Monday, April 26, 2010

This Week in the First Amendment

Lots of free speech/religious freedom-related stories in the past few days. I'll try to give you a run-down, but this post will probably go long so bear with me.

The first, and most famous, story is that South Park had a censored image of Muhammad shown as part of their 200th episode celebration. Trey Parker and Matt Stone (who appears to have lost his 'fro) claim that Comedy Central censored them against their will after they received death threats from some nebulous New York-based group called "Revolution Muslim". Jon Stewart gives Revolution Muslim the treatment they deserve:

The Daily Show With Jon StewartMon - Thurs 11p / 10c
South Park Death Threats
Daily Show Full EpisodesPolitical HumorTea Party

We can certainly all agree with Stewart that anyone who threatens death for a little offense deserves to be hauled before the "Go Fuck Yourselves" choir. But I'm not too concerned with Revolution Muslim - chances are, "Revolution Muslim" is some lazy twenty-something living in his parents' basement in Queens who jacks off while playing the terrorists in Counter Strike. (Update: Apparently the "group's" founder is a former Jewish settler in Gaza who converted to Islam and apparently lost none of the fanaticism required to be a settler. He's a 40-year-old cab driver, so I got that wrong. I still stand by my jacking-off-to-being-a-computer-terrorist conjecture though.) And "Revolution Muslim" is far from the only nutter-butter out there - Greenwald points out that Fort Worth's Artes de la Rosa theater rejected a play with a gay Jesus character after being threatened by e-mail, and that the original producers of the same play received similar threats in New York in 1998.

What's more concerning here is the cowardly, inexcusable actions of Comedy Central. It was clear from the start that Parker and Stone could give a fuck about whether someone threatened them. Hell, they probably receive a death threat or two a month as it is. But by censoring Parker and Stone, Comedy Central and parent company Viacom did more damage than any idiot with a website and an e-mail account could ever hope to do. They've sent a clear message - threats work, no matter how obviously idle. (Same goes for you, Artes de la Rosa Theater.) As Art Aleksakis might say, they can't hurt you unless you let them. Comedy Central's despicable actions just let them hurt us.

Our second issue has to do with a fascinating Supreme Court case called U.S. v. Stevens. In it, the Court, by an 8-1 margin (Alito was the lone dissenter), struck down as overly broad a federal law banning depictions of animal cruelty. The material intended to be outlawed was that in which a woman's high-heel shoes crushes an animal for sexual pleasure. Or something equally disturbing and bizarre. The problem with the law wasn't the outlawing of such videos per se, but that the law was so broad that it potentially banned hunting shows - Stevens, in fact, was convicted of distributing a video portraying a dog fight.

My first thought is that this only goes to prove Rule 34: if you can imagine it, there is porn of it on the Internet. My second thought is that this is a weird First Amendment case. We're perfectly okay with laws banning depictions of completely disturbing acts such as child pornography, but we know that we can't ban everything that disturbs us. So where's the line? Solicitor General (and hopefully-not-future-associate-justice) Elena Kagan argued that free speech rights should be balanced against the social cost of such rights. Civil libertarians and anyone who cares about the Constitution are rightly repulsed by that argument, but why? Don't we already do that to some extent?

I'd argue, though, that the point of child porn laws is not to outlaw the depiction but the act itself, which would not exist beyond the depiction. The video distributer is ultimately responsible for the illegal act occurring, and so should be prosecuted. A constitutional law banning depictions of animal cruelty, then, would punish video distributers for animal cruelty that occurred solely because of the video - that is, an act of cruelty staged for the camera. Someone filming a dogfight and then selling the video couldn't be prosecuted unless they themselves staged the fight with the intent of making money off the video. But even that standard can easily go too far - we'd be disturbed by the idea that teenagers who make a video of themselves vandalizing mailboxes should have that video banned.

Anyway, it's a fascinating issue, and I'd like the input of some of the lawyers who read this blog.

A little bit more cut-and-dry, however, is the recent decision by Judge Barbara Crabb declaring the federal statute establishing a National Day of Prayer unconstitutional. For this ruling, Crabb is taking crap from everyone from Tony Perkins to Barack Obama - this despite the fact that Crabb is very obviously correct. If you looked up "an establishment of religion" in the dictionary, you'd see a picture of a law declaring a National Day of Prayer beside the definition. The law is blatantly establishing religion. Which is unconstitutional. It really is that simple. There's absolutely no way to get around that. It doesn't matter how much of a tradition it is, it doesn't matter who endorsed the idea, and I could give a damn whether it's a good idea or not. It's unconstitutional and it needs to go, end of story. The boundaries aren't there to be ignored at will, people. The ruling from Crabb was 66 pages - it didn't need 66 words.

Of course, the usual suspects have launched their unhinged opposition to the ruling. The head of the "National Day of Prayer Task Force," Shirley Dobson (originally named as a defendant in the suit but dropped - the suit is now against Obama) reacted with predictable hyperbole:
This is a concerted effort by a small but determined number of people who have tried to prohibit all references to the Creator in the public square, whether it be the Ten Commandments, the Pledge of Allegiance, or the simple act of corporate prayer -- this is unconscionable for a free society.


Long term, this type of opinion, if not corrected on appeal, will continue the erosion of our religious heritage and freedom.

