02 July 2004

Ashcroft v. ACLU

Tuesday's decision presents several difficult conceptual issues. On strictly substantive grounds, the COPA is indefensible, both in the abstract and based on existing precedent. However, the emotional context of "kids seeing naked women at school" (along with the invalid assertion that the case concerns "kiddie porn," which is actually covered by a different and equally indefensible law that has already survived Supreme Court scrutiny) resulted—as usual—in a legislative victory for a minority's rhetoric asserting a concrete result over an abstract assertion of right that includes substantially more complex contexts than the asserted concrete result. Cats and dogs living together indeed!

From my point of view as a civil procedure wonk, this is an entirely unremarkable decision—at least, if I can pretend that it has no substantive context for a moment. Ashcroft v. ACLU (PDF, 483kb) is, at its core, an exploration of how one evaluates the trial judge's exercise of his/her discretion to grant or deny a preliminary injunction. The law requires the judge to balance the probability of success on the merits with the comparative harm of denying or granting an injunction. The greater the probability of success on the merits, the less compelling need be the balance of harm, and vice versa. The bulk of the majority's opinion is devoted to stating that the plaintiff (the ACLU) had demonstrated a close-to-compelling case for striking down the COPA in even its preliminary papers. It was not a certain probability, though, at least in the eyes of the majority; and, therefore, the government must be afforded the opportunity to actually try the matter in defense of the statute.

As you've probably figured out by now, though, I reject the concept of contextless interpretation. Context has varying relevance and meaning from case to case (or story to story, or poem to poem, or political diatribe to political diatribe, or sermon to sermon, or…), but it is never irrelevant. The real problem with this decision is a deep doctrinal flaw in the Court's jurisprudence of "adult content." I prefer this term to "obscenity," "indecency," "porn," and other more emotionally loaded (and pejorative) terms both because it has not yet become quite so emotionally loaded and coopted by specific viewpoints, and because it applies to the concept of "harmful to minors" in a much more viewpoint-neutral fashion. Anyone who pretends that "indecency" and "obscenity" do not have strong partisan, political, and religious bases hasn't been paying attention to the varieties of "speech" that do not fall within those classes, and probably has a very myopic view of those varieties of "speech" that do.

In any event, the deep doctrinal flaw is this: Our precedents and reasoning assume "sex" is somehow different in nature without being different in political content and implications. Consider the ordeal of Elizabeth Smart for a moment. This concerned an underage girl who was kidnapped by an unbalanced religious zealot for the purpose of marriage consistent with his religious beliefs. Particularly given that the religious beliefs in question (whether truly held or not) appear to have been an offshoot of 19th-century Mormon doctrine, regardless of later repudiation, and that the secular purpose of that doctrine was to enhance opportunities to "go forth and multiply," what is the necessary implication? That Elizabeth Smart was taken for purposes necessarily including sex. The media carefully left this as titillating and vague as possible; the media also made sure that only the veriest dunce would not understand this from its coverage. In principle, then, what is the distinction between Elizabeth Smart and Dolores Hayes? Is it that one is "true" and one is "fiction"? Is it that one is essentially a cooperative act (even if law says one party is not competent to cooperate) and the other a kidnapping? If one is going to claim that the pictures make the difference, how many pictures are there in Nabakov's novel? And just how explicit is the photographic depiction in either Stanley Kubrick's or Adrian Lyne's film adaptations?

At its crux, "indecency" concerns itself with a function necessary to the reproduction of this and every other animal species. One could argue that movies should not show girls receiving flowers from their dates before the Big Dance, because that involves the exchange of sexual organs. So, then, what makes it "decent" or "indecent" (let alone "obscene")? Is Michaelangelo's "David" "obscene" or "indecent" in its moderately homoerotic tackle-out form? If not, what is the principled distinction? Anybody who wants to pretend that there is no political dimension to sexuality should think for a moment about the Comstock Act, the religious right's actions and doctrine concerning "family planning," and the attempted impeachment of Wild Willy.

This is one end of the doctrinal problem: overinclusion. On the other end, we have underinclusion. If we try to define "indecent" as "material harmful to minors," that must include more than just sex. By that standard, news broadcasts of Columbine, and the World Trade Center, and the beheading and other abuses of individuals in Southwest Asia, also qualify as indecent. One might even say that first-person "shoot'em ups" are equally "harmful" by deemphasizing weapon safety and respect for life. Similarly, some core political speech might be "indecent"; perhaps the most obvious examples include And the Band Played On and Conduct Unbecoming, which in addition to being inextricably political (and violent in a special sense) demonstrate that separating sex, even in the abstract, from politics is a pretty hopeless endeavour.

We are then left with knowing it—obscene, indecent, political—when we see it. Categorizing an expression is itself an expression with political content. "The opinion that art should have nothing to do with politics is itself a political attitude." I would go even farther than did Orwell: The opinion that art can have nothing to do with politics is itself a political opinion. If we are intellectually honest, we cannot allow individual perspectives to choose for others—and, most particularly, for other parents—what is acceptable for those others (or other parents' children) to see without our own approval.

I am reminded of a story told in Bob Woodward's The Brethren about a National Lampoon cartoon depicting the justices on pornography. Justice Brennan understood the drawing of him to be using his robe to keep two schoolgirls from seeing the smutty magazines in the center of the room. It fell to a clerk to explain that perhaps instead he was flashing the girls. And that is not a good basis for law; sometimes it's the easy cases that make bad, overextended law.

Fortunately, I'm not much of a Barry Manilow fan; I'm not a Barry Manilow fan at all; or I might inflict "The COPA Cabaña" upon y'all. In print; as bad as my parodies tend to be, they're a lot better than my singing, which is really annoying given perfect pitch.