Stanley Fish: The First Amendment and Kittens
[Stanley Fish is a professor of law at Florida International University, in Miami, and dean emeritus of the College of Liberal Arts and Sciences at the University of Illinois at Chicago.]
To anyone who has been following First Amendment jurisprudence in the past 40 or 50 years, the recent Supreme Court decision (United States v. Stevens, April 20) striking down a statute criminalizing the production and sale of videos depicting animal cruelty in a manner intended to satisfy a particular “sexual fetish” will come as no surprise.
Part of the answer can be found in the history of First Amendment theory. (What follows is the quick and dirty version.) At the beginning of the 20th century, the reigning theory was called “bad tendency.” Speech that was thought to have a tendency to undermine authority or corrupt morals could be regulated, even in the absence of any evidence that sedition or immorality had in fact been produced.
But then, in a series of cases, Justices Oliver Wendell Holmes and Louis D. Brandeis developed a theory, called the “clear and present danger” theory, that was more sensitive to actual patterns of cause and effect. It said that even speech advocating the overthrow of the government must be protected unless the danger is imminent. “The question in every case,” Holmes explained, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (Schenck v. United States, 1919)....
So what happened ? The short answer is that New York Times v. Sullivan (1964) happened. In that case (beloved by free-speech purists), the Court decided, in the context of a libel action brought against this newspaper for publishing an advertisement containing erroneous statements, that “neither factual nor defamatory content” removed the shield of constitutional protection” from speech even if it is false. The Court’s reasoning? “Debate on public issues should be uninhibited, robust and wide open,” and therefore considerations of “truth” and “social utility” are no longer to the point. Nor, added Justice Arthur Goldberg in a concurrence, are considerations of effect, for the right the Court now declares — “to speak one’s mind about public officials and affairs” — must be upheld “despite the harm which may flow from excesses and abuses.”
This is still a long way from constitutionalizing “crush videos,” but the path to United States v. Stevens is now open because speech has been declared to be a value in and of itself, no matter what its content or effect. A new question is asked; not does this speech have any intrinsic worth or does it benefit or harm society, but is it speech? Is it “expressive activity”? And if the answer is yes, the presumption of constitutional protection is very strong and more often than not the court will find a way to save the speech in question, however meretricious it might be....
How malign or benign is flag burning? What is its value? In Texas v. Johnson (1989), the Supreme Court decides that the act of burning and spitting on the flag is valuable because by permitting it we honor the history and tradition the flag symbolizes: “We do not consecrate the flag by punishing its desecration, for in so doing we dilute the freedom that this cherished emblem represents.” Get it? We cherish the emblem by burning and spitting on it.
There are dissents to some of these decisions and they tend to make the same point that Justices William H Rehnquist and John Paul Stevens make in their dissents to Texas v. Johnson: “Flag burning is the equivalent of an inarticulate grunt” (Rehnquist). It has nothing do with ideas, but is simply “disagreeable conduct” (Stevens). Obviously, this attempt to deny or downplay the “expressive element” of the act does not carry the day, as it does not in the crush video case where a version of it is put forward both by Solicitor General Elena Kagan in her brief for the government and by the lone dissenter, Justice Samuel Alito (the new odd couple)....
Read entire article at NYT
To anyone who has been following First Amendment jurisprudence in the past 40 or 50 years, the recent Supreme Court decision (United States v. Stevens, April 20) striking down a statute criminalizing the production and sale of videos depicting animal cruelty in a manner intended to satisfy a particular “sexual fetish” will come as no surprise.
Part of the answer can be found in the history of First Amendment theory. (What follows is the quick and dirty version.) At the beginning of the 20th century, the reigning theory was called “bad tendency.” Speech that was thought to have a tendency to undermine authority or corrupt morals could be regulated, even in the absence of any evidence that sedition or immorality had in fact been produced.
But then, in a series of cases, Justices Oliver Wendell Holmes and Louis D. Brandeis developed a theory, called the “clear and present danger” theory, that was more sensitive to actual patterns of cause and effect. It said that even speech advocating the overthrow of the government must be protected unless the danger is imminent. “The question in every case,” Holmes explained, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (Schenck v. United States, 1919)....
So what happened ? The short answer is that New York Times v. Sullivan (1964) happened. In that case (beloved by free-speech purists), the Court decided, in the context of a libel action brought against this newspaper for publishing an advertisement containing erroneous statements, that “neither factual nor defamatory content” removed the shield of constitutional protection” from speech even if it is false. The Court’s reasoning? “Debate on public issues should be uninhibited, robust and wide open,” and therefore considerations of “truth” and “social utility” are no longer to the point. Nor, added Justice Arthur Goldberg in a concurrence, are considerations of effect, for the right the Court now declares — “to speak one’s mind about public officials and affairs” — must be upheld “despite the harm which may flow from excesses and abuses.”
This is still a long way from constitutionalizing “crush videos,” but the path to United States v. Stevens is now open because speech has been declared to be a value in and of itself, no matter what its content or effect. A new question is asked; not does this speech have any intrinsic worth or does it benefit or harm society, but is it speech? Is it “expressive activity”? And if the answer is yes, the presumption of constitutional protection is very strong and more often than not the court will find a way to save the speech in question, however meretricious it might be....
How malign or benign is flag burning? What is its value? In Texas v. Johnson (1989), the Supreme Court decides that the act of burning and spitting on the flag is valuable because by permitting it we honor the history and tradition the flag symbolizes: “We do not consecrate the flag by punishing its desecration, for in so doing we dilute the freedom that this cherished emblem represents.” Get it? We cherish the emblem by burning and spitting on it.
There are dissents to some of these decisions and they tend to make the same point that Justices William H Rehnquist and John Paul Stevens make in their dissents to Texas v. Johnson: “Flag burning is the equivalent of an inarticulate grunt” (Rehnquist). It has nothing do with ideas, but is simply “disagreeable conduct” (Stevens). Obviously, this attempt to deny or downplay the “expressive element” of the act does not carry the day, as it does not in the crush video case where a version of it is put forward both by Solicitor General Elena Kagan in her brief for the government and by the lone dissenter, Justice Samuel Alito (the new odd couple)....