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ACLU is getting a lot of credit these days for defending our precious
First Amendment right to scribble sadistic child pornography. Convicted
child pornographer Brian Dalton recently pleaded guilty in an Ohio
court to a second pandering offense. He later claimed his journal
was intended to be used exclusively as his private masturbatory
aid, winning the undying devotion of self-proclaimed civil libertarians.
People seem
to take enormous psychic satisfaction in defending Brian Dalton's
creepy journal. Oh sure, we get the dutiful statements of personal
revulsion at Dalton's fantasies. But, oddly, the more repellent
his writings are, the more they give Dalton's defenders the self-satisfying
sensation of rising above the angry mob calling for his head.
It doesn't
matter that there is no angry mob, since everyone is with Dalton.
Still, there could be an angry mob.
Defending counterintuitive
positions makes people feel like abstract intellectuals, capable
of grasping the larger point beyond the ken of the little people.
But just because something is counterintuitive doesn't make it true.
(College students everywhere, just beginning to practice this annoying
pretension, are staring blankly at that last sentence.)
Acceding to
the nonexistent pressure from hoi polloi and punishing Dalton for
his journal, the argument goes, would be the first step on a slippery
slope to fascist thought police banning all controversial opinion.
Slippery slope
arguments are always stupid. Please stop making them. What people
think they mean by "slippery slope" is that the principle
at the top of the slope is indistinguishable from the principle
at the bottom of the slope. That's a bad principle argument, not
a "slippery slope" argument.
For a slippery
slope argument to work, what is at the bottom of the slope must
be more horrifying than what is at the top of the slope. Obviously,
therefore, there's a difference between the top and the bottom.
If you can see a difference, so can the law. That's how we end up
with exceptions to general rules.
At this very
moment, for example, you are prohibited from engaging in speech
that: expropriates the official NBC logo, reveals Coca-Cola's secret
formula, defames a private person, would likely incite violence,
unduly exploits someone else's work, is a false boast about a product,
gives investment advice without registering with the SEC, is too
loud, or rebroadcasts Hugo Zacchini's entire human cannonball act
(see Zacchini v. Scripps-Howard Broadcasting Co.).
And yet somehow
the dark night of fascism has not descended over America. Indeed,
no one gives these speech exceptions a moment's thought. They are
not sufficiently counterintuitive to tweak the pseudo-intellectual
instinct.
Dalton's journal
is obscene — an exception to free speech with a longer pedigree
than many other exceptions. If criminalizing Dalton's journal today
means the thought police will be confiscating Republican Party pamphlets
tomorrow, why didn't prohibiting the Gay Olympics from using the
Olympic trademark do the same?
Even more galling
than the intellectual pretensions and annoying arguments of Dalton's
defenders is hearing the ACLU praised for its stalwart defense of
the First Amendment. This is on the order of congratulating William
Tecumseh Sherman for his defense of the South.
In its take-no-prisoners
approach to the First Amendment, the ACLU brought a lawsuit against
the Lubbock Independent School District demanding that high school
students' extracurricular, private religious speech be banned. The
ACLU's anti-speech position has been repeatedly rejected by the
Supreme Court, including just last term in Good News Club v. Milford
Central School.
The ACLU won
a prior restraint prohibiting an Avis employee from using a specified
set of derogatory words in the workplace in Aguilar v. Avis
Rent A Car System. The late Justice Stanley Mosk, a liberal,
dissented from the California supreme court's endorsement of this
novel interpretation of the First Amendment, noting that the injunction
banned speech that other employees would never even hear. It was
mind control, pure and simple.
The ACLU has
argued that a private employer's irritating religious statements
to an employee were not protected expression and could be banned
as a violation of the establishment clause. The Oregon Supreme Court
unanimously rejected the ACLU's position in Meltebeke v.
Bureau of Labor and Industries.
Taking another
"absolutist" view of the free speech clause, the ACLU
argued that the University of Virginia was required to deny student
activity funds to a religious magazine, Wide Awake. In Rosenberger
v. Rector and Visitors of University of Virginia, the Supreme
Court held that the denial violated religious students' free-speech
rights.
The Massachusetts
ACLU argued that the organizers of a St. Patrick's Day parade did
not have free-speech rights to exclude a contingent of gay marchers.
The Supreme Court unanimously reversed in Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston. (The national ACLU, realizing
the jig was up, filed an amicus brief with the U.S. Supreme Court
taking no clear position).
Listening to
the ACLU on speech may not be a "slippery slope," but
it's a bad principle. The ACLU would see that Dalton's journal is
obscene only if it mentioned God or referred to females as "broads."
© 2001
Universal Press Syndicate
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