Anti-porn activists have typically had to defend themselves against charges that they are carving out partisan exceptions to a constitutional principle whose effectiveness, maybe even sacredness, derives from its neutrality. Justice, it seems, is never more blind than when she is reading Hustler.
However, one might argue that the application of the First Amendment to pornography is itself a partisan move that is subject to revision, not a principle dictated by the Constitution for all time. Closer study reveals that constitutional relevance is selectively applied, for reasons that have more to do with politics and economics than with pure legal theory.
In his article “The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience” in the April 2004 Harvard Law Review, Harvard Law Professor Frederick Schauer asks why legal restriction of some types of speech is recognized as raising constitutional problems, while speech in many other contexts may be heavily regulated without any reference to the First Amendment. (This article is not available on the journal’s website; the citation is 117 Harv. L. Rev. 1765 for those with access to a law library or Westlaw.) From the summary:
Although the First Amendment refers to freedom of “speech,” much speech remains totally untouched by it. Antitrust law, securities regulation, the law of criminal solicitation, and most of the law of evidence, for example, involve legal control of speech lying well beyond the boundaries of the First Amendment’s concern. It is not that such regulation satisfies a higher burden of justification imposed by the First Amendment. Rather, the First Amendment does not even show up in the analysis. The explanation for lack of First Amendment coverage lies not in a theory of free speech or in legal doctrine, but instead in an often serendipitous array of political, cultural, and economic factors determining what makes the First Amendment salient in some instances of speech regulation but not in others. Because the First Amendment’s cultural magnetism attracts a wide variety of claims, nonlegal factors, far more than legal ones, determine which opportunistic claims to First Amendment attention will succeed and which will not. Legal doctrine and free speech theory may explain what is protected within the First Amendment’s boundaries, but the location of the boundaries themselves–the threshold determination of what is a First Amendment case and what is not–is less a doctrinal matter than a political, economic, social, and cultural one.
Schauer observes that “although warnings of the dangers of so-called ‘exceptions’ to the First Amendment are a staple of civil-libertarian rhetoric, even the briefest glimpse at the vast universe of widely accepted content-based restrictions on communication reveals that the speech with which the First Amendment deals is the exception and the speech that may routinely be regulated is the rule.”
For example, the Securities Act of 1933 imposes content-based restrictions on the advertising of investment products, even though “commercial speech” is elsewhere given First Amendment protection. The Sherman Act, the source of our antitrust laws, makes it illegal for corporate rivals to exchange accurate information about their pricing plans. A mob boss can be convicted of criminal solicitation for ordering a hit, although all he did was speak.
Labor law has developed with virtually no First Amendment interference, permitting a host of content-based limitations on picketing, boycotts, collective bargaining, and what unions and management can say during workplace election campaigns. Schauer finds no plausible theoretical way to explain where these constitutional boundaries are drawn:
Theories based on self-government or democratic deliberation have a hard time explaining why (except as mistakes, of course) the doctrine now covers pornography, commercial advertising, and art, inter alia–none of which has much to do with political deliberation or self-governance, except under such an attenuated definition of “political” that the justification’s core loses much of its power. “Search for truth” or “marketplace of ideas” accounts are similarly at a loss to explain the coverage of utterances without much truth value, including self-expression generally and the self-expressive aspects of most art and literature in particular. Indeed, if we were concerned about actually increasing knowledge and exposing error, it is far from clear that we would so easily protect both communication that is largely emotive and communication that is demonstrably factually false. Personal autonomy and self-expression accounts of the First Amendment are also difficult to justify descriptively. For these theories, the inclusion of commercial speech and noncommercial corporate speech is problematic, since it is not clear whose autonomy or self-expression is fostered as a result; equally problematic is the inclusion of plainly harmful speech, for it is not normally thought that rights to autonomy and self-expression extend to the right to injure others.
