest redeeming social importance deserved the full protection of the First Amendment. But obscenity was, by definition, “utterly without redeeming social importance.” This became a criterion in Jacobellis v. Ohio (1964), a case famous for Justice Potter Stewart’s claim that although he was unable to define obscenity, he knew it when he saw it. Justice Brennan’s argument in Jacobellis made the definitional issue a matter of constitutional law. Because only material utterly without redeeming social importance was excluded from constitutional protection (Jacobellis, 1964:188), it followed, according to the justice,“that material dealing with sex in a manner that advocates ideas, or that has literary or scientific or artistic value . . . may not be branded as obscenity and denied constitutional protection” (Jacobellis, 1964:191). What started out in Roth as a premise in Brennan’s argument regarding the nature of obscenity had become a test.
The next major case again involved Fanny Hill. The novel had been banned from Massachusetts. The publishers, anxious to advance the cause of the First Amendment and to sell their book, brought the case to the Supreme Court in Memoirs v. Massachusetts (1966). The social value claim was the major issue at the trail. Distinguished scholars testified that the book was a minor “work of art” and had “literary merit” and “historical value.” The Supreme Court overturned the lower court decision that had found the book to be obscene. It restated Roth by requiring that for a book to considered obscene, the dominant theme of the material taken as whole had to appeal to a prurient interest in sex, the material had to be patently offensive because it affronted contemporary community standards relating to description or representation of sexual matters, and the material had to be utterly without redeeming social value. The new tests were to be considered separately, and the challenged material had to fail all three tests to be considered obscene. This standard made the earlier distinction a challenge to prosecutors who could be thwarted in their prosecution of obscenity by the existence of even the slightest redeeming “value” in the material under consideration.
The opinion in Fanny Hill elicited a vigorous dissent from Justice Tom Clark. Clark indicated that his decisive support in Roth came because he believed that the test announced in that case did not contain an “utterly without social value” criterion. He reminded his colleagues that the Roth opinion even suggested weighing social value against obscenity, and thereby acknowledged that obscene material might have some social value. His concern is evident in a strong commitment to standards of morality. Unmoved by the tolerance of his brethren, he found Fanny Hill “dirty” and without social relevance. Clark would not accept the emerging view that sexually stimulating material deserved protection if it was elegant.
The Contemporary Standard. Dramatic changes at the Supreme Court from 1968 to 1972 resulted in a new majority that would have significant influence on obscenity law. Nixon appointees Warren Burger, Harry Blackmun, William Rehnquist, and Lewis Powell announced the new standard in Miller v. California (1973) and Paris Adult Theatre v. Slaton (1973). Miller involved the application of a state obscenity statute to a mass mailing of sexually explicit advertising material to unwilling recipients. Chief Justice Burger’s opinion announced that “we are called to define the standards which must be used to identify obscene material that a State may regulate without infringing the First Amendment.” Emphasizing that some forms of expression are clearly outside the First Amendment, he argued that the Memoirs test had been a shift from Roth. This step, according Burger, required that the prosecution prove a negative, the utter lack of redeeming social value. In a criminal case, the “beyond a reasonable doubt” standard made this formidable challenge. To ease the prosecutorial burden, Burger substituted a new standard: pornographic material had to be specifically defined by state law as appealing to the prurient interest, it had to be patently offensive, and it had to lack serious literary, artistic, political, or scientific value.
In the companion case of Paris Adult Theatre v. Slaton (1973), the Court ruled that the state interest in regulating obscenity was protected even where the movie house had guarded against exposure of juveniles and passers-by. In other words, the quality of life, the “tone of commerce in the great city centers,” and the public safety were legitimate objects of regulation. The justices concluded that it is not for the Court to resolve empirical uncertainties in the relation between obscenity and illegal action. Public perception of offensiveness would be an acceptable rationale for legislation. By turning the authority to the state level, the Court sent chills through the publishing community.
The meaning of community standards has been developed further by the Supreme Court. The post-Miller decisions give some idea of what the Court had in mind. In Southeastern Promotions v. Conrad (1975), for instance, the Court held that the play Hair could be performed in a municipal theater even if town authorities found that it was not a “clean and healthful” production. Although jurors do not have unbridled discretion—the movie Carnal Knowledge could not be banned in Georgia, for instance (Jenkins v. Georgia, 1974)—they are the relevant community (rather than the state or the nation as a whole) for determining what is obscene.
The New Pornography Debates. In the middle of the twentieth century, civil libertarians portrayed the censor as an ignorant vice-squad goon ripping old masters off the museum wall or as a Victorian moralist gluing the pages of literary classics together. Although the characterization is extreme, efforts to eliminate obscene material from public life have been clumsy. Unsophisticated censors, the rhetoric of individualism, and the Supreme Court decisions discussed above gave increased stature to the civil libertarian position. By the 1960s, a high level of pornographic freedom prevailed. Since the late 1970s, interest in limits on expression has returned. When “expression” was a naked woman being put through a meat grinder on the cover of Hustler Magazine in 1978 and it became more widely available through new electronic media, an industry that had flourished under protection by the Supreme Court faced new challenges.
The effort to outlaw pornography in order to guard against crimes of violence is based on the claim that pornography depraves the minds of those exposed to it and that this leads to harmful sexual conduct. Justice William Douglas called for evidence of such a connection as early as Roth. Yet, it has been difficult to establish. Social science does not seem up to this task, and the legality of pornography is not likely to be settled by statistical evidence. The existence of social limits on expression per se is a much more significant consideration, and one that deserves attention. Most reasons offered for the regulation of obscenity stem from the view that obscenity is bad in and of itself. These include protecting moral standards against erosion, improving the “quality of life,” preventing corruption of individual morals, and protecting against affronts to the senses.
There are many ways to legally limit pornography. Most anti-pornography activity has focused on social, economic, and political responses, such as impolite questions, consumer boycotts, picketing, and civil disobedience. These efforts have, in many instances, been effective. An advertisement in the late 1970s for an album by the Rolling Stones, which showed a woman bound in a chair with the caption “I’m black and blue for the Rolling Stones and I love it,” was taken down only hours after a protest was announced. This action spawned the feminist anti-pornography movement. A few years later, in a liberal, pro-pornography response, Wendy Kaminer addressed the legal issues. In her article “A Woman’s Guide to Pornography and the Law” (1980), she claimed that the First Amendment could be preserved only by refusing to involve the government in censorship. The liberal position was subsequently championed by the Feminist Anti-Censorship Taskforce (FACT) and by Nadine Strossen, president of the American Civil Liberties Union.
The Miller standard distinguished protected from unprotected expression by emphasizing community-based offensiveness, with a focus on hard-core pornography. The standard view is that this means “ultimate sexual acts, masturbation, excretory functions, and lewd exhibition” (Miller v. California, 1973). Violence is not discussed although sadomasochism would be included in some definitions. Exposure is the “core,” but the structure of First Amendment law would not substantially change if there were a shift from exposure to violence and dominations as central to the obscene. This redefinition is a first step toward incorporating into law contemporary concerns about the misogynous aspects of pornography.
Regulation short of prosecution is another avenue. An early suggestion along these lines was Justice Brennan’s 1973 dissent in Paris Adult Theater, where he focused on when material can be regulated. Based on Ginzburg v. United States (1966), where a conviction was upheld because of the manner in which erotic literature was distributed, Brennan derived the notion that the acceptability of material may depend upon the context of its dissemination. He also found, in Stanley v. Georgia (1969), where private possession of films showing “orgies of deduction, sodomy, and sexual intercourse” was constitutionally protected, a state interest in protecting children and unconsenting adults on a different basis from the general (or consenting) population. This was ultimately a move away from criminality toward other limitations on objectionable material. In Erznoznik v. City of Jacksonville (1975), however, the Court did strike down an attempt under nuisance law to protect citizens from nude scenes at drive-in theaters. Nonetheless, stricter limits may be possible where there is no threat of prosecution. Zoning restrictions can also reflect community preferences. In Young v. American Mini Theatres (1976), the Court upheld a zoning ordinance that restricted the location of adult movies and bookstores without finding whether the material sold was constitutionally “obscene.”
Justice John Paul Stevens has supported civil restraints rather than criminal prosecution of obscenity. In his dissent in Smith v. United States (1977), Justice Stevens argued that a jury determination of standards is not consistent with predictable application of the rule of law. Thus, civil limitations would certainly apply to the obscene but might also be applicable to non-obscene yet offensive displays. Avoiding free expression concerns almost entirely in New York State Liquor Authority v. Bellanca (1981), in which public health regulation was relied on to control the environment in which alcohol was served, did not meet Justice Stevens’s approval. Dissenting from a short (per curiam) decision in the case, Stevens argued that the Court had obscured the issue “with irrelevancies such as its mischievous suggestion that the Twenty-First Amendment gives States power to censor free expression in places where liquor is served.” He called for the censorship issue to be faced squarely. Such a confrontation, in the present climate, might allow protection for community standards through measures short of placing people in jeopardy of life or limb and with deference to the constitutional guarantee of free expression. This might allow a shift to substantive concerns, rather than the retreat behind the undiscriminating barrier of First Amendment toleration. Then, instead of responding to censorship by simply claiming people have an absolute right to read whatever they want, there might be room for more substantive debate about the value of various ways of thinking.
But, before the anti-pornography debate could develop much further, the courts were faced with the challenges of the new digital technologies, particularly the regulation of internet pornography. Provisions of the Communications Decency Act of 1996, which had made it a crime to display indecent material on the Internet, was struck down by the Supreme Court in Reno v. American Civil Liberties Union (1997) as too broad in its coverage. In Ashcroft v. Free Speech Coalition (2002) the Court struck down a part of the Child Pornography Prevention Act of 1996, which regulated material that went beyond the protection of children recognized in its earlier decisions including Miller and New York v. Ferber (1982) where children had been used in the production of pornography.
Commercial Speech
Back in the 1940s when the Supreme Court was developing the doctrine of “hate speech,” plaintiffs in the Chaplinsky case sought protection for a commercial handbill under the First Amendment. Their failure gave rise to the idea that like obscenity, the Constitution did not protect “commercial speech.” Since then speech that is primarily a part of the market has been far less litigated than obscene speech but the analysis is similar. “Commercial speech” includes advertising and the discussion of products, services, and jobs. The view that commercial speech is unprotected and can be distinguished from other forms of expression has a number of antecedents. One is the constitutional practice, common since the New Deal, of leaving economic regulation relatively free from constitutional review by the Supreme Court. Another is the tradition of economic “discourse” as not being political.
The idea of commercial speech was developed in Pittsburgh Press Company v. Pittsburgh Commission on Human Relations (1973), where newspapers in the city of Pittsburgh were prohibited from specifying the preferred sex of applicants in their help wanted column. The Supreme Court held that the legislative prohibition did not intrude into protected expression because commercial speech can be more highly regulated than other forms of discourse. Although there is generally a presumption that commercial speech is expression without political content, the courts have acknowledged such content in certain cases. Thirty years ago the push was for abortion services. Today it is more likely to be anti-abortion groups seeking to place ads with pictures of fetuses. They have failed to get the courts to order the New York Metropolitan Transit Authority to accept them on the subways. Recent developments, however, have given pharmacists and lawyers the right to advertise under the First Amendment, where restrictions imposed by professional and trade associations had formerly limited this sort of expression.
Speech protection does not apply, for instance, to false and misleading advertising, because the First Amendment has been interpreted as protecting a public right to full and free information about products. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Supreme Court struck down a Virginia state law that banned advertising prescription drug prices. The contemporary standard in these areas comes from Central Hudson Gas and Electric Corporation v. Public Service Commission of New York (1980), wherein Justice Powell offered a modified notion of how to apply the First Amendment to commercial expression. He called the tradition that allowed all sorts of regulation in the commercial area “highly paternalistic” and held that commercial speech must concern “lawful activity and not be misleading.” There must also be a “substantial governmental interest” in regulation, the regulation must “directly advance” the interest, and not be “more extensive than is necessary.” In these tests, commercial regulation looks a little like sexual equal protection analysis. The Court employs a moderate level of scrutiny and stops short of the strict scrutiny it would apply in political speech.
The public right to information about goods and services does not apply completely to gambling, cigarettes, the alcohol content of beer, or even the various properties of whiskey, rum or gin, which have been more highly regulated than other products. In Posadas de Puerto Rico Associates v. Tourism Company (1986), the Court upheld a law limiting advertising of gambling. Chief Justice Rehnquist argued that the power to limit gambling included the power to ban advertising. But, employing the framework of Central Hudson, the Supreme Court, in 44 Liquormart, Inc. v. Rhode Island (1996), struck down the state’s ban on liquor advertising as it applied to prices; in Lorillard Tobacco Company v. Reilly (2001), Massachusetts’s regulation of cigarette advertising was held to be preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA) and overly broad under the Central Hudson formula. Justice O’Connor for the majority found inadequate analysis of the danger of advertising relative to the regulations imposed and she wrote: “a ban on all signs of any size seems ill suited to target the problem of highly visible billboards, as opposed to smaller signs. To the extent that studies have identified particular advertising and promotion practices that appeal to youth, tailoring would involve targeting those practices while permitting others. As crafted, the regulations make no distinction among practices on this basis” (Sec. III,B,2). Much of what goes on in the commercial speech area never gets to court, at least not federal court, giving local regulators, from district attorneys and attorney’s general to the Federal Bureau of Alcohol, Tobacco, and Firearms, considerable latitude to interpret what forms of commercial expression belong in the public forum. There are exceptions. For instance, in 1998, the Court of Appeals for the 2d Circuit, which sits in New York City, rejected the New York State Liquor Authority’s refusal to allow a label from Michigan-based Bad Frog Brewery, Inc. that contained a cartoon of a frog holding up his middle finger (or in the court’s words “the second of its four unwebbed “fingers” extended in a manner evocative of a well-known human gesture of insult). The judges held that although state officials had “a substantial interest in protecting children from vulgarity” the prohibition against the bird-flipping frog only made a small contribution to the state’s interest and thus did pass the Central Hudson test. They wrote that “a state must demonstrate that its commercial speech limitation is part of a substantial effort to advance a valid state interest, not merely the removal of a few grains of offensive sand from a beach of vulgarity” (Bad Frog Brewery, Inc. v. New York State Liquor Authority, 1998). The company contended that its frogs neither conveyed commercial information nor were obscene but were a joke and entitled to full First Amendment protection. In this case at least, litigation and the publicity surrounding it would seem to have been part of a marketing strategy.
FREEDOM OF THE PRESS
Writers, publishers, and journalists—those we call “the press”—often operate under the constitutional mantle we call freedom of expression. They have a special interest in it. The legal practice in this area is defined by, and in turn defines, the parameters within which these professionals function. As with any interest group, the press marshals legal arguments and experience to support its interpretation of the Constitution. The claims associated with the First Amendment are derived from past practice. Their resolution has an influence on future possibilities.
Context and the Constitution
This section on press freedoms provides an opportunity to consider social context more fully; in fact, the context, operating as media in U.S. society, is the material reality of this freedom. Americans romanticize their rights and often forget the context within which they operate. This section is an antidote. Without a press or access to one, the freedom conventionally protected in the Constitution is of little use. We begin with de facto freedoms here—in short, ownership of the presses. These freedoms contrast with the de jure freedoms derived from the First Amendment.
The press operates within a set of economic and social constraints that limit the possibilities of expression. The most obvious limitation on the press is ownership of the machine. A printing press is subject to the same economic laws as any piece of capital equipment. From the small pamphleteer to the nationally syndicated journalist, expression in this domain requires access to the tools by which the written word becomes available to masses of people. Economic power and ownership are of great significance to expression. These sociolegal considerations dictate news gathering as well as editorial policy. It is so obvious as to sometimes go unacknowledged that, before legal issues are raised by publication of a campaign endorsement or investigative report, some publisher or editor will have taken financial as well as editorial risks. In this arena, the prerogatives and concerns of labor also limit, as well as enhance, freedom of expression. Labor sets the context through negotiation and the willingness to work. On some occasions, workers have refused to set or print material that runs counter their convictions. Although less involved with editorial content, the interests and prerogatives of labor in the workplace serve as another de facto limit on expression.
Many government programs exercise control over the press. Some are indirect and influence the dissemination and availability of news. Post Office regulations contain substantive provisions against sending obscene and subversive material through the mail, and postal rates set by Congress determine which magazines and newspapers will be able to survive. Coverage of governmental activities is also dependent on the cooperation of officials. The White House screens access to presidential news conferences and favors particular journalists when making news available. Although favor has always played a role in the acquisition of news about government, “Watergate” revealed that those closest to the inside may well have diminished capacity to transcend the official line. They may suffer from insiders’ myopia.
As the technology for radio, television, and the Internet developed—first during a period of increasing regulation—the government exerted its authority over these forms of expression. It limited access to electronic or broadcast media. According to the theory, the airwaves are finite, and frequencies must be regulated in order for the forum to function. A concern for the intrusiveness of these media has also been put forth as a basis for regulation. Licenses are restricted and, particularly in the case of television, expensive if available. There are rules of conduct, and there is a process of license review that involves official scrutiny unknown to print media. Substantive constraints that apply to radio and television, but not to print media, include the provision for equal time to candidates for public office and a ban on cigarette advertising. Controversy over Federal Communications Commission (FCC) regulations led to the “fairness doctrine,” discussed by the Supreme Court in Red Lion Broadcasting v. Federal Communications Commission (1969). The fairness doctrine requires broadcast media to provide, without charge, time for the victims of public criticism to respond to their critics. Because the doctrine provides for responses to editorializing and not “simple” facts, it has had less impact than it might have, although it remains a threat to the press.
The expanded control over broadcast media was evident in a case involving the comedian George Carlin (Federal Communications Commission v. Pacifica Foundation, 1978). Regulation in this context concerned indecent, but not necessarily obscene, matter. With radio and television, there is a special intrusive potential to which the Supreme Court has been sensitive. This was evident in Justice Stevens’s view that “when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.” In this case, Carlin—or his speech—was the pig, and because he was on the radio, what he said did not have to be obscene to get him into trouble, just a little dirty.
The many ways in which freedom of the press is limited before the First Amendment comes into play demonstrate the constraining influence of the social context and material considerations. These limits also play a part in other First Amendment contexts—from public assembly, in the shopping center cases, to the means to express dissent—and they are often taken for granted. Legal practice, however, remains an important basis through which freedom of the press has evolved.
Legal or de jure influences on the press exist in the criminal process and private law, in addition to the First Amendment. As an institution, the press is a creature of the legal order. For instance, a case in which former Central Intelligence Agency (CIA) agent Frank Snepp broke an agreement not to publish articles about the Agency without the Agency’s prior review of the material was treated by the courts as a matter of contractual obligation, rather than an issue of press freedom (Snepp v. United States, 1980). The Supreme Court held that Snepp was bound by his agreement. This is a good example of a legal practice from another area of law setting the parameters for a holding on the First Amendment.
