Craig Parshall, General Counsel


Free Speech as a House

July 13, 2011

Second only to the church/state cases that the Supreme Court decides, it seems that nothing engenders more public passion than the High Court’s opinions involving freedom of speech. On June 27th the Court issued its decision in Brown v. Entertainment Merchants Association in which it struck down, on First Amendment grounds, a California law that restricted the sale of violent video games to minors. Voices from across the ideological spectrum had something to say about that decision. National Public Radio (NPR) posted a blog by Jeffrey Anderson lambasting the ruling, the majority opinion of which was written by Justice Antonin Scalia. In Anderson’s view the underlying reasoning of the decision “reflects Scalia’s personal opinion – and the opinions of some justices before him – not the text of the Constitution”; and he ends his critique of the Brown ruling with this: “People who didn’t like California’s video game policy could always have fled the state, but no American can flee Justice Scalia’s opinion.”

Yesterday the conservative Spectator posted the thoughts of Andrew Barr, who, in effect, wondered what all the hullabaloo is all about regarding violence: “Games with excessive and arbitrary violence,” he notes, “are a minority,” while most video games have a laudable lesson for children in teaching them to “accomplish the mission.” The title of Barr’s article suggests that California’s politically correct attempt to regulate violence in video games is helping to create a “Commonwealth of Wimps.” Of course, parents need to monitor the activities of their children, including their intake of video games, and they have to be vigilant regarding what kind of images, violent and otherwise, that their children receive. But the Brown decision is a sound one for reasons other than those addressed by Anderson and Barr. The First Amendment, and (ideally) the Court’s interpretations of it, are like the architecture of a house; they should not be viewed as having been built for one season (or a single case) but for the ages, and for generations, to withstand rainstorms, lightning strikes and hurricanes.

In Brown, the Court made the simple point that the First Amendment cherishes free speech in all but a very short, narrow list of exceptions, a list that finds its basis in the long history and traditions of our nation. Regardless of the policy wisdom (or lack thereof) of attempts by legislative bodies to regulate certain aspects of American life, the Court’s majority ruled that when it comes to the freedom of expression in all its various forms the list of exceptions to full free speech protection is very short, and diligently guarded. The Justices also gave us part of that list, those “well-defined and narrowly limited classes of speech” that can be highly regulated and restricted, particularly as to children: shocking sexual content, i.e., “obscenity” (also including the subset of “indecency”), and forms of expression that either urge others or cause them to commit immediate violence, thus qualifying either as “incitement” or as “fighting words.” As a result, mere depictions or images of “violence” simply do not fit in that list, and adequate reasons for expanding the list had not been proven in the Brown case. The walls and foundations laid down by the First Amendment and as maintained by the Supreme Court in Brown makes good legal sense: over the years, this system of using that well-established “short list” of very “narrow” exceptions to freedom of speech has worked well.

More importantly, there is a necessary corollary to this: if a form of expression doesn’t qualify for being kicked “outside the free-speech house” because it is not obscenity, indecency, or doesn’t call for violent insurrection – i.e., it isn’t on the “short list” of exceptions – then by definition it stays inside the house, and gets full First Amendment protection. Therefore, at least under the reasoning of this case, our cherished rights of religious freedom therefore ought to stay fully and safely (in theory) inside this architecture of the First Amendment, a point that was made by the Court in a footnote in the Brown decision. As we Christians declare the Gospel in all of its truth and application, and do our part in fulfilling the Great Commission, let’s hope and pray that we continue to find not only a constitutional house of protection in America, but also a home as well.