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America and the Law: Challenges for the 21st Century
Chapter Five: Clear and Present Danger
The most valuable of all natural resources is the idea. Ideas are commodities in the marketplace, building blocks in the world of science, and the lifeblood of human emotion that feeds our intellect and forms the bread of our daily lives. And this country, more than anything else, has been a nation of ideas. From the genius of its Constitution, to the wealth of its culture, to the invention of the computer, the television, the telephone, the airplane, the light-bulb, and the automobile. Though misguided at times, America at its heart has always attempted to survive as a nation of rights, not might, of reason, not power, of laws, not men.
To that end, the First Amendment has always held a special place in the unfolding of America, where people continue to believe that the free exposition of ideas is the essence of capitalism, the foundation of democracy, and the first right of man under Natural Law.
People have an absolute right to think, to feel, to imagine, to doubt, to challenge, to believe, and to experience any and every idea or emotion capable to them. This right is singular, and stands alone, where the individual is sovereign, and is not subject to the common laws of men.
While some may fear the harm that can at times arise from hateful, violent, sexual thoughts and images which go unchecked, those very symbols, messages and sounds are capable of evoking anger, and disgust, and counter-reasoning, which stir men to act, and which are necessary to the dialectic of human progression. Such fantasies, moreover, give men and women a spiritual outlet for their passions, emotions, and frustrations, which are better unleashed in the world of books and motion pictures than upon our fellow man.
The democratic ideal itself compels an unfettered distribution of information, while placing implicit faith in the common intelligence of the individual to determine what is good, what is right, what is necessary, and what, on the other hand, can be tossed aside. At the same time, we place faith in the force of ideas themselves, with the quiet belief that truth, in the end, will be victorious over falsehood, that good will vanquish evil, and that right will conquer wrong. For these reasons, and for reasons beyond expression, we should be eternally vigilant against attempts to suppress the communication of images and ideas, even (and especially) those that we come to loathe.
The Absolute
The absolute right of people to think, to feel, to imagine, to doubt, to challenge, to believe, and to experience any and every idea or emotion capable to them begins with a division of the human universe into two physical and metaphysical worlds. In the physical world, men and women have the right, as a community, to restrain and enjoin others for the protection of person and property. In the metaphysical world, on the other hand, the individual alone is sovereign, and beyond the reach of society's laws.[1]
The necessity of society to protect itself from violence, slander, harassment and other intrusions into one's person and property, therefore, must be directed at such physical and actual intrusions, and does not in any way justify the censorship or prohibition of thoughts and emotions which give life to the world of ideas.[2]
Despite the fact, in this regard, that some images and sounds will undoubtedly have a real, and actual, and proximate causal relationship to physical acts of violence, which cannot be justified, in a utilitarian sense, by the societal worth or value of the expression, the issue, however, is not a question of social utility, but a question of the power and authority of a society to subject something which is intangible, and sacred, and personal, to such legislative scrutiny. Even assuming, therefore, that in weighing the positive and adverse effects of certain forms of expression (and that such positive and negative consequences can be reliably weighed) there will be some expression whose value is ultimately outweighed by its potential for danger, the government is nevertheless without right to intrude upon something which belongs to the individual, as sovereign, and beyond the laws of men.[3]
Even assuming, for example, that the broadcast of Beavis and Butthead or The Terminator will have the effect of promoting cruelty and indifference generally, and, in some cases, specific acts of destruction and physical harm, the right of the average person sitting quietly in his or her own living room to view, and to ponder, and to react to such images and ideas, is absolute, such that any incidental harms which may befall person or property are secondary, and must be endured.[4]
As a practical matter, moreover, the harmful effects of the information will generally be outweighed by the benefits involved. The backlash to outrageous expression, most often, will be greater than the provocation, and censure will be more prevalent than imitation. Apathy, cruelty and indifference, in this way, will be offset by empathy, sympathy and charity, as the thoughts and images which may, in some, give rise to sexual and violent energy, in others will produce reaction and counter-reasoning, disgust and offense, anger and disdain.[5] Emotionally, such expression will stir just and good men to action, while providing conflicted hearts with an outlet for their doubts and frustrations, which are better left to internal conflict and fantasy than to the physical world of men.[6] Intellectually, at the same time, such challenges to the status quo will cause one to search for new answers and justifications, forming the dialectic of human progression.