In a similar way, press liability for subpoena of news sources stems, in part, from the government’s obligation to provide defendants with a fair trial. Beginning with Branzburg v. Hayes (1972), the mid-1970s saw increasing numbers of controversies between the press and trial judges. One of the more dramatic was the jailing of Bill Farr, a Los Angeles Times reporter, because he refused to reveal his sources in a story about crime. A trial judge believed knowing the basis for his stories might have a bearing on the determination of guilt or innocence for another defendant. In another case, reporter Myron Farber and the New York Times were fined for contempt because they ignored a subpoena issued in a murder trial (In re Farber, 1978). Clearly, concern about the criminal process and criminal violations limits the prerogatives of the press.
Judicial authority covers publicity before and during a trial. In Rideau v. Louisiana (1963), the Supreme Court held that a televised confession made it impossible for the defendant to get a fair trial. The press was not strictly limited, because the decision dealt only with the defendant, but it would eventually affect the press, because the norms filter down and are the basis for contempt proceedings against journalists. O. J. Simpson’s criminal trial was open to the press, but, at the discretion of the judge, his civil trial was not. These decisions are subject to some constitutional limits. In the case of Texas “high roller” Billy Sol Estes (Estes v. Texas, 1965), the Court held that a televised broadcast of the trial prejudiced the case. More recently the justices ruled that there is no fundamental right to ban television from court when it is permitted by state law (Chandler v. Florida, 1981). But the tradition of judicial authority over the trial is still substantial. The judge’s options include limiting reporter access, isolating witnesses, and controlling release of information by counsel, police, and witnesses. There are also a number of unique mechanisms embedded in the rules of procedure that insulate the courtroom from outside influences: the voir dire, sequestration, change of venue, mistrial, and the voided conviction. With these sorts of practices a trial creates its own reality, as the nation learned (but had trouble accepting) with the acquittal of O. J. Simpson in 1995.
Libel law is another aspect of the legal environment that limits the press. This common law protection of individual reputation existed for centuries prior to the ratification of the First Amendment. The prior existence of this right suggests that constitutional protection of speech and press was not meant to be absolute. In fact, the Sedition Act of 1798 made libel of government officials a crime, indicating that the common law protection would cover government activity. The trend in U.S. constitutional law since then has been in the other direction: toward the protection of individuals. Libel of individuals remains a legal constraint on the press. When public figures or officials are involved, however, the First Amendment provides considerable protection for journalistic zeal.
In New York Times v. Sullivan (1964), the Supreme Court limited libel of a public official to occasions when the media reported something they knew to be untrue that damaged the reputation of a public official or they did not make reasonable efforts to check whether what they were reporting was true or false. This decision widened the sphere of public discourse, making it difficult for public officials to get judgments against the press. Discussion of public figures—people in the public eye who do not hold public office—is also protected under the First Amendment, but to a lesser extent. In Associated Press v. Walker (1967), a critical description of retired general in an Associate Press story was held not to be libelous because there was no malicious intent or knowing falsehood on the part of the press and the general was a public figure.
Although office holding is relatively clearly demarcated, the line between “ordinary citizen” and “public figure” is fuzzy. In the case of Mary Alice Firestone, who sued Time, Inc., for having said that her divorce trial “produced enough testimony of extra-marital adventures on both sides . . . to make Dr. Freud’s hair curl,” her award of damages was upheld because she did not have “any role of especial prominence in the affairs of society” (Time, Inc. v. Firestone, 1976). Nevertheless, the attempt to distinguish in this regard is an aspect of the constitutional commitment to vigorous reporting of public life. Subsequent cases have affirmed that protection against libel must give way somewhat when it interferes with public debate. In 1982, when the influence of fundamentalist groups in national politics was high, Jerry Falwell, a leader of a group called the Moral Majority, was parodied in Hustler magazine as having had sex with his mother. Chief Justice Rehnquist wrote for a unanimous Court to hold that a parody can not be held responsible for “intentional infliction of emotional distress” (Hustler Magazine v. Falwell, 1988). In the course of a libel suit, however, litigants who believe the press has been malicious can inquire into the editorial processes, including thoughts, opinions, and conclusions bearing on the issue of state of mind, thereby giving those who have been attacked by the press a portion of the common law protection (Herbert v. Lando, 1979).
The Traditional and the Professional
Two subjects involving the press are given more extensive treatment here. These are slightly curious—and certainly important—dimensions in the development of the constitutional right of expression for journalists. In the first, the issue is the diminished status of “prior restraint,” which had once been the cornerstone of constitutional freedom. The second subject involves the special press claim to constitutional protection and the implications of this claim.
Prior Restraint. Some argue that as tolerance of expression expanded beyond the initial protection from prior restraints, the sanctity of the ban on prior restraint may have diminished. This process may have begun with Near v. Minnesota (1931). In the late 1920s, Minnesota made it a crime to publish malicious, scandalous, or defamatory material. It was a misdemeanor—simple nuisance—but the judicial response for abating the nuisance was stopping the presses. The case involved prosecution of a Minneapolis paper that had described the police as permitting “Jewish gangsters” to run illegal operations in the city. Writing for the majority, Chief Justice Charles Evans Hughes argued that the purpose of the statute was suppression rather than punishment, and he concluded that “This is the essence of censorship.” The standard held that prior restraints were legitimate only in “exceptional cases,” such as national security and public decency. The Court, in Near, did not find this Minnesota case to be exceptional.
Expansion of the “first freedom” may have resulted in a diminution of the old priority status for prior restraint in cases deemed exceptional. This was evident in the “Pentagon Papers” case (New York Times v. United States,1971), called by constitutional scholar C. Herman Pritchett “the most significant challenge to press freedom in American history.” The restraint took place when the Nixon administration stopped The New York Times and the Washington Post from publishing Defense Department documents that examined, sometimes critically, the escalation of the Vietnam War. The legal struggles, which might have taken years, went from the District Court through the Supreme Court in a little over two weeks. The Supreme Court ruled that the government had failed to meet the burden required to justify a continued ban, but prior restraint had already taken place. The old absolute protection had become conditional. Prior restraint was all right when there was a danger. This explains the temporary injunction issued against The Progressive in 1979 for an article on defense secrets that explained how to construct a hydrogen bomb. When it became clear that the information was readily available to the public, perception that there was a threat diminished, and the injunction was lifted.
Special Privileges. Due to its unique mention in the First Amendment, the press has sought special protection in addition to that guaranteed under freedom of speech. Believing it should have special privileges, the press has sought immunity from subpoenas and grand juries, privileged access to government information, relief from libel laws, and protection from police searches. The claim to special protection has also been associated with the other values in the First Amendment connected with the role of publishers and reporters in disseminating the information on which public policy decisions are made. The promise in the First Amendment, of freedom for “the press” has been read as a description of journalists, instead of a reference to the written as well as the spoken word.
Some scholars have argued that the press would be better off if it did not seek special privileges. With its claim for heightened protection from the First Amendment, the press may be perceived as simply another special interest. But a stronger claim might lie in the principle of open public discourse that is guaranteed to all citizens. Constitutional theorist Ronald Dworkin addressed these issues in the context of the decline in free speech protection since the 1970s. He has described the press as taking the First Amendment “as a kind of private charter” and using it to attack judicial recalcitrance in the light of expanding claims to protection (Dworkin, 1980:50). He warns that this is a poor strategy that may turn attention away from concern for public discourse and public information by relying too heavily on a privileged position. The implication is that the First Amendment, in referring to “the press,” means simply published speech. It is a promise to protect what comes out in print.
Dworkin has also characterized the implications of journalistic claims to special protection as compromising the rights of all citizens by treating free expression as a policy issue rather than a matter of principle. Policy arguments inevitably involve balancing speech against other issues of social policy. Principles would provide a basis for a public right of access that could not be waived. Principles have, of course, been the characteristic feature of constitutional rights. The power of principle, however, has seemingly been missing in such failures of press claims as Zurcher v. Stanford Daily (1978), where the police were permitted to make an unannounced search of a newspaper room, and Houchins v. KQED, Inc. (1978), where the press was refused permission to investigate and film a part of the Alameda County jail at Santa Rita. Instead it has been in conjunction with public rights that the press has had some of its greatest successes, as in public reporting on criminal trials (Richmond Newspapers, Inc. v. Virginia, 1980).
FREEDOM OF RELIGION
The Bill of Rights begins with religion. Along with the right to speak, publish, and assemble, religious protections were the first to be added to the Constitution. Religion and expression had been interwoven in the colonial period. Those who drafted the Bill of Rights shared a heritage of the religious battles that stimulated colonization. Religious belief had motivated John Milton and his speech in Parliament opposing extension of the censorship laws in seventeenth century England. In the colonies, Roger Williams preached against persecution of religious expression. Later, Thomas Jefferson, James Madison, and the Founding generation, who placed freedom first among the constitutional amendments, were influenced by the Enlightenment and had more faith in science and secular learning than in religion. They feared that the new government would act on behalf of an established religion, and that this would be a threat to reason and the practices they had been living under.
The initial project of the First Amendment was different from what it is today. Well into the nineteenth century, the First Amendment was directed against acts of Congress rather than local laws and this was to block Congress from disestablishing existing official state churches (Tribe, 1978:814). Freedom of religion in the Constitution holds that the government shall not establish or become involved with supporting a particular religion. Under the growth of public programs, the “establishment clause” has been a source of tension, particularly dealing with schools. The other clause in the amendment stipulates protection from government for the “free exercise” of religion. Free exercise raises puzzling problems at the heart of public policy (such as whether people can refuse to fight in war due to their religious beliefs). Free exercise also presents problems for establishment, such as when government support is withdrawn and church schools are unable to operate. Since they became applicable to the states in the 1940s, the challenges posed to the distinctive clauses that guarantee freedom of religion have been influenced by newer conceptions that comprise constitutional protection of freedom.
Our discussion of constitutional protection for freedom of religion begins with the aspect closest to freedom of expression: the free exercise provisions.
Free Exercise
The constitutional right to the free exercise of religion supports challenges to laws that limit religious practice. Often, it is important to decide what constitutes a religious observance. The first significant free exercise case was Reynolds v. United States (1879). It involved federal statutes that outlawed polygamy, the taking of multiple wives, a practice engaged in by the Mormons. In the nineteenth century for what is now called the Church of Jesus Christ of the Latter Day Saints defended the practice on free exercise grounds. The Supreme Court found that polygamy involved more than belief and anticipated a later distinction between belief and action that became important to the development of the First Amendment. More significant than the distinction between belief and action, however, seems to have been the fact that polygamy was not viewed with equanimity by the rest of the population, which included the Supreme Court. Today the State of Utah prosecutes polygamy.
Another religious group, the Jehovah’s Witnesses, which was also founded in the nineteenth century, has brought First Amendment challenges at every level of government. This group takes proselytizing for their faith as part of their religious obligation, which has made them familiar in many a neighborhood as well as in the halls of justice. When the Witnesses practice their religion, society has often seen their practices as challenging and threatening. The result was sometimes arrest for breach of peace or expulsion from school for not saluting the flag. Another distinguishing feature of this sect has been their capacity and commitment to struggling for their rights in the legal arena. It is, perhaps, an extension of their faith: the commitment to “witnessing.” The first of these cases to reach the Supreme Court came in 1940 (Cantwell v. Connecticut) after Witnesses had been convicted for “soliciting without approval” and “breach of the peace.” The Court upheld their claim that the convictions violated their right to freely exercise their religion. The case was the first to apply the protection of the First amendment in this area to the states. Justice Owen Roberts’s opinion in the case provided an appearance of the distinction between belief and action. This was a period of balancing interests in this, as in other areas of the First Amendment, and the opinion reflected an attempt to balance in its holding that society’s interest in religious conduct “remains subject to regulation for the protection of society.”
Soon after the Supreme Court began expanding the reach of the free exercise guarantees, it ran into difficulty over the flag salute. In Minnersville School District v. Gobitis (1940), two children had been expelled for refusing to salute the flag in the public schools of Pennsylvania. The children were Jehovah’s Witnesses, and they equated saluting with paying homage to false gods. In the Supreme Court, the Witnesses were supported by a committee of the American Bar Association and by the ACLU. Gobitis has become important in part for decisions that followed but also because of the controversy that it generated at the time, as the United States prepared for World War II. After decisions for the Jehovah’s Witnesses in the district and circuit courts, they lost in an 8–1 decision by the Supreme Court. The opinion was written by Justice Felix Frankfurter, who was an immigrant and Jewish. He deferred to the local school board but also argued for the universal symbolism of flag and country over the individual commands and beliefs of religion.
Gobitis and the West Virginia State Board of Education v. Barnette (1943) decision form a seminal pair for students of politics on the Supreme Court. They dramatically depict the Court’s ability to change its mind as times and court personnel change. The lone dissenter in Gobitis was Justice Harlan F. Stone. Stone said in his opinion that the Constitution required withholding “from the state any authority to compel belief or the expression of it where that expression violates religious convictions.” Stone became Chief Justice the year after Gobitis was decided and with his elevation there were also two new appointments to the Court. This, combined with three of the justices in the Gobitis majority changing their minds (Black, Douglas, and Murphy), shifted the majority on the flag salute issue. The decision in 1943 was to protect religious objection to the flag salute. Although, the justices do change their minds (with intelligible claims on either side they have that opportunity), it has seldom been as dramatic as it was in these flag salute cases coming around World War II.
When the Court placed the Constitution behind religious freedom it in a sense supplanted an older symbol of political unity: the U.S. flag. By some academic accounts (Wolff, 1968), the tolerance expressed in the Constitution, which is associated with the First Amendment, may be a better mechanism for binding a polity together than more primitive instruments of patriotism, such as the flag. However, in times of crisis the flags come out in large numbers. This has been the case since September 11, 2001. In a climate such as this, the flag salute, even when it speaks of God, can become a unifying force. This was evident in June of 2002 when a panel of 9th Circuit judges in San Francisco struck down the “under God” reference to great public concern. The decision, though it is consistent with the tradition of religious toleration announced by the Supreme Court, could not stand up to the pressure that it generated and it was quickly overturned.
Since the justices began to monitor the free exercise of religion closely in the middle of the twentieth century, they developed the standard that only a compelling government objective could justify inroads on religious autonomy and even then the objective would have to be carried out in the least restrictive way possible. The standard links the Cantwell case with Murdock v. Pennsylvania (1943), where the imposition of a fee for distributing religious pamphlets was considered too prone to abuse to be permissible, and Schneider v. Irvington (1939), where the requirement of a police permit for proselytizing was considered excessive regulation. Laurence Tribe describes the situation as one where, if the harm is grave enough, as in vaccination against communicable disease, the state can intervene and regulate risk taking. But, he maintains that if the harm is “ill-defined or plainly not serious,” there must be an exemption for the religious practice (Tribe, 1978:858). This was the conclusion of the California Supreme Court in People v. Woody (1964), when they struck down the conviction of American Indians for using peyote in their religious practices. Thus, where the instruction from the state is directed at an individual’s soul, and not at public welfare or individual health, the justification for infringing on religion is weak.
Free exercise of religion can be viewed as a classic “negative” liberty. That is, the freedom involves the right not to do something that one would otherwise have to do but for this liberty. In the terms of the framework developed in chapter 1, free exercise is an “immunity” from some of the obligations imposed by government. Perhaps the best example of this immunity is the right to claim exemption from military service and become a “conscientious objector” (C.O). Conscientious objection has a long-standing place in the American religious tradition due to the prominence of the Society of Friends, or Quakers. In both the colonial period and during the Civil War, this religious group stood by their commitment to pacifism and influenced the formulation of the conscientious objection provisions in federal legislation for staffing the armed services. This right is always a matter of contention when there is a policy of mandatory armed service or a draft.
In the statutory provision for conscientious objection to the draft, the Supreme Court’s interpretation of crucial issues, such as what constitutes a religion and the degree of toleration mandated by the Constitution, have had a bearing on the statutes. Both issues have arisen with regard to conscientious objection. The tradition had been that the source of the immunity from the draft was religious conviction. But in a case arising out of the Vietnam War, the Supreme Court defined a “sincere and meaningful belief” as occupying a place “parallel to a belief in God” (United States v. Seeger, 1965). This liberalizing rule extended the free exercise immunity to “a belief that is equally paramount in the lives of their possessors” as God is in the belief of a member of an organized religion. Five years later, the Supreme Court again took up the reach of the C.O. provision again in Welsh v. United States (1970). The case involved an individual who was opposed to war on historical, philosophical, and sociological grounds. He had been denied “C.O.” status, but in an opinion by Justice Hugo Black, the conviction was reversed based on the Seeger precedent. The consequence was a reading of the law that would exempt “all those whose consciences, spurred by deeply held moral, ethical or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.” This, the Court would later say, was not the same as selective conscientious objection.
Non-Establishment
Government in the United States is prevented by the First Amendment from making laws “respecting an establishment of religion.” This provision is now associated with the separation of church and state, but it was once thought to protect establishment in the states by preventing Congress from setting up a national religion. Constitutional debate over this limitation has focused on the meaning of establishment. In broad outline this protection is part of the concern with religious liberty and has been interpreted in light of that freedom. For instance, it prohibits the naming of an official national church because to do so would impinge on the freedom of those who belong to other churches. It is not so clear, however, what forms of involvement with religion constitute establishment. Given the many facets of modern life the government has entered, issues inevitably arise over which services and benefits offered generally should also go to religious institutions. Although tolerance plays a role, here the issue is not whether individuals or churches can be exempt from a particular policy, as was the case in the protection for free exercise, but rather whether a policy such as free textbooks provided to religious schools, is permissible given the requirement that the government not establish religion. This situation inevitably leads to heated confrontations where the material consequences may be greater than with the free exercise clause and where the development of doctrine to distinguish acceptable assistance from unacceptable establishment is significant.
The idea of a “wall of separation” between church and state, of a barrier dividing the two spheres, was mentioned by Thomas Jefferson in 1802 but it did not become the basis for constitutional litigation until much later. The wall was barely present in the Mormon polygamy case (Reynolds v. United States, 1879). By allowing Congress to legislate, the Constitution accepted the notion that some things religions do are unacceptable to the majority of the population. A century ago the justices did not seem concerned about public money going to religious groups. This was evident in Bradfield v. Roberts (1899), where a congressional grant to a hospital run by Catholic nuns was held to be constitutional.
By the middle of the twentieth century, higher standards of toleration had begun to shift attention to minority rights. The result was increased pressure for separation of church and state. In Everson v. Board of Education (1947), the issue was provision by the State of New Jersey of bus fares for all school children—including those going to parochial schools. Government support of education had become a fact of modern life. In this case, the Supreme Court, quoting Jefferson, upheld the principle of a “wall” between church and state, but it indicated that where New Jersey had provided support to take children to parochial schools, the “wall” was not breached. The test announced in the case was:
. . . what are the purpose and primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion (Everson v. Board of Education, 1974).
Thus, the test was secular legislative purpose and a primary effect neutral toward religion. The basis for the Everson decision, that the support for buses was without a religious purpose, became one of the considerations in determining when church and state had become involved with religion to an unconstitutional degree.
