(Fwd from Lynne Henderson) re: Heckler's veto

[Lynne Henderson]

But note that the  Canadian Supreme Court, under its Bill of Rights,
balanced "free speech" against "equality" in upholding legislation
restricting pornography.  Although the media made much of the interdiction
of gay and lesbian porn after that decision, things settled down afterwards.

-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Leslie Goldstein
Sent: Wednesday, November 01, 2000 7:27 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: (Fwd from Lynne Henderson) re: Heckler's veto


UK also recetnly opened up its libel law, so that it is more along the
lines of NYT v. Sullivan

> "Volokh, Eugene" wrote:
>
>         Unfortunately, this message was delayed because of technical
> difficulties; it's a response to Steve Gey's post.
>
> -----Original Message-----
> From:   Lynne Henderson [SMTP:hendersl at ix.netcom.com]
> Subject:        RE:Heckler's veto
>
>  Current law notwithstanding, the emprical question
>       remains:  are the assumptions behind the first amendment tenable
> in light of
>       recent science?  Certainly prohibiting   any government
> intrusion is a tenable
>       libertarian claim--thoug the fetishism about the First Amendment
> in the US
>       as being essential to democracy seems dubious gien the
> regulation of speech
>       in other  successful democracies  such as the UK (which I
> acknowledge now
>       has the new bill of  human rights codified, which may indeed
> affect "freedom
>       of speech" law in the UK), Canada, Germany, the Netherlands,
> etc.
>
>       [Lynne Henderson]
>
>        [ <mailto:CONLAWPROF at listserv.ucla.edu>]On Behalf Of Gey, Steve
>
>       Sent: Friday, October 27, 2000 2:50 PM
>       To: CONLAWPROF at listserv.ucla.edu
>       Subject: Re: Heckler's veto
>
>         Eugene's earlier posting accurately portrays the current law
> on the
>       subject of visual versus verbal expression.  With one minor
> exception
> there
>       is simply no difference in the protections offered by the First
> Amendment
>       under current doctrine.  (The one minor exception is the Ferber
> child
>       obscenity standard, which applies only to visual depictions of
> children
>       engaged in sexual activity on the theory that the actual
> children
> depicted
>       in the visual representation are suffering the harm.)  On a
> conceptual
>       level, the argument that that visual expression should be
> regulated
> more
>       easily than verbal expression because visual expression has a
> greater
> impact
>       is impossible to reconcile with any but the most paternalistic
> theories of
>       the First Amendment.  It amounts to an argument that the
> government
> should
>       be allowed to suppress the most effective forms of speech with
> which
> the
>       government disagrees.  This argument also would give the
> government
> the
>       authority to distinguish between the form and content of
> speech.  The
>       rejection of any such authority is to my mind one of the most
> important
>       aspects of Justice Harlan's Cohen opinion.  Under the First
> Amendment
> the
>       speaker *always* must be permitted to decide how most
> effectively to
>       communicate the speaker's ideas (as long as the expression falls
> short
> of
>       the narrow categories of unprotected incitement, fighting words,
>
> etc.).  The
>       fact that visual imagery is accompanied by emotional and other
> nonrational
>       baggage does not undermine the First Amendment value of visual
> expression.
>       The baggage is often what helps to convey the "rational" message
> most
>       effectively.  These are not new concepts.  Over thirty years ago
> John
> Finnis
>       argued that the constitutional protection of expression should
> depend
> on
>       whether that expression appeals to the presumptively important
> "realm
> of
>       ideas, reason, intellectual content and truth-seeking" or to the
>
>       presumptively unimportant realm of "passions, desires, cravings
> and
>       titillation."  The unacceptable consequences of such a theory
> are, I
> think,
>       pretty self-evident.  Think about art:  On the one hand you have
> the
> highly
>       effective emotional imagery of Picasso's Guernica; on the other
> hand
> you
>       have the bald, rational statement communicated by that imagery:
> "Bombing an
>       unarmed village is evil."  Which expression is more effective?
> A
> government
>       that is allowed to regulate the form of expression is a
> government
> that will
>       freely regulate the content of expression, and a First Amendment
> that
>       protects the "rational" statement but not the "emotive" painting
> would
> not
>       even be worth defending.
>
>         Steven G. Gey
>         Fonvielle & Hinkle Professor of Litigation
>         Florida State University College of Law
>         Tallahassee, FL  32306
>
>         TEL 850-644-5467
>         FAX 850-644-5487
>
>           -----Original Message-----
>           From: Lynne Henderson [ <mailto:hendersl at IX.NETCOM.COM>]
>           Sent: Friday, October 27, 2000 3:17 PM
>           To: CONLAWPROF at listserv.ucla.edu
>           Subject: Re: Heckler's veto
>
>           I mentioned the cf to the pornnography debate because the
> issue of
> the
>       emotional  and behavioral impact of visual communications rather
> than
>       printed or even spoken words differed based on the social
> science
> evidence.
>       The dissents in *Johnson* allude to the emotional realm of
> seeing the
> flag
>       burned. Questions about the confederate battle flag and the Nazi
> flag
> also
>       have entailed a component of emotive impact.  The re may be
> absolutely
> no
>       principled way to distinguish visual, non-verbal communication
> from
> verbal,
>       even given the growing empirical evidence that the mind
> processes the
>       infomation differently and that the non-cognitive aspects
> undermine
> some of
>       the assumptions behind protecting "speech" (as any advertising
> company
> is
>       well aware).   At the same time, I don't think it renders the
> question
>       non-problematic and was curious to know if anyone had thought
> about
> the
>       relationship of the visual to the rationales for protecting
> communication
>       recently.  (Easterbrook in *Hudnut* for example accepts for the
> purposes of
>       his decision  the power of pornography as a reason to protect it
> as
>       virutally political speech)
>
>           [Lynne Henderson]