The Dialectic
Since the time of the ancient Greek philosophers, men and women have engaged in a series of dialectics as a means for arriving at truth. Through this process, a hypothesis is suggested, and then challenged, and so on, until the hypothesis, or some later refinement, alternate, or contrary hypothesis, is proven to be true or disproved. This, in many ways, is the method by which science, technology, and knowledge itself evolves: thesis, antithesis, synthesis, and so on.[7] Without antithesis, there can be no synthesis. And the suppression, therefore, of thoughts and ideas which challenge our commonly accepted notions of truth and decency, may, in fact, be an impediment to what lies beyond.[8]
There are wonderful lessons to be learned, in this context, through negative examples: learning what not to do, learning from mistakes. Negative examples, in fact, are of particular value in the area of moral development and religious education, where stories and images of cruelty and injustice are often effective tools in the incitement of anger, disgust, and shame.[9]
Finally, it is important that people be allowed to experience pain, death and injustice in the metaphysical world (of fantasy and imagination, of books and records, music and art, television and computers), so that we can better understand and appreciate the beauty of our own physical worlds. The Romantic poets, in this regard, often spoke in terms of paradoxes, where people come to appreciate innocence through experience, life through death, and happiness through sorrow and pain. There is no peace without war, they believed, no good without evil, Innocence without Experience, Heaven without Hell. The passion and energy of life is sustained, in this manner, by conflicting and competing ideas and emotions, which alone may be harmful, but in the aggregate, make human existence exciting, intelligent, religious, and ultimately meaningful.[10]
While the temptation, therefore, to protect ourselves and each other from ideas which seem dangerous is often compelling, a world without images and ideas which some may find offensive, distasteful, or even harmful, will ultimately become stagnant, lifeless, and stale.
Information as a Commodity
The free flow of information is essential to the democratic process, and to the success of a free market economy. The people, as the ultimate source of power in a democratic society, must have full and accurate information about the political, social, and economic issues and events in order to make reliable and well-informed decisions about the governance of the state. If, moreover, the government, which is made up of people who are regulated by the public through the political process, has the power to restrict the flow of information about itself, the government and those in government can effectively avoid all accountability for their actions, whether improper, imprudent, or wrong.[11]
The economy, likewise, is dependent upon the vigorous exchange of information in a free-market system, where the integrity of commercial transactions depends upon the reliable information available to the parties involved. The availability of greater information, therefore, will benefit economically interested individuals, by providing them with the tools to define their goals, calculate their means, and plan their courses of action.[12] Consumers, in this context, must be informed about the quality, quantity, reliability and price of the various goods and services which are available to them, while businesses, at the same time, must be able to effectively promote their products in the marketplace, in order to keep competition alive.
The information provided to consumers, as noted in previous chapters, not only provides them with the knowledge to make informed business decisions, but also serves to inform and to warn them of various dangers to their own health and to the environment at large. Aside from the obvious and direct protections accorded by the dissemination of such information, this process provides an additional regulator of goods and activities which are potentially harmful, and for holding the wrongdoer accountable in the marketplace for such harms. When, therefore, the government, through environmental audit bills, railroad and highway anti-discovery measures, and court-protected secrecy agreements, prevents such information from reaching the consumer, the government is not only compromising the health and welfare of the public, but also serves to stifle competition, by subsidizing imperfect, defective, and even harmful goods and services, while preventing potentially better products from development, introduction, and success in the marketplace.
As a commodity, it has been suggested, information will tend to be devalued in the marketplace, because information is a public good. The benefits of information, explains Daniel A. Farber, extend to third parties, but because the producer does not consider these benefits in his production decisions, less information is produced than is socially optimal. There are people who, if they had to, would be willing to pay for the benefits of additional information, but the additional information is not disseminated because the market is unable to translate those individuals' preferences into an incentive for the producer. If the government, therefore, intervenes into this market, it should be for the purpose of subsidizing rather than limiting speech.[13]
The Democratization of Information
As a democracy, we put our faith in our own abilities to assess the value and veracity of information, conflicting opinions, and representations, in order to govern the affairs of state, the affairs of our business, and the affairs of our daily lives.[14] The government, therefore, has no power to "protect" people from information which it perceives to be potentially harmful or dangerous, because the right to make such decisions ultimately resides in ourselves.[15] As one of America's most respected jurists, Learned Hand, once noted, the First Amendment "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all."[16]
Faith
From the genesis of modern political philosophy, courageous men and women have placed their faith in the power of truth and righteousness to emerge victorious from the battlefield of ideas. Such sentiments appear as early as 1644 in the writings of the great English poet, John Milton, when he wrote, "though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting, to misdoubt her strength. Let her and falsehood grapple; who ever knew Truth put to worse, in a free and open encounter?"[17] In his First Inaugural Address, Thomas Jefferson invited "any among us who would wish to dissolve this Union or change its republican form, to stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it." And Martin Luther King expressed the same enduring belief when he accepted the Nobel Peace Prize in 1964: "I believe that unarmed truth and unconditional love will have the final word in reality. That is why right temporarily defeated is stronger than evil triumphant."