In Abington Township v. Schempp (1963), the Court attempted to complete the controversial task of eliminating religious observances from schools that it had begun in Engel v. Vitale the year before. Where the State of New York had written a prayer in (in Abington), the Court held ceremonial Bible reading as part of the beginning of the school day to be unconstitutional. Justice Tom Clark’s opinion drew on his Southern roots to soften the Court’s position when it held, by a vote of 8–1, that “religious exercises” as opposed to the study of religion, were not an appropriate part of the public school curriculum. Although these cases generated some of the most volatile anti-Court sentiment in the Supreme Court’s modern history—leading to campaigns to “Impeach Earl Warren”—the public, in many cases simply avoided the decision and went right on praying, at least in many jurisdictions. The field of school prayer became an indication, in the 1970s, that the Supreme Court’s opinion on the meaning of the Constitution was not always the last word.
A case that provides a good summary of the constitutional standard applied to the establishment of religion is Lemon v. Kurtzman (1971). In Lemon, the Supreme Court upheld the Rhode Island practice of paying part of the salary of parochial school teachers. In upholding the payment—for teaching nonreligious subjects—the justices added the idea that the state should interpret the non-establishment clause with sensitivity to avoiding “excessive entanglements” in the religious business, by using the tests described above in Everson.
Government funds finding their way to religious coffers would seem, on the surface at least, to be a violation of the principles of separation of church and state and the non-establishment of religion. In 1983, after a lower federal court had determined that it was unconstitutional for a state legislature to pay for a chaplain to open its lawmaking sessions, the Supreme Court reversed the decision (Marsh v. Chambers, 1983). This is a practice of long standing, yet the intervention by the justices to uphold it led to rhetoric that undercut the tradition of separation. In the words of Chief Justice Warren Burger, “To invoke divine guidance on a public body entrusted with making laws is not, in these circumstances, an ‘establishment’ of religion . . . It is simply a tolerable acknowledgement of beliefs widely held among the people of this country.” Acknowledgment in some official way by the government of widely, but not universally, held religious beliefs is, however, what the non-establishment clause has traditionally been about. It is the sort of question that has arisen with regard to President George W. Bush’s attention to “faith based” social service providers.
Another heated debate surrounds the issue of tax credits or vouchers for parents who would choose to send their children to private, including church-oriented, schools. In many cities throughout the country, the provision of religiously based education by organized churches, often called parochial, has removed a large financial burden from state and local governments who are responsible for educating fewer children. This fact, and the interest of parents who send their children to parochial schools while paying taxes to support public schools, has led to continued pressure for some sort of compensation. The Supreme Court 1983 decision in Mueller v. Allen endorsed a form of tuition aid to parochial schools for the first time. The aid came in the form of a Minnesota tax credit amounting to $700. This development was tempered somewhat because the justices held that the benefit must at least be nominally available to parents of public school children as well. In 1998, the Supreme Court allowed a Wisconsin program of vouchers that covered 15,000 children in Milwaukee to stand by not reviewing the case and vouchers in Cleveland were upheld in Zelman v. Simmons-Harris (2002).
Since Lemon the Court has upheld aid for secular buildings in colleges and universities, textbook loans, testing services, and special needs. It has allowed allocations for performing services mandated by the state, such as “pupil attendance reporting,” and tax deductions for tuition, textbooks, and transportation. And it has held that state funds may go to a sign-language interpreter in a Catholic high school. It has drawn the line at teacher salary supplements, reimbursements for grading tests, building repair, field trip transportation, and secular classes taught by public school teachers in private schools. And when New York State thought it had figured out a way around the issue of entanglement by setting up a special school district to educate handicapped children of the Hasidic faith (a sect of Judaism), this was not considered constitutional by the Supreme Court (see Kiryas Joel v. Grumet, 1994).
School prayer had also been a source of ongoing controversy. It is perhaps the most dramatic source of tension, not only in the Constitution, but for the Court as it attempts to give meaning to the text. The issue involves many forms of religious observance in public institutions, but it has been epitomized by the controversy twenty years ago over a non-denominational daily prayer designated by the New York Board of Regents for use in the public schools of New York State. The prayer, “Almighty God, we acknowledge our dependence upon Thee, and we beg thy blessings upon us, our parents, our teachers, and our country,” was recommended for reading at the beginning of each school day. The decision of the Supreme Court in Engel v. Vitale (1962), invalidating the use of this prayer in the public schools, became a lightning rod for opposition to the liberal constitutional interpretations handed down by the Supreme Court while Earl Warren was the Chief Justice. Justice Hugo Black wrote for the majority that in using its public school system for the recitation of a prayer, New York had adopted a practice “wholly inconsistent with the Establishment Clause.” Only one justice dissented from a decision that went on “it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government.” Similar decisions upholding the basic principle have continued to be handed down while the controversy rages. In Lynch v. Donnelly (1984), the Burger Court evaluated the constitutionality of a nativity scene in Pawtucket, Rhode Island, that was sponsored jointly by the city and its businesses. The display was challenged by the ACLU. Chief Justice Burger wrote the opinion calling efforts to ban the scene “a stilted overreaction contrary to our history and to our holdings.”
Religious authority in government has diminished a great deal since the days of the institutions that ran the early colonies at Jamestown and Massachusetts Bay, which reigned supreme in both the sacred and secular realms. The non-establishment clause sometimes rides and sometimes nudges that declining authority. In a Massachusetts case that came to the Supreme Court in 1982, a bar that went by the name of Grendel’s Den was able to employ the constitutional standard to strike down a state statute that had given a veto power to churches in the state over the granting of nearby liquor licenses (Larkin v. Grendel’s Den, 1982). Justice William Rehnquist and his clerks offered a clever dissent in which they took the majority to task for making so much of the case. They argued from the old adage that “hard cases make bad law.” But there is not much law being made here in any case; at least, not much of ideological significance was added to the Constitution. It is nonetheless a colorful example of the rather large circle we have traveled in 300 years.
The treatment of constitutional protection for religion and the issues around the separation of church and state has been brief by comparison with our treatment of unprotected speech and obscenity. Religious freedom is an issue of compelling belief, and with byzantine twists and turns. To explore its nuances in anything like a comprehensive fashion would be to focus on policy decisions and divert us from our discussion from the ideological structure of constitutional freedom. The Constitution is often invoked in struggles over religious observances that continue to be carried out in public settings throughout the United States. The White House and the Supreme Court each have their own Christmas tree. Clergy of various kinds regularly open sessions of Congress. But local courts have been recently prevented from housing shires to the Ten Commandments (McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 2005). What appears to be a Christian god is on U.S. money and in the Pledge of Allegiance. These observances are challenged from time to time, sometimes even successfully.
SUGGESTED READINGS:
Ariens, Michael S. and Robert A. Destro, Religious Liberty in a Pluralist Society Carolina Academic Press (2002).
Brisbin, Richard American Political Science Review.
Cleland, John Memoirs of a Woman of Pleasure (1821)
Emerson, Thomas The Structure of Freedom of Expression (1970)
Foreman, Milos “The People v. Larry Flynt” (1997).
MacKinnon, Catharine Only Words Cambridge: Harvard University Press (1993).
Mill, John Stuart On Liberty (1859).
Milton, John Areopagetic: A Speech for the Liberty of Unlicensed Printing, to the Parliament of England, in Selected Essays of John Milton.
Strossen, Nadine Defending Pornography. New York: Scribner (1995).
Williams, Roger Bloody Tenet of Persecution (1644)
Wolff, Robert Paul, et al. A Critique of Pure Tolerance (1968)
Gould, Jon B. Speak No Evil: The Rise and Triumph of Hate Speech Regulation (2005)
ENDNOTES:
ii Following the Equator, Pudd’nhead Wilson’s New Calendar.
iii (Pritchett, 1984:63).
The Medium is the Message.1967
By Marshall McLuhan and Quentin Fiore, Co-ordinated by Jerome Agel.
Bantam Books / Random House.
iv There is a general truth about constitutional discourse that might be mentioned in conjunction with Woody: the classification for a case goes a long way toward determining the outcome. Thus, if Woody is considered a religion case, it is a good bet the Indians will be permitted to use peyote. Similarly, Bob Jones University wanted to call its dispute with the Internal Revenue Service over racial discrimination a freedom of religion case. It lost both the classification issue and the case (see chapter 6).
FREEDOM
A FREEDOM OF EXPRESSION
A Right Emerges
On to the Founding Period
The Nineteenth Century
The Modern Period
Tests and Standards
Clear and Present Danger
Schenck v. United States (1919)
Gitlow v. New York (1925)
Balancing Tests
Dennis v. United States (1951)
Absolute and Pure Tolerance
Tinker v. Des Moines (1969)
RAV v. Minneapolis (1992) (see chapter 1, pp. xx)
Symbolic Speech and Expressive Conduct
Texas v. Johnson (1989)
Limits on Speech, Assembly and Association
Subversion
Threats to Public and Private Orders
Pruneyard Shopping Center v. Robins (1980)
American Civil Liberties Union Brief in Schenck v. Pro-Choice Network (1997)
Boy Scouts of America v. Dale (2000)
Institutional Threats
UNPROTECTED EXPRESSION
Obscenity
The Roth Test
Roth v. United States (1957)
The Contemporary Standard
Miller v. California (1973)
Law and Limits
American Booksellers Association v. Hudnut (1984)
City of Renton v. Playtime Theatres, Inc. (1986)
Pope v. Illinois (1987)
Ashcroft v. Free Speech Coalition (2002)
Commercial Speech
Cincinnati v. Discovery Network (1993)
Bad Frog Brewery, Inc. v. New York Liquor Authority (1998)
FREEDOM OF THE PRESS
The Press and Previous Restraint
Near v. Minnesota (1931)
New York Times v. Sullivan (1964)
Context and the Constitution
De Facto Freedoms
De Jure Freedoms
The Traditional and the Professional
Prior Restraint
Special Privileges
FREEDOM OF RELIGION
Free Exercise
West Virginia v. Barnette (1943)
Wisconsin v. Yoder (1972)
Bob Jones University v. United States (1983)
Church of Lukumi Babalu Aye v. Hialeah (1992)
Non-Establishment
Engel v. Vitale (1962)
Lemon v. Kurtzman (1971)
Lynch v. Donnelly (1984)
Kiryas Joel v. Grumet (1994)
Zelman v. Simmons-Harris (2002)
McCreary County, Kentucky v. American Civil Liberties Union of Kentucky (2005)
Chapter 2
FREEDOM
In the gloriously named case of the Church of Lukumi Babalu Aye v. Hialeah (1992), the Supreme Court took up the issue of animal sacrifices as practiced by the Santeria religion. The religion comes from the Caribbean (with roots in Africa) and has been secretly practiced in South Florida since the 1980s. The church clashed with the city when Hialeah passed an ordinance against animal sacrifice. The dispute involved constitutional freedom and the issues were framed in terms of religious liberty, a cornerstone of Constitutional rights and liberties. The city tried to portray its ordinance in “neutral” terms, simply as government regulation of animal sacrifice. The Supreme Court, reviewing the records of the city’s action, saw the ordinance as a restraint on religious freedom and declared it to be an unconstitutional violation of the protections guaranteed by the First Amendment. The core ideas about freedom of religion, expression, assembly, and the press associated with this first amendment to the Constitution constitute freedom in the United States. They are among the best known constitutional rights. This chapter explores the disputes that have defined the meaning of constitutional freedom.
The First Amendment is a multifaceted guarantee with a number of specific rights delineating constitutional freedom. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Active debate and judicial commentary gives meaning to these words. Although its roots lie in struggles over religion, modern First Amendment developments have been most dynamic in the area of secular, political expression. In only half of a century, protection for expressing controversial opinions has expanded to levels of toleration barely imaginable two or three generations back. This development has influenced the scope and treatment of all the First Amendment freedoms.
The chapter begins with a historical by description of major changes in constitutional freedom. Perceived danger to U.S. interests governs the development of modern rights to free speech and assembly and leaves some expressions unprotected by the Constitution. Discussion of speech and assembly precedes discussion of the special case of freedom of the press, which has been influenced by the beliefs and professional organization of journalists. The chapter concludes with constitutional protection for religious freedom, by placing particular emphasis on how this right has developed according to the separation of a guarantee of free expression and a provision against the establishment of religion in the First Amendment.
A FREEDOM OF EXPRESSION
Mark Twain, the nineteenth century novelist, joked about protection for expression on a number of occasions. At one point, in Pudd’nhead Wilson’s New Calendar he wrote, “It is by the goodness of God in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either.” Twain is speaking for the majority and is thus only partly right. For many obstreperous, contrary and often deeply expressive Americans have actually tested the right of free expression on many occasions. In the process they have defined its meaning and often their place outside the norms of the community. The history of this right is one that tests the limits on expression set by government.
In spite of the rhetoric surrounding the First Amendment and the individualist mantra that we can “say anything we want,” some forms of expression have always been subject to limitation. In U.S. constitutional practice, “freedom of speech” has never meant the freedom to say anything you want at any time and place without regard for whether saying it will hurt other people. The constitutional right is based on distinctions between speech that poses a threat to legitimate interests such as life and property and speech that does not. Some, however, impute to constitutional freedom a pure form that precludes critical attention to the substance of expression and fosters a myth that all expression is protected. Freedom of expression is more appropriately viewed as practices that define the limits of tolerance.
Constitutional freedom of expression has been among the most dramatic rights in its evolution and the most completely defined. In its history, the concept has shifted from the intolerance of the Puritans, to broad protection for highly controversial forms of expression such as burning the U.S. flag or the symbolic crosses of the Klu Klux Klan. Constitutional freedom has led to a conception that denies the capacity of government to set limits on speech and suggests the irrelevance of community standards in this area. This widespread conception of “pure tolerance” has puzzling implications that are considered in the chapter.
A Right Emerges
Freedom of expression in the United States has its roots in seventeenth century England. The period’s great plea for toleration, John Milton’s Areopagetica, came near the end of a generation of violent religious conflict as a speech in support of unlicensed printing. In 1644, Milton argued before the English Parliament that he “Who kills a man kills a reasonable creature . . . but he who destroys a good book, kills reason itself” (Milton, 1644/1927:5). For many, however, toleration in England was not enough. Their religious sects were citadels of intolerance raging against the corruption around them. They sought religious purity in North America, and for a while, they found their purity in the colonies in the Western Hemisphere. But, by the second generation, factions began to emerge in colonial America. The result was an American creation, an indigenous version of tolerance. It appeared in Roger Williams’s Bloody Tenet of Persecution (1644), published the same year as Milton’s piece. Williams, like Milton, was a righteous partisan. Having escaped the persecutions of the Massachusetts Bay Colony, he held that men could not be so confident of the truth as to have a right to impose it on others by civil authority. “There is a civil sword,” he said, “called the sword of civil justice, which . . . cannot extend to spiritual and soul causes, spiritual and soul punishment, which belongs to that spiritual sword with two edges . . . the Word of God” (Miller, 1953:133). Although the civil sword was used by others for less significant matters, Williams wielded the Word of God as a sword in the cause of religious righteousness.
The Founding Period. Legal views just prior to the Declaration of Independence depended heavily on the English Common Law. The source for many colonial practitioners was William Blackstone’s Commentaries. In 1758, the Commentaries defined freedom of expression as prohibiting the laying of any “previous restraints upon publication.” The rule against previous restraints meant, for instance, that a printer could not be jailed before he could start the presses. Thus the right allowed all views to be presented to the public but did not protect against subsequent punishment. If the expression turned out to be improper, mischievous, or otherwise illegal the printer could be jailed or fined for what he had printed. Freedom, conceived in this way, became an issue in the ratification process, and many states sought to have it included in the Constitution as part of a Bill of Rights. Freedom, of speech, assembly, religion and the press, was one of the limits that defined the scope of the new government. In general, the freedom, however, assumed a public right to judge and to punish the content of expression.
The perception, around the Founding was that constitutional freedom of expression only meant not preventing prior restraint of expression; it had no bearing on subsequent punishment for that expression. Thomas Jefferson’s criticism of the Sedition Acts of 1798 focused on state and federal prerogatives, not on the punishment itself. Jefferson would have left the power to punish sedition with the states. In 1801, he wrote: “. . . we have nothing to fear from the demoralizing reasonings of some, if others are free to demonstrate their errors. And especially when the law stands ready to punish the first criminal act produced by the false reasoning” (letter to Elijah Boardman). James Madison disagreed. He thought it unjust and paradoxical to be “free” to say something for which one could be punished. With this reading, Madison anticipated the shift in constitutional doctrine that would occur within one hundred years.
The Nineteenth Century. In the nineteenth century tolerance was rarely put to the test. A few instances of critical discourse revealed a grudging willingness to tolerate some diversity. Years ago, constitutional historian Paul Murphy (1972) suggested that freedom of expression was taken for granted during the century of continental expansion from 1790–1890. Where curtailment of civil liberties did occur, such as in the South after the Civil War, the situational limits were part of the right and not “a massive precedent from which the government would expand its power to cover the behavior of all citizens” (Murphy, 1979:34–35). In addition, because the First Amendment right applied only to federal legislation, the possibility of clashes over local restrictions did not exist (see Incorporation in chapter 1).
The entrepreneurial spirit that characterized late nineteenth century U.S. thought influenced the conception of freedom under the Constitution. Confidence in the economic marketplace included a conception of individualism that would become a basis for freedom in the United States. The most important example of this thinking came from England in John Stuart Mill’s On Liberty, published in 1859. Mill hoped that truth would surface in open debate. His doctrines emphasized the “struggle between Liberty and Authority” and his model of free exchange gave individual rights a central place (Mill, 1859/1975:3). In the United States, this liberal manifesto helped to transform the protection in the Bill of Rights into an expression of individualism in law. Propositions such as Mill’s idea that the sole end for which “mankind are warranted . . . in interfering with the liberty of action of any of their number, is self-protection” (Mill, 1859/1975:10) expanded the bounds of protected expression and associated the right with limited government. This theory was popular where confidence in the market was the prevailing ideology. For Mill, the first freedom was “liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects” (Mill, 1859/1975:13). This was similar to the interpretation of the First Amendment that emerged in the United States fifty years later and came to define the meaning of First Amendment freedom.
The Modern Period. Although this theory appeared in the nineteenth century, it did not come to prominence as a basis for the right to free expression in the twentieth century without some dramatic changes in U.S. society. Political violence, from the Haymarket riot of 1886 to the assassination of President McKinley in 1901, exemplified the serious discord at the turn of the century in the United States. The influx of new people and ideas before World War I ended the relative cultural homogeneity that had been characteristic of the new societies in the Western Hemisphere. The propertied classes and those who represented them at the center of power initially associated free expression with radical groups such as the International Workers of the World (IWW) and the Free Speech League. The view among lawmakers seemed to be that these activists were attempting to hide the subversive nature of their cause by invoking principles of freedom. In fact, pushing those very principles was an acknowledged strategy of these groups that they hoped would bring attention to their cause. What has not readily been apparent as a foundation for change was the extent to which older liberals attacked the radicals and their demand for free expression.
