Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship 1996 A Lot More Comes into Focus When You Remove the Lens Cap: Why Proliferating New Technologies Make it Particularly Urgent for the Supreme Court to Abandon its Inside-Out Approach to Freedom of Speech, and Bring Obscenity, Fighting Words, and Group Libel Within the First Amendment Eric M. Freedman Maurice A. Deane School of Law at Hofstra University Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship Part of the Law Commons Recommended Citation Eric M. Freedman, A Lot More Comes into Focus When You Remove the Lens Cap: Why Proliferating New Technologies Make it Particularly Urgent for the Supreme Court to Abandon its Inside-Out Approach to Freedom of Speech, and Bring Obscenity, Fighting Words, and Group Libel Within the First Amendment, 81 Iowa L. Rev. 883 (1996) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/1272 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. A Lot More Comes into Focus When You Remove the Lens Cap: Why Proliferating New Communications Technologies Make it Particularly Urgent for the Supreme Court to Abandon its Inside- Out Approach to Freedom of Speech and Bring Obscenity, Fighting Words, and Group Libel Within the First Amendment Eric M. Freedman* Table of Contents I. Introduction 884 A. Summary: The Dangers of Current First Amendment Doctrine and the Steps Needed to Bring the Outside In 884 B. The Problem 885 C. The Proposal: An Outline of this Artide 890 II. Step One: Applying the First Amendment to the Purposes of Pornography Regulation 893 A. Promoting Purity 893 1. Political Purity 894 * Associate Professor of Law, Hofstra University School of Law, ([email protected]). B.A. 1975, Yale University, MA 1977, Victoria University of Wellington (New Zealand);J.). 1979, Yale University. This Article has benefitted greatly from the comments provided on an earlier draft by Dean Stuart Rabinowitz of Hofstra Law School and the students we taught in our seminar on Mass Media and the First Amendment during the fall of 1993, Linda C. McClain, Melissa Nathanson, and Andrew Schepard. I also owe important debts to Connie Lenz and Katherine Walkden of the staff of the Hofstra Law Library, to VictoriaJ. Saunders and Wade Morris of the Hofstra Law School Class of 1994, Alexander Fear of the Hofstra Law School Class of 1995, and Michael Kneis of the Hofstra Law School Class of 1997 for their comprehensive research assistance; to Nancy A. Grasser for her devoted secretarial support; and to Hofstra Law School for its provision of research funding. Professor Steven Wermeil of Georgia State University College of Law provided indispensable assistance to my use of the papers of the Justices at the Library of Congress; Professors Cornelia H. Dayton of the History Department at the University of California at Irvine and Mary Beth Norton of the History Department at Cornell University were exceedingly generous in sharing their knowledge of colonial legal developments; and Gary P. Moore did his best to guide me along the information superhighway. 81 I0 WA LAWREVIEW [1996] 2. Moral Purity 894 a. Rise and Fall 895 b. And Rise and Fall 900 c. United States v. Roth 902 3. The End of Thought Control 904 B. Preventing Criminal Conduct 906 C. Protecting Communities and Their Children 917 1. Communities 919 2. Children 925 D. Furthering the Equality of Women 931 E. Conclusion 944 III. Step Two: Aligning Formal and Real Analysis 945 A. Overruling Chaplinsky 947 B. Overruling Beauhamais 950 C. The Practical Effects of Doctrinal Change 952 IV. The Importance of Insider Status to the Communications Technologies of the Future 955 V. Conclusion 968 I. INTRODUCTION A. Summary: The Dangers of Current FirstAmendment Doctrine and the Steps Needed to Bring the Outside In The Supreme Court should repudiate its current view that certain categories of expression are of such low value as to be "outside" the protection of the First Amendment. Until it does so, free speech interests will remain vulnerable to attacks: (a) from those, like the advocates of controls on racial hate speech, pictures demeaning to women, or music glorifying violence, who contend that the particular content of the expression they execrate is so abhorrent that it, too, should be placed "outside" the First Amendment, by analogy to the speech currently there (obscenity, fighting words, and group libel); and (b) from those, like the advocates of controls on video games and imagery transmitted by computers, who contend that the new media by which messages are being conveyed are so threatening that those modes of communication should be placed "outside" the First Amendment Oust as movies originally