When the Founders wrote the words "freedom of speech" into the Bill of Rights, they certainly didn't considered the possibility that one day, Americans would buy and sell "crush videos," which depict women stepping on small animals with their high heels. Yet the Supreme Court was recently called upon to determine whether that rather unusual form of expression stood outside the First Amendment. While the Court spends much of its time ruling on highly technical matters of commercial and administrative law, every so often it considers a case like this one, which goes to the very heart of the American experiment precisely because of its unsettling nature.
Conservatives are talking a lot about "getting back" to the Constitution these days. Some even go so far as to don Colonial-era garb on the occasion of political protests, the better to express their fealty to 18th-century values. But the truth is that as brilliant as the text of the Constitution is, it can't tell us exactly how to order our 21st-century society.
President Barack Obama will soon make his second nomination to the Court, and chances are that the confirmation hearings will feature some back-and-forth between the nominee and Republican senators on the question of how the Constitution is to be understood. The senators will probably demand to know whether the nominee believes in adherence to the law or in a "living Constitution," an idea they will characterize as an excuse for liberal judicial activism, remaking laws willy-nilly in an effort to advance a leftist agenda. If history is a guide, the nominee will probably claim to have no particular philosophical approach at all, other than callin' 'em like you see 'em.
The idea that the Constitution has to be interpreted within the context of an ever-changing society inflames proponents of "originalism." Their perspective says that the Constitution can only be applied by looking at the precise words of the text as it was understood when the words were written. Justice Antonin Scalia may say that the way to decide cases is to "begin with the text, and to give that text the meaning that it bore when it was adopted by the people." This sounds like a logical and principled approach to take, but in practice, it is virtually useless and thus serves mostly as a convenient cover for arriving at whatever results you happen to find appealing. After all, it makes about as much sense as saying that the way to fix your transmission is to ask how Benjamin Franklin would have repaired a stuck wheel on his carriage. Some of the principles may be the same, but they'll only take you so far when determining the limits and scope of ideas like freedom of speech in today's world.
Two hundred and twenty-one years after the Constitution was ratified, we still grapple with what the words "freedom of speech" mean for us. For instance, the modern corporation didn't exist in the 18th century, so Scalia and the other conservatives on the Court weren't looking to James Madison when they granted it all the free-speech rights of American humans in the recent Citizens United case. And even though the First Amendment says, "Congress shall make no law ... abridging the freedom of speech," in practice all kinds of laws abridge that freedom. You can be held criminally or civilly liable for inciting a riot, knowingly publishing slanderous lies about someone, or creating obscene material. Those kinds of speech are considered outside the First Amendment's protection -- evidence that we aren't taking the words "no law" literally.
As in so many areas, the Court's decisions on obscenity have steadily changed over the years, as justices struggled to determine just what it is that makes something obscene in a society whose values are always evolving. For many years, anything that "appealed to prurient interest" -- in other words, got you randy -- was obscene and thus could be made illegal. Then in a 1966 case the Court added that material had to be "utterly without redeeming social value" -- so a sex scene couldn't render a work of serious literature obscene. Then in 1973 the Court added that the material had to be offensive to "contemporary community standards," meaning what was obscene in one place might not be obscene in another.
Obviously, a wealth of material readily available today would be highly offensive to the community standards of 1789 Philadelphia. And in the Internet age, we are no longer sure where the boundaries of one's "community" lie. Yet one thread continues through this line of jurisprudence: If it makes you horny, we should probably fear it; if it doesn't, we need to protect it.
Which brings us back to that recently decided crush videos case, and the line of jurisprudence into which it fits. The law in question was passed in 1999 and put those videos -- which already violate laws on animal cruelty -- in a category previously occupied only by child pornography, where possession of the forbidden material is a crime in itself. (The person who brought the case that went to the Supreme Court was actually a purveyor of dog-fighting videos who got sentenced to prison time under the law.)
When the crush-video law was passed, President Bill Clinton instructed the Justice Department to limit prosecutions to videos presenting "wanton cruelty to animals designed to appeal to a prurient interest in sex." (Presumably, wanton cruelty to animals designed to appeal to the nonsexual pleasure some people get out of viewing such things is not a problem.) The Court struck down the prohibition on crush videos in an 8-1 decision, with only Samuel Alito dissenting, precisely because the majority believed that by barring depictions of animal cruelty, the law was "overbroad" and could potentially be applied to videos of hunting, which everyone knows is wholesome entertainment.
So how would the Founders have ruled on this case? There's no way to know or even suspect, because all the relevant questions had yet to come up when they penned the Constitution. The justices had a long line of First Amendment jurisprudence to draw on in making their decision -- but rereading the Federalist Papers would have been no help at all.
These days, the very idea of obscenity can feel like a relic from the past, those days when copies of Ulysses were stopped at the ports lest the novel infect young minds with its allegedly titillating content. It's remarkable to think that in the 1960s Lenny Bruce was routinely tossed in jail for saying words that today you can hear any night of the week on cable. Our values have changed, and the law has changed with them.
Many Americans view that evolution as a long-overdue casting off of our Puritan past. Others view it as a nightmarish descent into our own American Gomorrah. The Supreme Court hasn't addressed most of the core questions of obscenity law in some time, and it's hard to know what will happen when they do. But what we do know is that the text of the Constitution and the views of the Founders, no matter how brilliant they were, can't tell us how to resolve those questions.
As I argued last week, the confirmation hearings for Obama's nominee are unlikely to be particularly enlightening, on this or any other topic. But the rest of us could, if we chose, have a lively debate about how we ought to understand the Constitution's place in contemporary American life, one that goes beyond either side's claims about who loves the document more. There's nothing stopping us.