The repression against anti-war and anti-draft activity during World War I created a receptivity, if not a longing, for an expanded freedom of expression. Following the war, a consensus began to develop in the legal community concerning the value of toleration. Pluralism in social and political life led to greater legal tolerance of expression as a way of drawing a new line in the sand in the hopes of containing centrifugal social forces. The standard, articulated by Justice Oliver Wendell Holmes, Jr., reflects the capacity of the legal community to change the basis for constitutional protection. The result was that the First Amendment became an alternative to using force against dissent. The new standard for expression softened and rationalized the legal limits on “free” expression. The standard matured into the dominant constitutional practice in this area.
Movement away from a tradition that prohibited prior restraints on publication but allowed subsequent punishment came early in the twentieth century. When the First Amendment was introduced in a 1907 Colorado case involving publication of articles and a cartoon critical of the Colorado Supreme Court, Justice John Marshall Harlan argued that its protection should not be limited to prior restraint, but should apply to punishment as well. His opinion was a dissent from the majority in Patterson v. Colorado (1907). For the majority, Justice Holmes upheld conviction for contempt because the First Amendment did not apply to the states. Its purpose, he added, was simply “to prevent all such previous restraints upon publications as had been practiced by other governments.” Holmes, along with his brethren, did not believe that the First Amendment was meant to prevent subsequent punishment. For Holmes, the meaning of free speech was influenced by the tradition of punishment for libel and slander and other common law doctrines. Holmes amplified this view in the following way: “The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false” (Patterson, 1907:462). Holmes traced his early views to Blackstone, the common law, and the tradition of prosecution for attempted crime whether or not it succeeded (1881:54–55). Speech that could be proscribed—in Patterson, it was contemptuous speech—could be considered criminal action.
In the summer of 1918, Holmes began an exchange with Judge Learned Hand who, because of his influence on doctrinal developments, would often be referred to as the “tenth justice.” Hand argued that “opinions are at best provisional hypotheses” and thus should not be subject to punishment. Holmes replied that free speech is not different than freedom from vaccination,” that is, it is subject to reasonable limitations. But Holmes’s position had already begun to weaken. In subsequent cases, Holmes defined a new relationship between the power of government and the right to speak. The shift, initially a means of legitimizing government repression, expanded the realm of protected discourse. Doctrinal struggles would continue to be waged over the status, meaning, and implications of the new freedom.
Tests and Standards
The expansion of the right by Justice Holmes enlarged the sphere of free expression by extending its boundary “out” from prior restraint and associating this boundary with dangers and threats to legitimate interests. This was a significant expansion, but there were real limits that remained. These limits, as they are related to the well-being of the state, concern various dangers, the press, and unprotected speech (for example, obscenity). These have been handled through tests that define free expression and determine the standards for prosecution. The historical movement from the clear and present danger doctrine deals first with variants on that test, including bad tendency, imminence of danger, and the “evil discounted by its improbability.” These tests vie for interpretive authority, while a general pattern of balanced interests emerges. This becomes the foundation for a more aggressive interpretation of a pure tolerance that moves from the Court to the population generally as the framework for understanding First Amendment rights. The tests reveal the values behind this right. The result is a setting in which the interests of the government became associated with censorship, whereas the meaning of the First Amendment was associated with the absence of limits.
Clear and Present Danger. In 1919, in Schenck v. United States, the Supreme Court ruled on the extent of congressional power to proscribe speech or advocacy. The case involved members of the Socialist party who had clashed with federal authorities responsible for conducting a draft during World War I. The Socialists had circulated a document alleged to be “intended to cause insubordination and obstruction of the draft” to men called and accepted for military service. A federal prosecution was brought against the Socialists under the Espionage Act of 1917.
Justice Oliver Wendell Holmes, Jr., announced the opinion in the case. Included in that opinion was Holmes’s formula, which set the parameters for suppression of speech under the Constitution with a vivid metaphor: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” This picture has defined the relationship between the government and expression by setting the context within which adjudication takes place. As the doctrine emerged in Schenck: “The question in every case 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 substantial evils that Congress has a right to prevent.” The boundary for free speech had been expounded, and the courts were given a vision of how to patrol it. A threat to the community or its interests was thus a basis for limiting speech.
Pressure on the Supreme Court to protect expression grew as external threats diminished. In the November 16, 1918 issue of The New Republic, Zechariah Chafee, a law professor, proposed an expanded protection for speech, and the next year, as a result of the article, he was able to present his position directly to Holmes in a private meeting arranged for the express purpose of such an exchange. The view appeared in the dissent by Justices Holmes and Brandeis in Abrams v. United States (1919), a case that arose under the Sedition Act of 1918. Here the justices took the extent of the threat to national security as a matter for factual determination at trial. In assessing the threat, Holmes and Brandeis looked to the proximity of the danger to legitimate interests and introduced a new realism into adjudication. This was an early step in delineating the present law on free expression. The leaflets in the Abrams case were not found to be a danger to the war effort. The context became the relevant consideration, and the right began to be conditioned by perception of the threat. Similarly, Frohwerk v. United States (1919) and Debs v. Unites States (1919), which were both also decided in the same period and which involved the Espionage Act of 1917, were influenced by the belligerent context in which they arose.
It is possible to distinguish the development of a right from the outcomes of cases when describing doctrinal evolution. The defendants in Schenck went to jail, as did those in Frohwerk, Abrams, and Debs. In fact, throughout the first years of the new era (1919–1927), all those whose claims contributed to an expanded right failed to avoid punishment. In Gitlow v. New York (1925), the defendant was convicted under a criminal anarchy statute for publishing a newspaper, The Revolutionary Age. Holmes and Brandeis would have freed Gitlow because they saw no immediate danger. The majority, however, judged the danger sufficient for conviction because they looked to a “tendency” that the newspaper would foment revolution; and consequently, Gitlow is associated with the “bad tendency” test. In all these cases the perceived propensity toward revolution influenced the justices’ treatment of the threat, but there was also disagreement on the Court about the measure of proof the Constitution required.
The case of Whitney v. California (1927) was provoked by Charlotte Whitney, a native San Franciscan and Wellesley graduate who was active in suffragist and socialist causes.
Charlotte Anita Whitney
(1867–1955), suffragist and political radical
Born in San Francisco, California, on July 7, 1867, Charlotte Whitney was the daughter of a lawyer and a niece of Supreme Court justice Stephen J. Field and of financier Cyrus W. Field. In 1889 she graduated from Wellesley College. A visit to the College Settlement House in New York City in 1893 turned her to social work, and she soon returned to California to work in the slums of Oakland.
From 1901 to 1906 Whitney was secretary of the Council of Associated Charities of Alameda County. She led a campaign for a woman suffrage amendment to the California constitution and subsequently joined in similar campaigns in Oregon, Nevada, and Connecticut. At the same time, she became involved in the free-speech fights of the International Workers of the World.
Whitney joined the Socialist Party in 1914 and five years later helped lead the defection of the party’s radical wing and the founding of the Communist Labor Party (later the Communist Party). In November 1919, during the height of the postwar “Red Scare,” she was arrested after a public address at the Oakland Center of the California Civic League (of which she was president from its founding that year) on five counts of criminal syndicalism. Convicted on one count, Whitney was sentenced to 1 to 14 years in prison. Because of ill health she served only 11 days of her sentence; however, her appeals of the conviction dragged on for nearly eight years before she was pardoned by the governor in June 1927.
In 1924 Whitney ran for state treasurer of California on the Communist ballot and polled more than 100,000 votes. In 1935 she was convicted of distributing radical literature, lecturing without a permit, and falsely attesting Communist election petitions. She was named national chairman of the Communist Party in 1936 and ran unsuccessfully for a seat in the U.S. Senate from California in 1950. She died on February 4, 1955, in San Francisco.
Copyright © 1999 Encyclopædia Britannica, Inc.
In 1919 she was arrested after giving a speech in Oakland to the California Civil League and charged with five counts of criminal syndicalism. She was convicted and sentenced to 1 to 14 years in prison. She only served 11 days of her sentence as her appeals dragged on for eight years. In her case before the Supreme Court, Justice Brandeis held that the danger of violence or illegal action should be a matter considered at the trial yet the Court upheld her conviction. (She was ultimately pardoned by the governor of California.) The same day, in Fiske v. Kansas (1927), the Court announced that it would uphold a First Amendment claim for the first time. Fiske, an organizer for the Industrial Workers of the World (IWW), was convicted under a Kansas law for soliciting new members and advocating syndicalism. The justices found reliance on statements in the IWW constitution (which urged a struggle between workers and employers) to be insufficient evidence of a danger. Although there were no ringing calls for tolerance, the Supreme Court, for the first time, made freedom of speech really mean freedom from jail.
The implications of the Holmes-Brandeis formulation are puzzling. The new doctrine broadened protection, yet it also constrained expression. A boundary was established that shifted from previous restraint to an approach with greater room for expression. The distinction between protected and unprotected speech set the parameters for the constitutional right and remains the key principle in this area of law.
Balancing Tests. The sociolegal constitutive approach emphasizes the similarity among free speech adjudication of subversion cases since World War I. Tests, such as “bad tendency” or “sliding scale” (Funston, 1978:179) have so much in common with “clear and present danger” as to be almost indistinguishable. The difference between these cases is not a matter of constitutional ideology. Rather it is a difference in the politics of the time and the perceptions of the participants. In these instances, the justices are participants, and they share the popular phobias.
The balance struck between expression and legitimate public concerns by the clear and present danger test was upset by the 1950s hysteria about the so-called “red menace.” When the conviction of Eugene Dennis and other leaders of the American Communist party was upheld by Judge Learned Hand on the 2nd Circuit Court of Appeals, the judge referred to “abundant evidence to show that [the defendants] were all engaged in an extensive and concerted action to teach . . . the doctrines of Marxism-Leninism” (Dennis v. United States, 1951:206). The case set the pattern for treatment of dangerous speech in the post-World War II period. In the Dennis case, Chief Justice Fred Vinson incorporated Judge Hand’s position. Hand’s contribution was a “discounting formula” to elaborate the clear and present danger standard. The emphasis was on the “evil, discounted by its improbability.” The result was a version of the clear and present danger test, which was similar in structure to earlier formulations, but weakened in practice by the prevailing paranoia about communism.
After the hysteria had subsided, in Yates v. United States (1957), the clear and present danger doctrine showed compelling authority. In Yates, the Court reversed the convictions of fourteen Communist party officials for conspiring to overthrow the government in violation of the Smith Act. In this case the justices looked for more than just an abstract doctrine of violent revolution and required the teaching of “concrete action” to justify conviction.
Another decade passed before constitutional tolerance reached full strength in Brandenburg v. Ohio (1969). The case stemmed from a situation in which a leader of the Ku Klux Klan (KKK) had declared at a rally that “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some vengeance taken.” He was convicted for what he said and the Ohio Supreme Court upheld the conviction, but the American Civil Liberties Union (ACLU) took up the case, and their defense of the KKK epitomized the commitment to a right of free expression without regard to the substance involved. The decision was overturned by the U.S. Supreme Court in a short opinion holding to a standard of “incitement to imminent lawless action.” The justices made it clear that mere advocacy of violence was not enough to sustain a conviction. Concurrences by Justices Black and Douglas lamented “manipulation” of the clear and present danger doctrine. The result was less a doctrinal shift than a move away from the paranoia of the previous decade and a confident expression that the nation could survive without substantive limits on discourse. For the most part, this confidence withstood the divisiveness that characterized debate over the Vietnam War during the 1960s. The most celebrated case, United States v. Spock (1969), discussed in the section on subversion, was dismissed at the Court of Appeals level and never reached the Supreme Court.
The historical legacy has broader significance. The confidence in the search for truth that characterized the early right to freedom of expression was becoming associated with ambivalence about any substantive evaluation of speech. This model created from the tradition of constitutional interpretation influenced public perception that the First Amendment prevented critical evaluation of speech. The model is referred to here as “pure tolerance,” and upon close examination, its relationship to what has taken place under the Constitution is problematic.
Absolute and Pure Tolerance. The interpretation of “clear and present danger” has been the pragmatic application of the guide concerning “shouting fire in a theatre and causing a panic.” Expression that requires protection inevitably threatens something, and attention to the threat is conditioned by how real it seems. In most free-speech contexts, there is a countervailing value that sets the stage for interpretation. These include concerns about subversive activity, a vigorous press, and a “decent” society. The interpretation itself has taken different forms within the general framework. The strongest tradition—that is, the one most favorable to expression—has looked for real threats; a weaker stance balances the interests at issue. In each instance the line is drawn with reference to a structure that juxtaposes other governmental interests against the interest in free and unfettered expression.
An exception to the pragmatic tradition, however, is an “absolutist” or literal interpretation. Although it has seldom commanded a majority of the Court, it reflects the public perception of what First Amendment freedom is all about. This is theoretically grounded in the work of Alexander Meikeljohn, who was a major contributor to ideas about free speech between the world wars. The influence of the “pure tolerance” or absolutist position on the Court came from the stance of Hugo Black and, to a lesser extent, William O. Douglas. According to Meikeljohn, “the First Amendment to the Constitution, as we all know, forbids the federal Congress to make any law which shall abridge the freedom of speech.” He argues that we cannot help but be startled by the absoluteness of the amendment because “[t]hat prohibition holds good in war as in peace, in danger as in security . . . the words meant literally what they say” (Meikeljohn, 1948:17). The ACLU believes in this interpretation of free expression and their reading has dominated interpretation in this realm (Emerson, 1970).
This position is associated with toleration and was explored in Robert Paul Wolff’s volume A Critique of Pure Tolerance (1968). In his essay, Wolff wrote that the virtue of tolerance is an aspect of pluralist democracy. He argued that although traditional liberalism focuses on the relation between the individual and the state, pluralism reflects the reality of corporations, unions, and interest groups that have become “necessary evils in a heterodox society”. This system integrates the interests in society and plays down their differences. The pure tolerance perspective, without any admixture of interests, has come to characterize modern social cohesion. The concept draws its strength from a refusal to make distinctions over the value of speech. One of the classic cases of this occurred in 1979. It was evident in the ACLU position that Nazis marching in Skokie, Illinois, a predominantly Jewish community, must be protected so that other radical groups, like Communists or the KKK, would be protected and able to march when and where they wanted to. The strength of the protection was seen, by its proponents, in the diverse albeit unattractive mix. Pure concepts such as tolerance or nondiscrimination ultimately become ends in themselves. They represent aspirations standing above policy choices and are presented as principles from which the polity as a whole can benefit.
The myth of purity developed while distinctions were being made in practice. Alexander Meikeljohn considered issues such as libel, slander, incitement, sedition, and treason to be largely outside the protection of the First Amendment. A similar stance offering no protection to speech that was tied up with action was evident in Justice Black’s holding that his absolute position would “not invalidate laws resting upon the premise that where speech is an integral part of an unlawful conduct . . . the speech can be used to illustrate, emphasize and establish the unlawful conduct” (Konigsberg v. State Bar of California, 1957). Black, like Douglas, did not watch the allegedly obscene films that came to the Supreme Court for review. He believed that they were protected speech, but he allowed prosecution of libel. As a result, the speech/action distinction, though associated with absolute protection for expression, often made its proponents less generous than some of their colleagues when it came to demonstrations (see Adderly v. Florida, 1967).
Protection for free expression may be strongest where it is implicit that the ideas do not matter, or that they are only expressions rather than action. In Tinker v. Des Moines (1969), the Court articulated the position that pure speech acts, such as students wearing black armbands to protest the war in Vietnam, were protected under the First Amendment. It is in this sense that the pure tolerance basis for protection of expression, the tolerance that protects communists and fascists, feminists and Dr. Laura, diminishes the significance of the expression. This was the philosopher Herbert Marcuse’s criticism in the essay Repressive Tolerance (1968). Marcuse claimed that the objective of tolerance could not be fulfilled without a foundation of social equality. The refusal to take sides, which is the premise of pure tolerance, mainly serves to protect the machinery of discrimination because it seems to neutralize opposition and “flatten” discourse. Marcuse’s position is illustrated by the cross-burning case, R.A.V. v. St. Paul (1992; see page xx, supra) in which burning a cross on the lawn of a black family is analogous to burning a flag in a political protest at a national party nominating convention. To paraphrase author Philip Roth (1983), who compared countries that do not have this kind of freedom with the United States, it seemed to him that in those countries, “nothing goes and everything matters,” whereas in the United States “everything goes and nothing matters.”
A freedom that fosters social agnosticism is at odds with democracy and social cohesion. The school library censorship cases provide an example of this sort of consequence. When books are challenged by outraged parents because they are “un-Christian, anti-Semitic, or racist” (Board of Education v. Pico, 1982), the response has become a neutral or “pure” freedom to read, rather than a substantive defense of the materials or a discussion of their educational significance. This response may reveal a kind of drift (or lack) of values, rather than the higher value of tolerance it is sometimes presented as.
In the end, expression has always been subordinate to the interests of society and the state. Even in the most liberal settings, there have been limits to expression in order to preserve the social order. Recognition of this fact of social life is part of the practice of U.S. constitutional politics. Paradoxically, such recognition has been inhibited by contemporary First Amendment scholars, who make up a rather ahistorical and generally intolerant group when it comes to opposing interpretations of what the First Amendment has meant. They believe that the absence of limits on expression is the only thing that is permissible to be confident about, maybe the only legitimate object of intolerance. The result of this position has been that much political debate has lost its cutting edge. Recognition of the political and social reality of freedom of expression may give expression back its cutting edge and, ultimately, increase its capacity to produce meaningful political and social change.
Symbolic Speech and Expressive Conduct. The area of First Amendment free speech law known as “symbolic speech” or “expressive conduct” has an interesting political history. Some of it is revealed in Supreme Court cases, such as Tinker and R.A.V. (both discussed above). It should be recog¬nized that symbolic speech comes largely out of protest movements that do not have access to media coverage or the public forum. Put another way, the “marketplace” for the exchange of ideas is not open to all political protest movements. And when demonstrations are covered by the national network media, such as the 1999 “Battle of Seattle” challenging the authority of the World Trade Organization to determine global policies, the number of people arrested is reported far more often then the substantive views of the protesters. Symbolic speech is an attempt to communicate, to reach an audience primarily through the medium; as Marshall McLuhan’s book, The Medium is the Message (1967; see also marshallmcluhan.com), coined the phrase. When anti-war protesters seeking to dramatize the killings in Vietnam poured blood on draft files, or when David O’Brien expressed his opposition to that war by publicly burning his draft card, anti-war political speech received much greater media coverage. O’Brien was arrested and charged with interfering with the U.S. Selective Service process. O’Brien alleged that the particular administrative regulation he was charged with violating interfered with his expression rights protected by the First Amendment. In an 8–1 decision, the Court upheld O’Brien’s conviction, reasoning that the purpose of the Selective Service regulation was not to regulate the content of O’Brien’s speech, but rather to maintain the smooth functioning of the selective service process.
