When I joined Morality in Media as a staff attorney in 1985, my view of the United States Supreme Court was somewhat similar to Dorothy and perhaps even Toto’s view of the great Wizard of Oz. The Court was awesome; and once it spoke, that settled the matter.
I also labored under the quaint notion that when a Supreme Court Justice put on his or her robe and entered the courtroom, he or she set aside his or her own personal views of the case.
But as I continued to read Supreme Court cases involving the First Amendment’s freedom of speech and press clause, it dawned on me that many Justices didn’t care what our Nation’s founding fathers thought or previous Justices thought or what Congress and the American people thought. They decided these cases based on what they thought! An illustration of this mentality is found in the 1957 Roth v. United States obscenity case, where the Court opined:
The dispositive question is whether obscenity is utterance within the area of protected speech and press. Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. [354 U.S. 476, at 481]
But if the Court had always assumed that obscenity was not protected, why, almost 175 years after the Bill of Rights was adopted, did the Roth Court think IT needed to decide this question? That Court was certainly not responding to a public outcry for more pornography. Similarly, almost 50 years after Congress prohibited indecent broadcast in 1927, why did the Court in FCC v. Pacifica Foundation, 438 U.S. 726, at 729 (1978) think IT needed to decide whether the FCC “has power to regulate a radio broadcast that is indecent but not obscene”?
That Court was certainly not responding to a public outcry for more sex and vulgarity on TV.
In a recent review of Anthony Lewis’s new book, “Freedom for the Thought that We Hate” Jeffrey Rosen (N.Y. Times Book Review, Jan. 13, 2008) states that Lewis offers an account of how “courageous judges in the 20th century created the modern First Amendment.” In other words, these judges often reinterpreted the First Amendment to mean something it was not intended to mean but that did reflect the judges’ own ideological and social views.
Perhaps you also think judges have a right to reinterpret provisions of the Bill of Rights to
mean whatever the Justices say. If so, what would you think if the Court were to reinterpret:
The First Amendment so that the term “establishment” applies only to an arrangement by which Congress formally declares that a specific religion is the official (state) religion of the United States and thereby enjoys financial and other benefits that no other religion enjoys?
The Fourth Amendment so that a search and seizure will be deemed reasonable if something that can be lawfully seized is ultimately found?
The Fifth Amendment so that the term “compelled” applies only to physical torture that causes excruciating pain and physical injury to the body or a part of the body?
The Eighth Amendment so that a particular punishment will be considered cruel and unusual only if it is both cruel and if no other nation uses it on a regular basis.
The Ninth Amendment so that citizens, in the sale or rental of privately owned property and in the operation of privately owned businesses, have a Constitutional right to discriminate on the basis of, among other things, race, gender, national origin or religion?
Some of my hypothetical situations may be a bit far out, but how do you think our nation’s founding fathers would have reacted to the following?
During a discussion and debate about the Bill of Rights, someone stands up and asks, “Would the First Amendment protect Tom Paine were he to go to a courtroom with the words ‘F---- the President” painted in large letters on the back of his jacket or to a town meeting open to the general public and curse out those that disagree with him?
During the same discussion and debate, someone else stands up and asks, “Would the First Amendment protect Martha Washington were she to open up a business where women dance on tables and strip down to pasties and G-strings in order to sexually arouse male patrons?”
And another person asks, “Would the First Amendment protect Tom Jefferson were he to put illustrations of scantily clad women provocatively posed, pamphlets replete with filthy language, and graphic illustrations of brutal murders and torture in bags and leave a bag at the doorstep of every home in town?” [This latter hypothetical was as close as my imagination could come to duplicating today’s experience with broadcast TV.]
And yet another person asks, “Would the First Amendment protect Ben Franklin were he to rent a barn for a variety show, where acts would include individuals performing in the nude, others simulating sex, and one individual who repeated a list of dirty words over and over again, and where the only requirement for viewing the show was payment of a modest fee?”
[This latter hypothetical was as close as my imagination could come to duplicating today's experience with basic cable TV.]
I think the founding fathers would have been horrified and might have responded with, “Of course not! Are you all out of your minds?” Or, in a more dignified manner, with:
“Of course not! Our goal is ordered liberty, where personal freedoms and the good of society are both highly valued and protected. Your questions raise the prospect of a breakdown of law and order, debauchery, and the ruination of our youth.”
Our nation’s founding father’s established a government with checks and balances, and for that reason I am inclined to give the Supreme Court the benefit of the doubt on the question of whether the Court’s authority to interpret the Constitution is unique. I also think, however, that the our nation’s founding fathers never envisioned courts that would be so quick (better, zealous) to invalidate necessary and reasonable laws (oftentimes even before they have been enforced) on the grounds that they are vague or overbroad or underinclusive or because some judges are of the opinion that the legitimate end could be achieved by less restrictive means.
The Constitution calls for the establishment of a Supreme Court, not a Supreme Branch of Government. It is said that for the Court to function properly, Justices must realize that it is not their job to interpret the Constitution or other laws to reflect their own view of things. I understand that there will be cases where even Justices who believe in the necessity of judicial restraint will differ as to the proper interpretation of a Constitutional provision But today we have Justices who view the Constitution as a “living” document and themselves as the “gods” who breathe life in to it. I say the power to amend the Constitution belongs to the people.
