The Lichfield Group

Larry Flynt celebrates pornography over political speech. That preference is deplorable, yet understandable.

The United States Supreme Court echoes Flynt’s debauched speech hierarchy. That echo is constitutionally obtuse and incomprehensible. When commercial depictions of sexual acts or organs intended to arouse are more scrupulously protected than issue advertising in federal elections, the First Amendment has been turned on its head and folly has been crowned.

Freedom of speech was conceived as a cornerstone of political enlightenment and representative government responsive to an informed electorate. As Justice Louis D. Brandeis lectured in Whitney v. California (1927): “[The Founding Fathers] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.” Chief Justice Charles Evans Hughes amplified in De Jonge v. Oregon (1937) that freedom of speech and assembly open avenues of peaceful political changes in lieu of wrenching and often wretched revolutions. Political speech should thus stand at the apex of the First Amendment.

In contrast, obscene or indecent speech—as narrowly defined by the Supreme Court and Congress—should command no more than a corporal’s guard of protection. Such sexually explicit expression coarsens society, contributes little or nothing to political life or cerebral development, and may enrich organized crime. Prudence might nevertheless militate against criminal punishments for trafficking in obscenity or indecency. Prohibitions might stimulate popular demand, like a “Banned in Boston” marquee. And scarce law enforcement resources might be better targeted on more serious anti-social conduct. But whether commercialized pornography should be regulated or left legally undisturbed should be a matter of legislative choice outside the circumference of the First Amendment.

Contrary to reason, the Supreme Court smiled on the sexually explicit and frowned on the political during its 2003-2004 Term. In McConnell v. Federal Election Commission (December 10, 2003), the Court sustained a staggering suppression of truthful and informative speech that enlighten voters and enrich public debate, for instance, campaign advertising by national political parties funded by “soft” money. To justify such a muzzling of political speakers, Congress marshaled the flimsy and unsubstantiated excuse that money in elections disenchants the public. The Supreme Court blithely swallowed that confection on the paternalist theory that Congress knows best, despite the glaring absence of any correlation between public confidence in elected officials and campaign contributions or expenditures.

That judicial indulgence shifted to scolding when Congress gingerly imposed restrictions on commercial peddlers of Internet materials indecent to minors in the Child Online Protection Act (COPA). On the last day of its 2003 Term in Ashcroft v. American Civil Liberties Union (June 29, 2004), a 5-4 majority decried the sensible First Amendment idea that regulation of pornography sold for profit depicting specified sexual acts and designed to pander to the prurient interest might be harsher than would be permitted for restricting sales of the Lincoln-Douglas debates. Justice Anthony Kennedy, writing for the Court, insisted that any limitations on speech pivoting on content are presumed invalid to forestall “repressi[on]…in the lives and thoughts of a free people.” Accordingly, COPA presumptively violated freedom of speech because its prescriptions turned the squalidness of the materials distributed.

But to discern in COPA a harbinger of repression seems wildly imaginary. That law punishes the knowing posting for “commercial purposes” of World Wide Web content that is “harmful to minors,” i.e., appeals to the prurient interest by describing or depicting a lewd exhibition of the genitals or the female breast; and, lacks serious literary, artistic, or scientific value for minors. Punishment is withheld, however, if the commercial provider restricts access by minors by requiring use of a credit card or adult access code; by accepting a digital certificate that verifies age; or, by any other measures feasible under available technology. In other words, COPA leaves entirely unregulated writings and pictures over the Internet offered without charge plus their commercially marketed counterparts that screen out child access. No adult censorship is implicated.

Justice Kennedy maintained, nevertheless, that blocking and filtering software might prove less burdensome than COPA to adult gratification of sexual fantasies yet still protect minors. He berated Congress for declining to consider financial incentives for wider parental deployment of filtering devices. He fretted that adults would find their intellects and personalities thwarted if the bother of a credit card were required for Internet access to sexually explicit materials harmful to minors.

Nebraska Senator Roman Hruska urged a quota of mediocrity on the Supreme Court in defending President Richard M. Nixon’s nominee G. Harold Carswell. As the McConnell and ACLU capers corroborate, his wish has been granted in spades.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.