No Liberty for License
The Forgotten Logic of the First Amendment
Spence, 315 pp., $ 27.95
The title of David Lowenthal's new study of the First Amendment has a decidedly old-fashioned flavor: When he entitles a book No Liberty for License, he really means "license," as in acting licentiously. And the book's title is an accurate indication of its contents. Lowenthal spars with the academic legal commentators of twenty or thirty years ago, in order to press home his attack on Supreme Court precedents of fifty to seventy-five years ago, all in order to vindicate constitutional doctrines of one or two hundred years ago. Altogether, this is a very old-fashioned book -- which may be why, at this moment, it is particularly timely.
There is something revealing in the fact that the central section of Lowenthal's book is an attack on the judicial doctrine that has emerged over the years concerning obscenity and the First Amendment. An analysis that followed the Constitutional text would have to begin with the topic of religion, as the First Amendment does. An analysis that followed the historical order in which issues reached the Court would only turn to obscenity last. Lowenthal's placement of the topic at the center of his own analysis highlights its importance for him. He demands that obscene publications and entertainments be suppressed by law, not safeguarded by twisted interpretations of the First Amendment.
Of course, even in its most liberal phases, the Supreme Court has always refused to extend First Amendment protection to hardcore pornography. But Lowenthal demands much more far-reaching censorship than the Court presently allows. Indeed, he wants to go further than many other conservatives. Harry Clor, for example, published a carefully argued defense of censorship in his 1969 Obscenity and Public Morality, which used various lines of moral and philosophical analysis to distinguish the literary artistry of D. H. Lawrence from the dehumanizing commerce of Larry Flynt. Lowenthal has a much simpler solution: Ban Lady Chatterley's Lover, and be done with it. Similarly, he denounces Justice Rehnquist's 1974 opinion extending First Amendment protection to the movie Carnal Knowledge, a mainstream Hollywood production starring Jack Nicholson and Art Garfunkel. Uninterested in how explicit or artistic the depiction of sex acts may be, Lowenthal wants to ban all literary and visual depictions that promote bad ideas -- such as the thought that adultery is acceptable or that "shallow animal sensuality" is harmless and pleasing.
In order to defend his view, Lowenthal turns to the Founders (and their heirs in the nineteenth century) and shows that they were not at all reluctant to see states and localities impose controls on the press and the arts for the sake of "public morals." Even Jefferson, we learn, derided the sexual mores of the French and warned against influences that would insinuate comparable corruption into American family life. The Supreme Court's 1931 decision in Near v. Minnesota (famous for identifying "freedom of the press" with freedom from the "prior restraint" of licensing or pre- publication controls) made an explicit exception for controls to protect decency, with an eye to such things as film censorship.
But Lowenthal is not content simply to remind us that earlier generations were less tender about censorship. He wants to vindicate the moral outlook of earlier times and revive the rhetorical accents of those times. So he denounces the "violence, brutality, and sadism pervading the mass media" and warns that "the mass media are the pollutants of the soul, having it in their power to do gradual, often invisible but definite harm by degrading our ways of thinking, our ideals, our character, taste and conduct." So it "would hardly be foolish" to blame movies, TV, and popular music for some part of " the enormous crime rate, . . . the increase in drug use, profanity, illiteracy, . . . the multiplication of sexual crimes, teenage pregnancy, wife-battering, divorce." While many law professors today scoff at the idea that the First Amendment has any connection to truth, for Lowenthal it is about eternal verities.
He displays the same unbendingness in his treatment of seditious speech, which occupies the opening chapters of this book. Here again he shows that for generations after the Founders, people were quite prepared to see punishment of seditious speech and understood this to include even theoretical attacks on fundamental principles of American government. Oliver Wendell Holmes's "clear and present danger test" was not an expression of earlier doctrine but a more or less conscious break with it. The new doctrine -- that only imminent danger of violence can justify restraints on speech -- didn't become fully established until the 1960s. And here again Lowenthal goes far beyond his fellow conservatives. Walter Berns, taking his cue from Alexis de Tocqueville, argued in his 1976 The First Amendment and the Future of American Democracy that the Supreme Court should allow more controls on subversive organizations than on individual malcontents. But Lowenthal rejects this compromise as unprincipled: The lonely crackpot should be as liable to prosecution as the regimented Communist party or the organized Ku Klux Klan.
Not surprisingly, given his abiding concern for protecting public opinion, Lowenthal also seeks to revise current First Amendment doctrine on religion. The last section of his book urges a return to the constitutional outlook of earlier generations, which gave some latitude for government sponsorship of and affiliation with general piety. Lowenthal is emphatic that the First Amendment can give no rights to atheism and that government has no need, therefore, to pretend to neutrality between religion and irreligion. How can it be, he demands, that the First Amendment prohibits public schools from teaching the Declaration of Independence -- or endorsing its core teaching about the God-given status of natural rights?
On all the disputed questions of the 1990s -- Are puritanical feminists, with their tirades about sexual harassment and hostile environments a threat to free speech? Are "hate speech" codes on college campuses a threat to the free speech of campus dissenters on affirmative action or on gay rights? -- Lowenthal has little to say: His is the old view and the long view. His analysis of religion also demonstrates how little concern he has for contemporary opinion -- even contemporary conservative opinion. On government aid to sectarian schools, he asserts that such aid, while not forbidden, must be strictly equal between sects and not merely proportional to numbers (as it would be, for example, in a voucher program, where most money would go to Catholic schools if most children attended religious schools of that description). As it happens, this is the one doctrine in this book that, so far as I am aware, cannot be supported by historical practice or by the thought of the Founders. But whatever its provenance, Lowenthal certainly does not embrace this doctrine in order to pander. Indeed, it is bound to disappoint advocates of greater school choice, who would otherwise be a formidable constituency for revising the Court's current approach to the First Amendment.
Lowenthal, a professor of political philosophy at Boston College, is, on the evidence of this book, a most impolitic -- and unpolitical -- man. In a concluding chapter he does acknowledge that actually achieving politically tighter controls on obscenity would be "one area" in which his reform program would "face enormous obstacles." But he seems genuinely to think that the rest of his program -- excluding Communist political speech from First Amendment protection, reauthorizing prayer in public schools, releasing state and local government from all First Amendment restraints -- will be relatively easy.
Based on this book, one has to infer that Professor Lowenthal has no idea of what is politically feasible in this country in this age. Nor does he have any idea what could win five votes on the Supreme Court: No one should look to No Liberty for License for a guide to what is likely to succeed as a new constitutional rallying cry and what isn't. But I am unwilling to pursue this line of thought in the man's presence (even his literary presence). In our era of euphemism, evasion, and spin, where everything is subject to tactical revision and pragmatic readjustment, Lowenthal gives one pause. His moral certitudes are bracing, refreshing -- and more than a bit shaming.
Jeremy Rabkin teaches constitutional law at Cornell University.