The problem with United States history – you know, one of those subjects that's currently being cut back in public schools in favor of more hours on reading and math so the students can pass the "No Child Left Behind" mandated tests – is that there's so much of it around, and that so much of that is so well documented.
History is certainly one of the interests of the Heritage Foundation, the religio-reactionary think tank heavily bankrolled by Richard Mellon Scaife, who's been on the foundation's board of directors since 1973, and who's given millions to the American Enterprise Institute and the Hoover Institution as well. Scaife also reportedly paid for Paula Jones' sexual harassment suit against President Clinton. In any case, there's no question as to which side the Heritage Foundation comes down in the War on Pornography.
And since the Heritage Foundation, whose averred mission is to "formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense," is so interested in America's heritage, and since the primary U.S. document is its Constitution, the Foundation decided to "bring[] together more than one hundred of the nation's best experts to provide the first ever line-by-line examination of the complete Constitution and its contemporary meaning." Better still, they brought on board Edwin Meese III, the Reagan-era attorney general responsible for the 1986 Attorney General's Commission on Pornography, more popularly known as the Meese Commission, to chair the project's editorial advisory board.
The result was The Heritage Guide to the Constitution, a 475-page volume that indeed attempts to dissect the meaning of every phrase in that document and its amendments, with various legal scholars having been assigned to deal with specific sections of the document. The one assigned to the First Amendment's freedom of speech and press clauses was Eugene Volokh, a well-respected libertarian-leaning scholar who once clerked for recently retired Supreme Court Justice Sandra Day O'Connor, and who's now a professor at the UCLA School of Law.
But as reactionary as the Heritage Foundation is, what Volokh wrote for The Heritage Guide is simply staggering to anyone who's familiar with the typical arguments for banning sexual speech.
"There were very few reported Founding-era court cases interpreting the federal and state Freedom of Speech and of the Press Clause, and very few Founding-era political controversies that would have excited some detailed discussion of what the clauses meant," Volokh reported in the Guide. "The governments of the time were quite small, and the statute books thin. There were few laws restricting commercial advertising. There was only one state law banning pornography, and that appears to have been unenforced until 1821." [Emphasis added]
So a respected UCLA law professor, researching and analyzing the original meaning of the U.S. Constitution for an ultra-conservative foundation's "guide" to that document – a guide which was overseen by an ultra-conservative former attorney general who conspired with his religio-reactionary cronies to suppress adult material through a federal commission that yet bears his name – still found that, for more than 30 years after the adoption of the Constitution, and for exactly 45 years after the creation of the United States of America, there was just one law banning porn, and that law wasn't even enforced?!?!?!?
Of course, Volokh tempers his historical findings by adding, "This may but does not necessarily mean that such speech was broadly believed to be constitutionally protected; then, as today, the government did not ban all that it had the power to ban. But the paucity of such bans meant that few people in that era really had occasion to define what the constitutional boundaries of speech and press protection might be. The only speech restriction that was broadly enforced was traditional libel law. Defaming another person was understood to be constitutionally protected."
Free speech purists, of course, would argue that even defamation is protected under the unambiguous wording of the First Amendment, and that for it to be unprotected speech, a further constitutional amendment would be required. But certainly the argument could be made that defamation, unlike sexually explicit speech in all its forms, creates actual harm to an individual; specifically, to that person's reputation, an important asset in doing business then as now, as well as possibly affecting that person's personal life.
But what is incomprehensible, given Volokh's findings, are the glib dismissals of sexual speech protections that have been enunciated several times by the Supreme Court's most conservative justice, the "textualist" Antonin Scalia.
Take, for instance, Scalia's concurrence in City of Los Angeles v. Alameda Books:
"I join the plurality opinion because I think it represents a correct application of our jurisprudence concerning regulation of the 'secondary effects' of pornographic speech. As I have said elsewhere, however, in a case such as this our First Amendment traditions make 'secondary effects' analysis quite unnecessary. The Constitution does not prevent those communities that wish to do so from regulating, or indeed entirely suppressing, the business of pandering sex." [Emphasis added]
Some attorneys have argued that Scalia's claim of the constitutionality of suppressing commerce in sexual speech is significantly distinct from any claimed constitutionality of suppressing the speech itself, though in practice, the effects would be much the same. But for Scalia to base suppression or even regulation of sexual speech on "our First Amendment traditions" flies in the face of Volokh's historical findings and analysis.
In fact, in the Guide, Volokh retells the story of a disagreement over anonymous speech rights between Scalia and his (then) nearest philosophical match on the high court, Justice Clarence Thomas, in the 1995 case of McIntyre v. Ohio Elections Commission, which dealt with the question of whether the government could outlaw anonymous electioneering.
"Both Justices recognized that there was 'no record of discussions of anonymous political expression in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions'," Volokh related. "They both recognized that much political speech in the time of the framers (such as The Federalist itself) was anonymous. Indeed, much political speech justifying resistance to Parliament before the Revolution was also anonymous. To Justice Thomas, the experience of the Founders in their own use of anonymous speech was dispositive of what they would have regarded as a vital part of the freedom of speech, particularly where political speech was at issue. Justice Scalia, however, who has a narrower view of what can be accepted as evidence of original intent apart from the text of the provision itself, argued that 'to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right' – perhaps the legislatures simply chose not to prohibit the speech, even though they had the constitutional power to do so. Justice Thomas did produce evidence that some Founding-era commentators saw anonymity as constitutionally protected, Justice Scalia replied that many of these were mere 'partisan cr[ies]' that said little about any generally accepted understanding. Justice Thomas found the evidence sufficient to justify reading the First Amendment as protecting anonymous speech. Justice Scalia did not think the historical evidence of what people did necessarily showed much about what people were seen as having a constitutional right to do. Instead, Scalia turned to American practices of the 1800s and 1900s, a source that he considers authoritative where the original meaning is uncertain. A consensus of the original meaning on this subject remains elusive."
It's worth stepping back to note the different approaches taken in the argument above (assuming Volokh has related it correctly). Thomas says, lotsa folks Back Then using anonymous political speech; ergo, it's accepted; ergo, it's constitutional. Scalia retorts, doesn't matter how many people did it Back Then; that has nothing to do with its constitutionality; the question is whether the government even noticed that they were doing it, and if they did, decided to ignore it, even though they could have done something to outlaw it if they'd gotten around to it.
In other words, for Scalia, the non-enumerated rights "retained by the people" in the Ninth Amendment count for nothing; nor do the restrictions on the federal government's powers, which are then "reserved to the States ... or to the people," in the Tenth. What counts is what the government can get away with taking jurisdiction over, no matter how freely society operated Back Then.
That's the attitude that allows Volokh to write, immediately following the above quote, "Despite the originalist debate between Justices Thomas and Scalia, today's free speech and free press law is not much influenced by original meaning." Aside from the fact that Scalia has consistently denied – well, recently, anyway – that he is an "originalist," the question has to be asked, Why isn't "today's free speech ... law ... much influenced by original meaning"? What gave the Supreme Court the power to change the plain meaning of the words, "Congress shall make no law ... abridging freedom of speech, or of the press," especially in light of the fact, as Volokh has pointed out, that for the first 45 years of our country's existence (1776-1821), there was only one law in one state banning sexually explicit materials, and even that was not enforced?
Sadly, this is just one more example of how religio-reactionary zealots at the highest levels have, for more than two centuries, consistently lied and even revised history to make it conform to their preconceived notions of morality – except now, a comprehensive analysis published by one of their own member organizations has shed new light on what is, for the adult industry in particular, their most critical deceit.
