BONUS SECTION:
With Friends Like These, Who Needs Enemies?

When I first turned the page and saw the article "What Part of 'No Law' Don't You Understand" in the March 1996 issue of Wired, I felt 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 by constitutional scholar and attorney William Bennett Turner", and I was ready to read a recapitulation of my book on the real First Amendment. Riding the zeitgeist! Since this article appeared in Wired, a plaintiff in the case against the Communications Decency Act, I fully expected a rousing defense of the First Amendment.

But you can imagine my shock when, in the first column of the article, I came across the following sentence: "The First Amendment speaks in seemingly absolute terms . . ." Hey, what's this? I was expecting a defense of the First Amendment, but instead I was getting just one more dose of the "Private Mythology" I outlined in that chapter in my book. As I read the article, the statements got more and more bizarre. Turned out that this article was a wolf in sheep'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 seemingly absolute terms . . .
Seemingly? Que es esto? I thought "no" meant no.

This has never meant, however, that people can say whatever they want wherever they want.
True, because the Amendment doesn't cover State legislation. But that's not the reason Turner will cite.
Correctly interpreted, the First Amendment does not prohibit all restrictions on speech.
True as applied to State legislatures, false as applied to Congress.

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

While the previous three statements are partially accurate, we're actually about to be headed, once again, down the wrong road. In the next section, unbelievably entitled "No fine print", Turner gives us the premises that justify the fine print painstakingly detailed in my book:

The First Amendment means what the courts say it means.
Yikes!

And I thought it meant what it said . . .

Since the amendment's words themselves don't tell us what falls within its "freedom". . .
They do when you read them.

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

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

In deciding free speech cases, the courts have elaborated some bedrock principles that inform First Amendment decisionmaking. What the First Amendment "freedom" means, in fact, is basically this set of principles.
Well, now we know where the real 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.
One cannot "recognize" what is false.

There can be exceptions.
Only if you re-define the amendment.

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

[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 done the old-fashioned way: by looking to precedent, reasoning by analogy, and considering the policy implications of ruling one way or another.
How about deciding them the constitutional way?

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

Indecent material . . . is treated differently from obscene material.
And hip people are treated differently than cool people.

Those who want to restrict digital communication should have . . . a much heavier burden of proof to justify restriction.
Nothing can justify this restriction; not on the Federal level, at any rate.

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

William Bennett Turner's article "What Part of 'No Law' Don't You Understand?" (WIRED 4.03, p. 104) would be more aptly titled "What Part of 'No Law' Don't I Understand?" While ostensibly a defense of the First Amendment, Turner's article turns out on closer inspection to be a stealth-bomb attack on the First Amendment via its delivery of the "Private Mythology" I have catalogued in my on-line book, WOULD THE REAL FIRST AMENDMENT PLEASE STAND UP?

In his article, Turner makes statements like "correctly interpreted, the First Amendment does not prohibit all restrictions on speech." True, but only because the First Amendment is by its explicit terms limited to Congressional speech regulation. Turner misses this point, however, and instead delivers the standard non-sequiturs that "the First Amendment is written in seemingly absolute terms," and that "the First Amendment means what the courts say it means," even though the First Amendment means exactly what it says (what part of 'no law' don't you understand, Mr. Turner?), and that failure of judges to recognize this would result in a violation of Clause 3 of Article VI of the Constitution, which states that "all . . . judicial Officers . . . shall be bound by Oath or Affirmation, to support this Constitution . . .", said failure being an arguably impeachable offense.

The logical conclusion of Turner's anti-constitutional view is his startling statement that "government [including the Federal government] can restrict certain speech because of its content, if it proves that there's a 'compelling' government interest." Holy 1984, Batman! When Turner says "for better or worse, we have to accept that Congress can make a law outlawing obscene speech on the Internet," we realize that this so-called "constitutional scholar" is really a wolf in 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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