Slouching Towards Gomorrah (56 page)

Apparently aware that this line of cases has been criticized, the majority opinion essayed a rebuttal:

In a word, what the Constitution says, as interpreted by today’s Court, is that one idea is as good as another so far as the law is concerned; only the omnipotent individual may judge and then only for himself. A majority may not enact its belief, apparently self-evidently wrongheaded, that the production and consumption of obscenity and pornography inflict social harms. That is a relativistic philosophy if anything is. Moral nihilism is what, in the end, radical individualism comes to. And it is not the Constitution’s philosophy; it is the Courts.

More recently,
Ashcroft
v.
The Free Speech Coalition
(2002)
³
held that Congress may not prohibit even “entertainment” that amounts to perversion: the depiction of children engaged in sexual acts. Actual children may not be used, but computer simulation (which is increasingly indistinguishable from the real thing) or the use of adults who look like children qualify as protected speech. Justice Kennedy’s majority opinion described the Child Pornography Prevention Act of 1996 as “proscribing] a significant universe of speech” that falls “within the First Amendments vast and privileged sphere.” Child pornography, we learned, qualifies as privileged. If so, it is hard to imagine what abominations lie outside the privileged sphere.

To anyone unfamiliar with the Courts extraordinarily permissive rulings in the past, it might seem, as it did to Congress, that any depiction of children in a variety of sexual acts could be, and certainly should be, prohibited. To the commonsense suggestion that child pornography might be used to lure children into sexual encounters or might tip over the line adults teetering on the verge of pedophilia, the Court responded, “The prospect of crime…by itself does not justify laws suppressing protected speech.” The
Free Speech Coalition
decision typifies modern First Amendment decisions. The Court stated that its “precedents establish…that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it.” Grant that proposition. But why is pornography of this virulence within the rights of adults to hear and see?
Playboy Enterprises, Free Speech Coalition
, and
Planned Parenthood
v.
Casey
, discussed in chapter 6, raise the question whether there remains any vestige of the Courts distinction between pornography and obscenity. Obscenity, the Court said in
Miller
v.
California
, discussed in chapter 8, could be banned if three conditions were met: that the average person would find that the work appeals to prurient interest; that the work depicts or describes patently offensive material; and that the work as a whole lacks serious intellectual value. It has never been clear, of course, why the Court thought obscenity, so defined, lay outside First Amendment protection, but it was said to be vulnerable to regulation, nonetheless. Yet
Casey,
in its infamous “mystery-of-life” passage, said that only the individual could determine what gave meaning to his existence. It seems impossible to explain, moreover, why the
materials protected by
Playboy Enterprises
and
Free Speech Coalition
were not obscene. The Court in those cases simply ignored
Millers
tests, perhaps because obscenity is speech and thus “privileged” no matter what its content. Even
Millers
puny and ineffective safeguards are now on the ash heap of jurisprudence.

To take another category of speech undeserving of the Court’s solicitude, why are the rawest forms of profanity exempt from regulation? Cable television is saturated with words never before used in public, and the broadcast networks are racing to catch up. The
New York Times
reports that in the ESPN TV movie
A Season on the Brink,
the character playing Indiana basketball coach Bobby Knight “drops the F-word 15 times in the first 15 minutes,” and that the characters in
South Park
used a “well-known word for excrement 162 times in 30 minutes.” The industry response to criticism on this score is that such words give the programs authenticity; this is the way people talk. In reality, however, the arrow of causation probably points in the other direction. Perhaps people increasingly talk this way because they hear the words on television, and they hear the words on television because the Supreme Courts rulings have deprived the government of any effective sanctions for profanity. In justifying its decision in
Free Speech Coalition,
the Court actually said, “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” One might have supposed that thought preceded speech. And one might also wonder what thoughts valuable to freedom are triggered not only by portrayals of children being sexually used but by the language of the gutter. The point is not that the Court should outlaw such things; it has no authority to do so. But it ought not to deny society the power to curb speech or images of no social value and capable of debasing society and discourse.

Exhibitions like those protected by these decisions, far from enhancing thought, make thought irrelevant. The reduction of “speech” to a point well below the barracks-room level actively destroys thought of any complexity, subtlety, gradation, or nuance. What is protected, if it can be called speech at all, exists at the level of a grunt, which leads to thought at the same level. So long as this
is the law, we must endure mental and emotional squalor. There is no reason for a future Court to accept such cases as binding precedents; it is not condoning judicial activism to urge that such precedents be overturned, that the First Amendment be restored to its proper scope and office. These cases were themselves departures from prior law. There is no constitutional justification for a ratchet effect that progressively and irreversibly liberates the worst in our natures. It is not too much to say that the pornography and suffocating vulgarity of popular culture is in significant measure the work of the Court. Though the Court did not create our moral smog, it has consistently outlawed attempts of communities to contain that pollution. When such law is declared unfit to survive, not only are sordid tastes freed, they are also validated.

That is the case for censorship: the right of the majority to live in an environment free of the worst insults to decency and of a popular culture that incites violence and sexual nihilism.

There is, unfortunately, also a case against censorship. It is not the usual blather heard in Hollywood, the press, and the universities, i.e., the right of the individual to find self-fulfillment in producing or consuming absolutely unrestricted expression. The case against censorship lies in the fact that censorship today has become more virulent and comprehensive, and that it has changed its nature: it now seeks to banish ideas and prohibit their expression. Much of this new censorship escapes the First Amendment, in part because it is imposed by nongovernmental actors, and in part because many courts are at least qualifiedly sympathetic to it.

