Confessing that he could not figure out what the hell was going on in the Facebook docudrama The Social Network, 72-year-old Supreme Court Justice Stephen Breyer said in a speech at Vanderbilt Law School yesterday that old farts like him have no business passing judgment in cases that involve modern technology. Or something like that. Actually, Breyer's point was that figuring out, say, what the Fourth Amendment has to do with text messaging requires applying the Constitution to circumstances the Framers did not envision. According to Breyer, this necessity shows the error of originalism, which tries to read the Constitution as it was understood by the people who ratified it.
There is an important difference, I think, between saying that the First Amendment protects freedom of speech on TV, which is a reasonable extension of the principle it embodies, and saying the First Amendment guarantees a right to a government-supplied TV set, which is not. In any case, one should not make the mistake of thinking that Breyer's more contemporary approach to constitutional interpretation yields results that are friendlier to liberty, even in cases that require an understanding of new technology. Earlier this month, when the Supreme Court heard arguments for and against California's ban on selling "offensively violent" video games to minors, Breyer was one of the justices who most clearly sympathized with the government:
Why isn't it common sense to say that if a parent wants his 13-year-old child to have a game where the child is going to sit there and imagine he is a torturer and impose gratuitous, painful, excruciating, torturing violence upon small children and women and do this for an hour or so, and there is no social or redeeming value, it's not artistic, it's not literary, et cetera, why isn't it common sense to say a state has the right to say, parent, if you want that for your 13-year-old, you go buy it yourself, which I think is what they are saying?
By contrast, Antonin Scalia, the nemesis Breyer usually has in mind when he criticizes originalism, was the justice most clearly hostile to the idea that the Court should carve out a First Amendment exception for violence in video games:
Some of the Grimms' fairy tales are quite grim...Are they OK? Are you going to ban them, too?...
That same argument could have been made when movies first came out. They could have said, oh, we've had violence in Grimm's fairy tales, but we've never had it live on the screen. I mean, every time there's a new technology, you can make that argument....
I am concerned with the vagueness, but I am [also] concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence.
You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment....What's next after violence? Drinking? Smoking?
Samuel Alito mocked Scalia's position, saying, "I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?" To which Scalia replied:
No, I want to know what James Madison thought about violence. Was there any indication that anybody thought, when the First Amendment was adopted, that there was an exception to it for speech regarding violence?
In this case, Scalia's stodgy, historically informed approach to new technology yields results that are less reflexively pro-government than Breyer's allegedy with-it, adaptable method.
More on Breyer here.
[Thanks to Bruce Waltzer for the tip.]