On page 15 of a 27-page Supreme Court opinion, this thought appears: "The value of permitting live performances and photographic reproduction of children engaged in lewd sexual conduct is exceedingly modest...." Scrambling farther out on a constitutional limb, the Court adds:
"We consider it unlikely that visual depiction of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific work."
The Court complains mightily about its work load. But it has only itself to blame for the fact that it churns 36 pages of hairsplitting opinion and concurrences, just to rule--unanimously--that New York did not act unconstitutionally when it prohibited distribution of materials depicting children in "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibits of the genitals."
I will not give readers migraines by detailing the intricate arguments by which the Court lumbered to a commonsense conclusion. Even when the Court rules sensibly in free-speech cases it does so for a chef's salad of wrong reasons. In this case it furrowed its collective brow to devise a justification for banning child pornography that is not (I'm not making this up) legally obscene. One justice mused: New York has an interest in protecting its children from exploitation, but what of a pornographic movie "if the child actor resided abroad"?
A state court, conscientiously struggling to comply with previous Supreme Court decisions, denied the constitutionality of a law banning an extraordinarily repellent and exploitative form of filth. Then the Supreme Court labored nervously and with ludicrous complexity to justify pulling such pornography out from under First Amendment protection. How did we get to such a situation?
We got here by a series of Court decisions that are beads without a string--opinions without a coherent constitutional theory of the scope of the free-speech guarantee. We got here by sleepwalking down a path strewn with irrational and grandstanding rhetoric, such as the idea that the First Amendment is an "absolute" (Hugo Black), that "even a reasonable regulation of the right of free speech is not compatible with the First Amendment" (William Douglas), that "one man's vulgarity is another's lyric" (John Harlan).
Regarding free speech, the Court has acted as though a multiplicity of distinctions and criteria can make up for an absence of serious constitutional analysis. The Court has set itself and other courts such tasks as: detecting a "dominant theme" of pornography; measuring appeals to "prurient interest"; determining when offensiveness is "patent"; announcing when pornography is "utterly" without redeeming social value; gauging affronts to "contemporary standards."
Were the Court to go back to basics, it would begin by saying that free speech serves three basic values: individual development, individual enjoyment, and the discovery and dissemination of political truths. The first two are important private rights deserving broad scope, but are not the concern of the First Amendment. That amendment is an instrument of government. It concerns the democratic disposition of public power. Hence, its protections extend only to political speech.
A Court that accepted this premise would have quite enough to do monitoring the distinction between political and non-political speech. It could find uses for the hours hitherto spent watching pornographic movies and pondering the "expressive" value of nude dancing.
The First Amendment, properly understood, protects not "expression" but speech. As part of a political instrument, the amendment protects political speech--language addressed to other persons with a view to persuading them about political matters. Speech, unlike "expression," is intrinsically connected with the distinctive human capacity: reason. It is by reason that the individual governs his or her self; it is by reason that groups achieve self-government.
The Court took a radically wrong turn when it "incorporated" the First Amendment into the 14th Amendment, thereby imposing on states the restrictions that the authors of that amendment clearly intended to apply only to Congress. It is, of course, arguable that, absent "incorporation," state governments would impose, and democratic processes would not correct, intolerably foolish censorship. And it is arguable that trusting democratic discretion would produce a worse situation than we have: unstanchable pollution by pornography, and courts improvising antic theories about how this and that "expression" involves constitutional--that is, political--values.
All that is, as I say, arguable. But it is rarely argued. Many people cite their libertarian interpretation of the First Amendment as evidence of their brave receptivity to all thoughts, but have minds sealed against more rational interpretations of the First Amendment.