It can be instructive to observe a competent law professor dealing with the state of the law left by the United States Supreme Court case of Brown v. Entertainment Merchants Association (2011). A State had attempted to prohibit the sale or rental of “violent video games” to minors. The prohibition covered games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “a reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”
Clips from “violent video games” were projected on a classroom screen illustrating the kinds of portrayals forbidden by the statute that has been invalidated, on First Amendment grounds, by the Supreme Court. It was evident that the law students in attendance on this occasion were quite familiar with such “games.” It was also evident that most of them enjoyed hugely the samples provided for them.
Their professor tended to support the result reached by the Supreme Court in this case invalidating the State law on First Amendment grounds. Much was made by him of the difficulty of “proving” those adverse effects, on character and conduct, of violent video games that had been the announced concern of the legislators. The vocabulary and methods of contemporary social science, including economics, were drawn on.
It can be evident, when such an approach is used, that it is difficult, if not impossible, to prove “scientifically” that questionable effects on youngsters result from any particular video exposure. The supposed instincts and common sense of the community with respect tp such matters can be dismissed as unreliable. It can even seem that the everyday wisdom of the community is never to be taken seriously.
The sophisticated scholar of our day depends on rigorous reasoning that tends to question what the typical community relies upon. This reasoning, however, may not be, as rigorous as it can sound at first hearing. Revealing here can be the insistence (as in many constitutional law case books today) upon the term “freedom of expression,” instead of the traditional “freedom of speech” when dealing with First Amendment cases.
Such a substitution tends to ignore, when it does not even explicitly disparage, the longstanding principles of the community. The credentials and the dynamics of the community are not recognized and taken seriously. A much more sophisticated approach is insisted upon.
When much is made of “freedom of expression” there is the tendency to lose sight of the sources and implications of the traditional “freedom of speech” language. It is (at least for us) language that goes back, for centuries, to the traditional parliamentary privilege in England. Such as assurance has long been recognized as essential if a parliament is to be effective in dealing sensibly with the affairs of the community.
“Freedom of expression,” on the other hand, makes much more of the immediate gratification of the speaker. The process tends to become more important than the consequences. Another form of such misplaced priorities may be seen in what has been allowed to develop with the current use of the filibuster rule in the United States Senate.
Critical to the typical reliance on the contemporary “freedom of expression” (instead of the traditional “freedom of speech”) may be a principled suspicion of any efforts by the community to shape the character of citizens. Indeed, there may be a tendency to question generally the prerogatives, if not the very existence, of “community.” Indeed, concerns about character may even be regarded as illegitimate for any supposed community to address by legislation or by judicial proceedings.
How, it can be wondered, have the more sophisticated jurists and scholars among us gotten to this state of affairs? It is a condition which lacks a “feel” for the constitutional tradition of the English-speaking peoples. Related to this is a failure to continue to recognize what “community” means, what its duties and hence its prerogatives are.
Also related to all this may be the failure of the United States Supreme Court to recognize the duty and hence the powers it was intended to have as the ultimate judicial authority with respect to the common law in the United States. Its decline as a judicial body has been accompanied by what can seem to be an ever-growing insistence upon a power (nowhere provided for in the Constitution) to test Acts of Congress for their constitutionality. The influence upon all of these developments of an ever-growing cosmopolitanism seems to be worth investigation.
To doubt that the First Amendment keeps States from concerning themselves with the character of citizens and the moral tone of the community does not mean that “anything goes” when government undertakes to regulate. Thus, there are Due Process and related standards to be brought to bear upon what any State attempts to do. And, of course, the First Amendment recognizes that citizens should be able to discuss freely the measures considered by a legislature to shape the character of citizens.
Perhaps even more troubling than what the Supreme Court has done in weakening State legislatures concerned with the character of citizens is what it has done in the Military Funeral Picketing Case (Snyder v. Philips ). The Chief Justice (supported in the result by seven of his colleagues) opened the Opinion of the Court with the observations:
“A jury held members of the Westboro Baptist Church liable for millions of dollars in damages for picketing a solder’s funeral service. The picket signs reflected the Church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment. The question presented is whether the First Amendment shields the church members from tort liability for their speech in this case. [This Church was founded] in Topeka, Kansas, in 1955. The church’s congregation believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in America’s military. The Church frequently communicates its views by picketing, often at military funerals. In the more than 20 years that the member of Westboro Baptist have publicized their message, they have picketed nearly 600 funerals.”
The Chief Justice (in approving what a United States Court of Appeal had done) concluded the Opinion of the Court with these observations:
“Speech is powerful, it can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.”