Prohibiting references to God in the public square? Eroding religious freedom? Mrs. Dobson, I believe you deserve the Mandy Patinkin treatment:

Let's be clear. This court ruling does not preclude Americans from setting aside a day - or a week, or a month, or a year - to pray. It does not prevent the President or members of Congress from announcing during a speech that they're holding a National Day of Prayer. It does not stop the President or Congresscritters or anyone with the spirit in them from getting up on the floor of the house and screaming "GOD GOD GOD" at the top of their lungs. No one will be forced to stop praying because of this court case. No one will be forced to stop praying loudly because of this court case. To claim that preventing the government from declaring a national day of prayer erodes religious liberty is to display massive ignorance about the Constitution and about the idea of religious liberty.


Ben said...

I got into a debate with Christy over the Stevens case.

Conceptually, I don't see a whole lot of difference between the animal cruelty videos and child pornography. The video distributor creates the market for the exploitation, and thus causes the exploitation to happen because it's lucrative.

As for the constitutional import of this case: Through the last century, the Supreme Court has sort of declared various kinds of speech to be outside the realm of First Amendment protection (i.e. incitement, fighting words, defamation, child pornography)...and then they've fiddled with borders of what speech actually fits in those categories. Those balances against social costs....probably that's what was going through the court's mind when they decided those cases.

The exclusion of child pornography from First Amendment protection is unique, however, in that it is the only entirely content-based exclusion. Fighting words, incitement, defamation....they all depend to some extent on circumstances beyond the content. Is the incitement REALLY close to starting a riot or rebellion? Is the defamatory statement not only harmful to the reputation of its subject, but FALSE? (Or in the case of public figures, spoken with reckless disregard for whether it is false.) But with child porn, the Supreme Court (in the 1980s, I think), created an exception based purely on the content of the speech. If it depicts child pornography, it's not protected by the First Amendment.

You ask me, I think the Roberts court (or at least the 8 justices who struck down the law) are saying "never again." Even when we've got something that's SO conceptually similar to child pornography (exploitation that derives its market and some of its harmful power from distribution of its depiction) the Roberts Court is unwilling to create another entirely content-based exception. Nobody really wants to go back and undo the child porn decisions, but they don't want to repeat their reasoning.

As a lover of the First Amendment, I have to agree. Christy, following the logic of the child porn cases & disgusted with the harm caused by these depictions of animal cruelty, was all for banning these videos. But I just can't get comfortable with the idea of excluding speech from the protection of the First Amendment purely for its content.

Mike said...

I think I'm with Ben on this one, though I definitely sympathize with Christy's sentiment. Not really much more to say, Ben really summed up my feelings with his last sentence.

As for "South Park" (you knew I'd weigh in one that one), you're oversimplifying: it was the 201st episode that "Comedy Central" censored. (I, along with many people, originally thought the censorship was an at-first-hilarious-then-mildly-irritating meta-joke on Trey and Matt's part.) The 200th episode intentionally featured a censored Muhammed as part of an overall joke about who can and cannot be mocked in a free society. (Those who are not "immune", led by Tom Cruise, seek to harness Muhammed's power of un-make-fun-ability, so they threaten the town of South Park until they hand him over.) What really seemed to get Revolution Muslim fired up was that, to hand Muhammed over, they couldn't actually show him, so they put him in a bear suit. Revolution Muslim got pissed that Muhammed was in a bear suit (even though in the 201st episode it turned out it was actually Santa Claus in the bear suit -- confused yet?). So then, Comedy Central got scared that even implying it was Muhammed behind the big "censored" block they used when he wasn't in the bear suit would piss off some radicals so they censored the mentioning of his name, as well as a speech at the end of the episode decrying fear-mongering used to suppress free-speech, which purportedly didn't even mention Muhammed.

Anyway, needless to say, it's gotten me thoroughly pissed off. I think someone should broadcast the uncensored episode, which by the way also features Buddha doing coke and Jesus watching porn, on the big screen in Times Square, and close it with a giant middle finger, not directed at the terrorists (though seriously, fuck them, fuck them hard, right in the ear) but directed to the execs at Comedy Central and all those that let the terrorists win by allowing themselves to be terrorized.

Phew. Okay, I'm done for now.

Ben said...

Y'know, on closer reading of the case, I may have misread the Roberts Court's thought process. At least for some of the justices. By striking down the law as overbroad (see the debate between Roberts and Alito over whether the law would ban depictions of hunting in D.C.), the court left open the possibility that a narrower law that somehow targeted JUST this kind of "animal torture porn" might fall outside the protection of the First Amendment. (I came to this understanding while reading Stanley Fish's horribly anti-free-speech column in today's NY Times on this case. He misrepresents the case as explicitly protecting "crush videos", when it actually does not necessarily do so. I then realized that I had made the same misrepresentation. My beliefs about what constitutes appropriate First Amendment law remains the same.)

It is worth noting, however, that in the past (say, in the context of equal protection cases), legislatures have often found it very difficult to craft laws that were narrow enough to pass constitutional muster and yet broad enough to accomplish their intended effect.

IF Congress were somehow able to do that here, I wonder how many of the 8 justices who overturned this law would still vote to overturn a narrower law. THAT'S when you'd find out whether their true concern was the broadness of this law or its content-based restrictions.