In the February issue of First Things, Robert George (Princeton) has an essay called "Private Acts, Public Interests." (Unfortunately, a link is not yet available.) In the piece, he discusses the "public" nature of the interests that might justify morals legislation regulationg "private" conduct (e.g., recreational drug use, production and consumption of pornography, etc.) Focusing on the regulation of pornography, he has this to say about the "public interest in prohibiting or restricting pornography":
That interest is not, fundamentally, in shielding people from shock or offense. It is also something much more substantial: the interest of every member of the community in the quality of the cultural structure that will, to a large extent, shape their experiences, their quality of life, and the choices effectively available, to themselves and their children, in a domain of human affairs marked by profound moral significance.
When we bring this reality into focus, it becomes apparent that the familiar depiction of the debate over pornography regulation as pitting the "rights of individuals," on the one side, against some amorphous "majority's dislike of smut," on the other, is false to the facts. The public interest in a cultural structure . . . is the concrete interest of individuals and families to constitute "the public."
Expressed this way, the case for pornography regulation sounds more like the arguments for the Clean Air or Clean Water Act, than for "comstockery," doesn't it? (In the Paris Adult Theatre case, Chief Justice Burger had invoked the "interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.")
George's essay reminded me of an opinion, from a few years ago, written by Judge Richard Posner, that invalidated a local ban on minors playing violent video games. He wrote (rejecting the asserted similarity between "obscene" materials, which may be regulated, and violent video games):
The main worry about obscenity, the main reason for its proscription, is not that it is harmful, which is the worry behind the Indianapolis ordinance, but that it is offensive. A work is classified as obscene not upon proof that it is likely to affect anyone's conduct, but upon proof that it violates community norms regarding the permissible scope of depictions of sexual or sex-related activity.Obscenity is to many people disgusting, embarrassing, degrading, disturbing, outrageous, and insulting, but it generally is not believed to inflict temporal (as distinct from spiritual) harm; or at least the evidence that it does is not generally considered as persuasive as the evidence that other speech that can be regulated on the basis of its content, such as threats of physical harm, conspiratorial communications, incitements, frauds, and libels and slanders, inflicts such harm. . . . No proof that obscenity is harmful is required either to defend an obscenity statute against
being invalidated on constitutional grounds or to uphold a prosecution for obscenity. Offensiveness is the offense.
As a descriptive matter, who is right? That is, whose view comes closer to capturing what is really going on, for better or worse, in free-speech law relating to pornography? Or do both George and Posner miss the mark?
Steve Bainbridge blogs here about James Wilson's recent op-ed, "Divided We Stand." Wilson writes:
The 2004 election left our country deeply divided over whether our country is deeply divided. For some, America is indeed a polarized nation, perhaps more so today than at any time in living memory. In this view, yesterday's split over Bill Clinton has given way to today's even more acrimonious split between Americans who detest George Bush and Americans who detest John Kerry, and similar divisions will persist as long as angry liberals and angry conservatives continue to confront each other across the political abyss. Others, however, believe that most Americans are moderate centrists, who, although disagreeing over partisan issues in 2004, harbor no deep ideological hostility. I take the former view. . . .
By polarization I mean something else: an intense commitment to a candidate, a culture, or an ideology that sets people in one group definitively apart from people in another, rival group. Such a condition is revealed when a candidate for public office is regarded by a competitor and his supporters not simply as wrong but as corrupt or wicked; when one way of thinking about the world is assumed to be morally superior to any other way; when one set of political beliefs is considered to be entirely correct and a rival set wholly wrong. . . .
Polarization, then, is real. But what explains its growth? And has it spread beyond the political elites to influence the opinions and attitudes of ordinary Americans? The answer to the first question, I suspect, can be found in the changing politics of Congress, the new competitiveness of the mass media, and the rise of new interest groups. . . .
But what, one might ask, is wrong with having well-defined parties arguing vigorously about the issues that matter? Is it possible that polarized politics is a good thing, encouraging sharp debate and clear positions? Perhaps that is true on those issues where reasonable compromises can be devised. But there are two limits to such an arrangement.
