When Absolutes Work

Topic: Professions & Institutions

When Absolutes Work
(7/1/2004)

The Supreme Court just knocked down one of the Clinton Administration’s assaults on the First Amendment, undertaken during his infamous “triangulation” phase. The law, which has been on hold pending high court review, aimed to protect children from racy material on-line by requiring adults, under the threat of heavy fines, to use access codes before they could receive the material themselves. You will not be shocked to learn that John Ashcroft’s Justice Department liked the law, called the Children’s On-line Protection Act, or COPA, for you Barry Manilow fans out there.

The Supreme Court, by a narrow 5-4 margin, did notand that’s the scary thing. Not that the Supremes killed the law, which was expected, but that four members of the court (Scalia, Rehnquist, O’Connor, and Breyer) were willing to take a big bloody bite out of America’s core absolute value with good intentions, of course.

America, a country with a powerful tendency toward utilitarianism, restrained that tendency at the very beginning by laying out certain principles that just weren’t on the table for future trade-offs, no matter how appealing they might seem. This astonishing foresight has protected the country (though not with a 100% success rate, as certain wartime excesses through the years have shown) from all sorts of zealotry and legislative abuses. In essence, Madison, Jefferson, George Mason and the rest made a powerful statement that says that it doesn’t matter how good an argument you can make for infringing free speech, restraining the press, restricting people’s right to assemble or right to worship as they pleaseyou just can’t do it. It doesn’t matter if it’s great argument; it doesn’t matter if just restricting free speech just a little saves lives, ends disease and makes Mallomars grow on trees. It isn’t an option. And this is the genius of absolutism: sometimes it is important to end the temptation to waffle, and when properly applied, it can lend great power to essential values. Imagine, if you can, if the Bush Administration had taken the absolute prohibition of torture as settled and beyond debate, if it had told everyone from Alan Dershowitz to Michael Savage to the CIA to go accept the fact that we wouldn’t torture Osama bin Laden if we had him in custody and his nuclear bomb was ticking away, hidden in an American city.

No question, COPA was well intentioned. The World Wide Web is an open sewer, and nobody has figured out a way to keep innocents from being sucked down into the muck. COPA was an attempt, but as the majority in Ashcroft v ACLU pointed out, the law had the effect of making it illegal for adults to exercise their Constitutional rights. Well, the law’s advocates say, come on: adults are only being required to punch in a security code for certain material that’s sleazy any way.

And if they don’t? If they don’t, they get fined for logging on to their Alyssa Milano web site without going over the required hurdles, and that, my friend, is what we call infringing free speech, a guaranteed one-way ticket to the slippery slope. Register to look at sexy sites, register for violent sites, register to check out seditious sites and polluting sites and unethical sites. There are good arguments for all of them, just like the argument for COPA given by a disappointed Justice Department spokesperson.

“Our society has reached a broad consensus that child obscenity is harmful to our youngest generation and must be stopped,” Mark Corallo said. “Congress has repeatedly attempted to address this serious need and the court yet again opposed these commonsense measures to protect America’s children.”

Yup, Mark, you’re dead right on all counts. And that’s why we have absolute principles sometimes, to prevail against a winning argument, to stop the tidal wave of “broad consensus,” because broad consensus has done a lot of terrible things throughout history. Thanks to Madison and friends, it won’t take away unfettered speech.

Although that 5-4 margin is worrisome.