The boundary between protecting a significant governmental interest and protecting symbolic speech is far from self-evident and remains a subject of political as well as legal controversy. The case Clark v. Community for Creative Non-Violence (1984) makes this point clear. Demonstrators protesting the plight of the homeless under the Reagan Administration were arrested for violating a National Parks Service regulation that prohibited camping in Lafayette Park and the Mall in Washington, D.C. The Park Service issued a permit to the Community for Creative Non-Violence (CCNV) to conduct a winter demonstration by erecting 2 “tent cities” (20 tents in Lafayette Park for 50 people and 40 tents in the Mall for up to 100 people). However, the Park Service did not allow the demonstrators to sleep in the tents. CCNV argued that the regulation was unconstitutionally vague, had been discriminatorily applied, and violated their First Amendment rights. Justice White, writing for the seven-member majority, held that “tent city” was “expressive conduct” protected to some extent by the First Amendment, but that expressions, oral, written, or symbolized by conduct are subject to reasonable “time, place, and manner” restrictions. These restric¬tions, White argued, are valid so long as they are “justified without reference to the content of the regulated speech; narrowly tailored to serve a significant governmental interest; and they leave open ample alternative channels for communication.” Justice White held that there was a significant governmental interest in maintaining the parks “in the heart of our capital in an attractive and intact conditions, readily available to the millions of people who wish to see and enjoy them by their presence.” In the Court’s view, securing this governmental interest outweighed protecting the symbolic expression of homeless demonstrators. The two dissenters in the case, Justices Marshall and Brennan, took issue with the majority’s approach to regulating expressive conduct, arguing that the majority failed to properly apply the “time, place, and manner” test by not subjecting the government’s interest to the degree of scrutiny required to ensure that expressive activity protected by the First Amendment remains free of unnecessary limitations.
Specifically, the dissenters argued that the “majority’s approach denatures respondents’ asserted right and thus makes an all too easy identification of the government’s interest sufficient to warrant its abridgement. A realistic appraisal of the competing interest at stake in this case requires a closer look at the nature of the expres¬sive conduct at issue and the context in which that conduct would be displayed.” Alternatively, Justices Marshall and Brennan argued, judges must look at the “surrounding context” of the expressive speech and determine whether it merits protection. The dissenters’ focus on the primary purpose of the demonstration—-to increase public consciousness about homelessness—would be unconstitutionally limited if the permits granted denied homeless demonstrators access to sleep in the park. Justices Marshall and Brennan thought the majority should have followed Spence v. Washington (1974), a flag display case where the Court upheld the free speech rights of students who tapped a black peace symbol to a flag. In Spence v. Washington, the Court looked to the “intent of the speaker to convey a particular message” and “whether the likelihood was great that the message would be understood by those who viewed it.” The important socio-legal issue raised by the dissent in Clark v. Community for Creative Non-Violence is that the “surrounding context” of symbolic speech (a homeless tent city across from the White House) is the content of the expression.
When it comes to expressive conduct involving the U.S. flag, there has been considerable debate because this particular symbol is considered both a cherished national symbol and a target for vilification when U.S. policies are challenged at home or abroad. After publicly burning a U.S. flag outside of the Dallas convention hall to protest the Republican Party platform, Gregory Lee Johnson was arrested and convicted of desecrating a flag in violation of Texas law. In Texas v. Johnson (1989), the Court narrowly held (5–4) that the Texas statue violated Johnson’s free speech rights protected under the Constitution. Subsequent to this case Congress passed the Flag Protection Act, seeking to challenge the Court’s position in Texas v. Johnson. Again in a 5–4 decision, with Justice Brennan writing the opinion, the Court struck down the federal statue in United States v. Eichman (1990). The Eichman ruling essentially bolstered Texas v. Johnson, finding that the government’s interest in protecting the flags status as a national symbol was related to the suppression of free expression and could not justify infringement on First Amendment rights. Although conceding that the new law, unlike the Texas statute in Johnson, contained no explicit content-based limitation on the scope of prohibition conduct, the majority held the federal statue still suffered from the same fundamental flaw as the Texas law, namely that it could not be justified without reference to the content of the regulated speech. Justice Brennan summed up the Court’s view by saying that “punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”
The Eichman decision sparked an immediate response by President Bush and others who called for a constitutional amendment against flag desecration. The proposed amendment was defeated in both houses of Congress in 1990, but with the Republican election victories in 1994, which gave them control of both houses of Congress of the first time in 40 years, the amendment passed the House by the required two-thirds supermajority. Thus far, however, it has failed to gain a two-thirds vote in the Senate.
LIMITS ON SPEECH AND ASSEMBLY
Constitutional interpretation starts with cases, and there cannot be a freedom of expression case unless the government is concerned enough about an activity to prosecute those who engage in it. Thus, there must be speech or assembly, and official action to stop or hinder it. The noise must be too loud, the content too offensive, the movies too risqué, or the pamphlets too shocking. People have to be unhappy and/or the government has to be engaged in order for a claim to arise. There are a number of “dangers” that governments have sought to repress. They are threats to the government itself, as well as situations that present a threat because of the institutional setting. These include issues of subversion and advocacy of revolutionary action, conflicts over public assembly, and concerns that take their meaning from places or contexts where special requirements for conduct are presumed (for example, outside hospitals or inside prisons).
There have long been efforts to expand the range of freedom of expression under the Constitution, as a response to legal limits. The doctrine that some expression is dangerous replaced the doctrine of “no prior restraint,” which had long been the norm. The modern idea that speech and assembly can be prohibited when they are dangerous is the basis for the new limits on expression. Justice Holmes redefined the character of political authority in his proposition that some challenges to governmental interests need be tolerated, but not all. The key to understanding the rights associated with expression therefore lies not in the dynamic of freedom, but in the nature of the limits that delineate freedom in practice. We begin with the most significant of those limits: limits against subversion.
Subversion
Arguably the first challenge to civil liberties in the new republic was the Alien and Sedition Act controversy at the end of the Adams administration in 1798. The Federalists controlling Congress had sought to use the government to put pressure on those who disagreed with them. The legislation prompted expressions of dissent from Thomas Jefferson and the Virginia and Kentucky legislatures and the controversy itself did indeed threaten the new government. The claim that one’s opponents threaten the very existence of the government underscores the significance of the First Amendment in cases where Americans face the charge of sedition.
Societies exist where there is some agreement on fundamental issues. Any group of people living together must maintain a degree of consensus in order to survive. Although survival might seem assured where dissent is most restricted, liberal societies nonetheless place great weight on the value of open discussion and public discourse because debate and open disagreement are said to be healthy, serving as safety valves. As part of this tradition, governments can restrict expression where the existence of the institutions themselves is threatened (Emerson, 1970:Ch. 3). Whatever its pretense, it is hard to imagine a government acting in any other way. First Amendment tradition follows these lines: interpretation of the Constitution has been sensitive to diverse opinion tempered by the extent to which it poses a threat.
During the first period in the development of modern free speech doctrine, danger to some legitimate interest became the basis for constitutional prosecution of speech. The interests were internal and external security, and the fears were of subversion. The result was legislation such as the Espionage Act of 1917 and the Sedition Act of 1918, which were both aimed at radicals and political activists outside the mainstream. Prosecutions, from Schenck v. United States (1919) to Whitney v. California (1927), led to constitutional standards for repression and protection from subversion. Although this period followed the disruptions of World War I, immigration, and the social unrest of the early twentieth century, there was still pressure for a pluralist practice, as well as the necessary space for the doctrine to develop.
When Charles Evans Hughes was appointed Chief Justice in 1930, modern practice entered a new phase that lasted until World War II. The most important case during these years may well be De Jonge v. Oregon (1937). The speaker in De Jonge was convicted under the Oregon Criminal Syndicalism law for presiding at a meeting of the Communist Party because “the CP” was viewed as advocating political violence and revolution. In 1937, the Court overturned De Jonge’s conviction because the meeting at which he appeared was peaceful. According to Chief Justice Hughes, laws must deal with particular abuses because of “the need to preserve inviolate the Constitutional rights of free speech” (De Jonge, 1937:364–365). Hughes did not explicitly invoke clear and present danger, but he extended protection to speech that did not involve “incitement” to violence.
The first peacetime sedition law passed since the Alien and Sedition Acts of 1798 was the Alien Registration Act of 1940, known as the “Smith Act.” This legislation was a source of federal prosecutions for the next twenty years and set the pattern for the constitutional practice that developed. Section 2 of the act, dealing with advocacy, conspiracy, and membership, aroused the most controversy. These provisions made it illegal for any person to advocate the overthrow of the government by force, hold membership in any group dedicated to such purposes, and print or disseminate written matter advocating such overthrow. As Emerson noted, however, “whatever problems of internal security may have been in 1940, they did not arise from any public advocacy that the government be overthrown by force or violence” (Emerson, 1970:111). This was an earlier practice no longer in vogue. The Act was invoked twice during World War II against socialists (Dunne v. United States, 1943) and against pro-Nazis, but it did not get a hearing in the Supreme Court until the Dennis case in 1951.
Dennis showed how a focus on constitutional politics may distract students from an investigation into the ideological authority of the Constitution. The political fact is that the conviction of Dennis was upheld. The ideological fact is that a legal framework had been established for evaluating government efforts to protect against subversion. In Dennis, the Court is said to have “bridged the gap” between the clear and present danger standard and the fact that there was not demonstrable danger (Grossman & Wells, 1980:1226). This was a balancing act, as already discussed. The justices were inclined to uphold the convictions of communists during the Cold War. A focus on outcomes and judicial motivation sometimes misses the expectations implicit in the Constitution. The outcome, or the choice by a justice of the argument on one side or the other, is not determined by the Constitution, nor in the case at hand. The symbolic environment of the Constitution is not an ordinary framework. In Dennis, the framework evaluated the right of expression in terms of the danger it posed. The Constitution is responsible for the case being considered, for an issue to be seen in a certain way, but the Constitution can not determine the outcome. The right to free expression helps explain why affronts to many people, such as burning a U.S. flag, are tolerated.
Loyalty oaths and employment in sensitive jobs were two of the subversion-related areas governed by the right to free expression in the Vietnam era. During this period and under the authority of the justices of the Warren Court, some of the internal security legislation of the Cold War was declared unconstitutional. For example, loyalty oaths were declared unconstitutional in Keyishian v. Board of Regents (1967) when they were no longer considered useful. And in United States v. Robel (1967), the justices turned to the freedom of association guaranteed by the First Amendment to protect the right of a member of the Communist Party to work in a defense plant. This may have been the height of actual sensitivity to free expression. Subsequent references to the limitations on the “war power” discussed in this opinion have more often come in dissent (Rostker v. Goldberg, 1981). Although it may have surprised ordinary observers, the Warren Court’s concern in the area of subversive activities was in the tradition of the modern right to free expression.
Few of the celebrated draft cases of the 1960s reached the Supreme Court, but the doctrinal stance was evident in the lower courts. Wartime dissent is sometimes thought to involve external rather than internal security. It reached a particularly high level over Vietnam, and the “danger” it posed was a matter of contention at the time. In United States v. Spock, five leading opponents of the Vietnam War, including pediatrician Benjamin Spock, were indicted for conspiracy to “counsel, aid and abet . . . Selective Service registrants to evade the draft” (Spock, 1969:192). The convictions of these anti-war activists were dismissed by the Court of Appeals for insufficient evidence of intent to participate in an illegal conspiracy. The government did not appeal to the Supreme Court, fearing, perhaps, the embarrassment of an adverse ruling at that level.
Threats to Public and Private Order
The American Nazi party and other groups outside the mainstream have made some of the most dramatic “contributions” to the right to assemble. One of the most dramatic confrontations in U.S. history came in 1979 when American Nazis planned a march through Skokie, Illinois. This is a predominantly Jewish suburb of Chicago, where 7,000 of the residents had been confined in German concentration camps during World War II. The march was presumed to involve not only an affront to the residents, but the threat of violent retaliation. The situation became a rallying point for the American Civil Liberties Union in their campaign to foster the pure tolerance form of freedom of expression. The conflict was described by David Goldberger who represented the Nazis for the ACLU:
The case began when the Nazis [sic] scattered requests to several Chicago suburbs seeking permits to hold a rally in their towns. . . . Many of the towns that received the Nazis’ request just ignored it. Skokie did not. Skokie responded by obtaining a court order banning the rally. . . . The Nazis asked us to defend their right to hold the rally, and to challenge one of the laws prohibiting it. Though I detested their beliefs, I went into court to defend the First Amendment.
The complex, but classic, issues in the Skokie case severely tested the resolve of many civil libertarians.
The right to assemble has come to include not only the right to gather but also the right to associate for political purposes (Abernathy, 1981). Perhaps the first “modern” encounter with the freedom to assemble and the issues surrounding it came before the Supreme Court in Hague v. Congress of Industrial Organizations (CIO) in 1939. In that case, Jersey City had prohibited assemblies in the streets, parks, or public buildings without a permit. When the mayor denied the CIO permission for a rally, the labor union successfully challenged the decision. Justice Roberts ruled that streets and parks have been “held in trust for the use of the public” and that their use may be regulated, but it may not be abridged or denied in the guise of regulation.
Assembly raises issues that are characterized in law as concerning the time, place, and manner” of the gathering. Official concern that raises these issues of time, place, and manner is usually about keeping the streets open for travel and preserving peace in the community. Justice Black, who was a champion of free expression for speech and writing alone, but not necessarily assembly, allowed the government broad regulatory powers where action and conduct were involved. But the tension in the right to assemble is that any regulation requires the government to show respect for free expression. In Cox v. New Hampshire (1941), the Supreme Court upheld the conviction of the Jehovah’s Witnesses, who had marched without a permit. The Court has held that “public passages” can be kept open (Cameron v. Johnson, 1965), noisy demonstrations outside schools proscribed (Grayned v. Rockford, 1972), the tranquility of federal courts preserved (Cox v. Louisiana, 1965), and the grounds of a county jail closed to demonstrations (Adderly v. Florida, 1966). Each of these cases set limits on expression in public places.
Three decades after Cox, in Shuttlesworth v. Birmingham (1969), the justices announced that a procedure for acquiring a permit cannot delegate too much power to public officials who might base their decision on the purpose of the assembly. In United States v. Grace (1983), the Court ruled that the First Amendment gives people the right to picket or distribute leaflets on the public sidewalks surrounding the Supreme Court building and content and purpose were fused in Watt v. Community for Creative Non-Violence (1983).
Some of the most difficult “assembly” issues involve quasi-public property, such as shopping centers and airports. Although the presumption has been that purely private property is not open to public demonstrations, the Court upheld the right of a labor union to picket a store in a shopping center as a reasonable way to convey the facts of a labor dispute in Logan Valley Plaza v. Amalgamated Food Employees Union Local 509 (1968). The justices relied on a 1946 precedent (Marsh v. Alabama), where a right to distribute religious literature in a “company” town had been upheld. And in Pruneyard Shopping Center v. Robins (1980), a shopping center owner had appealed from a judgment of the California Supreme Court holding that the California Constitution protects speech and petitioning, exercised in a reasonable way, in privately owned shopping centers. The decision by Justice Rehnquist held that the ruling did not deny owners rights under the Fifth Amendment or the free speech rights associated with the ownership of property and upheld the decision of the California court.
Abortion clinics have become magnets for protest since the anti-abortion movement turned violent (following the Supreme Court’s decision in Roe v. Wade). In particular, the tactics of a “right-to-life” group known as Operation Rescue has focused on stopping abortions by aggressive protest around clinics that provided abortions. In 1994, a case from Florida reached the Supreme Court, Madsen v. Women’s Health Center. The justices, in a 6–3 decision, upheld an injunction by a local judge who had created a 36-foot buffer zone around abortion clinics that was meant to keep protestors away from entrances to clinics in order to limit the harassment of women seeking abortions. Their holding, reiterated three years later in Schenck v. Pro-Choice Network, stipulated that “standard time, place, and manner analysis is not sufficiently rigorous” for evaluating content neutral injunctions that restrict speech, and held, instead, that the test is “whether the challenged provisions . . . burden no more speech than necessary to serve a significant government interest” (Id., at 765, pp. 12–14). Schenck struck down “floating buffer zones” as violating this standard. The ACLU Brief in Schenck v. Pro-Choice Network (1997) elaborates upon the central dilemma between constitutional protection of political speech and threats to public safety.
Airports are another setting posing particular challenges in the regulation of expression. The Supreme Court, in both Board of Airport Commissioners v. Jews for Jesus (1987) and Lee v. International Society for Krishna Consciousness (1992), overturned local restrictions on soliciting and advocating. The current law allows more regulation of expression than in the traditional public forum. Activists may be limited to particular places and may be required to register and carry official badges. Since September 11, 2001, airports and, in particular, airplanes have become some of the most highly regulated places in the United States with regard to expression. Here, the consequences of a casual joke involving bombs or planes crashing can range from mild inconvenience to significant jail time. But you can still joke in print and constitutionalist George Carlin does in his usual pointed way when he says “Airport security is a stupid idea, it’s a waste of money, and it’s there for only one reason: to make white people feel safe!” (Napalm and Silly Putty, 2001: p. 48).
Controversies within private associations can turn into constitutional battles, such as in Boy Scouts of America v. Dale (2000). Dale, a scout leader and long-time member of the Boy Scouts of America, alleged that the Boy Scouts violated New Jersey’s public accommodations statute when they revoked his membership solely because of his homosexual orientation. The Boy Scouts of America maintained that their anti-homosexual position was protected under the First Amendment freedom of expressive association and prevented the government from forcing the Boy Scouts to accept Dale as an adult leader. Chief Justice Rehnquist, writing for the majority, held that the First Amendment’s protection of expressive association is not reserved for advocacy groups, whether they be public or private, and the First Amendment prohibits the state from imposing anti-discrimination requirements on groups through the application of its public accommodations law. This case marks another example of how the Supreme Court in recent times has overturned legislative acts directed at prohibiting discrimination on First Amendment grounds. But for an even longer time the reach of constitutional protections have been limited by claims of private association.
Institutional Order
Institutions such as schools, prisons, and workplaces have all been subject to free speech litigation. In each case “expression” is dependent on the nature of the institution and how its prerogatives are viewed.
When state governments began providing public education in the nineteenth century, the First Amendment right to expression was applied to the schools. In Meyer v. Nebraska (1923), the Court ruled that wartime legislation in Nebraska that forbade the teaching of German in schools was unconstitutional. The holding was that the right to teach this subject is a protected “liberty.” Two years later, the Court invalidated a Ku Klux Klan-backed Oregon law that prohibited students from attending private (thus parochial) schools (Pierce v. Society of Sisters, 1925). The Court based this action on a “property right” to choose a particular form of education. Thus, both liberty and property rights have contributed to freedom of expression, suggesting closely related interests relevant to how this right is shaped. Moreover, because institutions place special requirements on individuals, matters of conscience often arise in these contexts. For example, compulsory flag salute was invalidated in 1943 (West Virginia State Board of Education v. Barnette) after such a challenge.