The Church group has been doing this sort of thing for at least two decades, with the intended effects and usual consequences well known. Is there not something seriously wrong with the Country when such hit-and-run conduct is permitted by the communities in which these people operate? And is public opinion of no consequence for such people, even though there are ample (far less offensively intrusive) means for voicing publicly the controversial opinions they may be “entitled” to have?
Of course, there are here, too, Due Process and other long-established standards to be used in assessing legal measures (including the amount of damages levied) that may be directed against such deliberate provocations. It is remarkable that hundreds of communities have evidently tolerated such determined offensiveness for two decades now. But, it can be wondered, would not healthy communities manage to insure that citizens (including hit-and-run outsiders) recognize that “this sort of thing” simply cannot be done?
The helplessness of communities all too often insisted on, in effect, by contemporary readings of the First Amendment is a particularly dramatic illustration of a deterioration not only in political discourse but also in the study of political philosophy. It is such study upon which sound legal reasoning very much depends. What has been happening to serious political philosophy is suggested by the steady rehabilitation we have been seeing among scholars of Martin Heidegger, the thinker whom I have presumed to identify as “the Macbeth of philosophy.”
The ever-greater use of economics in legal training and legal reasoning can also be troubling. A fundamentally political grasp of common endeavors tends to be undermined thereby. Ever-changing “values” take the place of enduring “virtues” and the Good in our vocabulary as citizens.
The communities upon which sound citizenship depends tend to be depreciated. Just as it should be troubling that military-funeral picketing can effectively ignore the natural community disapproval it encounters, so can the production of (and profiting from) violent video games. We can be reminded here of the question of how eminently respectable tobacco-company executives understand what they are doing in aggressively marketing (especially among youngsters) their obviously deadly products.
The personal (or the prerogatives of the Individual) can be made much of by respectable Intellectuals today. It may be very much a matter of chance, in such circumstances, how the tastes and interests of a people develop. The efforts of a community to shape the character of its citizens can even be suspected as tyrannical, or at least as dangerously naïve.
Symptomatic of this development is how the Preamble to the Constitution of 1787 can be routinely ignored by our scholars. The drafters of the Confederate Constitution of 1861, however enslaved they were by the troubling social institutions they had inherited, could recognize that their 1787 counterparts had laid down a challenge in their provision (both in the Preamble and in Article I, Section 8 of the United States Constitution) for “the general Welfare.” The decision, in 1861, to delete such language from the Confederate Constitution tacitly acknowledged that a genuine national community had been provided for by the Framers of 1787.
Indicative of a deterioration in serious political philosophy, and hence in legal reasoning, is the ever-growing emphasis placed among us on Individualism and Self-expression. A steady misreading of the First Amendment is one consequence of this development. In these circumstances even people who are regarded as “conservatives” no longer take seriously the awesome duties and the plenary power implicit in the majestic identification, “We, the People.”
Indeed, it can sometimes seem today that serious efforts to shape the character of citizens are made only by non-democratic regimes here and there. It is not considered respectable, it can even seem, for republican regimes to be concerned about such matters. To speak of an enduring Good can become unfashionable, if not simply naïve,
One consequence of all this is that we are becoming unable either to recognize or to do anything sensible about the character of citizens. The prerogatives of Privacy can become ever more attractive. At the same time we leave ourselves open to the ever-changing (and all-too-often bizarre) influences of Globalization.
Thus, genuine citizenship is repeatedly called into question. Symptomatic of this development is that the most distinguished scholars in our universities can be closer in spirit to like-minded specialists halfway around the world than to their academic associates just down the hall. A comparable “cosmopolitanism” may be seen in professional sports today, which can make thoughtful “fans” wonder whether any team can really be “theirs”.
Fundamental to the concerns suggested here is a recognition of what old-fashioned legal reasoning both requires and provides. It requires the kind of disciplined investigation and repeated deliberation that the common law depended on. And it provides an assurance that there can be an enduring community worthy of one’s sacrifices.
It should be salutary to recall that the elaborate account of regimes forced in Aristotle’s Politics is identified by him as necessarily following upon the detailed account of the virtues in his Nicomachean Ethics. Both treatises, it is evident, are offered in the service of the Good. A proper political ordering makes more likely the development and maintenance of happy citizens respectful of enduring political concerns.
Such recollections suggest that there is much that is simply unrealistic in the more sophisticated legal reasoning and political discourse of our day. Particularly questionable should be any “system” which does not respect the need that the typical human being has for a proper shaping by a sensible community. Included in such shaping is the justified expectation which is developed that one’s fellow-citizens will also have been developed and maintained appropriately in the circumstances of the day.
These remarks were developed on October 31, 2011, for a Constitutional Law Seminar, The School of Law, Loyola University of Chicago.