Sunday, June 02, 2002

A federal court has ruled that the Children's Internet Protection Act (CIPA), requiring public libraries to install pornography-filtering software on their Internet kiosks, is unconstitutional. This ruling is of a piece with a lower court's Brooklyn Museum v. Giuliani decision, which invoked the First Amendment to prevent the mayor of New York from cutting off funding to a museum showing an exhibit he judged offensive. In NEA v. Finley, the Supreme Court ruled that decency considerations could be taken into account by "diverse advisory panels" deciding government funding of art, but in language that implied that any more specific provision would be unconstitutional. The Brooklyn decision then demonstrated that the government's prerogative to determine what art to fund had indeed--as Scalia and Thomas wrote in a scathing concurrence--been "gutted" by the Finley ruling. The CIPA ruling simply extends the same principle, preventing taxpayers from deciding, through their representatives, to exclude from their subsidies of expressive media certain forms of expression they find offensive.

Of course, these rulings have nothing to do with any broad, overarching notion of free speech; there is in fact any number of classes of speech that the Supreme Court is willing to see restricted, or even to restrict itself. Suppose, for example, that the Internet filters in question had blocked lists of names and addresses of known sex offenders. A Federal Appeals Court has already ruled that publishing such lists on the Internet violates the rights of those offenders; the Supreme Court will thus decide, later this year, in effect, not whether such filters would be permissible, but rather whether they would be mandatory. Whole classes of speech--commercial speech, for example--are routinely excluded from the courts' First Amendment protections; even political speech is narrowly circumscribed with respect to subsidy: religious organizations, for example, receive a tax exemption only if they refrain from explicitly endorsing political candidates for office, and the Supreme Court nods. And then there are the myriad ways in which the government--through public service advertisements, for example--directly funds speech that embraces a particular point of view (such as "just say 'no' to drugs").

No, this sequence of First Amendment rulings, like the Fourth Amendment shenanigans I discussed previously, is a transparent effort to impose the judicial community's collective public policy preferences on Americans in direct contradiction to the latter's democratically expressed will. Just as the courts, by declaring high-school urine tests for recreational drugs (but not steroids) unconstitutional under the Fourth Amendment, effectively vetoed a specific democratic decision to discourage recreational drug use among teenagers, so has it now vetoed a specific democratic decision against subsidies for pornography-viewing at public libraries (but not for campaigning in churches). Even those who agree with the courts' political views on these particular issues ought to be concerned with the breathtaking sweep of the courts' arrogation of political power through judicial diktat. At this rate, after all, it's probably only a matter of time before they start, say, meddling with the presidential election process....

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