Sunday, July 3, 2011

The Supreme Court's Misuse of Freedom of Speech.

As we have said recently on this blog, while being a constitutional right both in France and in the U.S., freedom of speech (or liberté d’expression) is understood very differently in our two countries. That being said, it is always about ideas (including art) and information (including free press). 

The French and Americans may have different ideas about free speech but I am not sure many people on either side of the Atlantic would consider violent-video games a tenet of free speech that needs protection.
Last week, in Brown v. Entertainment Merchants Association, the Supreme Court struck down a California law that restricted the sale or rental of violent video games to minors in the name of free speech (Cnet).
Of course, even in their ultimate visionary wisdom, the drafter of the U.S. Constitution could not have imagined anything like video-games, but if you read the First Amendment, it is hard to imagine that violent video-games have anything to do with the principles cherished in the constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Like any other freedom, freedom of speech has limitations both in France and in the U.S. according to the “harm principle” set forth by John Stuart Mill in “On Liberty” later developed into the “offense principle” which basically states that the state can intervene in someone's freedom to prevent harm to others. Clearly the "offense" limitations are in part culturally based: obscenity is more strictly understood in the U.S. while hate speech is more strictly condemned in France. 

That being said, beyond cultural differences, there is also common sense. It seems pretty clear that the harm principle easily applies to violent video games played by children. I was glad to read that Justice Breyer’s dissenting opinion follows this line of thought. 

The awkwardness of the ruling becomes even more obvious when you read the arguments by Justice Scalia when he wrote the court’s majority opinion:
"Like the protected books, plays, and movies that preceded them, video games communicate ideas -- and even social messages -- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection."
Not only does the court see no difference between books and video-games, but they compare the violence in video-games to the violence in….. Snow White or Homer’s Odysseus. 
Seriously?Violent video games compared to fairy-tales? Yes, REALLY - here's what he wrote :
"Cinderella's evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven. (...) 
High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake."
Citing precedents, Scalia added that only sexually explicit material can be banned from being sold to children, saying that “speech about violence is not obscene”. 

In other words, it is OK to show disemboweled women to children as long as you don’t show them tits. Does anyone see anything wrong here?

This may indeed be HIS personal opinion, but it is hard to see any legal or sensible reasoning here and II bet you many people would consider the violence in video-games as obscene as anything.
As you can imagine, Jon Stewart had a field day about this.

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Now this is not the first baffling ruling by this Supreme Court done in the name of free speech. (see NPR)
  • Last year, they also decided to overturn federal laws that had prevented corporations from using their profits to buy political campaign ads for decades (CSMonitor). .
Justice Anthony Kennedy wrote for the majority. "The court has recognized that First Amendment protection extends to corporations." In effect, it considers corporation as people by giving corporate speech the same rights as that of human beings. This means that corporations can spend freely on political ads for any candidate of their choosing. 

  • Then this week, the conservative majority of the Supreme Court struck down an Arizona law that provided escalating matching funds to candidates who accept public financing - a law that was supported by referendum to curb corruption in the state of Arizona.

It is hard not to see right-wing political ideology behind these rulings - free speech, which was intended to protect individuals and press has been used to help large corporations and promote what is clearly a far-right agenda of minimal regulation and government intervention at the expense of the the American citizen. 

Those ruling are usually decided by a 5 to 4 majority. Those five justices use a tenet of our democratic systems to undermine the very fabric of democracy by giving more power to big oil companies, pharmaceutical giants, Wall Street banks, health insurance companies and other powerful interests. This is a return to the Gilded Age when the court straightened the hands of corporations and the wealthy (WP). 

But the reality may be worse than mere ideological opinions as a few justices have strong ties with the interest groups whose fate they decide. 

Take Justice Clarence Thomas : he conveniently "forgot" to report his wife's income from a conservative Think Tank (LATimes, ThinkProgress) for years, and may have missed a few more things, including what seems like gifts from his friend Harlan Crow, a contributor to Thomas's wife's Tea Party movement organization, Liberty Central. (NYTimes

Then, there is troubling suspicious link between Clarence Thomas and Antonin Scalia and the Koch industries, the energy giant (and second largest privately held company in the United-States) whose owners, the Koch brothers, have used their power and money to finance free-market and advocacy organizations. The Justices have been guests at political retreats of Charles Koch in Palm Spring. (NYTimes

Whether there is some form of bribery does not even matter - there is enough appearance of impropriety and bias to require the justices to recuse themselves from cases involving the interests of those large corporations. Well, that would be in the "regular world" of course, but not in the world of Supreme Court Justices who are not are not legally constraints by the usual codes of conduct of other judges. 
The Supreme Court is the most unchecked branch of government: they do not stand for re-election (they have tenure), and  may "not be diminished" while they hold their position. Yet, they can make all sorts of decisions that will affect our fundamental freedoms and the shape of our society. They can decide who the president may be.

