Jewish World Review August 9, 2001 / 18 Menachem-Av, 5761
http://www.jewishworldreview.com -- THE ACLU is getting a lot of credit these days for defending our precious First Amendment right to scribble sadistic child pornography. Convicted child pornographer Brian Dalton recently pleaded guilty in an Ohio court to a second pandering offense. He later claimed his journal was intended to be used exclusively as his private masturbatory aid, winning the undying devotion of self-proclaimed civil libertarians.
People seem to take enormous psychic satisfaction in defending Brian Dalton's creepy journal. Oh sure, we get the dutiful statements of personal revulsion at Dalton's fantasies. But, oddly, the more repellent his writings are, the more they give Dalton's defenders the self-satisfying sensation of rising above the angry mob calling for his head.
It doesn't matter that there is no angry mob, since everyone is with Dalton. Still, there could be an angry mob.
Defending counterintuitive positions makes people feel like abstract intellectuals, capable of grasping the larger point beyond the ken of the little people. But just because something is counterintuitive doesn't make it true. (College students everywhere, just beginning to practice this annoying pretension, are staring blankly at that last sentence.)
Acceding to the nonexistent pressure from hoi polloi and punishing Dalton for his journal, the argument goes, would be the first step on a slippery slope to fascist thought police banning all controversial opinion.
Slippery slope arguments are always stupid. Please stop making them. What people think they mean by "slippery slope" is that the principle at the top of the slope is indistinguishable from the principle at the bottom of the slope. That's a bad principle argument, not a "slippery slope" argument.
For a slippery slope argument to work, what is at the bottom of the slope must be more horrifying than what is at the top of the slope. Obviously, therefore, there's a difference between the top and the bottom. If you can see a difference, so can the law. That's how we end up with exceptions to general rules.
At this very moment, for example, you are prohibited from engaging in speech that: expropriates the official NBC logo, reveals Coca-Cola's secret formula, defames a private person, would likely incite violence, unduly exploits someone else's work, is a false boast about a product, gives investment advice without registering with the SEC, is too loud, or rebroadcasts Hugo Zacchini's entire human cannonball act (see Zacchini v. Scripps-Howard Broadcasting Co.).
And yet somehow the dark night of fascism has not descended over America. Indeed, no one gives these speech exceptions a moment's thought. They are not sufficiently counterintuitive to tweak the pseudo-intellectual instinct.
Dalton's journal is obscene -- an exception to free speech with a longer pedigree than many other exceptions. If criminalizing Dalton's journal today means the thought police will be confiscating Republican Party pamphlets tomorrow, why didn't prohibiting the Gay Olympics from using the Olympic trademark do the same?
Even more galling than the intellectual pretensions and annoying arguments of Dalton's defenders is hearing the ACLU praised for its stalwart defense of the First Amendment. This is on the order of congratulating William Tecumseh Sherman for his defense of the South.
In its take-no-prisoners approach to the First Amendment, the ACLU brought a lawsuit against the Lubbock Independent School District demanding that high school students' extracurricular, private religious speech be banned. The ACLU's anti-speech position has been repeatedly rejected by the Supreme Court, including just last term in Good News Club v. Milford Central School.
The ACLU won a prior restraint prohibiting an Avis employee from using a specified set of derogatory words in the workplace in Aguilar v. Avis Rent A Car System. The late Justice Stanley Mosk, a liberal, dissented from the California Supreme Court's endorsement of this novel interpretation of the First Amendment, noting that the injunction banned speech that other employees would never even hear. It was mind control, pure and simple.
The ACLU has argued that a private employer's irritating religious statements to an employee were not protected expression and could be banned as a violation of the establishment clause. The Oregon Supreme Court unanimously rejected the ACLU's position in Meltebeke v. Bureau of Labor and Industries.
Taking another "absolutist" view of the free speech clause, the ACLU argued that the University of Virginia was required to deny student activity funds to a religious magazine, Wide Awake. In Rosenberger v. Rector and Visitors of University of Virginia, the Supreme Court held that the denial violated religious students' free-speech rights.
The Massachusetts ACLU argued that the organizers of a St. Patrick's Day parade did not have free-speech rights to exclude a contingent of gay marchers. The Supreme Court unanimously reversed in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston. (The national ACLU, realizing the jig was up, filed an amicus brief with the U.S. Supreme Court taking no clear position).
Listening to the ACLU on speech may not be a "slippery slope," but it's a bad principle. The ACLU would see that Dalton's journal is obscene only if it mentioned the Creator or referred to females as
JWR contributor Ann Coulter is the author of High Crimes and Misdemeanors: The Case Against Bill Clinton. You may visit the Ann Coulter Fan Club by clicking here.