These principles stem not only from a deeply-rooted respect for others, but also from the humble recognition that men are imperfect, and fallible, and frequently fail to recognize truth when it appears.[18] The foolish sentiments of one era will frequently become the commonly-held beliefs of another, while what seem at first to be enlightened and revolutionary propositions may turn out to be nothing but false prophesy. The heretics of one generation may prove to be the prophets of another, as men and women of genius like Socrates and Galileo are persecuted and martyred while living, only to be revered when they are gone. The evolution of truth and justice, in this way, is a lengthy and tortuous process, wherein society is best served by reserving its judgment, in deference to the opinions of others, while allowing conflicting beliefs to compete and do battle in the marketplace of ideas.[19] Commitment to such principles requires courage and faith, and is necessary to not only the political and economic success of society, but to all scientific, artistic, and moral progression.
The Government and Communication
The Federal Government prohibits the transmission of language which is obscene, indecent, or profane. Such regulation is justified, in part, by the asserted privacy interests of the individual, who should not have to suffer exposure to offensive or indecent expression within the privacy of his or her own home. This reasoning, however, is severely undermined by the countervailing constitutional protection of the individual in the privacy of his own home to receive and experience information, and by the practical reality that an offended viewer or listener can merely change the channel, or simply turn off the tv. The more palatable justification which has been advanced as the basis for such regulation is the protection of the young.
Yet, despite rapidly emerging evidence that violent and sexually explicit expression may have a real and actual effect on the psychological development and ultimately therefore the actions of children, the source of our limited government's regulatory power is derived from its authority to regulate "interstate commerce" not the protection of children, and therefore, aside from any limitations imposed by the First Amendment, the government is nevertheless without power to decide what the people can and cannot listen to or watch on tv.
Beginning with the first World War, the number of radio stations began to increase so rapidly that, by 1925, every channel in the standard broadcast ban was occupied by at least one station, and there were 175 new stations ready to go on air. The Radio Act of 1927, therefore, authorized the government, through the Federal Radio Commission, to license and regulate the industry. "The plight into which radio fell prior to 1927," explained the Supreme Court in NBC v. United States, "was attributable to certain basic facts about radio as a means of communication--its facilities are limited; they are not available for all who wish to use them; the radio spectrum is simply not large enough to accommodate everybody. There is a fixed natural limitation upon the number of stations that can operate without interfering with one another."
The right, however, to restrict the number of parties who can broadcast on the airwaves, does not give the government the right to regulate or interfere with the substance of the communication.[20] Such regulation, if there be any, is reserved to the people, who will choose the communication they deem valuable from a marketplace of broadcasters, who have an economic and commercial incentive to make their programs interesting, informative, and entertaining.
The necessity, moreover, for the licensing of broadcasters, is rapidly eroding, as new channels of communication are becoming more and more available through the use of cable television, fiber-optic technology, and direct satellite tv. The Internet, for example, can disseminate information from millions of broadcasters, while the market provides the television viewer with networks dedicated to everything from news, sports, weather, movies and talk shows, to nature and discovery channels, business and finance, music television, arts and entertainment, history, and court tv.[21]
Nevertheless, and in any event, the prohibition of offensive communication from the Internet is not the regulation of interstate commerce; the installation of a V-chip in television sets to weed out sexual or violent expression is not the regulation of interstate commerce.[22] The question, again, is not a question of policy. It's not a question of whether such legislation would be good or bad, effective or ineffective, right or wrong. The question, rather, is a constitutional question--a question of power, a question of function, a question of role. And, in this regard, it is not the function of the Federal Government, or any government, to determine what television programs, or computer programs, or radio programs, or books, or films, or newspapers, that people should watch, or listen to, or read.
At the heart of this matter is an abdication of power, an abdication of responsibility. Men and women are abdicating their own power and responsibility to determine what is good, what is right, and what is interesting, by asking the government, or television producers, or automated computer chips, to make those evaluations for them.[23] This, fundamentally, is the antithesis of democracy, which places its faith in the intelligence and the will of the individual, to think, to imagine, to create, to experience, to feel, and ultimately to govern, in terms of society, in terms of the economy, and in terms of the family, throughout the course of our daily lives.