DSK, or how sex can be the downfall of us all.

In the last two evenings NBC evening news opened on the ex-IMF Chief Strauss-Kahn case. Of course, the stranger-than-fiction turn of event (- the lack of credibility of the alleged victim and DSK’s subsequent release from house arrest, even if the charges still stand as of now) was bombshell news in France on Friday . Experts say that there is now a great chance the case will collapse entirely. 

In France this is not merely treated as criminal but also as political news. There have been speculations by some that DSK might be back in politics, and why not in the French presidential race, should he be acquitted. He was after all France’s most popular potential candidate for next year's presidency. Well, he may benefit from the sympathy over his ordeal but I find it hard to believe he could ever run as president of France.
  • First, for practical reasons: the deadline for Socialists to declare their candidacy is July 13.  (the Socialist Party will hold open primaries  to choose its candidate for the first time in France history).
  • Then and more importantly, because a collection of stories have surfaced out in the open: not only his womanizing or his libertine life but accusations of harassment, and even one alleged sexual assault. Even his friends admit that there is a dark side to his character (see this Le Monde article for instance), and this why the rape story was believable. He had sex with that woman, even though he knew this could be his downfall.
Yes, the French can be very forgiving of personal matters, including extra-marital affairs, but having an - even admittedly consensual - sexual relationship with a maid in his position shows very poor judgment at best, recklessness and self-indulgence, if not sexual addiction. Plus, even if the case is legally dismissed, there will always be a cloud of suspicion since if the alleged victim continues to claim she was rape.
Finally, this case was an opportunity for all to see his wealth - not be the best promotion campaign when you represent the French socialist party. 

This case has nonetheless been a great opportunity to engage discussions on gender relations in France, on the law and the presumption of innocence.
And it can also be an opportunity for a reflection on the role of the media and how they propagate clichés about other countries.

Here's a great example from political observer Arthur Goldhammer who explains on his blog from his own enlightening experience why the media can be pimps that turn their "guest experts" (in his case an academic) into prostitutes - a very appropriate, albeit scary metaphor in the context of the DSK sex scandal :

The DSK affair has forced me to take a fresh look at how changes in the technology of news reporting have influenced the practice of democracy. The fourth estate, which Tocqueville thought to be an essential bulwark of democracy owing to its ability to "implant the same idea in many minds at once," has become something of a monster. The "idea" that it implants is often a lurid one, which appeals to our most perverse imagination and worst instincts, yet we cannot avert our eyes.

The cable news networks are the worst offenders. My experience yesterday on CNBC, a network I never watch, was revelatory. Forced to sit in the studio for an hour while awaiting my few minutes of air time, I was treated to inanity after inanity, as reporters, who knew little more about the breaking news than their viewers, dutifully filled their air time with vapid speculations. When my own turn came, I had little to no opportunity to develop the slightest argument about the way in which the French presidential campaign had been affected by criminal charges in a foreign land--a historically unprecedented situation, as far as I know. As usual, the subject I had been asked by the producer to discuss--how sex scandals are handled in the US and France--was ignored by anchor people spouting nonsense about how "the French hate us" and DSK's impending elevation to the status of "folk hero" by the libertine Gauls.

Of course, when one lends oneself to this circus, one shouldn't be surprised at being turned into a prostitute (except that of course I wasn't paid for my degrading service). The only honorable course is to refuse such invitations in the future, and yet I accept, again and again, despite having made resolutions not to in the past, in the hope that what little knowledge I possess might actually be passed on to viewers interested in hearing it. But the very format of these "news/opinion shows" is designed to prevent thoughtful dialogue: there is no discussion whatsoever between guests and anchors (who are often separated by thousands of miles) before the cameras roll, so there is no opportunity to map out a coherent outline for discussion or even an informative set of topics. The "guest expert" is merely a body recruited to lend an aura of authority to the incessant yammering of the "news." And yet this instrument actually does shape public opinion by saturating the atmosphere with unvetted, unfiltered, unedited "infotainment." Its audience is far larger than that of any "serious" journal of opinion.

The whole business is a scandalous waste of time and money. There's nothing quite comparable to American cable news in France, and so much the better. But even the "legitimate" media are guilty of this reductio ad absurdum of their institutional role. "Who will educate the educator?" Marx asked. The question remains as pertinent as ever, now that vast numbers of people are "educated" by "media" that impede rather than facilitate the flow of information and ideas.