Selected Skirmishes: Last Temptation for Censorship

Apparently former Redskin John Riggins had the right idea when he pinched a piece of Mrs. O'Connor's fleshy parts at a posh soiree a couple of years back and solemnly advised: "Loosen up, Sandy baby." Even with a pint-and-a-half down the chute, it was a gutsy move for the Washington running back to make with absolutely no blocking out in front. But more important, it has apparently proved a pivotal point in U.S. legal policy. Not only "Sandy baby," but the entire U.S. Supreme Court, has really let it out.

My favorite recent decision was the discovery of one's legal right to bar-b-que the Red, White, & Blue. The decision had the primary ingredients of greatness: a huge principle (that's why they made it the First Amendment), a seemingly tough call, and a Public Reaction Coefficient in the billions. All the old superpatriots are out on their front porch rockers wheezing and jeering, firm in the knowledge that Madison never intended some longhaired weirdos to light up Old Glory without the law stepping in, or at least some trucker with a beer-gut the size of a Plymouth punching their lights out.

The pols have alertly taken their cue and fed the hystericals with raw meat. Bush's proposal to amend the constitution so as to illegalize flag burning can only be compared to tripling the defense budget on the grounds that Burma has just added a new blowgun to its arsenal. Writing little footnotes into the First Amendment on the order of "Congress shall make no law abridging freedom of speech, or of the press, excepting where the commie rascals get so far out of line as to sizzle that sacred flag of ours," will fuel movements of every political stripe wanting to eliminate just the "extreme" forms of expression that they find appallingly offensive. Indeed, the learned scholars of the U. of Michigan and Leland Stanford, Jr. U. have already whacked the bejeesus out of free thought by declaring racially insensitive speech (as determined by the aggrieved) a crime against the people. Offending people is what free speech inevitably does; elsewise the right to free speech would be a superfluous use of constitutional ink. Totalitarians belong to many religions, but they all worship at the same unforgiving altar.

The reaction to the Supreme Court verdict proved that people can fervently disagree and still all be wrong. The Revolutionary Communist Front officionado who won his case in the highest court immediately denounced the ruling as proof there is no freedom in America. Fortunately for the lad, indecipherable non-sequiturs are also a form of protected speech under the First Amendment.

But before the spoof on this poor young intellectual could begin, President George Bush finally got ahold of this vision thing and found that the "solution" to First Amendment rights was: Pass a Law. While George should be given a Freedoms Foundation medal for missing the point—the Bill of Rights was crafted specifically to keep the politicians from pandering to mass sentiment by cutting corners on individual rights—the show was almost worth the constitutional cost. Here's the preppie president babbling on about rewording an absolutely wonderful document with over 200 years of reliable service (and what true American would not think so?), prompting the Democrats to cower and wriggle in electoral megafear.

The advantages of living in a society where obnoxious sentiments are given every conceivable degree of latitude are abundant, even to those who would never deface a flag any more than by affixing a plastic replica of one to the rear window of their Japanese automobile. Take the happy American experience last year with The Last Temptation of Christ, a very handy case in point advanced by Mr. Patrick Buchanan in establishing that it's been a rotten 12 months for just good ol' boys who don't like what them left-wing types are doin' and sayin'.

Before the movie was released by Universal, some of the professionally "disturbed" in the religious community (Campus Crusade for Christ) offered to pay the studio everything it had invested in the film if it would just hand over the negatives. Universal, in business to do at least marginally better than breakeven, said no, and proceeded to take out newspaper ads publicizing the offer and their turndown as a demonstration of the fact that "freedom of speech cannot be bought and sold." Of course, they were seriously embellishing this part of the ad campaign; they would have been as fast to sell out this property as any other in inventory had the right price been offered.

The fact that it wasn't is an indication that the value of the flick to moviegoers was higher than it was to the Christians. And so the market worked: The theaters ushered in the curious to see the Blaspheme on the Big Screen, the fundamentalists got to protest this ignominy (without the noisy picketers at the Tower Theatre in Sacramento, I would have missed the event altogether), and the law clearly stated that the show must go on.

A hard-and-fast rule against censorship saves the principle and economizes on much heartache along the way. Lucas Powe has brilliantly opined that "as Justice Jackson noted in a different context, the first amendment 'was designed to avoid these ends, by avoiding these beginnings.'" John Riggins may never have learned it, but perhaps the Supreme Court is figuring out when to say when. On regulating speech, they should say it early, so they don't have to say it often.

Contributing Editor Thomas W. Hazlett, whose column will appear monthly in this space, teaches economics and public policy at the University of California, Davis.