Even assuming, moreover, that it were appropriate for the government to assume this role, the government, as a practical matter, could not prohibit harmful expression, because society, at a given point in time, cannot truly know what is harmful.[24] What we now believe to be good, in this regard, might turn out to be bad, and what we now believe to be bad might turn out to be good. What we now believe to be true might turn out to be false, and what we believe to be false might turn out to be true. Violence and sex, for better or worse, are a part of our society. And while sexual and violent images can encourage harmful and destructive activity, they can also form the basis of, not only passion and imagination, but an essential part of the social commentary which seeks to make society peaceful, prosperous, and respectful of human life.[25]
If you take away X, you take away the reaction to X, which might be good. If permitted, the government will take away X, and the dialectic progression of thought and emotion will be lost. Television, music and film producers will take the life out of all powerful, energetic, and potentially innovative sounds and images, and the world of images and ideas will become stagnant, lifeless, and stale.[26]
"The rule is," noted radio talk show host, Howard Stern, who has been fined millions of dollars by the FCC, "don't say anything that is 'patently indecent' or offensive to your community. Well, I live in a community where priests rape young boys, where you get shot in your car, where angry black mobs stab Hasidic Jews, and the mayor turns his back, where crack runs free like the River Ganges, and where movie directors fuck their wives' daughters. Now you tell me what I should talk about on the radio!"[27]
Personal Injury and Abuse
The First Amendment prevents the Government from making any law which abridges the freedom of speech or of the press. But when a person or corporation causes injury to another, through defamation, breach of an express warranty, unfair trade practices, or fraud, the Constitution should not be invoked to insulate the wrongdoer from accountability, nor as a barrier to the redress of the individual who has been harmed.
In most cases, such liability is imposed only when the misrepresentation is intentional--when, for example, a business corporation intentionally misleads its customers by fraud. Defamation law, however, poses more difficult questions with respect to whether mere negligence can be actionable by an individual who has been harmed in a court of law.[28]
While, originally, defamation was unprotected by the First Amendment, the landmark case of New York Times vs. Sullivan ushered in a new era of protection for the press, and other individuals, by establishing an "actual malice" requirement for recovery in a defamation suit involving a public official, which has now been expanded to a "public figure", or any matter of public concern.[29] As a result of these and other protections, around 75% of all libel cases are dismissed by the courts prior to trial. Of the cases which do go to trial, the defendant wins almost half, with over 70% of the cases in which a plaintiff is successful reversed, at least in part, on appeal.
The U.S. Supreme Court, in this context, has taken the position that a civil action for damages by a private citizen is analogous to a criminal prosecution by the State, and that such Constitutional protections are necessary to give the First Amendment the "breathing space" that it needs to survive. From a historical perspective, however, and as a practical matter, the media and even private individuals have been insulated from real and actual damages which cannot be justified by the First Amendment or the free exposition of ideas.[30]
The protection of free speech was designed to ensure that the government could not avoid political (or criminal) accountability for wrongdoing by suppressing the right of the people and their press to freely criticize the actions or failures of public officials, their suitability for office, or the affairs of state. "If we advert to the nature of Republican government" wrote Madison, "we shall find that the censorial power is in the people over the Government, and not in the Government over the people."[31] If a public official, therefore, in his or her private capacity, can discourage the media from good faith criticism due to the threat of litigation, the official would effectively be able to insulate himself or herself from public scrutiny.[32] While it is not clear whether a prohibition of such action is Constitutionally mandated, as the Supreme Court has suggested, or merely a matter of sound public policy, any such restriction of the right to pursue defamation actions should be strictly limited to suits against public officials who are truly public officials, regarding matters which are truly matters of public concern.
The Constitution, after all, only prohibits censorship by the Government. A civil suit, on the other hand, is an action brought by an individual for the redress of some injury to property or reputation against another who is alleged to have caused him harm. The Government, in this type of proceeding, is not prohibiting or regulating any type of speech or publication. The Government, rather, is merely providing a forum for the private dispute.[33]
While the Supreme Court has rejected such a government-action/private-action distinction, the Court has drawn a distinction between the communication of factual assertions and the communication of opinions or ideas. "There is no such thing as a false idea" wrote Justice Powell in Gertz. "But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in 'uninhibited, robust, and wide-open' debate on public issues."[34]
The Court has also, in this context, drawn a distinction between the rights of the speaker and the rights of the listener. In the area of commercial speech, for example, businesses can be prohibited from engaging in advertisement which is false or misleading.[35] And in the regulation of television and radio programming, "it is the right of viewers and listeners, not the right of broadcasters, which is paramount."[36]
As a practical matter, moreover, the imposition of liability for publication of facts which are false due to the publisher's negligence will not have a significant effect on the free exposition of ideas.