First, many Americans believe that unbridgeable political differences have prevented leaders from addressing the problems they were elected to address. As a result, distrust of government mounts, leading to an alienation from politics altogether. The steep decline in popular approval of our national officials has many causes, but surely one of them is that ordinary voters agree among themselves more than political elites agree with each other--and the elites are far more numerous than they once were. . . .
A final drawback of polarization is more profound. Sharpened debate is arguably helpful with respect to domestic issues, but not for the management of important foreign and military matters. The United States, an unrivaled superpower with unparalleled responsibilities for protecting the peace and defeating terrorists, is now forced to discharge those duties with its own political house in disarray. . . .
Read the whole thing! For what it's worth, I've tried to explore, in this article, the relevance to First Amendment controversies of judicial observations and predictions of "political divisiveness along religious lines" and, in so doing, discussed some of the same phenomena addressed by Wilson.
Eugene Volokh blogs here about a disturbing development in Finland:
In its Thursday session the [Finnish] government decided to deny licenses for new private schools, as well as to turn down applications for the expansion of the activities of existing schools. . . .
Minister of Education Antti Kalliomäki (soc dem) said in a statement Thursday that it was not the function of schools to proclaim one single truth, religious or otherwise. "One school teaching according to the convictions of some and a second school teaching according to the convictions of others is not real pluralism." Mr Kalliomäki previously proposed also denying extensions to fixed-term licenses held by existing private schools. . . .
Volokh writes:
It's dangerous enough when state and local governments have a de facto near monopoly over primary and secondary education, as they do in the U.S. But at least here private schools are legal, though they labor under a stiff competitive disadvantage against the government-subsidized public schools; and even public schools are mostly controlled at the state level and the local level, not at the federal level. When a government actually prohibits private schools (which would be unconstitutional in the U.S., incidentally), or prohibits new private schools, that seems much more troublesome. And if the Finnish government's control over the schools is centralized (a matter that I'm not sure about) rather than mostly decentralized, that would be more troubling still.
The "not the function of schools to proclaim one single truth" argument also strikes me as weak to the point of disingenuousness. I will bet you that government-run Finnish schools, like all government-run schools and likely all schools, period, do proclaim one single truth on certain matters. . . .
Finally, I recognize that many people support government-run schools precisely because they do teach an orthodoxy, an orthodoxy that one hopes will create better future citizens, and a more cohesive society. But my view is that the benefits of such government-imposed teaching of orthodoxy are considerably outweighed by the risks.
I agree.
Tom Smith (University of San Diego) and our own Steve Bainbridge (UCLA) had an interesting exchange recently about "corporate reponsibility." Check it out.
Howard Bashman has links to several articles dealing with a recent argument, in the U.S. Court of Appeals for the Ninth Circuit, about a lower court's ruling that the Scouts are a "religious" organization and, therefore, San Diego's lease of camp space to the Scouts was unconstitutional. (Here is Professor Friedman's post on the case, over at Religion Clause blog.) Here is a bit from a news story in the San Diego Union-Tribune:
The case revolves around two elements of scouting: the organization's ban on gay troop leaders or members and its oath that requires a scout to “do my duty to God,” among other principles.
In his decision, Jones said the religious elements of scouting extend beyond the oath and include such things as saying grace before meals and having a program for religious emblems. He concluded that there was “overwhelming and uncontradicted” evidence that the scouts were a religious group.
Jones further decided that the city process of negotiating the lease was not a “religion-neutral” process – open to all – but instead gave exclusive treatment to the scouts. That meant the city effectively gave a preference to a religious group, he said.
The scouts argue that they are not a religious group. “The Boy Scouts of America has a fundamental element, a duty-to-God component,” said Robert Bork Jr., a spokesman for the national Boy Scouts of America and son of the former Supreme Court nominee. “But that does not make them a religious organization.”
In court papers, federal government lawyers support this position by describing the group as a “social and recreational youth organization dedicated to promoting good character, citizenship and personal fitness in boys.”
