I am in Paris finishing up the teaching of a course in Comparative Free Speech, Press, and Religion. This week among other things I taught the major Canadian cases on pornography and hate speech. I was struck again about what I consider too be their superior approach to the use of social science evidence in considering free speech problems. In Regina v. Butler, for example, the Court agrees that the social science evidence is instructive, but inconclusive. Nonetheless, it proceeds with the assumption that it is sensible to believe that readers are influenced by what they consume in the form of reading or video. Contrast that with our Court's approach in the violent video game context. There they strike down California's law in large part on the ground that the social science evidence is inconclusive (despite the conclusions of the medical associations including the American Psychological Association, the American Pediatric Association, and the American Medical Association). Assuming the evidence is inconclusive, it is not clear that we should wait until social scientists prove the obvious. The Court, however, is applying strict scrutiny unlike the Canadian Court. But that too is a mistake, a mistake that involves a predetermined undefended assumption that speech - even speech of trivial value - always outweighs other values. That assumption has not ordinarily guided the Court in its development of First Amendment law. It has been solidified only in the last two terms. It is one of the many major faiures of the current Court.

Comments

[Jimbino]

Democracy is only valid to the extent that it serves the values of life, liberty and property. The first thing to note that no country has a democracy. Not even Switzerland, where people under the age of 18 are disenfranchised.

Depending on democracy to secure those higher values would leave us with slavery and oppression of women and atheists by organized religion. It is the very limiting of democracy by a Bill of Rights that does secure those values, however imperfectly.

Democracy is extolled by those in the mainstream, like middle-class, heterosexual, married White breeders. They are the ones who get the big tax breaks, who can secure an abortion whether or not it is prohibited, who visit the National Parks and Forests instead of the prisons, which are reserved for the Black folks who are hardly ever seen in a national park.

It is democracy, after all, that killed Socrates for disrespecting the gods and perverting the youth. More important than democracy is the rule of law, and any system that guaranteed justice and fairness would be seen to be better than democracy. Strange it is that defenders of democracy can adhere to the RC church, just about the least democratic body on earth!

[Patrick S. O'Donnell]

Incidentally, Socrates exemplified his belief in that maxim in the Apology and the Crito. One of the virtues of a democratic legal system, apart from its comparative moral and political legitimacy, is that it provides for (nonviolent) amendment and correction, although it asks us to tolerate the occasional injustice in practice in the name of the overall legality and justice of the system itself: a small price to pay in light of such benefits (after all, no institutional order can be perfectly just). Occasions of egregious or persistent and widespread injustice may require disobedience of some sort, but noncooperation and civil disobedience can draw public and official attention to such injustice while allowing the person or group engaged in such acts to demonstrate their commitment or fidelity to a democratic legal system (i.e., at least its procedural legitimacy), hence their refusal to do things that would undermine the legitimacy of the system as such, like the resort to violence or the attempt to avoid legal sanctions for law-breaking (cf. the arguments of the personalized Laws in the Crito as well as Socrates' refusal to flee prison and avoid punishment).

[Patrick S. O'Donnell]

Whatever you have thought about violence, you might give some thought to the Socratic dictum that "doing wrong is worse than suffering wrong."

[Jimbino]

Well, I'm a nuclear physicist who has thought a lot about violence. I also read the Declaration of Independence from time to time. It appears that our problems with intrusive government did not end with beating King George with violence.

We still need to read the riot act to our government that continues to force its anthems, pledges, oaths, commandments, crucifixes, creches, prayers and moments of silence on us.

Not to mention its war on drugs, war on atheists, war on men, war on sex, war on gays and war on singles and the childfree.

[Patrick S. O'Donnell]

No little irony in the fact that it was individuals, alone and in concert, who held views quite different and contrary to yours that made it possible for you to entertain thoughts--however uninformed and ill-formed--about "freedoms," and who constructed in theory and praxis the political, legal, and socio-economic conditions of modernity that made widespread the notion that people might seriously entertain the concrete possibility of the realistic pursuit of happiness in their everyday lives (setting aside the fact that their understanding of what happiness is or might be is frequently inchoate or irrational).

Your avowed preference for violence is an indirect and perverse testament to those who came long before us and thought deeply about the importance of education (including the classical concept of paideia) in a democratic society: in this instance (and with those who share your views), it seems our formal and informal educational methods have fallen far short of achieving their democratically indispensable ends (the use of the ethnic slur 'gook' is merely symptomatic). I suspect this is at least in part owing to the distortions, ideological and otherwise, that have come in the wake of the capitalist and technocratic corruption of democratic principles and methods....

[Jimbino]

The Night Watchman is not so bad.

What we've got are pervs putting their hands on your junk, following you around to check if you drink, smoke and have sex in the wrong position with an unapproved species.

Contrary to what you may think, there are lots of us out here who prefer risk and violence to the certain erosion of our freedoms in Amerika. I don't think I'm alone in stating that the greatest impediment to my pursuit of happiness in Amerika is my own damn government, not Commies, Gooks or the Taliban.

[Patrick S. O'Donnell]

Hobbes's well-known argument, summarized here by C.A.J. Coady in his excellent study, Morality and Political Violence (2008), is persuasive to many, and rightly so. Hobbes presents, writes Coady, "a powerful case for three things:"

1. The pervasiveness and deep-rootedness of the tendency to violence in human life, and the damage it does.
2. The need for limiting the damage by placing violence under the control of agreement, convention, and law--in short, at least common reason, and preferably common morality (which Hobbes thought amounted to the same thing [as seen in his 'reciprocity principle'].
3. The legitimacy of the state viewed at least as a protection agency and hence the legitimacy of the state's use of violence in certain circumstances.

I think you will find that most people would find it preferable to live within a State than not and hence behave, in the main, as if their host states are, more or less, legitimate. Even libertarians endorse the "night watchman state," and most anarchists are "philosophical," that is, reluctant to forswear the state until such time something (some sort of anarchist 'community') grows in its stead owing to a transformation of human nature or some related condition....

[Jimbino]

It is important to note that many consider it dangerous go give the government a monopoly in violence. This is a Second-Amendment issue as well of course: it is important that American citizens carry guns and ammunition and have the training in how to use them.

So, if Social Science in its wisdom concludes that video game violence does not affect behavior, the question is moot. If it concludes that video game violence teaches kids violence, so much the better for video games, as the kids will then be prepared to defend themselves against government incursion and threat with real weapons, such as were sorely needed in the Waco compound.