This assertion is based on the fact that not all inaccuracies will be defamatory, and that, in fact, most of the information which the public needs to receive on an immediate basis is not. When dealing with traffic, stock quotes, and the weather, for example, there is no time to conduct an in-depth investigation; but there is also no potential for defamation, as a hurricane, or a fire, or a traffic accident, cannot ordinarily be libeled or defamed.[37]
With respect to other matters, even political matters, there is a need for society to receive information, but there is not a need, in general, for society to receive information immediately, before a reasonable investigation into the truth of the factual allegations can be made.[38] The necessity for immediate dissemination of information, in most cases, is not premised on a public need for that information, but on a commercial incentive, which encourages the press to make more money by "scooping" the story before the competition.
"Newspapers, magazines, and broadcasting companies" the Supreme Court has noted, "are businesses conducted for profit and often make very large ones. Like other enterprises that inflict damage in the course of performing a service highly useful to the public, they must pay the freight; and injured persons should not be relegated to remedies which make collection of their claims difficult or impossible unless strong public policy considerations demand."[39] When, accordingly, the burdens of free speech fall exclusively on the shoulders of a minority of wronged individuals, those parties who profit by the negligent dissemination of such false information should bear the responsibility for that loss.
[1]"The sole end for which mankind are warranted, individually or collectively, in interfering with liberty of action of any of their number is self-protection. That is the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading with him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to do evil to someone else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign." John Stuart Mill, On Liberty (1859).
[2]The United States Supreme Court, regrettably, did not take this approach in Osborne v. Ohio, when it held that the government has the right to make criminal the mere possession of child pornography. In this context, the physical conduct from which society seeks protection is the sexual exploitation of children, which, as noted by the dissenting justices, can be combated in other ways. The producers of such pornography, for example, can be prosecuted for kidnaping, sexual exploitation, solicitation, and in some cases, sexual assault. The molestation of children, by the same token, (which is allegedly promoted and encouraged by the consumption of such pornography), is made criminal by child molestation laws, statutory rape provisions, sexual assault, and in some cases kidnaping and aggravated rape. But, because the mere possession of offensive materials is something which in and of itself poses no potential danger or harm to society, such conduct cannot form the substance of a crime. "The Court today" notes the dissenters, "is so disquieted by the possible exploitation of children in the production of the pornography that it is willing to tolerate the imposition of criminal penalties for simple possession." Then, quoting Justice Marshall, from Stanley v. Georgia, the dissenting judges remind us that, "if the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." Justice Brennan, joined by Justice Marshall and Justice Stevens, dissenting, Osborne v. Ohio, 495 U.S. 103, 139-145 (1990).
[3]From a constitutional perspective, it can be said that society, in adopting the First Amendment, has already made a cost/benefit analysis, and determined that the benefits of free expression are so great, they will automatically outweigh any harm which may result, no matter what the cost. As noted by the Supreme Court in Virginia Board, "the choice between the dangers of suppressing information and the dangers of misuse if it is freely available is not our choice to make." Virginia Board v. Virginia Citizens, 425 U.S. 748, 770 (1976).
[4]In 1993, a five year-old boy in Ohio killed his two year-old sister when he set the family mobile home on fire imitating the cartoon characters Beavis and Butt-head. While many argued that the television program should be banned from the airwaves, others wondered why the child was not being supervised by his parents, or some other responsible party, who should have prevented him from starting the fire, or from watching the show. Supporters of the television sitcom additionally attempted to justify the program as a source of legitimate social commentary. The cartoon figures, they note, "are not just any losers, they are our losers; totems of an age of decline and non-achievement. One in five people who graduated college between 1984 and 1990 holds a job that doesn't require a college education. If this is not a hard economic reality for a whole generation, it is psychological reality." Fernanda Moore added that a show like Beavis and Butthead is not directed at stupid people, (who are more likely to imitate the cartoon figures), but people who are intelligent enough to appreciate the show on a different level. See Leland, "Battle for Your Brain" Newsweek, Oct. 11, 1993, pp.50-51. While Beavis and Butthead, in sum, is probably a legitimate source of social commentary which can be appreciated on many levels, it is hard to say that its social utility, or the utility of any television program, is worth the life of a two year-old child. Such a balancing of interests, however, cannot be left to the scrutiny of politicians, or judges, or even juries. We, as a society, have already determined that, for the sake of the individual, and his right to think and to feel and to imagine, such tragedies, while unfortunate, must be endured.