In the 1950s, the perception that there were communists everywhere was the popular basis for assessing the danger of expression in institutions. The Taft-Hartley Act, the nation’s major postwar labor legislation, required a union member to file an affidavit stating that he or she was not a member of the Communist Party. In 1950 (American Communications Association v. Douds), the Supreme Court ruled that the act simply kept those whose beliefs were deemed dangerous from holding office in labor unions. Eleven years later (In re Anastaplo, 1961), the justices focused on George Anastaplo’s refusal to answer questions about prior membership in the Communist Party. These had been made a basis for admission to the bar in Illinois. The Court held that professional groups, such as lawyers and doctors, could question prospective members and impose a higher standard of conduct than might be appropriate in other contexts. The result, in the case of Anastaplo, was a career in political science rather than law.
Free speech, such as due process and equal protection, has been closely associated with the educational setting. Free speech is said to be “vital” to the contest between views that characterizes the educational enterprise at its best (Keyishian v. Board of Regents, 1967). At the same time, free speech has traditionally been balanced against authority over the educational process. Thus, the right may become an issue when administrators assert authority over teaching personnel, as in the case of loyalty oaths, and it often involves the authority of administrators over student expression. In Tinker v. Des Moines School District (1969), students had been suspended for wearing black armbands as a protest against the Vietnam War after school officials had forbidden the gesture. The controversy focused on the extent to which official authority had been compromised by the violation of the ban on armbands. The justices ruled against the authorities in Des Moines and reminded them that “state operated schools may not be enclaves of totalitarianism.” The Court ruled that preventing a disturbance was not a strong enough foundation to justify suspension and laced the opinion with exhortations to the effect that, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In 1988, the Court held that administrators could censor a high school student newspaper that criticized them (Hazelwood School District v. Kuhlmeier, 1988). This suggests the more conservative interpretations we have seen over the last thirty years.
Another area of school law deals with institutional authority over the curriculum and administrative decisions. Evolution, sex education, and the literature in school libraries have all raised First Amendment challenges. In Island Trees v. Pico (1982), Justice Brennan commented on the limits a school board faced regarding library books and he prevented removal simply because the board disapproved of the political ideas or philosophies expressed in the books. In Board of Regents of the University of Wisconsin System v. Southworth (2000) the Court upheld university policy where students had challenged mandatory university fees that were distributed to groups they did not approve of. The Court’s holding was that the programs were part of general support for student activities and not an unwarranted imposition on student freedom.
In the workplace, a number of conditions limit individual freedom of expression. The Supreme Court has ruled that even though a union had been designated the exclusive bargaining agent for a group of schoolteachers, this did not bar a union member from giving the employer her or his own views on upcoming labor negotiations (Madison School District v. Wisconsin Employee Relations Commission, 1976). The Court held that, at a bargaining session about wages, a teacher as a union member could not speak directly to the school board but must allow the union to speak for him. However, the teacher, as a citizen of the town, could speak to the board at a public meeting. The teacher was not only a union member bound to obey his union but a citizen entitled to speak to his elected representatives.
Like society as a whole, institutions have particular values and conventional modes of operation. As with schools, in certain circumstances institutional purposes should enhance freedom of expression. In most cases, however, the prerogatives of an institution limit the amount of expression that is constitutionally protected. Thus, the institutional context is an important structural dimension of this right. Empirical evidence on the persistence of university hate-speech codes—despite court rules overturning them—underscores the importance of paying attention to how institutional context shapes the meaning and practice of rights. Jon B. Gould’s study found widespread noncompliance by universities with the courts’ interpretations. Polls of college students also suggest that “whatever legal precedent the court decisions may have created, they have not persuaded students that hate speech restrictions are improper or unconstitutional” (Gould, 2005: 387–8).
UNPROTECTED EXPRESSION
The prevailing interpretation of the First Amendment views some speech as unprotected because of its substantive content—content that society determines be offensive. Its classic expression came in the middle of the twentieth century in Chaplinsky v. New Hampshire (1942). The majority opinion, written by Justice Murphy, the Court’s most consistent civil libertarian, found that “certain well-defined and narrowly limited classes of speech” had never raised constitutional problems. For these forms of speech, prevention and punishment had been assumed. They included “the lewd and obscene, the profane, the libelous and the insulting or ‘fighting words.’” Justice Murphy reasoned that these “utterances” are neither essential to any “exposition of ideas” nor a “step to truth.” Any benefit they might have was outweighed by society’s interest in preventing the evils associated with these forms of speech. From this judicial proclamation on the clash of social values, a distinction has developed that is clear in its outlines, but ambiguous in its details.
The kind of unprotected speech that sparked the controversy in Chaplinsky, “fighting words,” is the least litigated, although the relevance of the “clear and present danger” framework is obvious. The initial case involved the Jehovah’s Witnesses. A witness by the name of Chaplinsky had been proselytizing in a New Hampshire town and was being taken to the police station for causing a disturbance when he called a town official “a goddamned racketeer” and “a damned Fascist.” Mr. Chaplinsky was prosecuted for the references, and conviction was upheld by the Supreme Court. This case identified the category “fighting words.” Some of the subsequent cases, such as Terminiello v. Chicago (1949), following events where a riot occurred, held the speaker responsible, but more often it has been the audience or the authorities who are expected to keep order in the face of public expression (Feiner v. New York, 1951). As a matter of constitutional interpretation, “fighting words” have been subsumed within the more general contextual issues surrounding regulation of the time, place, and manner of expression. Libel is related to “fighting words” but it is also closely associated with press freedoms and will be discussed in that context.
The study of constitutional rights benefits from attention to values behind the rights. In the case of unprotected expression, countervailing values place the expression outside the scope of the First Amendment. The public peace is protected from incitement to riot. The value of reputation and, again, the public peace both justify traditional exclusion of libel from protection. Two areas of unprotected expression, obscenity and commercial speech, deserve special attention. Obscenity is conceptually challenging because it represents the clash between tolerance of expression and the values of a community. The discussion traces the evolution of a modern doctrine, explores the issue of things considered bad in themselves, and concludes with a discussion of the prospects for a response to obscenity consistent with First Amendment doctrine. Commercial speech is a huge area of regulation with its own standards having less to do with what are traditionally considered community values than the principles of a regulated economy.
Obscenity
Americans have known limits to expression from colonial times. The original European Americans fled persecution in England but were not themselves a particularly tolerant group. Yet, the colonial leadership faced few challenges to their moral and political authority. It was only as the society diversified that such challenges to the dominant morality became an issue. The first U.S. obscenity case, Commonwealth v. Holmes (1821), involved a Massachusetts prosecution of John Cleland’s Memoirs of a Woman of Pleasure (also known as Fanny Hill). The book was a perennial subject of litigation in Massachusetts that was often banned. Legislative responses to pornography and subsequent prosecution increased dramatically in the mid- to late nineteenth century due to a more restrictive moral climate and the crusading spirit of moralists such as Anthony Comstock, whose “Comstock Laws” established regulation of abortion prior to the Supreme Courts decision in Roe v. Wade. In the 1890s, prosecutions intensified with publication of a new brand of fiction epitomized by George Bernard Shaw’s Mrs. Warren’s Profession and Theodore Dreiser’s The Genius (Lewis, 1975). The works were frank, and they explicitly examined sexual and moral conduct. Although prosecutions were brought on substantive grounds delineating offensiveness, the defense could not yet turn to the pure tolerance of the First Amendment for protection.
Until the middle of the twentieth century, the judicial standard for determining obscenity was the Hicklin rule (Regina v. Hicklin, 1868), which asked whether the material at issue tended to deprave and corrupt the minds of those most open to such influences. This was obviously not a standard that encouraged a wide range of expression. As social diversity in the United States increased the pressure for a more tolerant standard, Judge Learned Hand suggested dropping the Hicklin rule, seeing it as a throwback to Victorian morality (United States v. Kennerley, 1913). But the influence of this extraordinary judge did not become evident in the higher federal courts until 1934, when a U.S. Court of Appeals suggested a concern for “obscenity as the dominant effect” (United States v. Ulysses, 1934) and the Supreme Court began to drift toward a standard that would look beyond the “most easily depraved.” The obscenity question was first raised before the Supreme Court in Doubleday v. New York (1948). In this case, the justices were equally divided on the applicability of First Amendment protection. The result of the case was an affirmance of a conviction under a New York obscenity statute for “The Princess with the Golden Hair” from Memoirs of Hecate County by Edmund Wilson. This left the obscenity question outside the limits of the First Amendment until 1957. As the reach of constitutional tolerance broadened generally, attention turned to a new standard for distinguishing protected from unprotected expression in the obscenity area.
The Roth Test. The constitutional foundation for freedom of expression in this area was established in Roth v. United States (1957). Roth had a business in New York that published books, photographs, and magazines that federal agents claimed violated the federal obscenity statute. He was accused of publishing “obscene, lewd, lascivious, or filthy book(s) . . . or other publications of an indecent character” (18 U.S. Code 1461). Judge Jerome Frank, one of the dominant legal theorists of his time, writing for the lower court, asked for help from the Supreme Court in setting a standard. When the case was decided, Justice William Brennan, who would speak for the Court for nearly a decade on these matters, wrote the opinion. The logic of his decision and the specific tests he offered established the framework for subsequent discourse about pornography.
Starting where Chaplinsky left off, Brennan depicted a history of limited freedom evident in laws against blasphemy or profanity in nearly all of the original states. He noted that it was a crime in the Massachusetts Bay Colony to publish a filthy, obscene, or profane song, pamphlet, libel, or mock sermon in imitation or mimicking of religious services. Brennan’s argument was that obscenity “is not within the area of constitutionally protected speech.” He defined the obscene as that which involved those lascivious longings associated with a perverse interest in sex rather than a “healthy” predisposition. He believed the obscene was “that form of immorality which has relation to sexual impurity and a tendency to excite lustful thoughts,” a subclass of material on sex that offended common decency.
Brennan’s second contribution was the construction of a test to safeguard legitimate expression from intrusion by the government. The test would be used by juries in determining the violation of statutes and by legislatures in writing laws on pornography. The new test would look to the average person, rather than the most susceptible (as had been the case under Hicklin), and it would apply standards consistent with how the community would assess the material. The community would be defined later. Prurient interest would be revealed by a tendency to excite lustful thoughts, and it would be considered unprotected speech. According to Brennan’s test, the material would have to be taken as a whole, rather than focusing on the most sexually stimulating part. Juries would be the obscenity filter, in lieu of an explicit definition of material not protected by the First Amendment. In each case, the jury would determine what was obscene.
Justices Black and Douglas dissented in Roth. They felt that the new standard punished thought that was protected by the First Amendment even though it was offensive. Douglas argued that erotic thoughts were normal, and as a condition for placing the expression that stimulated them outside the protection of the First Amendment, he wanted to be shown that obscene material would cause illegal conduct such as rape. He looked to social research for a connection between sexual arousal and delinquency, although the search was somewhat facetious because he obviously doubted that evidence for the connection existed. This was the beginning of an ongoing debate over whether pornography causes crimes that is as lively today as it was forty years ago. The problem is that there are many more individuals who get “turned on” than commit sex crimes. For Justices Douglas and Black, the protection of the First Amendment was all the more important when ideas were offensive to the community.
For the majority in Roth, all ideas having even the slightest redeeming social importance deserved the full protection of the First Amendment. But obscenity was, by definition, “utterly without redeeming social importance.” This became a criterion in Jacobellis v. Ohio (1964), a case famous for Justice Potter Stewart’s claim that although he was unable to define obscenity, he knew it when he saw it. Justice Brennan’s argument in Jacobellis made the definitional issue a matter of constitutional law. Because only material utterly without redeeming social importance was excluded from constitutional protection (Jacobellis, 1964:188), it followed, according to the justice,“that material dealing with sex in a manner that advocates ideas, or that has literary or scientific or artistic value . . . may not be branded as obscenity and denied constitutional protection” (Jacobellis, 1964:191). What started out in Roth as a premise in Brennan’s argument regarding the nature of obscenity had become a test.
The next major case again involved Fanny Hill. The novel had been banned from Massachusetts. The publishers, anxious to advance the cause of the First Amendment and to sell their book, brought the case to the Supreme Court in Memoirs v. Massachusetts (1966). The social value claim was the major issue at the trail. Distinguished scholars testified that the book was a minor “work of art” and had “literary merit” and “historical value.” The Supreme Court overturned the lower court decision that had found the book to be obscene. It restated Roth by requiring that for a book to considered obscene, the dominant theme of the material taken as whole had to appeal to a prurient interest in sex, the material had to be patently offensive because it affronted contemporary community standards relating to description or representation of sexual matters, and the material had to be utterly without redeeming social value. The new tests were to be considered separately, and the challenged material had to fail all three tests to be considered obscene. This standard made the earlier distinction a challenge to prosecutors who could be thwarted in their prosecution of obscenity by the existence of even the slightest redeeming “value” in the material under consideration.
The opinion in Fanny Hill elicited a vigorous dissent from Justice Tom Clark. Clark indicated that his decisive support in Roth came because he believed that the test announced in that case did not contain an “utterly without social value” criterion. He reminded his colleagues that the Roth opinion even suggested weighing social value against obscenity, and thereby acknowledged that obscene material might have some social value. His concern is evident in a strong commitment to standards of morality. Unmoved by the tolerance of his brethren, he found Fanny Hill “dirty” and without social relevance. Clark would not accept the emerging view that sexually stimulating material deserved protection if it was elegant.
The Contemporary Standard. Dramatic changes at the Supreme Court from 1968 to 1972 resulted in a new majority that would have significant influence on obscenity law. Nixon appointees Warren Burger, Harry Blackmun, William Rehnquist, and Lewis Powell announced the new standard in Miller v. California (1973) and Paris Adult Theatre v. Slaton (1973). Miller involved the application of a state obscenity statute to a mass mailing of sexually explicit advertising material to unwilling recipients. Chief Justice Burger’s opinion announced that “we are called to define the standards which must be used to identify obscene material that a State may regulate without infringing the First Amendment.” Emphasizing that some forms of expression are clearly outside the First Amendment, he argued that the Memoirs test had been a shift from Roth. This step, according Burger, required that the prosecution prove a negative, the utter lack of redeeming social value. In a criminal case, the “beyond a reasonable doubt” standard made this formidable challenge. To ease the prosecutorial burden, Burger substituted a new standard: pornographic material had to be specifically defined by state law as appealing to the prurient interest, it had to be patently offensive, and it had to lack serious literary, artistic, political, or scientific value.
In the companion case of Paris Adult Theatre v. Slaton (1973), the Court ruled that the state interest in regulating obscenity was protected even where the movie house had guarded against exposure of juveniles and passers-by. In other words, the quality of life, the “tone of commerce in the great city centers,” and the public safety were legitimate objects of regulation. The justices concluded that it is not for the Court to resolve empirical uncertainties in the relation between obscenity and illegal action. Public perception of offensiveness would be an acceptable rationale for legislation. By turning the authority to the state level, the Court sent chills through the publishing community.
The meaning of community standards has been developed further by the Supreme Court. The post-Miller decisions give some idea of what the Court had in mind. In Southeastern Promotions v. Conrad (1975), for instance, the Court held that the play Hair could be performed in a municipal theater even if town authorities found that it was not a “clean and healthful” production. Although jurors do not have unbridled discretion—the movie Carnal Knowledge could not be banned in Georgia, for instance (Jenkins v. Georgia, 1974)—they are the relevant community (rather than the state or the nation as a whole) for determining what is obscene.
The New Pornography Debates. In the middle of the twentieth century, civil libertarians portrayed the censor as an ignorant vice-squad goon ripping old masters off the museum wall or as a Victorian moralist gluing the pages of literary classics together. Although the characterization is extreme, efforts to eliminate obscene material from public life have been clumsy. Unsophisticated censors, the rhetoric of individualism, and the Supreme Court decisions discussed above gave increased stature to the civil libertarian position. By the 1960s, a high level of pornographic freedom prevailed. Since the late 1970s, interest in limits on expression has returned. When “expression” was a naked woman being put through a meat grinder on the cover of Hustler Magazine in 1978 and it became more widely available through new electronic media, an industry that had flourished under protection by the Supreme Court faced new challenges.
The effort to outlaw pornography in order to guard against crimes of violence is based on the claim that pornography depraves the minds of those exposed to it and that this leads to harmful sexual conduct. Justice William Douglas called for evidence of such a connection as early as Roth. Yet, it has been difficult to establish. Social science does not seem up to this task, and the legality of pornography is not likely to be settled by statistical evidence. The existence of social limits on expression per se is a much more significant consideration, and one that deserves attention. Most reasons offered for the regulation of obscenity stem from the view that obscenity is bad in and of itself. These include protecting moral standards against erosion, improving the “quality of life,” preventing corruption of individual morals, and protecting against affronts to the senses.
There are many ways to legally limit pornography. Most anti-pornography activity has focused on social, economic, and political responses, such as impolite questions, consumer boycotts, picketing, and civil disobedience. These efforts have, in many instances, been effective. An advertisement in the late 1970s for an album by the Rolling Stones, which showed a woman bound in a chair with the caption “I’m black and blue for the Rolling Stones and I love it,” was taken down only hours after a protest was announced. This action spawned the feminist anti-pornography movement. A few years later, in a liberal, pro-pornography response, Wendy Kaminer addressed the legal issues. In her article “A Woman’s Guide to Pornography and the Law” (1980), she claimed that the First Amendment could be preserved only by refusing to involve the government in censorship. The liberal position was subsequently championed by the Feminist Anti-Censorship Taskforce (FACT) and by Nadine Strossen, president of the American Civil Liberties Union.
The Miller standard distinguished protected from unprotected expression by emphasizing community-based offensiveness, with a focus on hard-core pornography. The standard view is that this means “ultimate sexual acts, masturbation, excretory functions, and lewd exhibition” (Miller v. California, 1973). Violence is not discussed although sadomasochism would be included in some definitions. Exposure is the “core,” but the structure of First Amendment law would not substantially change if there were a shift from exposure to violence and dominations as central to the obscene. This redefinition is a first step toward incorporating into law contemporary concerns about the misogynous aspects of pornography.
Regulation short of prosecution is another avenue. An early suggestion along these lines was Justice Brennan’s 1973 dissent in Paris Adult Theater, where he focused on when material can be regulated. Based on Ginzburg v. United States (1966), where a conviction was upheld because of the manner in which erotic literature was distributed, Brennan derived the notion that the acceptability of material may depend upon the context of its dissemination. He also found, in Stanley v. Georgia (1969), where private possession of films showing “orgies of deduction, sodomy, and sexual intercourse” was constitutionally protected, a state interest in protecting children and unconsenting adults on a different basis from the general (or consenting) population. This was ultimately a move away from criminality toward other limitations on objectionable material. In Erznoznik v. City of Jacksonville (1975), however, the Court did strike down an attempt under nuisance law to protect citizens from nude scenes at drive-in theaters. Nonetheless, stricter limits may be possible where there is no threat of prosecution. Zoning restrictions can also reflect community preferences. In Young v. American Mini Theatres (1976), the Court upheld a zoning ordinance that restricted the location of adult movies and bookstores without finding whether the material sold was constitutionally “obscene.”
