Last week the U.S. Supreme Court ruled that government regulations on child pornography were overly broad. The essence of the case seems to be that “virtual” kiddie porn and kiddie porn using older actors pretending to be little kids fell outside the scope of the federal law covering such crimes. Some thoughtful conservatives, like NRO contributor Jonathan Adler, think the court got this one right (if you saw our tête — tête in The Corner you’d be up to speed). Others, like Robert Bork, think the decision was a mess. I will leave it to the legal scholars to debate the merits of the decision.
But what is indisputable, whether you blame the courts, the legislators, or the lawyers, is the fact that our system of governance can’t figure out how to ban what everyone knows should be banned. This should be shocking for people of common sense. And it should be embarrassing to us as citizens.
The fact that our political system cannot manage to censor this stuff is considered by many to be a sign of our moral decline as a society. I’m not necessarily disputing that. It’s certainly one of the things I’d mention if I were on the affirmative side of a debate on the question “Is America going down the toilet?”
But, it seems to me, this also reveals the prissy, cowardly, and — most of all — spoiled nature of our political leaders — journalists most definitely included. Most arguments about government control have a certain logic to them. We allow the most extreme stuff, the stuff out on the periphery of social and legal behavior for the simple reason that if we allow the stuff on the fringe, the freedoms at the core of our constitutional order will be preserved. For people who zealously defend our Second Amendment rights, this means arguing about the right to carry concealed weapons into churches, schools, airports, wherever.
Whether you agree with the substance of their positions, the logic is generally consistent. Indeed, even if you believe — as I do — that the Founding Fathers would have burst into laughter at the idea that a school couldn’t have a nondenominational prayer before graduation, these slippery-slope arguments still have to be taken seriously.
But this overly mechanistic logic careens into wild, self-serving hypocrisy when it comes to the issue of censorship. For some reason the editorial pages, Congress, hordes of academics, and, of course, Hollywood types, honestly, truly believe that the state cannot proscribe images of women getting it on with horses in public libraries for fear we’ll skid down the slippery slope to tyranny. At the same time, however, they fervently believe that the federal government can regulate the content of political ads leading up to an election.
This throws out the whole doctrine of protecting the fringe to safeguard our essential freedoms. If you think some talentless boob who defecates in a tuna can and calls it art is the canary in the coalmine of our free-speech rights, fine. But, if you believe that, I am at a loss as to how you can tolerate a federal government that attaches all sorts of strings to the fundamental liberties the Founders considered essential to a free society.
Lamar Alexander noted a long time ago that if our current laws existed at America’s Founding, Tom Paine would have been required to register “Common Sense” with the FEC. (I know because my wife wrote the speech.)
In its decision overturning the federal anti-child-porn law, the Court answered critics that some images of pedophilia might entice or encourage would-be pedophiles or child pornographers, the Court replied, “the prospect of a crime…by itself does not justify laws suppressing protected speech.”
This is the same Court that regularly holds that “the appearance of corruption” is sufficient justification for draconian regulations of political speech at the heart of our republic. The “appearance of corruption” is a standard which acknowledges no crime has been committed at all. Things just look corrupt because some people are too stupid or too lazy to discern the truth or too cynical to believe the truth when they see it. Don’t get me wrong, of course there’s corruption in politics — though vastly less than at any other time in American history — but saying that citizens spending money on speech creates the “appearance of corruption” — and therefore it’s worth regulating — is an insult to our collective intelligence.
A PARLIAMENT OF LITTLE GIRLS
This all leads to the real point: Virtually the every member of the political establishment who favors campaign-finance reform is a hypocritical sissy.
The hypocritical part is obvious. The politicians want to regulate themselves into permanent incumbency. They pound the tables at Hollywood fundraisers that labels on music albums constitute a frightening intrusion into the realm of free expression. But they demand similar labels on political commercials and advertisements.
The newspapers editorialize against even the tiniest infraction on their right to publish whatever they want about any politician, often with unnamed sources and wholly confidential evidence. But, with equal passion they demand anonymous “stealth ads” — The Federalist Papers were anonymous you know — be banned. Banned! Prior restraint of the Pentagon Papers ranks alongside Jim Crow for these people, but for those outside the clubhouse, it’s vital that you clear your copy with censors at the FEC.
