Freedom of Speech Debates Prompt Us to Question the Nature of Freedom

The Supreme Court has been wrestling with a lot of First Amendment questions on the nature of free speech. In January, the court ruled 5-4 in the case Citizens United v. Federal Election Commission, No. 08-205 that the government may not ban political spending by corporations in candidate elections on the basis that the government had no right to regulate political speech.

Yesterday, the Supreme Court considered the case of the Christian Legal Society at the University of California’s Hastings College of the Law which wants recognition as an official campus organization with school financing and benefits whilst maintaining its first amendment right to ban “unrepentant participation in or advocacy of a sexually immoral lifestyle,” including “all act of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery and homosexual conduct.” In a similar vein, next week the court will consider Dove v. Reed, No. 09-559 on the question of whether Washington State’s open records law violates the free speech rights of people who signed ballot petitions, especially against gay marriage, by requiring their names to be made public.

The case the court considered today was particularly surprising, ruling 8-1 to strike down a federal ban on the creation and distribution of videos depicting animal violence and abuse.

The case arose from the prosecution of Robert J. Stevens, an author and small-time film producer who presented himself as an authority on pit bulls. He did not participate in dogfights, but he did compile and sell videotapes showing the fights, and he received a 37-month sentence under a 1999 federal law that bans trafficking in “depictions of animal cruelty.”

Dogfighting and other forms of animal cruelty have long been illegal in all 50 states. The law applied not to the underlying activity, but to recordings of “conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed.” It did not matter whether the conduct was legal when and where it occurred; under the law, what mattered was whether the conduct would have been illegal where the recording was sold.

The government argued that such depictions were of such minimal social worth that they should receive no First Amendment protection at all. Chief Justice Roberts roundly rejected that assertion, saying that “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.”

Roberts was asked to compare this case with the case of trafficking child pornography, which the court ruled in 1982 deserved no First Amendment protection. Roberts declared that child pornography is distinct because the market for it is “intrinsically related to the underlying abuse.”

Besides the fact that videos of animal abuse also seem “intrinsically related to the underlying abuse,” these cases of first amendment freedoms prompt us to question what we mean by “freedom.” Servais Pinckars, the recently deceased Dominican moral theologian who helped bring the Bible back to Catholic ethics, provides a useful distinction for considering this question. Pinckaers distinguishes between “freedom of indifference,” which is the freedom to choose generally between two contraries, with the “freedom for excellence.” This latter form of freedom is the capacity and power to choose wisely, to choose those things which are both consistent with truth and goodness and which are conducive to the happiness–or eudaimonia–of human beings. Freedom of indifference is, in a sense, the power to do whatever you want. It is freedom for the sake of freedom, freedom which is an end in itself. Freedom for excellence, however, is a teleological notion of freedom in which freedom has a purpose (a telos) beyond its mere exercise. We are free for the sake of something.

Accordingly, law is inextricably linked with freedom. According to a “freedom of indifference” mindset, the law is in place to keep any unnecessary barriers away from a person having the ability to do whatever they want. This is the idea that “as long as I am not hurting anybody, what I do is none of the government’s business.” However, in a “freedom for excellence” mindset, law is a pedagogue in freedom. That is, the law teaches us how to be free. Good laws help human beings achieve the good which they naturally desire by pointing to the telos–human flourishing or eudaimonia–in which all choice ought to be oriented.

The law ought to point us to the good, not just give us the maximum space in which we may do whatever we want. Accordingly, when we look at laws like this one which the Supreme Court struck down today, we ought to ask ourselves what the purpose of the law is. In this case, it seems that the purpose of the law against trafficking videos of animal abuse is to prevent people from indulging in products that in no way contribute to human flourishing. Watching videos of abuse and violence towards animals is in no way an expression of freedom understood teleologically. There is no good goal (telos) of the production and marketing of such films, and to claim that a person has the right to engage in such actions as part of her “first amendment freedom” is yet another illustration that the Supreme Court’s notion of freedom does little to advance either the individual or societal human good.

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1 comment so far

  1. […] is causing a stir for those who care about the dignity of non-human animals.  (Check out reaction here and […]


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