[5]"A principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminello v. Chicago, 337 U.S. 1, 4 (1949).
[6]"The secret thoughts of a man" observed Hobbes, "run over all things, holy, profane, clean, obscene, grave, and light, without shame or blame." Leviathan Part I, Ch. 8 (1651).
[7]"The problem 'What is dialectic?' is ancient and complex; this question, which has been a concern of philosophy from the time of Plato, reaches its greatest urgency in Hegel, since it constitutes the core of his system. Hegel's dialectic is a ternary structure, in which thesis is opposed by the antithesis and both are united in the synthesis. The synthesis, however, is not a mere conciliation; rather, the thesis leads necessarily to the antithesis, and vice versa, and this movement of being leads inexorably to the synthesis, in which the thesis and the antithesis are preserved and superseded--aufgehoben. Each stage finds its truth in the one that follows." Julian Marias, The History of Philosophy, pp.320-321 (1967).
[8]"Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears." Justice Louis Brandeis, joined by Oliver Wendell Holmes, concurring, Whitney v. California, 274 U.S. 357, 376 (1927).
[9]The motion picture Roots, for example, may generate a stronger resolve to achieve racial justice and equality than a television sitcom such as The Cosby Show, which attempts to, by way of example, portray the races allied in friendship and cooperation. Platoon and Full Metal Jacket, by the same token, may serve as more powerful and forceful advocates for peace than films such as Woodstock, which attempt to portray man and nature in harmony and at one. The Holocaust and Schindler's List, in this regard, might stir anti-Semitism in a minority of viewers, but will likely cause most people to feel that an intolerable wrong has been committed, and fortify their resolve to see that it never happens again.
[10]"What though the radiance was once so bright
Be now forever taken from my sight,
Though nothing can bring back the hour
Of splendour in the grass, of glory in the flower;
We will grieve not, rather find
Strength in what remains behind;
In the primal sympathy
Which having been must ever be;
In the soothing thoughts that spring
Out of human suffering;
In the faith that looks through death,
In years that bring the philosophic mind."
- William Wordsworth, The Immortality Ode (1802-1804).
[11]"To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church and state, or even false statement. But the people of this nation have ordained in light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy." Cantwell v. Connecticut, 310 U.S. 296, 310 (1940).
[12]"So long as we preserve a predominately free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions be intelligent and well-informed. To this end, the free flow of commercial information is indispensable." Virginia Board, 425 U.S. at 765.
[13]Farber, Free Speech Without Romance 105 Harv. L. Rev. 554, 558 (1991).
[14]The nature of a Democracy is designed to assume "that information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them." Virginia Board, 425 U.S. at 770.
[15]"I find no merit whatsoever in the Government's assertion that an interest in restraining competition among brewers to satisfy consumer demand for stronger beverages justifies a statutory abridgment of truthful speech. Any 'interest' in restricting the flow of accurate information because of the perceived danger of that knowledge is anathema to the Constitution; more speech and a better-informed citizenry are among the central goals of the Free Speech Clause. Accordingly, the Constitution is most skeptical of supposed state interests that seek to keep people in the dark for what government believes to be their own good. The Government's asserted interest, that consumers should be mislead or uninformed for their own protection, does not suffice to justify restrictions on protected speech in any context, whether under 'exacting scrutiny' or some other standard." Justice Stevens, concurring, Rubin v. Coors Brewing Company, 115 S.Ct. 1585, 1597 (1995).
[16]United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y. 1943).
[17]Milton, Areopagitica (1644).
[18]"The beliefs which we have most warrant for, have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded. If the challenge is not accepted, or if accepted and the attempt fails, we are far enough for certainty still; but we have done the best that the existing state of human reason admits of; we have neglected nothing that could give the truth a chance of reaching us: if the lists are kept open, we may hope that if there be a better truth, it will be found when the human mind is capable of receiving it; and in the meantime we may rely on having attained such approach to truth, as is possible in our own day. This is the amount of certainty attainable by a fallible being, and this is the sole way of attaining it." John Stuart Mill, On Liberty (1859).
