With Friends Like These, Who Needs Enemies?

When I first turned the page and saw the article "What Part of 'NoLaw' Don't You Understand" in the March 1996 issue of Wired, Ifelt deja vu. A great title for my book; why didn't I think of it?The subtitle was "A primer on the First Amendment and the Internet byconstitutional scholar and attorney William Bennett Turner", and Iwas ready to read a recapitulation of my book on the realFirst Amendment. Riding the zeitgeist! Since this article appeared inWired, a plaintiff in the case against the CommunicationsDecency Act, I fully expected a rousing defense of the FirstAmendment.

But you can imagine my shock when, in the first column of thearticle, I came across the following sentence: "The FirstAmendment speaks in seemingly absolute terms . . ." Hey, what'sthis? I was expecting a defense of the First Amendment, but instead Iwas getting just one more dose of the "Private Mythology" I outlinedin that chapter in my book. As I read the article, the statements gotmore and more bizarre. Turned out that this article was a wolf insheep's clothing, a Trojan Horse carrying an ideological virus.

With friends like these, who needs enemies?

The following quotes are taken sequentially from pages 104, 106, 108,110, and 112.

The First Amendment speaks in seeminglyabsolute terms . . .
Seemingly? Que es esto? I thought"no" meant no.

This has never meant, however, that people cansay whatever they want wherever theywant.
True, because the Amendment doesn't cover Statelegislation. But that's not the reason Turner will cite.

Correctly interpreted, the First Amendment does not prohibitall restrictions on speech.
True as applied to Statelegislatures, false as applied to Congress.

The amendment prohibits government restrictions on "thefreedom of speech," not on all speech, and it's a mistake to arguethat no speech can be restricted. In every case, the question iswhether the particular "speech" is within the "freedom" comprehendedby the amendment.
True as applied to State legislatures,but . . .

While the previous three statements are partially accurate, we'reactually about to be headed, once again, down the wrong road. In thenext section, unbelievably entitled "No fine print", Turner gives usthe premises that justify the fine print painstakingly detailed in mybook:

The First Amendment means what the courts sayit means.

And I thought it meant what it
said . ..

Since the amendment's words themselves don't tell us whatfalls within its "freedom". . .
They do when you readthem.

. . . it is up to the courts, faced with the necessity ofdeciding particular cases, to spell out the rules for decidingexactly what speech is free . . .
Actually, it's the jobof the First Amendment, but no one reads that anymore.
Isn't this guy supposed to be a First Amendment

In each new case, a court has to decide whether thegovernment's justification prevails over the interest in freespeech.
And violate their oath of office in the process,when it's Congress doing the prohibiting.

In deciding free speech cases, the courts have elaboratedsome bedrock principles that inform First Amendment decisionmaking.What the First Amendment "freedom" means, in fact, is basically thisset of principles.
Well, now we know where thereal First Amendment comes from.
Freedom in quotes here is particularly apt.

[O]ne must recognize that some of these principles --like the First Amendment itself -- are not absolute.
Onecannot "recognize" what is false.

There can be exceptions.
Only if you re-definethe amendment.

For example, government can restrict certain speechbecause of its content, if it proves that there's a "compelling"government interest . . .
That's not in theConstitution.

[A] prior restraint on certain speech may be warranted .. .
Not at the Federal level, it isn't.

Deciding cases involving these new issues should be donethe old-fashioned way: by looking to precedent, reasoning by analogy,and considering the policy implications of ruling one way oranother.
How about deciding them the constitutionalway?

The most immediate example is the impendingtelecommunications law prohibiting "obscene" or indecent speech onthe Internet. Like it or not, this is a no-brainer. Material that isso gross as to fall within the Supreme Court's strict definition ofobscenity, which is really hardcore material that has no artistic,political, or social value, is unprotected by the First Amendmentregardless of the medium in which it appears. So, for better or forworse, we have to accept that Congress can make a law outlawingobscene speech on the Internet.
No we don't.
is a "no-brainer".

Indecent material . . . is treated differently fromobscene material.
And hip people are treated differentlythan cool people.

Those who want to restrict digital communication shouldhave . . . a much heavier burden of proof to justifyrestriction.
Nothing can justify this restriction; not onthe Federal level, at any rate.

Phew! After reading this muck, I fired off the following letter toWired:

William Bennett Turner's article "What Part of 'NoLaw' Don't You Understand?" (WIRED 4.03, p. 104) would be more aptlytitled "What Part of 'No Law' Don't I Understand?" Whileostensibly a defense of the First Amendment, Turner's article turnsout on closer inspection to be a stealth-bomb attack on the FirstAmendment via its delivery of the "Private Mythology" I havecatalogued in my on-line book, WOULD THE REAL FIRST AMENDMENT PLEASESTAND UP?

In his article, Turner makes statements like "correctlyinterpreted, the First Amendment does not prohibit all restrictionson speech." True, but only because the First Amendment is by itsexplicit terms limited to Congressional speech regulation. Turnermisses this point, however, and instead delivers the standardnon-sequiturs that "the First Amendment is written in seeminglyabsolute terms," and that "the First Amendment means what thecourts say it means," even though the First Amendment means exactlywhat it says (what part of 'no law' don't you understand, Mr.Turner?), and that failure of judges to recognize this would resultin a violation of Clause 3 of Article VI of the Constitution, whichstates that "all . . . judicial Officers . . . shall be bound by Oathor Affirmation, to support this Constitution . . .", said failurebeing an arguably impeachable offense.

The logical conclusion of Turner's anti-constitutional view is hisstartling statement that "government [including the Federalgovernment] can restrict certain speech because of its content, if itproves that there's a 'compelling' government interest." Holy 1984,Batman! When Turner says "for better or worse, we have to accept thatCongress can make a law outlawing obscene speech on the Internet," werealize that this so-called "constitutional scholar" is really a wolfin sheep's clothing, and that WIRED missed the boat on this one.REALLY missed the boat.

They didn't publish this letter. A lack of space, no doubt.

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