Most Of These Guys Are Lawyers, Right?
Recent posturing by politicians hoping to censor their political opponents with obviously unconstitutional laws against speech remind me that there is nothing new under the sun. I wrote this piece for the New York Times back when online pornography, not vaccine misinformation, was the fear.
NYT Op-Ed, June 15, 1996, by Richard Dooling
Just how much Government time and expense went into drafting, debating and passing the Communications Decency Act, which was declared unconstitutional by a Federal district court last week?
Imagine a second-year law student presented with this question on a constitutional law exam:
Q. May the Government make it a crime punishable by two years in prison and a $250,000 fine to transmit to minors on the Internet “indecent” material — without defining “indecent”?
Trained to be suspicious of the obvious, our student panics. The statute couldn’t be “void for vagueness,” could it? This couldn’t be the “overbreadth doctrine” learned on the first day of class, could it? Too easy! Must be a trick question. It belongs on a high school civics test.
Yet politicians from two branches of government (President Clinton, a Yale law graduate, signed the bill) spent the last year posturing for the camera, providing sound bites about protecting the nation’s children and expressing their antipathy for high-tech pornographers.
Most of these politicians are lawyers; they presumably knew that such a law would violate everything they ever learned about the First Amendment. But apparently, the free publicity was irresistible.
And now we have a 200-plus-page opinion from the third branch of government telling us that an obviously unconstitutional statute is, well, obviously unconstitutional.
Maybe we should have a separate session of Congress every so often so politicians can pass popular bills while pretending that the Constitution doesn’t exist. “It’s an election year. Aren’t we due for another school prayer bill soon?”
And why stop with that one? How about a Workplace Prayer Act? Or a Respect for Mothers Act? Anybody who knowingly conveys or transmits a bad word about moms shall be punished by two years in prison and a $250,000 fine. (“Bad” shall be defined by the bill’s sponsors on an as-needed basis.) As for a way around those interminable death row appeals, why not an Immediate Public Execution for Flag Desecration Act?
Of course, politicians wishing to oppose such important pieces of legislation would be free to go on the Sunday morning talk shows and admit that they are godless, mom-hating traitors.
You get the idea. At least flag-burning presents some thorny First Amendment issues on the differences between speech and conduct. And separation of church and state is as clear as mud, thanks to a slew of Supreme Court opinions on menorahs and Nativity displays.
But banning anything some politician might consider “indecent,” with fines and imprisonment for anybody who guesses wrong? How about the Patently Unconstitutional, Obviously Void for Vagueness Political Posturing Act?
–Richard Dooling, New York Times