[19]"Persecution for the expression of ideas seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by a free trade of ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of the Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wage our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." Oliver Wendell Holmes, joined by Justice Brandeis, dissenting, Abrams v. United States, 250 U.S. 616, 630 (1919).
"To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through a popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify suppression. Such must be the rule if authority is to be reconciled with freedom." Brandeis, joined by Holmes, concurring, Whitney v. California, 274 U.S. 357, 377 (1927) .
"There is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas." Justice Lewis Powell, Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974).
"Indeed, it is the measure of the confidence of a society in its own stability that it suffers such fustian to go unchecked." Learned Hand, U.S. v. Dennis, 183 F.2d 201, 212 (2nd Cir. 1950).
[20]"Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to governmental regulation. But Congress did not authorize the Commission to choose among applicants upon the basis of their political, economic, or social views." NBC v. United States, 319 U.S. 190, 226 (1943).
[21]In striking down provisions of the Communications Decency Act of 1996 which would have criminalized the transmission of "indecent" or "patently offensive" material over the Internet, the Supreme Court noted as follows: "Unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a 'scarce' expressive commodity. It provides relatively unlimited, low-cost capacity of all kinds. This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. As the District Court found, 'the content on the Internet is as diverse as human thought.' We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium." Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 2344 (1997).
[22]The regulation of interstate commerce, in this regard, is power of the Federal Government to prevent unfair and deceptive trade practices, to make rates or use taxes uniform across state lines, to issue licenses based on objective and content-neutral criteria, to enforce the anti-trust laws where there is competition, and to regulate the monopolies. It may be argued, by some, that "obscene" material--which, taken as a whole, the average person, applying contemporary community standards, would find appeals to the prurient interest; describes, in a patently offensive way, sexual conduct specifically defined by statute; and, taken as a whole, lacks serious literary, artistic, political, or scientific value--is, itself, an unlawful product or commodity, like illegal arms, contraband, or illicit narcotics, which can therefore be removed from the stream of commerce altogether. While others may argue that even obscene material is beyond government, and particularly Federal Government, regulation, the former reasoning would not justify the suppression or censorship of non-obscene, yet violent, indecent, or potentially offensive expression, which is otherwise, and appropriately, protected.
[23]"Should a slapstick barroom brawl be rated the same as a cop-show shootout?" asks Mark Lorando of The Times Picayune. "How does a V-chip distinguish between a responsible movie such as 'The Burning Bed' which conveyed the trauma of domestic violence, and an episode of 'Walker, Texas Ranger' which gets its kicks out of karate? Would 'Schindler's List' make it past the chip? Or 'Forest Gump'? What about the witch-melting scene in 'The Wizard of Oz'? Pro football is pretty violent. So are commercials for R-rated action films. Will they get rated? What about the evening news?" Lorando, "V-Chip Clouds Future of Television" Times Picayune Aug. 13, 1995, p.A-6.
[24]Not only is there a question as to whether the government can, theoretically, determine what is harmful, but there is also a question of whether, as a practical matter, it will. Bob Dole, for example, recently unleashed an attack on Hollywood, denouncing movies with allegedly "mindless" and gratuitous violence, like True Romance and Natural Born Killers, while promoting "family" movies like The Santa Clause, The Lion King, The Flintstones, and True Lies. Yet, as noted by Richard Schickel, True Romance, with brilliant satire, celebrates love (or true romance) above all, while Natural Born Killers argues, (ironically, much like Dole), that the tabloid media and other images of television and computer violence are encouraging people to act in violent and destructive ways. The Santa Clause, The Lion King, The Flintstones, and True Lies, on the other hand, "depict women being locked up and tortured by their temporarily estranged husbands, little animals celebrating the power of bigger animals to devour them, and father figures who are sullenly distracted and moronically inept. These movies, at their heart, tell the viewer that women need to be kept in their place, that the powerless should gladly acquiesce to their exploitation by the powerful, that privatizing emotions is like privatizing services, and that white males truly are boobs." Perhaps of greater significance is the fact that Dole chose to attack the works of people like Oliver Stone, (who would appear to support Democratic candidates and causes), while notably failing to criticize, (and even complementing), the notoriously graphic works of Arnold Schwartzenegger, Bruce Willis, and Sylvester Stallone, who are all Republicans. See Richard Schickel, "No, But He Reads the Polls" Time June 12, 1995, p.29.