Not only are existing normative theories substantially narrower in some respects than current doctrine, but in other respects they are also substantially broader. “Distrust of government” theories, for example, cannot explain why that distrust has not been extended to the SEC, the FTC, the FDA, the Justice Department, or judges managing a trial–all of which involve government officials making content-based decisions about speech, and none of which is now covered by the First Amendment. Thus, if there exists a single theory that can explain the First Amendment’s coverage, it has not yet been found. Yet if all of the historically recognized and judicially mentioned normative theories are available–self-expression, individual autonomy, dissent, democratic deliberation, the search for truth, tolerance, checking governmental abuse, and others–then their collective coverage is so great as to be of little help in explaining the existing state of First Amendment terrain. For if every underlying theory of the First Amendment can be conscripted into service to justify either an inclusion or an exclusion, and if the array of such theories is as large and diverse as it actually is, then all of the work is being done not by the theories, but by as-of-yet unarticulated factors…
If we abandon–at least here–the pursuit of a normative theory of inclusion and exclusion, and instead seek description or explanation, our search may be more revealing. So rather than supposing that the domain of the actual First Amendment has been inscribed by its purposes, functions, or philosophical explanations, let us examine the political, social, cultural, historical, psychological, and economic functionings of the First Amendment in society. When we define our task in this way–as exploring the political psychology of the First Amendment–we obtain a better picture of why the First Amendment notices what it actually notices, and perhaps more significantly, why it ignores what it ignores. Accordingly, I will suggest that the coverage of the First Amendment is best understood as the outcome of a competitive struggle among numerous interests for constitutional attention…
What Schauer calls the “magnetism” of the First Amendment is its power as both a positive symbol of American values and a trump card in legal conflicts. It epitomizes how the Bill of Rights has become a substitute Bible for a pluralistic culture.
When Antonio in The Merchant of Venice observes that even ‘the devil can cite Scripture for his purpose,’ he refers not only to the linguistic indeterminacy of the Bible, but also to how its rhetorical authority leads participants in social and political discussions to strive constantly to enlist it in their causes. In important respects, the First Amendment appears to serve a similar function in American society. To an extent unmatched in a world that often views America’s obsession with free speech as reflecting an insensitive neglect of other important conflicting values, the First Amendment, freedom of speech, and freedom of the press provide considerable rhetorical power and argumentative authority.
Publicity concerns make the First Amendment a political battleground. Journalists understandably are particularly vigilant about freedom of the press. Claiming a threat to freedom of speech is therefore an effective way to get sympathetic media coverage of your issue.
To a lesser extent, the judiciary and academia may also be unusually susceptible to free speech arguments because their professions involve expressive activity. With good marketing, some causes may find shelter under the First Amendment umbrella even if less-fashionable constitutional principles, such as federalism or equal protection, are really more relevant.
From the perspective of an interest group using the First Amendment to launch or reinforce its public arguments, the public attention that the First Amendment attracts will likely make a First Amendment claim more appealing to a lawyer and more plausible, or at least less frivolous, to a judge than other legal claims would be. In this respect, using the First Amendment as public rhetorical strategy may both fuel litigation and increase the likelihood of its success. Moreover, by tapping into the media’s and the public’s well-documented interest in conflict, litigation will attract more press and public attention than would raising a nonlitigated or nonconflictual policy question on the same issue involving the same parties. When taken together, therefore, the two phenomena reinforce each other and produce an environment in which the magnetic force of the First Amendment attracts topics and claims that would otherwise be beyond the First Amendment’s boundaries, and in which that litigation then attracts a degree of press, public, and interest-group attention that further contributes to the First Amendment’s magnetic force. This cycle can be expected to bring issues into the First Amendment that previously had been outside its domain, but no equivalent force pushes out those issues that had previously been inside. The consequence is considerable outward pressure on the boundaries of the First Amendment.
In the remainder of the article, Schauer discerns several factors that roughly describe how new areas of speech get brought into the First Amendment’s circle of protection. These include the existence of sympathetic “underdog” litigants, a connection to traditional First Amendment topics, and the absence of an established regulatory scheme for the speech in question. With respect to securities law, for instance, the First Amendment might theoretically apply, but the affected parties have no incentive to mount a constitutional attack on a regulatory system that is working for them.
Schauer notes that the incentives for bringing constitutional claims are not limited to whether the plaintiffs have a cost-effective chance of success, as in private litigation. One’s political goals may be accomplished simply by getting a public opportunity to redefine one’s cause as having First Amendment implications.
One might conclude from Schauer’s article that exposing the arbitrary extra-legal reasons for constitutional protection of pornography, and taking a critical realist approach to constitutional categories in general, should be the opening legal gambit for anti-porn activists in challenging the civil libertarian position.
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Professor Schauer gave testimony to Massachusetts legislators on March 16, 1992. This account appears in In Harm’s Way: The Pornography Civil Rights Hearings (p.396).
Speaking on behalf of myself, I find it a constant source of astonishment that a society that so easily and correctly accepts the possibility that a cute drawing of a camel can have such an effect on the number of people who take up smoking, has such difficulty accepting the proposition that endorsing images of rape or other forms of sexual violence can have an effect on the number of people who take up rape. We accept that movies glorifying advertisements for tobacco and alcohol may be part of a social problem. But when the social problem is the massive tolerance of sexual violence against women, we as a society are far less willing to see that what are, in effect advertisements for rape may have a similar effect.