FREE SPEECH — Governor Arnold Schwarzenegger
is trying to rewrite the First Amendment with the same relentless zeal
of the killer cyborg he played in the 1984 movie The Terminator, says
First Amendment attorney Robert Corn-Revere, arguing in a new opinion paper
released yesterday that the effort must be short-circuited by
the U.S. Supreme Court.
As noted by the paper's co-publisher, the Thomas Jefferson Center for the Protection of Free Expression in
California has asked the U.S. Supreme Court to overturn a ruling by the
U.S. Court of Appeals for the Ninth Circuit against a California law
that wouldve restricted access by minors to violent video games. The
circuit court found that the law violated the First Amendment on
several grounds, including that the Constitution does not permit
regulating violence as a form of obscenity. That decision is one of
five similar rulings from three federal appeals courts and several
federal district courts against nine state and local governments that
sought to regulate video violence. Despite that clear message,
California is asking the Supreme Court to reverse 60 years of First
Amendment jurisprudence, Corn-Revere says, and to lower the bar so
that protected speech may be regulated based on legislative whim.
Corn-Reveres paper, The Terminator Cometh,
is the latest in the Speaking Freely series published jointly by The
Thomas Jefferson Center for the Protection of Free Expression in
Charlottesville, Va., and The Media Institute in Arlington, Va.
If the Supreme Court is likely further to expand the tiny class of expressions entitled to little or no First Amendment protection (obscenity, child porn, libel) we'll get our first sense of how far it might go in a case to be heard and decided in next year's term, involving the sale of videos showing the torture or killing of animals to those with an appetite for such depictions.
But meanwhile the "slippery slope" refrains in the culture wars probably win more skeptics than converts, and deserve to. One faction says if you make it harder for minors to get their hands on Grand Theft Auto, next you'll take the Iliad and the Old Testament away from adults. Another says if you proscribe trafficking in mortars and rocket propelled grenades, next you'll try to round up sporting and household defense firearms. Neither faction takes the other seriously, and neither has the intellectual honesty to admit that one application of the reductio ad absurdum is as convincingor unconvincingas the other.