I will now provide a brief overview of the law as it stands today. In the obscenity law area, the Supreme Court has repeatedly held that the First Amendment does not protect obscene material. [See, e.g., Miller v. California, 413 U.S. 15 (1973)] The Court, however, has also narrowed the reach of obscenity laws (now enforceable only against hardcore pornography) and redefined obscenity in a manner that pleases no one. As a result, most prosecutors now refuse to enforce obscenity laws; and our nation is awash with pornography. In passing, I would add that the Court has twice rejected arguments that obscenity laws cannot be applied to a particular medium because of varying “community standards.” [See, Sable Communications of California v. FCC, 492 U.S. 115 (1992)(telephone) and Ashcroft v. ACLU, 535 U.S. 564 (2002)(Internet)]
In the broadcast indecency law area, the Court held in the 1973 Pacifica case that the FCC can regulate indecent content in broadcasting. The Pacifica Court indicated that time of day was an important variable in determining whether content was indecent. In 1991, however, the D.C. Circuit decreed [Action for Children’s TV v. FCC, 932 F.2d 1504, cert. den., 503 U.S. 913 (1992)] that the broadcast indecency law could no longer be enforced 24 hours a day. In 2006, broadcast TV networks filed lawsuits in the Second and Third Circuits, challenging FCC indecency rulings and asking the Court to invalidate the broadcast indecency law.
In 1996, the Supreme Court [Denver Area Educational Telec. Cons. v. FCC, 518 U.S. 727] upheld a federal law restoring to cable operators the authority to regulate indecency on cable TV leased access channels. In 1997, the Court [Reno v. ACLU, 521 U.S. 844] invalidated the Communications Decency Act, a law intended to restrict children’s access to “indecent” content on the Internet. [I have mixed emotions about the Reno case. In retrospect, I think it was unwise to attempt to regulate “indecent” content on the entire Internet. I also strenuously disagree with Justices who want to prevent any regulation of indecency on the Internet.] In 2000, the Court [U.S. v. Playboy, 529 U.S. 803] also overturned a federal law that would have required cable TV operators to either completely scramble the signals for pay porn channels (so that the signals wouldn’t “bleed” into TV sets of non-subscribers) or to air the imperfectly scrambled signals only from 10 p.m. to 6 a.m. In my opinion, the Playboy case was a travesty.
In the 1990s, the Ninth Circuit [Information Providers Coalition for Defense of the First Amendment v. FCC, 928 F.2d 866 (1991)] and Second Circuit [Dial Information Services v. Thornburgh, 938 F.2d 1535 (1991), cert. den., 502 U.S. 1072 (1992)] also upheld a federal law that requires dial-a-porn operators to restrict children’s access to their services. [The last time I checked, my wife must still pay monthly bills if we want to continue receiving telephone service, just as cable and satellite TV customers must pay their monthly bills to receive those services.]
My closing comments are as follows:
As the Supreme Court observed in Roth v. United States, 354 U.S. 476, at 484: “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” As the Court also observed in Chaplinsky v. New Hampshire, 315 U.S. 568, at 571-572 (1942):
[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene…It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. [Italics added by author]
The matter italicized incorporates content from the book, Free Speech in the United States, by Zechariah Chafee, Jr. (1941); and in footnotes 4 and 5, the Chaplinisky Court cites Chafee’s book at pp. 149-150, where we find the following:
But the law punishes a few classes of words like obscenity, profanity…because the very utterance of such words is considered to inflict a present injury on listeners…P]roperly limited they fall outside the protection of the free speech clauses… [P]rofanity, indecent talk and pictures, which do not form an essential part of any exposition of ideas, have a very slight social value as a step towards truth, which is clearly outweighed by the social interest in order, morality, the training of the young and the peace of mind of those who hear and see …The man who swears in a street car is as much a nuisance as the man who smokes there.
In the Pacifica case, Justice Stevens (438 U.S. at 746) stated that the seven “dirty” words at issue in that case “offend for the same reasons that obscenity offends” and that the words were “‘no essential part of any exposition of ideas’” and that whatever benefit they might have “‘clearly was clearly outweighed by the social interest in order and morality.’” In Pacifica, Justice Stevens said something else that I think is helpful (438 U.S. at 743, n.18):
A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any thoughts that cannot be expressed by the use of less offensive language.
In a 1931 case, Near v. Minnesota (283 U.S. 697, at 713-715), the Supreme Court stated that “it has been generally, if not universally, considered that it is the chief purpose” of the First Amendment to do away with “censorship,” by which the Court meant pre-publication restraint on the part of government. That Court also stated that the First Amendment was not intended to shield the press from all responsibility for speech “deemed contrary to the public welfare,” once published. In rejecting the argument that enforcement of the broadcast indecency constituted impermissible “censorship,” the Pacifica Court (438 U.S. at 735) cited Near.
In a 1964 case, Jacobellis v. Ohio, 378 U.S. 184, at 199, former Chief Justice Warren stated that there is a “right of the Nation and of the States to maintain a decent society.” In a 1968 case, Ginsberg v. New York, 390 U.S. 629, at 639-641 (1968), the Court held that there is a role for government in protecting children from sexual content that is harmful to minors. In the 1978 Pacifica case, the Supreme Court stated (438 U.S. 749, n.27), “This Court has recognized that government may properly act in many situations to prohibit intrusions into the privacy of the home of unwelcome views and ideas which cannot be banned from the public dialogue.”
From the above cases, I conclude that government can regulate indecency in various media. If the people don’t approve, they can ask their elected representatives to repeal indecency laws. As for the Supreme Court, it would do well to heed its own warning found in Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, at 102-103 (1973):
Thus, in evaluating the First Amendment claims ... we must afford great weight to the decisions of Congress ... Professor Chafee aptly observed: “Once we get away from the bare words of the [First] Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks. The Amendment should be interpreted so as to not cripple the regular work of government.”
Morality in Media is a nonprofit 501(c)(3) organization that works to curb traffic in obscenity and uphold standards of decency in the media. MIM is headquartered in New York City.
- End -
Support Morality in Media, Inc.'s Work to Fight Obscenity
Site developed and maintained by L'AMb Artistic Enterprises, Inc.