were). Ending the dichotomy between speech "inside" and "outside" the First Amendment will require the Court to re-examine the premises underlying its vindication of the summary suppression of obscenity, and to overrule ABANDONING THE INSIDE-OUTAPPROACH the moribund yet still-mischievous cases of Chaplinsky v. New Hampshire' and Beauharnaisv. Illinois.2 By abandoning its inside-out approach to the First Amendment, the Court would take an important step not just towards blunting genuine present threats to freedom of expression, but also towards a much-needed re-alignment of First Amendment legal rules with principle. Most significantly, the reform would restore to primacy the principle that-under a government that is the servant rather than the master of the people who created it-the burden is never on the speaker to explain the social value of his or her speech, but always on the state to justify its suppression.' B. The Problem Current free speech law resembles the Ptolemaic system of astronomy in its last days. Just as that theory grew increasingly incoherent in an attempt to incorporate new empirical observations that were inconsistent with its basic postulates, so is First Amendment doctrine disintegrating as cases reviewing restraints on speech strive to paper over the fact that analyses based on presuppositions as to the value of particular kinds of expression are inconsistent with the premises of the First Amendment itself. Most readers of the opinions in R.A.V. v. City of St. Pau 4 for example, will surely find it difficult to shake the feeling that all nine Justices are missing the forest for the trees, disputing hoary categories like "fighting words"5 in a case whose true conflict bears no relationship to 1. 315 U.S. 568 (1942) (denying First Amendment protection to "fighting words"); see discussion infra Part MA (explaining the benefits of overruling Chaplinsky). 2. 343 US. 250 (1952) (denying First Amendment protection to group libel); see discussion infra Part I]LB (explaining the benefits of overruling Beauharnais). 3. To state the point slightly differenty: Beginning from the premise that "[s]peech is free under the First Amendment, not so much because free speech is inherently good as because its suppression is inherently bad," People v. Huss, 241 Cal. App. 2d 361, 368 (1966), the appropriate focus of legal analysis should not be on the purpose of the speech, e.g., Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265, 274 (1981), but on the purpose of the regulation. Cf. David AJ. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. Pa. L. Rev. 45, 82 (1974) ("To argue from the social value of pornography is to meet the Covrt on its own terms and to dispute the outcome of its balancing test. One may equally reject the constitutional validity of the balancing approach."). My approach is consistent with that taken by Ronald Dworkin in his just-published work, Ronald Dworkin, Freedom's Law. The Moral Reading of the American Constitution (1996), reviewed in Richard A. Epstein, The First Freedoms, N.Y. Times Book Review, May 26, 1996, at 12; Paul Reidinger, The Moralist View, A.BA J., May 1996, at 102; Cass R. Sunstein, Earl Warren is Dead, The New Republic, May 13, 1996, at 35. 4. 505 U.S. 377 (1992). For a full-length account of the case by counsel for the defendant, see Edward J. Cleary, Beyond the Burning Cross: The First Amendment and the Landmark RA.V Case (1994). See also United States v. Juvenile Male J.H.H., 22 F.3d 821 (8th Cir. 1994) (affirming conviction of RA.V. and others on federal civil rights charges arising out of same incident that led to state charges in R.A.V.). 5. See Kent Greenfield, Our Conflicting Judgments About Pornography, 43 Am. U. L 81 10WA LAWREVIEW [1996] those categories.' The explanation for the Justices' performance is that they are viewing the free speech universe through the distorting lens of an outmoded paradigm, one in which only certain speech is "within" the First Amendment. When the state seeks to regulate such speech, the key questions are:7 1. Is the purpose of the regulation to restrict speech? In some cases, the answer may be no. For example, the regulation's purpose may be to suppress non-speech conduct (e.g., heroin sales, consumer fraud) with the restraint on speech being merely incidental.8 Because, in many areas, simply asking the question comprehensively goes a long way towards answering it, this issue rightly plays a central role in traditional First Amendment analysis.' ° 2. If so, has the state demonstrated a compelling reason consistent with First Amendment values for restrictingthis speech? This inquiry is inevitably the controversial one.