[25]"Which is more threatening to America" asks writer John Edgar Wideman, "the violence, obscenity, sexism and racism of movies and records, or the stark reality these music and movies reflect? If a messenger, even one who happens to be black and a rapper, arrives bearing news of a terrible disaster, what do we accomplish by killing the messenger?"
[26]"If you think that anything blocked by the V-chip on network television is going to have sponsors" notes Dick Wolf, "you're delusional. Anything that gets blocked for content, sexuality, violence is going to be anathema. And that is de facto censorship, because the networks won't put adult shows on, and you are going to have an amazingly bland landscape of situation comedies." See Lorando, "V-chip Clouds the Future of Television" Times Picayune, Aug. 13, 1995, p.A-6.
[27]Stern, Private Parts, pp.420-421 (1993).
[28]In cases of negligent misrepresentation, breach of express warranty, detrimental reliance, and in some breach of contract cases, injury can arise by mere negligent acts or omissions; but it can be argued that, in those cases--as with cases of unfair and deceptive trade practices, and fraud--the injury to the consumer arises, not out of the false or misleading representation, but in the failure of the product or service to perform as promised by the service provider, seller, or manufacturer. It should be noted, nevertheless, that a material misrepresentation or omission is an essential element of each cause of action, (whether by purpose, by negligence, by reckless disregard, or without fault), and therefore speech is, to some extent, being regulated, when it, combined with some other action or omission, causes harm.
[29]"Actual malice" is present when a statement is made with the knowledge that the statement is false, or with reckless disregard as to whether the statement is true.
[30]The right to bear arms, for example, does not give an individual the right to take out his gun out and shoot someone else without justification. So too, the right of free speech carries certain responsibilities, and is subject to various abuse. This way of thinking is expressed in several state constitutions, such as New York's, which provides that a person has the right to speak, write, or publish his or her sentiments on any subject, but is "responsible for the abuse of that right." N.Y. Const. Art. I, §8. See also, for example: Ohio Const. Art. I, §7; La. Const. Art I, §8; Texas Const. Art. I, §11.
[31]Annals of Congress, Vol. 4, p. 934 (1794).
[32]A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions, noted the Supreme Court, leads to inevitable self-censorship. "Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so." New York Times v. Sullivan, 376 U.S. 254, 279 (1964).
[33]"Whatever the outer confines of the Clause's reach may be" wrote the Supreme Court, for example, in the context of the Eighth Amendment, and its proscription on excessive fines, "we now decide only that it does not constrain an award of money damages in a civil suit when the government has neither prosecuted the action nor has any right to receive a share of the damages award." Browning-Ferris v. Kelco Disposal, 492 U.S. 257, 263-264 (1989).
[34]Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974).
[35]"The First Amendment's concern for commercial speech is based on the informational function of advertising. Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity." Central Hudson, 447 U.S. at 563.
[36]Red Lion Broadcasting v. FCC, 395 U.S. 367, 390 (1969).
[37]There will be some cases in which a public emergency could be accompanied by a potential for defamation. In cases where, for example, there is a chemical leak, or an explosion, some might argue that the press would be discouraged from providing the public with necessary information, for fear that Chemical Company X or Oil Company Y could be negligently implicated as the cause of the situation. In such cases, however, the media would have means to inform the public of the situation, while reserving judgment about the origin of the emergency until a reasonable investigation can be maintained. Negligence, moreover, as a legal principle, generally involves an inquiry into what is reasonable under the circumstances, such that the urgency of the situation would undoubtedly be taken into account by any judge or jury member who might be deciding such a case.
[38]The fact that Newt Gingrich or Bill Clinton may have cheated on their wives, for example, or that O.J. Simpson may have killed his wife, or that Michael Jackson may have molested a child, may all be of legitimate interest or concern to the public; but there is no need, on the part of the public, to know that information NOW, before there is time for reasonable investigation.
[39]Curtis Publishing v. Butts, 388 U.S. 130, 147 (1967); quoting, Buckley v. New York Post, 373 F.2d 175, 182 (2nd Cir. 1967). See also: Gertz v. Robert Welch, 418 U.S. 323, 369-404 (1974) (White, J., dissenting); Rosenbloom v. Metromedia, 403 U.S. 29, 64 (1971) (Harlan, J., dissenting).
"I wish I could put a copy of this book in the hand of every American. With remarkable clarity, Steve Herman reviews and explains our legal system to those who are its consumers - lay people and lawyers alike. In many respects, this book is the honest instruction manual for the American legal system that no corporation would ever provide for its product."
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Former President,
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