The current rage for political correctness—the suppression of unwelcome language and idea—is one more bastard child of the 1960s. Though the political and cultural Right sporadically engages in attempts at suppression, usually unsuccessfully, it is far and away the specialty of the Left, which has abandoned devotion to free speech where conservative ideas are concerned. Political correctness is everywhere in our society, but it is especially malignant in universities, where it is usually overlooked, if not condoned or imposed, by administrators and faculties. The shouting down of invited conservative speakers, stealing of conservative campus newspapers, discipline for the expression of incorrect attitudes, monitoring of professors suspected of improper views, and coerced “sensitivity” training are all common.
⁴

David Horowitz, a former radical turned conservative, found that some of his campus audiences were so hostile that he had the greatest difficulty speaking, even though he was an invited speaker. He had to hire bodyguards to ensure his physical safety.
⁵
Ward Connerly, a black member of the Board of Regents of the University of California and an opponent of racial preferences, receives similarly hostile receptions at universities, as have Jeane Kirkpatrick, Henry Kissinger, Dinesh D’Souza, and others.
⁶
All too often the university administrations make no effort to protect such speakers or guarantee them a hearing.

A FIRE (Foundation for Individual Rights in Education) survey that shows that three-quarters of America’s well-known universities significantly restrict student speech. The University of North Carolina at Chapel Hill, for example, prohibits behavior that “destroys the environment of tolerance and mutual respect,” while Shippensburg University, a state school in Pennsylvania, states in its student code of conduct that freedom from “emotional abuse” is a “primary right” that takes precedence over the secondary right to “express a personal belief system.” In application, the attitudes underlying these seemingly moderate, if not insipid, injunctions often become flat-out attempts to demonize the person who speaks truth about facts that may not, consistently with political correctness, be admitted to exist.

Professor Lino Graglia, a professor of law at The University of Texas, was quoted in a newspaper, in a discussion of low minority test scores, as saying that in some minority communities academic failure is not regarded as a disgrace. Although that fact is a truism and has frequently been publicly reported, Graglia was subjected to a “public lynching.” The chancellor and the president of the university called his remark “abhorrent.” The NAACP accused him of “racial harassment,” the state Hispanic caucus demanded his dismissal, fifty law professors signed a letter condemning his remarks, and Jesse Jackson, who had said much the same thing, told a student rally that Graglia should be treated as a “moral and social pariah” for his “racist, fascist, and offensive speech.” There was more, including a march on the law school by a mob of students that caused university security officers to advise Graglia to cut short the class he was teaching at the time. The entire episode was attempted censorship by intimidation. Although Graglia was not
intimidated, many others learn to remain silent on such matters or even to disavow not only what they know to be true but those who do speak the truth.

Columnist John Leo, invited to speak at Columbia University, arrived to discover that the event at which he was scheduled to appear with five other speakers on the topic “A Place at the Table: Conservative Ideas in Higher Education” was forced to move to an off-campus location. After supporters of race and gender preferences created a disturbance, the university, with aid of president George Rupp, tried to limit attendance to university members only—a move the event sponsors, Accuracy in Academia, rejected. The president of the Black Students Association said, “I thought it was great. They were entirely dislocated.” Leo wrote: “This is mainstream opinion on campus these days: you show distaste for intellectual opponents by blocking speeches and stealing newspapers, not by debating with them. Freedom of speech has no value.“
⁷

When the
Daily Californian
, the student newspaper at the University of California at Berkeley, ran an ad offered by Horowitz headed “Ten Reasons Why Reparations for Slavery Is a Bad Idea—and Racist Too,” Leo reports that “angry leftists stormed the offices of the student paper, thrashed about for a while, screaming and weeping and trying to intimidate staff. Then they fanned out around the campus to steal the remaining copies of the offending edition from their racks.” The paper and its editor apologized for running the ad and the latter said the fee Horowitz paid might be turned over to black groups on campus. Horowitz sent the ad to thirty-five college papers, but at the time Leo wrote, only six had run it and two had apologized for doing so.

“The notion that free speech is a tool of the oppressor is now mainstream in the campus culture,” Leo writes. “This is why campus newspapers with the wrong news keep getting stolen, posters for the wrong events keep getting torn down, and speakers with the wrong views keep getting disinvited or silenced.“
⁸
Citing the tight monitoring of jokes, rumors, questions in class, comments by teachers, speech and behavior codes, zero-tolerance policies, heavy indoctrination at freshman orientation, and sexual harassment police, Leo concludes that “Students in high school and college face the most politically repressive atmosphere America has seen in
almost 50 years.”
⁹
That may be an understatement. Leo apparently refers to the McCarthy era. Although McCarthy was a thoroughly lamentable phenomenon, and although his recklessness severely damaged some reputations and careers, the atmosphere in high schools and colleges then was not as politically repressive as it is today. McCarthy was generally regarded on campuses as either potentially dangerous or a bad joke, but there was nothing resembling today’s repression, coming as it does from inside the campus, from student activists, faculty, and administrators. Some speech codes at state universities have been held to be violative of the First Amendment, but the Constitution does not reach private universities, and even at state universities, like Berkeley, the courts are generally ineffective in controlling censorship by violence and intimidation.