[POSSIBLE SPAM] Re: [POSSIBLE SPAM] Re: Sexually explicit dancing andmovies, prostitution laws and theFirst Amendment

Mark Tushnet mtushnet at law.harvard.edu
Mon Oct 19 20:53:49 PDT 2009

1.  In the first sentence, I think the correct formulation is "expression includes," rather than "expression is limited to."  Which has some bearing on the hypotheticals.

2.  Last week's thread on nonrepresentational art had a distinction, which several people thought relevant even if not dispositive, between "stuff that is literally speech [or the press]," and "stuff that has many of the characteristics of the former stuff but isn't literally speech."  I thought there was general agreement that the stuff in the first category was covered by the First Amendment, though not necessarily protected, and that the area of dispute was about the second category.  If that's right, the recitation of the poem is covered (and, I would think, necessarily protected -- why is my paying a listener different from a listener paying me [the analogy to vanity publishing seems pretty strong]).  Similarly with the flag-burning, on the assumption that the "enough like" standard is satisfied, which in the context of the cases seems to me something like "intended as a communication and generally understood to be a communication."  Maybe there's something built in to that standard about the public-ness of the performance.

3.  If so, the question about the third case would be whether the activity was understood as a communication (maybe so, though one is entitled to be skeptical), whether it would generally be understood to be such (almost certainly not), and perhaps whether it was done in public.

Having said all this, I want to reiterate that I think the analysis is far too complicated, and the best way to deal with these problems is to identify categories of expression (or maybe even speech) that are simply not covered by the First Amendment.  The difficulty lies in identifying sensible candidates for the categories.  My own inclination, knowing how sweeping the implications are, is to say that activities that have as a significant component the aim of transferring money from one person to another aren't covered -- meaning that the extent to which such activities will be regulated is a matter of legislative discretion.  But, of course, I'm much more of a skeptic about judicial review than most on this list.

The only other candidate that's been suggested is a "speech/conduct" distinction, but I think the existing caselaw shows why that candidate isn't promising.  In this thread, the difficulties are illustrated by the distinction between expressive dance (or, if you like, expressive dance that combines motion with words) and ballroom dancing.  Another possibility is "historically not treated as covered by the First Amendment," which could be drawn from one of the several formulations offered in Chaplinsky.  But, for reasons not worth expanding on in this post (but, to indicate the nature of the concern, associated with the "level of generality" problem), I personally don't find a purely historical approach satisfying.

(I'm truncating the "thread," or whatever the technical term is, in what is below my signature block because there's apparently a screen for excessively long messages in the mail program, and I'm concerned that my post along with the others below would be too long.)

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)

-----Original Message-----
From: Nelson Lund [mailto:nlund at gmu.edu]
Sent: Mon 10/19/2009 10:48 PM
To: Mark Tushnet
Cc: Hendricks, Jennifer; Conlawprof at lists.ucla.edu
Subject: [POSSIBLE SPAM]  Re: [POSSIBLE SPAM] Re: Sexually explicit dancing  andmovies,prostitution laws and theFirst Amendment
If I understand this correctly, it assumes that "expression" is limited 
to "the dissemination of material with [certain characteristics]."  Does 
that mean that my act of reciting a poem I wrote to another person, whom 
I've perhaps paid to listen to me, is not "expression"? Or if I paid 
someone to watch me burn a flag? If these examples are "expression," why 
would it be different, under the First Amendment, from the expressive 
conduct involved when someone pays a prostitute to allow him to express 
himself as he wishes to express himself toward the prostitute?

Nelson Lund
George Mason

Mark Tushnet wrote:

> I think I must be missing something.  I thought that the argument for 
> treating regulation (prohibition) of hiring someone to perform a sex 
> act for purposes of making pornography differently from regulation 
> (prohibition) of hiring someone to perform a sex act solely for sexual 
> gratification was that the former but not the latter had an incidental 
> effect on expression, meaning the dissemination of material with some 
> artistic, literary, etc., content (or whatever the relevant standard 
> for identifying suppressible material is, after Miller and Jenkins).  
> If the material produced isn't suppressible, it doesn't follow that 
> hiring someone to perform a sex act, etc., is protected by the First 
> Amendment, to use the earlier distinction, but it does provide a 
> ground for distinguishing between the two situations.
> So maybe what I'm missing is that, if the material produced is itself 
> suppressible, it's not protected (or covered) by the First Amendment, 
> so prohibiting the hiring of someone to perform a sex act in making 
> the material doesn't have an incidental effect on expression.  Here I 
> think we'd have to think about the implications of chilling effect 
> ideas in the present context, which at least doctrinally are weaker 
> than in other contexts (I interpret Stevens's "wouldn't march our sons 
> and daughters off to war" point to be that chilling effect ideas are 
> indeed weaker).  But, at least at this point in my thinking, "weaker" 
> doesn't mean "absent," and if that's right, the possible incidental 
> effect of the prohibition on expression that might be deterred by the 
> ban on obscenity would still support the distinction we've been 
> talking about.
> Mark Tushnet
> William Nelson Cromwell Professor of Law
> Harvard Law School
> Areeda 223
> Cambridge, MA  02138
> ph:  617-496-4451 (office); 202-374-9571 (mobile)
> -----Original Message-----

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