The Myth of "Free Expression". A major news story yesterday addressed the claim that hyperviolent video games are protected by a Constitutional "right of free expression". I've got news for you: there is no such Constitutional right. This is the entire text of the First Amendment of the Bill of Rights, the only place in the Constitution where the concept of free expression might be entrenched:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech , or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

"Expression" is NOT protected by the First Amendment. Religion, speech, the press, assembly, and petitioning are protected. That is all. Art is not protected. Dance is not protected. Pictures, fotos outside of a publication, videos, billboards, video games, music, tattoos, piercings, haircuts, clothing/nudity, gestures, and many other forms of "expression" are NOT protected.
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Moreover, the Supreme Court has NO AUTHORITY to void laws duly passed by Congress in accordance with the procedure set out in the Constitution, nor, by extension, by state legislatures and other bodies in accordance with the procedures set out in their constitutions and other founding documents, as long as they accord with the Fourteenth Amendment's requirement that states and localities abide by the U.S. Constitution's protections. Here, that means the Constitution's protections of religion, speech, the press, assembly, and petitioning — the ONLY forms of "expression" protected by the First Amendment.
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Courts are not authorized to invent nor insert wording that is not in the Constitution. The word "expression" does not occur in the Constitution. Here is one website that gives the entire text of that document. See for yourself. Go to that site or any other that has the text online and do a Find (Control-F). You will not find "expression" nor any form of the verb to "express" in the U.S. Constitution. Why not? Because the Framers of the Constitution did NOT want to protect all possible forms of "expression". Nor would they necessarily have approved of the forms of amplification even of speech that we have seen develop in modern times. In the Constitution, "speech" means the string of sounds produced by a human vocal apparatus by passage of air over the vocal cords and thru the mouth. Speech is quiet and private.
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Amplified speech beyond what a megaphone can accomplish is only dubiously protected by the Constitution. It is, in fact, quite a leap to say that loudspeakers, or even radio or television "speech" are protected. In street demonstrations, for instance, local governments can quite properly require a permit for bullhorns or other amplification systems, because they can disturb people far from the group demonstrating, who have nothing to do with the issue being demonstrated about.
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Speech in the time of the founders was ephemeral, and hard to hear. Utterances reached a very small number of people, then literally vanished on the wind. THAT is what the Framers intended to protect. And that is ALL the Framers intended to protect as regards "expression" by sound.
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In the same fashion, the Framers protected the press, but not visual expression such as painting or sculpture. What's the difference? The passive nature of the medium, that's the difference. To be offended by something printed, you have to read it. It doesn't shout at you. It does not inflict itself upon you. But a picture in public view hits you immediately, without your consent. You don't have to stare at it, you don't have to read it, to be offended by it. And that is a very big difference.
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Actual human speech is also relatively passive, since it reaches few people, and people at the edge of a crowd have to strain to hear. Beyond 50 feet or so in an open setting, most speech cannot be heard.
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When the Framers wrote the Bill of Rights, technology was such that future developments were impossible to imagine. They spoke of the right to bear arms at a time when the most dangerous weapon was a musket that took at least a third or half of a minute to load for one shot. Even so, the Framers tried to impose a restriction on arms, to limit their use to members of a "well regulated Militia". They could not imagine that future generations would be, you should pardon the expression, shot thru with dishonest scumbags who would willfully and in bad faith ignore the militia restriction and assert that everyone has the right to bear not just a musket but also a machinegun, bazooka, rocket launcher, flame thrower, tank, and, indeed, nuclear missile if they should so wish.
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The reason the Framers insisted on a "written" Constitution, one that is in fact written in simple laymen's language, not legalese, is so the people at large can know what their rights and obligations are under it. The Constitution means what it says, and nothing more. The First Amendment protects religion, speech, the press, assembly, and the right of petition. NOTHING more.
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Video games and a host of other forms of "expression" are not religion, not speech, not the press, not assembly, and not petition. They are thus NOT PROTECTED by the First Amendment. That is what "strict constructionism" means. For "conservative" courts to screw around with the Constitution is a crime against our civilization. The courts must back off, and let Congress, the states, and localities outlaw hyperviolent video games that corrode the soul and destroy all sense of morality.
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Note: I have been very busy with my Newark (NJ) fotoblog and projects to contribute to the total revitalization of that hugely underappreciated city. I found thru Google Analytics how many people read that blog as against this one, and it seemed a better use of my limited time and energy to concentrate on that blog, tho doing so has left me a little frustrated about so much that is going wrong in the rest of the world. Events outside Newark affect Newark more than the other way around. So I will endeavor to be more balanced in the future. Occasional readers who want to know when this blog is updated can check the RSS feed (tho I don't know how that works) or write to be included on an email list to receive alerts when I add to this blog. Just write to XPUS[on]aol.com, with the subject line "Update list". ("[on]" is, of course, a stand-in for the @ sign to keep spiderbots from picking up my email address for spam.)
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(The current U.S. military death toll in Iraq, according to the website "Iraq Coalition Casualties", is 4,394 — for Israel.)
- posted by L. Craig Schoonmaker @ 3:12 PM