These guardians of the First Amendment piously side with museums that — in the name of free expression — want to hang photos of bullwhips in asses, Jesus in urine, and the Virgin Mary under manure, at taxpayer expense. They are the same people, however, who are horrified that someone might be able to spend his own money criticizing a politician 30 days before an election.
But it is the liberal editorialists who are the most cowardly. For most of this war on terrorism one of the most constant debates has been over the issue of “dissent.” Writers at The Nation, Salon, and elsewhere have bemoaned the “herd mentality” of the American press corps, complaining that magazines such as National Review, The Weekly Standard, and even The New Republic (their “Idiocy Watch” is apparently fascistic) are bullies.
They’ve claimed that their free-speech rights are somehow trampled when other journalists have criticized them. Last September, Cynthia Cotts of The Village Voice wrote, “Something is burning this week, but it’s not the site of the former World Trade Center. It’s what’s left of the First Amendment — and every self-respecting journalist should sign up for the rescue mission. Of course, by the time the first war of the 21st century is over, there may not be much left of what liberals used to call free speech.”
For Ms. Cotts and many like her, free speech means being able to say whatever you want without being criticized. Indeed, Congresswoman Cynthia McKinney sees it this way too, arguing that her critics are not merely racists, they are violating her “right to speak” when they’re mean to her.
Why is it that we conservatives get called racists — and worse — everyday and we never claim that it is a violation of our First Amendment rights, but call an idiot an idiot and you’re a censor from the Gestapo? Hmmm.
Yes it’s true, all of Washington, Democrats and Republicans alike, is terrified of strong talk. Tom Daschle peeks his head out from behind his senatorial cubbyhole and suggests that maybe, kinda, sorta, maybe President Bush has made a tiny mistake in his multi-pronged global war on terrorism. And within minutes Trent Lott screams so loud about Daschle’s loyalty and patriotism, his hair almost moves. But, you know what? It works because Daschle scampers away and hides for another few weeks. The same silly pattern was reversed during the Clinton years when Republicans would offer the most tepid critiques of Clinton’s bold destruction of aspirin factories and slaughter of night janitors and the Democrats would then rap the Republicans on the nose as being disloyal to the commander-in-chief.
The media eagerly plays along with this game as if questioning the efficacy of a war or questioning the loyalty of the questioners were something new in this country. In 1952, Republicans explicitly ran against Truman’s conduct of the Korean War. Eugene McCarthy and Robert Kennedy ran for president criticizing the conduct of the war in the most strident terms. George McClellan’s campaign against Lincoln in 1864? Fuhgetaboutit. Both sides traded accusations of disloyalty, treason, bad breath, lustful mothers, bastard children, gay houseplants, smelly toes, whatever.
Today, politicians of both parties call anything short of a bouquet of flowers a “cheap shot,” “negative campaigning,” “the politics of personal destruction,” etc., in part because fat and lazy Americans somehow think a hugely prosperous, continent-spanning, heterogeneous, democratic republic, and superpower shouldn’t decide anything without shouting about it first.
One small example: During the 2000 primaries, John McCain issued a leaflet saying then-Governor Bush was offering a “political budget.” Is there any other kind?, you might ask. Anyway, the Bushies flipped out, calling it an “attack flier.” And do you know what McCain, the straight-talking war hero, did in response? He apologized to Bush and reprimanded his staff for issuing such a “political” assault and a “cheap shot.”
If we want to run our politics like a tea party that’s fine. But it is deeply, deeply disturbing — and dangerous — when we confuse this desire with what the First Amendment is supposed to be about. Banning child porn — in any form — is precisely the sort of “speech” the Founders and successive generations of Americans believed the state could and should ban. At least conservatives, on the whole, still believe that.
But the dominant political culture — in the courts, the universities, Congress, and the media — which too many conservatives bow to, doesn’t want to ban anything on the fringes of our society for fear of being called — heaven forbid! — a censor or a prude. In other words, the freedom of the fringe is rock solid in this country precisely because free speech is rotting from the inside out.