Straining Gnats, Ignoring Camels
The Supreme Court’s Myopic Vision
The foundations of our government and society draw from many inspirations, most notably Enlightenment scholars, Greek philosophers, and—although the federal courts are having an increasingly difficult time recognizing this—Christian faith and morals. Those who would relegate these guides and their wisdom to the dustbin of “dead white guy” history would, among other offenses, be tossing aside some the most brilliant and scathing commentary applicable to our current society. Consider Jesus’ words in Matthew 23:
“Woe to you, teachers of the law and Pharisees, you hypocrites! You give a tenth of your spices—mint, dill and cummin. But you have neglected the more important matters of the law—justice, mercy and faithfulness. You should have practiced the latter, without neglecting the former. You blind guides! You strain out a gnat but swallow a camel.”
Straining gnats and swallowing camels is an apt depiction of many of the Supreme Court’s recent rulings, including the late June 5-4 decision to send the Child Online Protection Act back to trial after spending five years in legal limbo.
The Court’s majority bought into the usual tripe that this law threatens free speech with undue burdens. Although Justice Breyer wrote in his dissent that “the Act at most imposes a modest additional burden to adult access of legally obscene material,” the majority felt that straining this gnat—the perceived threat to material that enjoys no constitutional freedoms—was more important than removing a dangerous camel from society—malicious and manipulative commercial pornographers that relentlessly assault our children.
In order to bolster this subterfuge, the ACLU predictably trotted out its usual et al: Salon.com, “artists,” sexual health web sites, gay sites, and, probably somewhere down the line, Barbara Streisand and Michael Moore. This parade of false witnesses argued that the law was so unclear that they would face prosecution for their “valuable” material or be forced, apparently, to act responsibly against their will.
The interesting part is that the District Court found in the initial trial that none of the litigants represented by the ACLU would be threatened by the statute. Even if the ACLU pretends to be confused, the Court wasn’t. COPA was clearly and narrowly written to apply only to commercial pornographers and only to material that the Court already considers without First Amendment protection.
So why didn’t the Supremes understand this? One reason is that the Court seems to have forgotten its own precedents. Although COPA was written in accord with the Court’s ruling in Ginsberg v. State of New York, that case was cited only twice—once each in the majority opinion and the dissent. That a case involving “harmful to minors” provisions scarcely mentions the landmark case establishing “harmful to minors” provisions seems more than a bit shortsighted.
Another possible explanation for the court’s misunderstanding of the constitutionality of the material in question hinges on the myriad legal precedents that incorrectly equate images of “nympho cheerleaders” and “triple penetration” to speech worthy of protection. The steady descent from liberty to license in society as well as law is why the protection of commercial pornographers trumps the protection of children in the highest court of the land.
Justice Scalia, alone, seemed to have grasped the cornerstone of the case. He wrote:
“I agree with Justice Breyer’s conclusion that the Child Online Protection Act…is constitutional. …Both the Court and Justice Breyer err, however, in subjecting COPA to strict scrutiny. Nothing in the First Amendment entitles the type of material covered by COPA to that exacting standard of review. ‘We have recognized that commercial entities which engage in the ‘sordid business of pandering’ by ‘deliberately emphasizing the sexually provocative aspects of the [nonobscene products], in order to catch the salaciously disposed,’ engage in constitutionally unprotected behavior.’…Since this business could, consistent with the First Amendment, be banned entirely, COPA’s lesser restrictions raise no constitutional concern.”
According to Scalia, without the need for strict scrutiny, the entire majority opinion is moot. There is no need to carefully weigh the added burdens of the law, because they would be confined to speech that enjoys no First Amendment protection. Similarly, there would be no concern for regulating such content with the least restrictive means. It would only need to be reasonable, which COPA clearly is.
The case now heads for a retrial, presumably to give the government a chance to prove its case—yet again. However, considering the majority opinion virtually guaranteed the government would be unable to do so, the ruling seems designed to strangle the law slowly.
One can always hope for a victory for our children, but if swallowing a camel isn’t difficult to ignore, justice and faithfulness to the moral foundations of the law likely won’t be either.
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