Justice John Paul Stevens has supported civil restraints rather than criminal prosecution of obscenity. In his dissent in Smith v. United States (1977), Justice Stevens argued that a jury determination of standards is not consistent with predictable application of the rule of law. Thus, civil limitations would certainly apply to the obscene but might also be applicable to non-obscene yet offensive displays. Avoiding free expression concerns almost entirely in New York State Liquor Authority v. Bellanca (1981), in which public health regulation was relied on to control the environment in which alcohol was served, did not meet Justice Stevens’s approval. Dissenting from a short (per curiam) decision in the case, Stevens argued that the Court had obscured the issue “with irrelevancies such as its mischievous suggestion that the Twenty-First Amendment gives States power to censor free expression in places where liquor is served.” He called for the censorship issue to be faced squarely. Such a confrontation, in the present climate, might allow protection for community standards through measures short of placing people in jeopardy of life or limb and with deference to the constitutional guarantee of free expression. This might allow a shift to substantive concerns, rather than the retreat behind the undiscriminating barrier of First Amendment toleration. Then, instead of responding to censorship by simply claiming people have an absolute right to read whatever they want, there might be room for more substantive debate about the value of various ways of thinking.
But, before the anti-pornography debate could develop much further, the courts were faced with the challenges of the new digital technologies, particularly the regulation of internet pornography. Provisions of the Communications Decency Act of 1996, which had made it a crime to display indecent material on the Internet, was struck down by the Supreme Court in Reno v. American Civil Liberties Union (1997) as too broad in its coverage. In Ashcroft v. Free Speech Coalition (2002) the Court struck down a part of the Child Pornography Prevention Act of 1996, which regulated material that went beyond the protection of children recognized in its earlier decisions including Miller and New York v. Ferber (1982) where children had been used in the production of pornography.
Commercial Speech
Back in the 1940s when the Supreme Court was developing the doctrine of “hate speech,” plaintiffs in the Chaplinsky case sought protection for a commercial handbill under the First Amendment. Their failure gave rise to the idea that like obscenity, the Constitution did not protect “commercial speech.” Since then speech that is primarily a part of the market has been far less litigated than obscene speech but the analysis is similar. “Commercial speech” includes advertising and the discussion of products, services, and jobs. The view that commercial speech is unprotected and can be distinguished from other forms of expression has a number of antecedents. One is the constitutional practice, common since the New Deal, of leaving economic regulation relatively free from constitutional review by the Supreme Court. Another is the tradition of economic “discourse” as not being political.
The idea of commercial speech was developed in Pittsburgh Press Company v. Pittsburgh Commission on Human Relations (1973), where newspapers in the city of Pittsburgh were prohibited from specifying the preferred sex of applicants in their help wanted column. The Supreme Court held that the legislative prohibition did not intrude into protected expression because commercial speech can be more highly regulated than other forms of discourse. Although there is generally a presumption that commercial speech is expression without political content, the courts have acknowledged such content in certain cases. Thirty years ago the push was for abortion services. Today it is more likely to be anti-abortion groups seeking to place ads with pictures of fetuses. They have failed to get the courts to order the New York Metropolitan Transit Authority to accept them on the subways. Recent developments, however, have given pharmacists and lawyers the right to advertise under the First Amendment, where restrictions imposed by professional and trade associations had formerly limited this sort of expression.
Speech protection does not apply, for instance, to false and misleading advertising, because the First Amendment has been interpreted as protecting a public right to full and free information about products. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Supreme Court struck down a Virginia state law that banned advertising prescription drug prices. The contemporary standard in these areas comes from Central Hudson Gas and Electric Corporation v. Public Service Commission of New York (1980), wherein Justice Powell offered a modified notion of how to apply the First Amendment to commercial expression. He called the tradition that allowed all sorts of regulation in the commercial area “highly paternalistic” and held that commercial speech must concern “lawful activity and not be misleading.” There must also be a “substantial governmental interest” in regulation, the regulation must “directly advance” the interest, and not be “more extensive than is necessary.” In these tests, commercial regulation looks a little like sexual equal protection analysis. The Court employs a moderate level of scrutiny and stops short of the strict scrutiny it would apply in political speech.
The public right to information about goods and services does not apply completely to gambling, cigarettes, the alcohol content of beer, or even the various properties of whiskey, rum or gin, which have been more highly regulated than other products. In Posadas de Puerto Rico Associates v. Tourism Company (1986), the Court upheld a law limiting advertising of gambling. Chief Justice Rehnquist argued that the power to limit gambling included the power to ban advertising. But, employing the framework of Central Hudson, the Supreme Court, in 44 Liquormart, Inc. v. Rhode Island (1996), struck down the state’s ban on liquor advertising as it applied to prices; in Lorillard Tobacco Company v. Reilly (2001), Massachusetts’s regulation of cigarette advertising was held to be preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA) and overly broad under the Central Hudson formula. Justice O’Connor for the majority found inadequate analysis of the danger of advertising relative to the regulations imposed and she wrote: “a ban on all signs of any size seems ill suited to target the problem of highly visible billboards, as opposed to smaller signs. To the extent that studies have identified particular advertising and promotion practices that appeal to youth, tailoring would involve targeting those practices while permitting others. As crafted, the regulations make no distinction among practices on this basis” (Sec. III,B,2). Much of what goes on in the commercial speech area never gets to court, at least not federal court, giving local regulators, from district attorneys and attorney’s general to the Federal Bureau of Alcohol, Tobacco, and Firearms, considerable latitude to interpret what forms of commercial expression belong in the public forum. There are exceptions. For instance, in 1998, the Court of Appeals for the 2d Circuit, which sits in New York City, rejected the New York State Liquor Authority’s refusal to allow a label from Michigan-based Bad Frog Brewery, Inc. that contained a cartoon of a frog holding up his middle finger (or in the court’s words “the second of its four unwebbed “fingers” extended in a manner evocative of a well-known human gesture of insult). The judges held that although state officials had “a substantial interest in protecting children from vulgarity” the prohibition against the bird-flipping frog only made a small contribution to the state’s interest and thus did pass the Central Hudson test. They wrote that “a state must demonstrate that its commercial speech limitation is part of a substantial effort to advance a valid state interest, not merely the removal of a few grains of offensive sand from a beach of vulgarity” (Bad Frog Brewery, Inc. v. New York State Liquor Authority, 1998). The company contended that its frogs neither conveyed commercial information nor were obscene but were a joke and entitled to full First Amendment protection. In this case at least, litigation and the publicity surrounding it would seem to have been part of a marketing strategy.
FREEDOM OF THE PRESS
Writers, publishers, and journalists—those we call “the press”—often operate under the constitutional mantle we call freedom of expression. They have a special interest in it. The legal practice in this area is defined by, and in turn defines, the parameters within which these professionals function. As with any interest group, the press marshals legal arguments and experience to support its interpretation of the Constitution. The claims associated with the First Amendment are derived from past practice. Their resolution has an influence on future possibilities.
Context and the Constitution
This section on press freedoms provides an opportunity to consider social context more fully; in fact, the context, operating as media in U.S. society, is the material reality of this freedom. Americans romanticize their rights and often forget the context within which they operate. This section is an antidote. Without a press or access to one, the freedom conventionally protected in the Constitution is of little use. We begin with de facto freedoms here—in short, ownership of the presses. These freedoms contrast with the de jure freedoms derived from the First Amendment.
The press operates within a set of economic and social constraints that limit the possibilities of expression. The most obvious limitation on the press is ownership of the machine. A printing press is subject to the same economic laws as any piece of capital equipment. From the small pamphleteer to the nationally syndicated journalist, expression in this domain requires access to the tools by which the written word becomes available to masses of people. Economic power and ownership are of great significance to expression. These sociolegal considerations dictate news gathering as well as editorial policy. It is so obvious as to sometimes go unacknowledged that, before legal issues are raised by publication of a campaign endorsement or investigative report, some publisher or editor will have taken financial as well as editorial risks. In this arena, the prerogatives and concerns of labor also limit, as well as enhance, freedom of expression. Labor sets the context through negotiation and the willingness to work. On some occasions, workers have refused to set or print material that runs counter their convictions. Although less involved with editorial content, the interests and prerogatives of labor in the workplace serve as another de facto limit on expression.
Many government programs exercise control over the press. Some are indirect and influence the dissemination and availability of news. Post Office regulations contain substantive provisions against sending obscene and subversive material through the mail, and postal rates set by Congress determine which magazines and newspapers will be able to survive. Coverage of governmental activities is also dependent on the cooperation of officials. The White House screens access to presidential news conferences and favors particular journalists when making news available. Although favor has always played a role in the acquisition of news about government, “Watergate” revealed that those closest to the inside may well have diminished capacity to transcend the official line. They may suffer from insiders’ myopia.
As the technology for radio, television, and the Internet developed—first during a period of increasing regulation—the government exerted its authority over these forms of expression. It limited access to electronic or broadcast media. According to the theory, the airwaves are finite, and frequencies must be regulated in order for the forum to function. A concern for the intrusiveness of these media has also been put forth as a basis for regulation. Licenses are restricted and, particularly in the case of television, expensive if available. There are rules of conduct, and there is a process of license review that involves official scrutiny unknown to print media. Substantive constraints that apply to radio and television, but not to print media, include the provision for equal time to candidates for public office and a ban on cigarette advertising. Controversy over Federal Communications Commission (FCC) regulations led to the “fairness doctrine,” discussed by the Supreme Court in Red Lion Broadcasting v. Federal Communications Commission (1969). The fairness doctrine requires broadcast media to provide, without charge, time for the victims of public criticism to respond to their critics. Because the doctrine provides for responses to editorializing and not “simple” facts, it has had less impact than it might have, although it remains a threat to the press.
The expanded control over broadcast media was evident in a case involving the comedian George Carlin (Federal Communications Commission v. Pacifica Foundation, 1978). Regulation in this context concerned indecent, but not necessarily obscene, matter. With radio and television, there is a special intrusive potential to which the Supreme Court has been sensitive. This was evident in Justice Stevens’s view that “when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.” In this case, Carlin—or his speech—was the pig, and because he was on the radio, what he said did not have to be obscene to get him into trouble, just a little dirty.
The many ways in which freedom of the press is limited before the First Amendment comes into play demonstrate the constraining influence of the social context and material considerations. These limits also play a part in other First Amendment contexts—from public assembly, in the shopping center cases, to the means to express dissent—and they are often taken for granted. Legal practice, however, remains an important basis through which freedom of the press has evolved.
Legal or de jure influences on the press exist in the criminal process and private law, in addition to the First Amendment. As an institution, the press is a creature of the legal order. For instance, a case in which former Central Intelligence Agency (CIA) agent Frank Snepp broke an agreement not to publish articles about the Agency without the Agency’s prior review of the material was treated by the courts as a matter of contractual obligation, rather than an issue of press freedom (Snepp v. United States, 1980). The Supreme Court held that Snepp was bound by his agreement. This is a good example of a legal practice from another area of law setting the parameters for a holding on the First Amendment.
In a similar way, press liability for subpoena of news sources stems, in part, from the government’s obligation to provide defendants with a fair trial. Beginning with Branzburg v. Hayes (1972), the mid-1970s saw increasing numbers of controversies between the press and trial judges. One of the more dramatic was the jailing of Bill Farr, a Los Angeles Times reporter, because he refused to reveal his sources in a story about crime. A trial judge believed knowing the basis for his stories might have a bearing on the determination of guilt or innocence for another defendant. In another case, reporter Myron Farber and the New York Times were fined for contempt because they ignored a subpoena issued in a murder trial (In re Farber, 1978). Clearly, concern about the criminal process and criminal violations limits the prerogatives of the press.
Judicial authority covers publicity before and during a trial. In Rideau v. Louisiana (1963), the Supreme Court held that a televised confession made it impossible for the defendant to get a fair trial. The press was not strictly limited, because the decision dealt only with the defendant, but it would eventually affect the press, because the norms filter down and are the basis for contempt proceedings against journalists. O. J. Simpson’s criminal trial was open to the press, but, at the discretion of the judge, his civil trial was not. These decisions are subject to some constitutional limits. In the case of Texas “high roller” Billy Sol Estes (Estes v. Texas, 1965), the Court held that a televised broadcast of the trial prejudiced the case. More recently the justices ruled that there is no fundamental right to ban television from court when it is permitted by state law (Chandler v. Florida, 1981). But the tradition of judicial authority over the trial is still substantial. The judge’s options include limiting reporter access, isolating witnesses, and controlling release of information by counsel, police, and witnesses. There are also a number of unique mechanisms embedded in the rules of procedure that insulate the courtroom from outside influences: the voir dire, sequestration, change of venue, mistrial, and the voided conviction. With these sorts of practices a trial creates its own reality, as the nation learned (but had trouble accepting) with the acquittal of O. J. Simpson in 1995.
Libel law is another aspect of the legal environment that limits the press. This common law protection of individual reputation existed for centuries prior to the ratification of the First Amendment. The prior existence of this right suggests that constitutional protection of speech and press was not meant to be absolute. In fact, the Sedition Act of 1798 made libel of government officials a crime, indicating that the common law protection would cover government activity. The trend in U.S. constitutional law since then has been in the other direction: toward the protection of individuals. Libel of individuals remains a legal constraint on the press. When public figures or officials are involved, however, the First Amendment provides considerable protection for journalistic zeal.
In New York Times v. Sullivan (1964), the Supreme Court limited libel of a public official to occasions when the media reported something they knew to be untrue that damaged the reputation of a public official or they did not make reasonable efforts to check whether what they were reporting was true or false. This decision widened the sphere of public discourse, making it difficult for public officials to get judgments against the press. Discussion of public figures—people in the public eye who do not hold public office—is also protected under the First Amendment, but to a lesser extent. In Associated Press v. Walker (1967), a critical description of retired general in an Associate Press story was held not to be libelous because there was no malicious intent or knowing falsehood on the part of the press and the general was a public figure.
Although office holding is relatively clearly demarcated, the line between “ordinary citizen” and “public figure” is fuzzy. In the case of Mary Alice Firestone, who sued Time, Inc., for having said that her divorce trial “produced enough testimony of extra-marital adventures on both sides . . . to make Dr. Freud’s hair curl,” her award of damages was upheld because she did not have “any role of especial prominence in the affairs of society” (Time, Inc. v. Firestone, 1976). Nevertheless, the attempt to distinguish in this regard is an aspect of the constitutional commitment to vigorous reporting of public life. Subsequent cases have affirmed that protection against libel must give way somewhat when it interferes with public debate. In 1982, when the influence of fundamentalist groups in national politics was high, Jerry Falwell, a leader of a group called the Moral Majority, was parodied in Hustler magazine as having had sex with his mother. Chief Justice Rehnquist wrote for a unanimous Court to hold that a parody can not be held responsible for “intentional infliction of emotional distress” (Hustler Magazine v. Falwell, 1988). In the course of a libel suit, however, litigants who believe the press has been malicious can inquire into the editorial processes, including thoughts, opinions, and conclusions bearing on the issue of state of mind, thereby giving those who have been attacked by the press a portion of the common law protection (Herbert v. Lando, 1979).
The Traditional and the Professional
Two subjects involving the press are given more extensive treatment here. These are slightly curious—and certainly important—dimensions in the development of the constitutional right of expression for journalists. In the first, the issue is the diminished status of “prior restraint,” which had once been the cornerstone of constitutional freedom. The second subject involves the special press claim to constitutional protection and the implications of this claim.
Prior Restraint. Some argue that as tolerance of expression expanded beyond the initial protection from prior restraints, the sanctity of the ban on prior restraint may have diminished. This process may have begun with Near v. Minnesota (1931). In the late 1920s, Minnesota made it a crime to publish malicious, scandalous, or defamatory material. It was a misdemeanor—simple nuisance—but the judicial response for abating the nuisance was stopping the presses. The case involved prosecution of a Minneapolis paper that had described the police as permitting “Jewish gangsters” to run illegal operations in the city. Writing for the majority, Chief Justice Charles Evans Hughes argued that the purpose of the statute was suppression rather than punishment, and he concluded that “This is the essence of censorship.” The standard held that prior restraints were legitimate only in “exceptional cases,” such as national security and public decency. The Court, in Near, did not find this Minnesota case to be exceptional.
Expansion of the “first freedom” may have resulted in a diminution of the old priority status for prior restraint in cases deemed exceptional. This was evident in the “Pentagon Papers” case (New York Times v. United States,1971), called by constitutional scholar C. Herman Pritchett “the most significant challenge to press freedom in American history.” The restraint took place when the Nixon administration stopped The New York Times and the Washington Post from publishing Defense Department documents that examined, sometimes critically, the escalation of the Vietnam War. The legal struggles, which might have taken years, went from the District Court through the Supreme Court in a little over two weeks. The Supreme Court ruled that the government had failed to meet the burden required to justify a continued ban, but prior restraint had already taken place. The old absolute protection had become conditional. Prior restraint was all right when there was a danger. This explains the temporary injunction issued against The Progressive in 1979 for an article on defense secrets that explained how to construct a hydrogen bomb. When it became clear that the information was readily available to the public, perception that there was a threat diminished, and the injunction was lifted.
Special Privileges. Due to its unique mention in the First Amendment, the press has sought special protection in addition to that guaranteed under freedom of speech. Believing it should have special privileges, the press has sought immunity from subpoenas and grand juries, privileged access to government information, relief from libel laws, and protection from police searches. The claim to special protection has also been associated with the other values in the First Amendment connected with the role of publishers and reporters in disseminating the information on which public policy decisions are made. The promise in the First Amendment, of freedom for “the press” has been read as a description of journalists, instead of a reference to the written as well as the spoken word.
Some scholars have argued that the press would be better off if it did not seek special privileges. With its claim for heightened protection from the First Amendment, the press may be perceived as simply another special interest. But a stronger claim might lie in the principle of open public discourse that is guaranteed to all citizens. Constitutional theorist Ronald Dworkin addressed these issues in the context of the decline in free speech protection since the 1970s. He has described the press as taking the First Amendment “as a kind of private charter” and using it to attack judicial recalcitrance in the light of expanding claims to protection (Dworkin, 1980:50). He warns that this is a poor strategy that may turn attention away from concern for public discourse and public information by relying too heavily on a privileged position. The implication is that the First Amendment, in referring to “the press,” means simply published speech. It is a promise to protect what comes out in print.
Dworkin has also characterized the implications of journalistic claims to special protection as compromising the rights of all citizens by treating free expression as a policy issue rather than a matter of principle. Policy arguments inevitably involve balancing speech against other issues of social policy. Principles would provide a basis for a public right of access that could not be waived. Principles have, of course, been the characteristic feature of constitutional rights. The power of principle, however, has seemingly been missing in such failures of press claims as Zurcher v. Stanford Daily (1978), where the police were permitted to make an unannounced search of a newspaper room, and Houchins v. KQED, Inc. (1978), where the press was refused permission to investigate and film a part of the Alameda County jail at Santa Rita. Instead it has been in conjunction with public rights that the press has had some of its greatest successes, as in public reporting on criminal trials (Richmond Newspapers, Inc. v. Virginia, 1980).
