Connoisseurs of the odd byways of law rarely find rich materials in the U.S. Supreme Court, where the deliberations usually proceed with dignity and common sense. For truly asinine judicial misbehavior, we normally have to look at state courts. Yet this past March, the Supreme Court had before it a case that delighted the late-night comedians and launched a few thousand bad puns. Specifically, in the case of City of Erie v. Pap’s A.M., This Honorable Court determined that directing the exotic dancers of one Pennsylvania community to wear g-strings and pasties did not violate the First Amendment of the Constitution.
At first glance, it is easy to trivialize a case that seems to belong to the lighter side of American judicial history: There is something gloriously inappropriate about such staid figures as David Souter and Sandra Day O’Connor chatting knowingly about the art of ecdysiasm. But the case does raise serious questions about the nature of First Amendment law, particularly how far that clause can or should be adapted to changing social circumstances. We currently face severe challenges to our freedom of speech rights, especially in the realm of electronic communications. Those of us who have never set foot inside “adult entertainment” establishments may yet regret the Erie decision and others of its ilk.
What happened in the case was straightforward, although the logic underlying it was anything but. An establishment called Kandyland specialized in nude dancing, a fact that reportedly attracted a bad crowd to the area, creating what was allegedly a “conducive atmosphere to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects.” These developments provoked local authorities to impose minimum-clothing requirements. The ordinances were alternately dismissed and upheld by a series of higher courts, until a divided U.S. Supreme Court eventually ruled in favor of the city. In essence, the Court decided that nude dancing was indeed expressive conduct under the Constitution, but it was only “within the outer ambit” of speech as determined by the First Amendment; hence, local authorities could take reasonable measures to restrict it, with the goal of suppressing “secondary effects,” such as crime and other abuses; yet the specific restrictions would have little or no effect on crime and other abuses, and would not promote the public good; but we are going to uphold the restrictions anyway.
So the Court is banning what it regards as a constitutionally protected form of expression, even though it believes that the ban will not do any good. Are we clear on that? The decision itself might be correct, but the logic is deeply flawed.
Why this decision is troubling may not be obvious to the many non-lawyers who read the First Amendment literally, finding references to “speech” but not to other forms of communication, overt or implied—and certainly not to nude dancing. According to this view, original intent means that we should protect speech, whether spoken or written, but generations of judicial activism have led to this concept being stretched to include nude dancing. That is misleading. The amendment itself uses the words “freedom of speech and of the press,” but it is a very small leap to read those words as “speech, and the obvious means by which we express our meaning as if in speech.” Writing and printing are simply examples of analogies to speech. Some forms of communication are less “obvious means” than others, and the courts have been slower to recognize them, but extensions of speech they certainly are. Imagine that, during the murderous NATO airstrikes on Yugoslavia last year, I had stood silently outside the White House, carrying a blood-soaked Yugoslav flag. Would I have been engaging in political “speech,” even though I never uttered a word nor put pen to paper? Undoubtedly I would have been, and the courts have long recognized that. All they have questioned in recent years is the extent to which such speech needs to obey customary rules of etiquette, and whether it incites illegal behavior. Just what is expression, and what is conduct? In a classic decision of the 1960’s, the Supreme Court ruled that a man could wear a T-shirt bearing a message suggesting, in four-letter words, the proper fate of the military draft. Political speech is broadly protected, even if it is not verbal.
Throughout the 20th century, the courts have also progressively extended the ambit of protection to other forms of cultural expression—to novels, poems, and, yes, exotic dancing—and in the process, the courts have attracted a good deal of public derision. Yet the underlying principles are sound. Just as the First Amendment does not explicitly mention writing or publishing, it also does not say that free speech must be “speech with a serious political purpose”; nor, thankfully, does it attempt to define “political.” If the courts have erred, the mistake has been less in extending protected speech to different types of communication than in a reluctance to recognize new forms of media. In the early days of cinema, the courts decided that movies were not an expression of culture but a vulgar fairground toy which did not deserve even the paltry protection then accorded to serious literature. Who could take films seriously as works of art? Not until the 1950’s did the courts recognize movies as serious speech, deserving protection from the whims of legislatures, police, and private vigilantes.
The example of movies should stand as a warning, for it is upon new forms of communication that cases like that of Erie’s nude dancers might have a lasting significance. The courts have been slow to protect speech in the newer media, and are generally willing to accept First Amendment restrictions ostensibly aimed at preventing social harm, even though, as in the Erie case, they acknowledge more or less openly that these restrictions could never work.
To illustrate this, let us take one of the hottest issues in the electronic world over the last few years: encryption. Since the mid-1990’s, millions of people have begun using e-mail, which has become an attractive and convenient means of communication. Yet e-mail remains a disturbingly public medium into which outsiders are able to snoop. Employers have the right to access e-mail written on their systems (though not letters written on paper during work hours), and the courts have usually concluded that laws intended to constrain wiretapping do not apply to the Internet. This glass-house atmosphere has inevitably encouraged people to turn to encryption technologies. The virtues of encryption are obvious, as are the countless lawful circumstances in which people might wish to avoid prying eves. A compelling case can also be made that the source code involved in encryption represents a form of constitutionally protected speech, since it conveys a message in much the same way that musical notation does. The more people can use encryption, die greater confidence they have in the Internet, and the better the opportunities for commercial development. Privacy and free speech enhance the public good.
