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.

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