The Supreme Court is not testing the limits of free "speech" so much as it is obliterating them. The latest example is Ashcroft v. Free Speech Coalition, a decision holding that Congress may not prohibit child pornography created by using adults who look like minors or by using computer imaging. Justice Anthony Kennedy's majority opinion described the Child Pornography Prevention Act of 1996 as "proscrib[ing] a significant universe of speech" that fell "within the First Amendment's vast and privileged sphere." Since such speech was not "obscene" under the court's prior definition and did not involve real children in its production, the court found that the government had no constitutionally adequate grounds to suppress it.
To anyone unfamiliar with the court's extraordinarily permissive rulings in the past, it might seem that any depiction of children in a variety of sexual acts could be, and certainly should be, prohibited. The government, however, was limited by those rulings to arguing on grounds that virtually ensured its defeat.
To the suggestion that child pornography might be used to lure children into sexual encounters or might tip adults teetering on the verge of pedophilia over the line the court responded, "The prospect of crime . . . by itself does not justify laws suppressing protected speech."
The importance of the Free Speech Coalition decision is less in its particular rejections of the government's necessarily limited rationales, however, than in the light the case throws upon the entire direction of First Amendment decisions that have brought the court to this point. There was, to put the matter bluntly, no good reason to throw free speech protections around pornography, nude dancing, raw profanity, and calls for law violation in the first place. Our jurisprudence has gone so far astray that there appears to be a right to display a picture of the Virgin Mary festooned with pornographic pictures and cow dung; but the presence of a crèche on government property is a forbidden establishment of religion under the same amendment.
There is nothing about the First Amendment that requires these results. That until relatively recently pornographers did not even raise the First Amendment in defending their sordid trade indicates how far we have come. It would seem merely common sense to think that graphic depictions of children in sexual acts would likely result in some action by pedophiles. The court finesses that problem with the statement that its "precedents establish . . . that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it." Quite right. But why is pornography within the rights of adults to hear and see?
And why--to take only one category of speech undeserving of the court's solicitude--are the rawest forms of profanity exempt from regulation? Cable television is saturated with words never before used in public, and the broadcast networks are racing to catch up. The New York Times reports that in "A Season on the Brink," the character playing basketball coach Bobby Knight "drops the F-word 15 times in the first 15 minutes," and that the characters in "South Park" used a "well-known word for excrement 162 times in 30 minutes." The industry response to criticism on this score is that such words give the programs authenticity because this is the way people talk. In reality, however, the arrow probably points in the other direction.
People increasingly talk this way because they hear the words on television, and they hear the words on television because the Supreme Court's rulings have deprived the government of any effective sanctions for profanity. In justifying its decision here, the court actually said, "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought." One wonders what valuable thoughts are triggered by child pornography or by nude dancing and profanity. The point is not that the court should outlaw such things; it has no power to do so. But it ought not to deny society the power to curb speech of no social value, indeed capable of inflicting great social harm.
In cases like Free Speech Coalition, the court, far from enhancing the value of thought, makes thought more difficult. The reduction of speech to the barracks-room level actively destroys thought that displays any subtlety, gradation or nuance. All that is protected is the right of the individual to satisfy his desires, no matter how base, without regard to the rights of others or the health of the society.
One justice who knows better justified his vote on these lines with the remark that too many precedents would have to be overturned in order to give the First Amendment its proper scope. That is certainly true, but the precedents that would have to be jettisoned were themselves innovations. There is no constitutional justification for a ratchet effect that progressively liberates the worst in our natures. By destroying limits to speech, the court severely handicaps the community's efforts to retain a morally and aesthetically satisfying environment.
Mr. Bork, a former federal appeals court judge and solicitor general, is a fellow at the American Enterprise Institute.