FREEDOM OF RELIGION
The Bill of Rights begins with religion. Along with the right to speak, publish, and assemble, religious protections were the first to be added to the Constitution. Religion and expression had been interwoven in the colonial period. Those who drafted the Bill of Rights shared a heritage of the religious battles that stimulated colonization. Religious belief had motivated John Milton and his speech in Parliament opposing extension of the censorship laws in seventeenth century England. In the colonies, Roger Williams preached against persecution of religious expression. Later, Thomas Jefferson, James Madison, and the Founding generation, who placed freedom first among the constitutional amendments, were influenced by the Enlightenment and had more faith in science and secular learning than in religion. They feared that the new government would act on behalf of an established religion, and that this would be a threat to reason and the practices they had been living under.
The initial project of the First Amendment was different from what it is today. Well into the nineteenth century, the First Amendment was directed against acts of Congress rather than local laws and this was to block Congress from disestablishing existing official state churches (Tribe, 1978:814). Freedom of religion in the Constitution holds that the government shall not establish or become involved with supporting a particular religion. Under the growth of public programs, the “establishment clause” has been a source of tension, particularly dealing with schools. The other clause in the amendment stipulates protection from government for the “free exercise” of religion. Free exercise raises puzzling problems at the heart of public policy (such as whether people can refuse to fight in war due to their religious beliefs). Free exercise also presents problems for establishment, such as when government support is withdrawn and church schools are unable to operate. Since they became applicable to the states in the 1940s, the challenges posed to the distinctive clauses that guarantee freedom of religion have been influenced by newer conceptions that comprise constitutional protection of freedom.
Our discussion of constitutional protection for freedom of religion begins with the aspect closest to freedom of expression: the free exercise provisions.
Free Exercise
The constitutional right to the free exercise of religion supports challenges to laws that limit religious practice. Often, it is important to decide what constitutes a religious observance. The first significant free exercise case was Reynolds v. United States (1879). It involved federal statutes that outlawed polygamy, the taking of multiple wives, a practice engaged in by the Mormons. In the nineteenth century for what is now called the Church of Jesus Christ of the Latter Day Saints defended the practice on free exercise grounds. The Supreme Court found that polygamy involved more than belief and anticipated a later distinction between belief and action that became important to the development of the First Amendment. More significant than the distinction between belief and action, however, seems to have been the fact that polygamy was not viewed with equanimity by the rest of the population, which included the Supreme Court. Today the State of Utah prosecutes polygamy.
Another religious group, the Jehovah’s Witnesses, which was also founded in the nineteenth century, has brought First Amendment challenges at every level of government. This group takes proselytizing for their faith as part of their religious obligation, which has made them familiar in many a neighborhood as well as in the halls of justice. When the Witnesses practice their religion, society has often seen their practices as challenging and threatening. The result was sometimes arrest for breach of peace or expulsion from school for not saluting the flag. Another distinguishing feature of this sect has been their capacity and commitment to struggling for their rights in the legal arena. It is, perhaps, an extension of their faith: the commitment to “witnessing.” The first of these cases to reach the Supreme Court came in 1940 (Cantwell v. Connecticut) after Witnesses had been convicted for “soliciting without approval” and “breach of the peace.” The Court upheld their claim that the convictions violated their right to freely exercise their religion. The case was the first to apply the protection of the First amendment in this area to the states. Justice Owen Roberts’s opinion in the case provided an appearance of the distinction between belief and action. This was a period of balancing interests in this, as in other areas of the First Amendment, and the opinion reflected an attempt to balance in its holding that society’s interest in religious conduct “remains subject to regulation for the protection of society.”
Soon after the Supreme Court began expanding the reach of the free exercise guarantees, it ran into difficulty over the flag salute. In Minnersville School District v. Gobitis (1940), two children had been expelled for refusing to salute the flag in the public schools of Pennsylvania. The children were Jehovah’s Witnesses, and they equated saluting with paying homage to false gods. In the Supreme Court, the Witnesses were supported by a committee of the American Bar Association and by the ACLU. Gobitis has become important in part for decisions that followed but also because of the controversy that it generated at the time, as the United States prepared for World War II. After decisions for the Jehovah’s Witnesses in the district and circuit courts, they lost in an 8–1 decision by the Supreme Court. The opinion was written by Justice Felix Frankfurter, who was an immigrant and Jewish. He deferred to the local school board but also argued for the universal symbolism of flag and country over the individual commands and beliefs of religion.
Gobitis and the West Virginia State Board of Education v. Barnette (1943) decision form a seminal pair for students of politics on the Supreme Court. They dramatically depict the Court’s ability to change its mind as times and court personnel change. The lone dissenter in Gobitis was Justice Harlan F. Stone. Stone said in his opinion that the Constitution required withholding “from the state any authority to compel belief or the expression of it where that expression violates religious convictions.” Stone became Chief Justice the year after Gobitis was decided and with his elevation there were also two new appointments to the Court. This, combined with three of the justices in the Gobitis majority changing their minds (Black, Douglas, and Murphy), shifted the majority on the flag salute issue. The decision in 1943 was to protect religious objection to the flag salute. Although, the justices do change their minds (with intelligible claims on either side they have that opportunity), it has seldom been as dramatic as it was in these flag salute cases coming around World War II.
When the Court placed the Constitution behind religious freedom it in a sense supplanted an older symbol of political unity: the U.S. flag. By some academic accounts (Wolff, 1968), the tolerance expressed in the Constitution, which is associated with the First Amendment, may be a better mechanism for binding a polity together than more primitive instruments of patriotism, such as the flag. However, in times of crisis the flags come out in large numbers. This has been the case since September 11, 2001. In a climate such as this, the flag salute, even when it speaks of God, can become a unifying force. This was evident in June of 2002 when a panel of 9th Circuit judges in San Francisco struck down the “under God” reference to great public concern. The decision, though it is consistent with the tradition of religious toleration announced by the Supreme Court, could not stand up to the pressure that it generated and it was quickly overturned.
Since the justices began to monitor the free exercise of religion closely in the middle of the twentieth century, they developed the standard that only a compelling government objective could justify inroads on religious autonomy and even then the objective would have to be carried out in the least restrictive way possible. The standard links the Cantwell case with Murdock v. Pennsylvania (1943), where the imposition of a fee for distributing religious pamphlets was considered too prone to abuse to be permissible, and Schneider v. Irvington (1939), where the requirement of a police permit for proselytizing was considered excessive regulation. Laurence Tribe describes the situation as one where, if the harm is grave enough, as in vaccination against communicable disease, the state can intervene and regulate risk taking. But, he maintains that if the harm is “ill-defined or plainly not serious,” there must be an exemption for the religious practice (Tribe, 1978:858). This was the conclusion of the California Supreme Court in People v. Woody (1964), when they struck down the conviction of American Indians for using peyote in their religious practices. Thus, where the instruction from the state is directed at an individual’s soul, and not at public welfare or individual health, the justification for infringing on religion is weak.
Free exercise of religion can be viewed as a classic “negative” liberty. That is, the freedom involves the right not to do something that one would otherwise have to do but for this liberty. In the terms of the framework developed in chapter 1, free exercise is an “immunity” from some of the obligations imposed by government. Perhaps the best example of this immunity is the right to claim exemption from military service and become a “conscientious objector” (C.O). Conscientious objection has a long-standing place in the American religious tradition due to the prominence of the Society of Friends, or Quakers. In both the colonial period and during the Civil War, this religious group stood by their commitment to pacifism and influenced the formulation of the conscientious objection provisions in federal legislation for staffing the armed services. This right is always a matter of contention when there is a policy of mandatory armed service or a draft.
In the statutory provision for conscientious objection to the draft, the Supreme Court’s interpretation of crucial issues, such as what constitutes a religion and the degree of toleration mandated by the Constitution, have had a bearing on the statutes. Both issues have arisen with regard to conscientious objection. The tradition had been that the source of the immunity from the draft was religious conviction. But in a case arising out of the Vietnam War, the Supreme Court defined a “sincere and meaningful belief” as occupying a place “parallel to a belief in God” (United States v. Seeger, 1965). This liberalizing rule extended the free exercise immunity to “a belief that is equally paramount in the lives of their possessors” as God is in the belief of a member of an organized religion. Five years later, the Supreme Court again took up the reach of the C.O. provision again in Welsh v. United States (1970). The case involved an individual who was opposed to war on historical, philosophical, and sociological grounds. He had been denied “C.O.” status, but in an opinion by Justice Hugo Black, the conviction was reversed based on the Seeger precedent. The consequence was a reading of the law that would exempt “all those whose consciences, spurred by deeply held moral, ethical or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.” This, the Court would later say, was not the same as selective conscientious objection.
Non-Establishment
Government in the United States is prevented by the First Amendment from making laws “respecting an establishment of religion.” This provision is now associated with the separation of church and state, but it was once thought to protect establishment in the states by preventing Congress from setting up a national religion. Constitutional debate over this limitation has focused on the meaning of establishment. In broad outline this protection is part of the concern with religious liberty and has been interpreted in light of that freedom. For instance, it prohibits the naming of an official national church because to do so would impinge on the freedom of those who belong to other churches. It is not so clear, however, what forms of involvement with religion constitute establishment. Given the many facets of modern life the government has entered, issues inevitably arise over which services and benefits offered generally should also go to religious institutions. Although tolerance plays a role, here the issue is not whether individuals or churches can be exempt from a particular policy, as was the case in the protection for free exercise, but rather whether a policy such as free textbooks provided to religious schools, is permissible given the requirement that the government not establish religion. This situation inevitably leads to heated confrontations where the material consequences may be greater than with the free exercise clause and where the development of doctrine to distinguish acceptable assistance from unacceptable establishment is significant.
The idea of a “wall of separation” between church and state, of a barrier dividing the two spheres, was mentioned by Thomas Jefferson in 1802 but it did not become the basis for constitutional litigation until much later. The wall was barely present in the Mormon polygamy case (Reynolds v. United States, 1879). By allowing Congress to legislate, the Constitution accepted the notion that some things religions do are unacceptable to the majority of the population. A century ago the justices did not seem concerned about public money going to religious groups. This was evident in Bradfield v. Roberts (1899), where a congressional grant to a hospital run by Catholic nuns was held to be constitutional.
By the middle of the twentieth century, higher standards of toleration had begun to shift attention to minority rights. The result was increased pressure for separation of church and state. In Everson v. Board of Education (1947), the issue was provision by the State of New Jersey of bus fares for all school children—including those going to parochial schools. Government support of education had become a fact of modern life. In this case, the Supreme Court, quoting Jefferson, upheld the principle of a “wall” between church and state, but it indicated that where New Jersey had provided support to take children to parochial schools, the “wall” was not breached. The test announced in the case was:
. . . what are the purpose and primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion (Everson v. Board of Education, 1974).
Thus, the test was secular legislative purpose and a primary effect neutral toward religion. The basis for the Everson decision, that the support for buses was without a religious purpose, became one of the considerations in determining when church and state had become involved with religion to an unconstitutional degree.
In Abington Township v. Schempp (1963), the Court attempted to complete the controversial task of eliminating religious observances from schools that it had begun in Engel v. Vitale the year before. Where the State of New York had written a prayer in (in Abington), the Court held ceremonial Bible reading as part of the beginning of the school day to be unconstitutional. Justice Tom Clark’s opinion drew on his Southern roots to soften the Court’s position when it held, by a vote of 8–1, that “religious exercises” as opposed to the study of religion, were not an appropriate part of the public school curriculum. Although these cases generated some of the most volatile anti-Court sentiment in the Supreme Court’s modern history—leading to campaigns to “Impeach Earl Warren”—the public, in many cases simply avoided the decision and went right on praying, at least in many jurisdictions. The field of school prayer became an indication, in the 1970s, that the Supreme Court’s opinion on the meaning of the Constitution was not always the last word.
A case that provides a good summary of the constitutional standard applied to the establishment of religion is Lemon v. Kurtzman (1971). In Lemon, the Supreme Court upheld the Rhode Island practice of paying part of the salary of parochial school teachers. In upholding the payment—for teaching nonreligious subjects—the justices added the idea that the state should interpret the non-establishment clause with sensitivity to avoiding “excessive entanglements” in the religious business, by using the tests described above in Everson.
Government funds finding their way to religious coffers would seem, on the surface at least, to be a violation of the principles of separation of church and state and the non-establishment of religion. In 1983, after a lower federal court had determined that it was unconstitutional for a state legislature to pay for a chaplain to open its lawmaking sessions, the Supreme Court reversed the decision (Marsh v. Chambers, 1983). This is a practice of long standing, yet the intervention by the justices to uphold it led to rhetoric that undercut the tradition of separation. In the words of Chief Justice Warren Burger, “To invoke divine guidance on a public body entrusted with making laws is not, in these circumstances, an ‘establishment’ of religion . . . It is simply a tolerable acknowledgement of beliefs widely held among the people of this country.” Acknowledgment in some official way by the government of widely, but not universally, held religious beliefs is, however, what the non-establishment clause has traditionally been about. It is the sort of question that has arisen with regard to President George W. Bush’s attention to “faith based” social service providers.
Another heated debate surrounds the issue of tax credits or vouchers for parents who would choose to send their children to private, including church-oriented, schools. In many cities throughout the country, the provision of religiously based education by organized churches, often called parochial, has removed a large financial burden from state and local governments who are responsible for educating fewer children. This fact, and the interest of parents who send their children to parochial schools while paying taxes to support public schools, has led to continued pressure for some sort of compensation. The Supreme Court 1983 decision in Mueller v. Allen endorsed a form of tuition aid to parochial schools for the first time. The aid came in the form of a Minnesota tax credit amounting to $700. This development was tempered somewhat because the justices held that the benefit must at least be nominally available to parents of public school children as well. In 1998, the Supreme Court allowed a Wisconsin program of vouchers that covered 15,000 children in Milwaukee to stand by not reviewing the case and vouchers in Cleveland were upheld in Zelman v. Simmons-Harris (2002).
Since Lemon the Court has upheld aid for secular buildings in colleges and universities, textbook loans, testing services, and special needs. It has allowed allocations for performing services mandated by the state, such as “pupil attendance reporting,” and tax deductions for tuition, textbooks, and transportation. And it has held that state funds may go to a sign-language interpreter in a Catholic high school. It has drawn the line at teacher salary supplements, reimbursements for grading tests, building repair, field trip transportation, and secular classes taught by public school teachers in private schools. And when New York State thought it had figured out a way around the issue of entanglement by setting up a special school district to educate handicapped children of the Hasidic faith (a sect of Judaism), this was not considered constitutional by the Supreme Court (see Kiryas Joel v. Grumet, 1994).
School prayer had also been a source of ongoing controversy. It is perhaps the most dramatic source of tension, not only in the Constitution, but for the Court as it attempts to give meaning to the text. The issue involves many forms of religious observance in public institutions, but it has been epitomized by the controversy twenty years ago over a non-denominational daily prayer designated by the New York Board of Regents for use in the public schools of New York State. The prayer, “Almighty God, we acknowledge our dependence upon Thee, and we beg thy blessings upon us, our parents, our teachers, and our country,” was recommended for reading at the beginning of each school day. The decision of the Supreme Court in Engel v. Vitale (1962), invalidating the use of this prayer in the public schools, became a lightning rod for opposition to the liberal constitutional interpretations handed down by the Supreme Court while Earl Warren was the Chief Justice. Justice Hugo Black wrote for the majority that in using its public school system for the recitation of a prayer, New York had adopted a practice “wholly inconsistent with the Establishment Clause.” Only one justice dissented from a decision that went on “it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government.” Similar decisions upholding the basic principle have continued to be handed down while the controversy rages. In Lynch v. Donnelly (1984), the Burger Court evaluated the constitutionality of a nativity scene in Pawtucket, Rhode Island, that was sponsored jointly by the city and its businesses. The display was challenged by the ACLU. Chief Justice Burger wrote the opinion calling efforts to ban the scene “a stilted overreaction contrary to our history and to our holdings.”
Religious authority in government has diminished a great deal since the days of the institutions that ran the early colonies at Jamestown and Massachusetts Bay, which reigned supreme in both the sacred and secular realms. The non-establishment clause sometimes rides and sometimes nudges that declining authority. In a Massachusetts case that came to the Supreme Court in 1982, a bar that went by the name of Grendel’s Den was able to employ the constitutional standard to strike down a state statute that had given a veto power to churches in the state over the granting of nearby liquor licenses (Larkin v. Grendel’s Den, 1982). Justice William Rehnquist and his clerks offered a clever dissent in which they took the majority to task for making so much of the case. They argued from the old adage that “hard cases make bad law.” But there is not much law being made here in any case; at least, not much of ideological significance was added to the Constitution. It is nonetheless a colorful example of the rather large circle we have traveled in 300 years.
The treatment of constitutional protection for religion and the issues around the separation of church and state has been brief by comparison with our treatment of unprotected speech and obscenity. Religious freedom is an issue of compelling belief, and with byzantine twists and turns. To explore its nuances in anything like a comprehensive fashion would be to focus on policy decisions and divert us from our discussion from the ideological structure of constitutional freedom. The Constitution is often invoked in struggles over religious observances that continue to be carried out in public settings throughout the United States. The White House and the Supreme Court each have their own Christmas tree. Clergy of various kinds regularly open sessions of Congress. But local courts have been recently prevented from housing shires to the Ten Commandments (McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 2005). What appears to be a Christian god is on U.S. money and in the Pledge of Allegiance. These observances are challenged from time to time, sometimes even successfully.
SUGGESTED READINGS:
Ariens, Michael S. and Robert A. Destro, Religious Liberty in a Pluralist Society Carolina Academic Press (2002).
Brisbin, Richard American Political Science Review.
Cleland, John Memoirs of a Woman of Pleasure (1821)
Emerson, Thomas The Structure of Freedom of Expression (1970)
Foreman, Milos “The People v. Larry Flynt” (1997).
MacKinnon, Catharine Only Words Cambridge: Harvard University Press (1993).
Mill, John Stuart On Liberty (1859).
Milton, John Areopagetic: A Speech for the Liberty of Unlicensed Printing, to the Parliament of England, in Selected Essays of John Milton.
Strossen, Nadine Defending Pornography. New York: Scribner (1995).
Williams, Roger Bloody Tenet of Persecution (1644)
Wolff, Robert Paul, et al. A Critique of Pure Tolerance (1968)
Gould, Jon B. Speak No Evil: The Rise and Triumph of Hate Speech Regulation (2005)
ENDNOTES:
ii Following the Equator, Pudd’nhead Wilson’s New Calendar.
iii (Pritchett, 1984:63).
The Medium is the Message.1967
By Marshall McLuhan and Quentin Fiore, Co-ordinated by Jerome Agel.
Bantam Books / Random House.
iv There is a general truth about constitutional discourse that might be mentioned in conjunction with Woody: the classification for a case goes a long way toward determining the outcome. Thus, if Woody is considered a religion case, it is a good bet the Indians will be permitted to use peyote. Similarly, Bob Jones University wanted to call its dispute with the Internal Revenue Service over racial discrimination a freedom of religion case. It lost both the classification issue and the case (see chapter 6).
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