Yet the spread of effective encryption has been delayed by the protests of law enforcement agencies, particularly the FBI, who cite the dangers from terrorism, espionage, drug-dealing, and child pornography. Consequently, the United States has fought a long war to prevent the spread of various encryption programs, to the extent that posting them on the Internet has brought charges of exporting military technology. In 1995, the FBI and other federal agencies demanded that so-called “clipper chips” be installed in all computers, fax machines, and other forms of electronic communication, giving federal agencies the capability to examine encrypted communications. In effect, this would have required all users of encryption to hand over their keys to the government, and the proposal was withdrawn after widespread protests. Nevertheless, similar efforts ensued over the next few years, notably in attempts to dumb down telecommunications technology to allow wiretapping, or to create “surveillance-friendly” e-mail systems (a wonderful phrase: Who can criticize friendship?). Since police agencies rarely possess the most advanced electronic technology, such proposals potentially open private communications to surveillance by other unauthorized groups and individuals. Currently, the FBI is clamoring for a proposed Cyberspace Electronic Security Act to give police access to codes that would unscramble encrypted communications, with few or no restraints from judges. At a minimum, these proposals appear to trample not just the First Amendment but also the Fourth, Fifth, Ninth, and Fourteenth. Put more succinctly: American police agencies have decided that the Constitution does not apply to electronic communications. To quote the stunningly frank declaration of Scott McNealy, CEO of Sun Microsystems, “You already have zero privacy—get over it.”
If you want to see where such policies are leading, take a look across the Atlantic, where Great Britain has just constructed a new surveillance system called CTAC, the Government Technical Assistance Centre. In theory, GTAC is intended to detect and defeat international criminal activity, such as terrorism, narcotics, and child pornography. Under the Regulation of Investigative Powers Act currently under discussion, all Internet service providers would be required to connect their servers to the monitoring center. The new network would have the power to access all e-mail and Internet communications sent in Britain. Police would need government permission to search for e-mails and Internet traffic, but they could apply for general warrants that would enable them to intercept all communications to and from a particular organization. These connections “will allow anyone to watch the websites you are browsing in real time,” and authorities could monitor one in 500 telephone connections to the Internet.
We can only imagine the furious reaction if authorities sought the same powers to open all letters or read all diaries. The argument seems to be that the newer technologies are not serious means of communication, like good old-fashioned paper, and are thus “within the outer ambit” of protected speech. Worse, they lend themselves to abuse by all sorts of bad people; hence, it is only proper to regulate Internet communication. That such restraints have no chance of succeeding is indicated by the astonishing upsurge of illegal obscene materials on the Web, to the extent that knowledgeable observers have spoken of a de facto legalization of child pornography over the past five years. The restrictions are not working—so let’s redouble them.
As a rhetorical tactic, the argument made by the FBI and other federal agencies is brilliant, since it suggests that those who oppose restrictions on encryption must, innocently or otherwise, favor the interests of spies, terrorists, and childporn merchants. The problem with this line of reasoning becomes apparent if we apply the same principles to communications systems that the judges recall from their distant youth, including the printing press and the telephone. Of course, both devices lend themselves to extraordinary evils, but these have to be tolerated to some extent in order to permit the exercise of free communication: The printing press allowed people to read Shakespeare and the King James Bible, as well as Mein Kampf. Oliver Cromwell argued that trying to ban religious ideas because a few people fell into heresy was as foolish as prohibiting wine because some individuals become drunkards. The argument embarrassed his many Victorian admirers, who did, of course, believe that alcohol should be restricted for that very reason. But as Cromwell knew, freedom carries a price.
Courts and legislatures really do not understand the Internet and other forms of electronic communication. To grasp this, witness the debates in the mid-90’s over the Communications Decency Act, which, in the name of defending public morality, would have reduced all Internet content to that fit for viewing by a ten-year-old girl from a particularly sheltered family. Or take the recent case in which a court decided that an anti-Mormon site violated church copyright by displaying certain Latter Day Saints writings. This decision was not terribly controversial in itself, but the judge then proceeded to prohibit any other site from linking to the offending page: Without the freedom to link, the Internet dies.
For 250 years after the printing press entered common use in Europe, people fought and died to establish the principle of the free use, distribution, and exchange of information, and ultimately, such rights were wrung from existing elites. Given the accelerating pace of technological change, the struggle for free communication on the Internet is taking place in a period of years, rather than centuries; the underlying principles, however, are identical. These are by far the most pressing issues facing courts in the United States and other advanced countries today.
If the courts are prepared to pay attention to the minutiae of undergarments, they should be at least as enthusiastic about defending rights far more central to the freedom to speak and communicate ideas. The Founding Fathers would never have dreamed that freedom of speech might one day be taken to include nude dancing, although I think many of them had enough sense of humor to be wryly amused by the development. Their humor, however, would not have extended to the failure of courts to defend the right of free communication simply because it happened to be in a new medium: Was ever a generation of American leaders more sympathetic to technological change than that of the 1780’s? This was the generation that had evaded British censorship by ever-more ingenious methods of pamphleteering and committees of correspondence. The view that free-speech protections should only apply to the forms of communication that prevailed in 1790 is analogous to the notion of anti-gun lunatics such as Rosie O’Donnell who believe that the Second Amendment gives citizens only die right to bear flintlocks to defend against sudden assaults by Redcoats or Indians. Circumstances change; technologies change; principles do not.
I can only imagine what the Founding Fathers would have made of the argument that communications must be subject to constant police surveillance, lest people use them for seditious and dangerous purposes. I can almost hear their inevitable reply: Damn it, sir, that is how we made this country in the first place.