In most of my posts here over the last couple of months, I’ve asked what First Amendment jurisprudence and scholarship might learn from psychology and neuroscience. After all, many cases and scholarly treatments of First Amendment law make certain assumptions about the way we think, and about the mental impacts of words and images. Can we use science to test and perhaps refine such assumptions?
Take, for example, the substantial body of case law on what judges and scholars often call “low value speech.” While the First Amendment generally bars officials from censoring speech on the basis of its content, there are some exceptions to this rule: Government can punish words that incite others to break the law and can punish “true threats” that put us in fear of our physical safety. Many decades ago, the Supreme Court likewise held that we might be arrested for using “fighting words,” words so hateful or insulting that “by their very utterance [they] inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). While curse words are generally protected speech, the FCC has generally barred their use on daytime broadcast TV, when children can hear them. And some scholars have argued that the First Amendment should allow government to use similar measures to restrict minors’ access to television or video game violence. In many of these cases, courts have assumed that certain uses of threatening or violent words an imagery are likely to have a certain, worrisome impact on the audience’s mental processes and possible behavior. There also may be similar assumptions lurking behind some of the case law relegating commercial speech to the realm of “low value” speech (as is evident in some of the cases cited in my last post on subliminal advertising and communication).
The same is true of some of the most influential justifications for denying First Amendment protection to “obscenity” (which, in the case law, is essentially equivalent to hard-core pornography). While modern First Amendment law protects art, film, and literature, it **does not** generally protect hard-core pornographic images, movies, or books. The Court has struggled quite a bit with the challenge of distinguishing unprotected pornography from protected art that just happens to have sexual content, with Justice Stewart famously declaring that he can’t demarcate any such line but “I know [hard-core pornography] when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J. concurring). Since 1973, however, the Court has adhered to a three-part test it set forth in Miller v. California, defining unprotected “obscenity” as speech that (a) "the average person, applying contemporary community standards" would find . . . appeals to the prurient interest,” when “taken as a whole” (b) that “depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;” and (c) that “taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. 15, 24.
Under this definition, it doesn’t save a defendant to insist that the viewer or reader of the pornographic material was an adult audience whose viewing or reading was entirely voluntary. Even voluntary viewing of hard-core porn by adults may be criminalized. This distinguishes obscenity from some of the other forms of “low value” speech, like true threats and fighting words, where speech may be restricted to prevent an unwilling and offended audience from the mental harm associated with the speech. What justifies similarly excluding obscenity from the realm of First Amendment speech even when its audience is a willing adult viewer?
There are a variety of answers to this question in First Amendment cases and scholarship. Not all of them draw on purely psychological explanations. For example, in Paris Adult Theater I v. Slaton, Chief Justice Burger wrote that the screening of pornographic films may be criminalized not merely to protect the viewer himself or herself from the impact of sexual imagery, but also to protect non-viewers’ “quality of life” and “total community environment.” 413 U.S. 49, 58 (1973). But this is hardly a convincing ground for denying First Amendment protection to a whole category of film and speech. After all, it is not merely explicit sexual films, but also violent action and horror movies, inane sitcoms and reality shows, and nihilistic rock music lyrics that threaten (in the view of some observers) to pollute our common culture. This social impact argument then hardly seems to single out obscenity for special treatment. Nor do the legislative findings (noted by Chief Justice Burger) that obscene films may lead to violence: As Susan Hurley has shown, similar concerns apply to images and verbal description of violent behavior in many other examples of speech (currently protected by the First Amendment).
So what justifies treating obscenity differently? Two very influential answers – proposed respectively by John Finnis (in 1967) and Frederick Schauer (in 1979) – rely on intuitions about the way that obscene imagery affects our mental processes. See John Finnis, ‘Reason and Passion’: The Constitutional Dialectic of Free Speech and Obscenity, 116 U. Pa. L. Rev. 222 (1967); See Frederick Schauer, Speech and ‘Speech’-Obscenity and ‘Obscenity’: An Exercise in the Interpretation of Constitutional Language, 67 Geo. L.J. 899 (1979).
For Finnis, the reason for excluding obscenity from the realm of the First Amendment is that it falls on the wrong side of the long-established dividing line between “reason and the passions” (p. 224): First Amendment speech is supposed to communicate ideas. But pornography doesn’t do this; rather, it is designed to, and generally does appeal to “the realm of passion, desires, cravings and titillation.” (p. 227). Some readers would of course respond that it is not only pornographic film and books that trigger a powerful emotional response, but many other films and books. People often celebrate a film or a book precisely because of the extent to which it moves them. This counterargument, however, is anticipated by Finnis, who acknowledges that art has a powerful emotional effect, but argues that this effect is different from that produced by pornography. The symbols of emotion used in music and other art doesn’t displace our power to contemplate and reason about ideas, he says, but rather remains subject to it:
"Aesthetic attention is not to be equated with the exploitation of gratifying sensory stimulants. What makes art art is not that it stimulates feelings, which any family picture album can do," but that it expresses them symbolically. To be more precise, art expresses ideas of feeling, and it does this by embodying these ideas in the more or less conventional symbolic forms of music, painting, sculpture, architecture, poetry, drama and prose." (pp. 232-233).
Closely related to this point is Finnis’s claim that true art – unlike pornography – is designed to allow people to contemplate emotions while remaining “detach[ed]” enough from them to contemplate them. (pp. 234-235). Pornography, by contrast, erases this distance: it pulls us entirely into the state of passionate excitement, leaving us no opportunity to reflect upon or control it. Or as Finnis puts it: instead of enabling the kind of contemplation necessary for aesthetic attention, pornography aims for the “replacement of aesthetic attention to the material with an attitude in which the practical concerns of the reader or viewer (in this case, a concern to achieve the emotionally aroused states which he desires for himself).” (p. 235).
The argument set forth by Frederick Schauer resembles Finnis’s but relies not on the distinction between reason and passion, but rather on the distinction what he respectively labels “a mental stimulus” and “a physical stimulus.” In short, the purpose of First Amendment speech he said is always, at least in part, for a speaker or writer of some sort present a certain “mental stimulus” to an audience – one that communicates a particular message or alternatively evokes a particular feeling or set of feelings. (p. 921). This vision of First Amendment speech clearly leaves room for music and other artistic expression, because a composer of song or a painter of picture is still expressing himself or herself, and evoking an emotional response in the audience, even though the expression and the response take a non-verbal form. One might argue that the sexual excitement created by a pornographic film or image is just another example of a picture or film generating particular feelings, but here Schauer takes a different position: “the physical,” he says “must be distinguished from the emotional,” and pornography is precisely an example of something that is best viewed “essentially as a physical rather than a mental stimulus.” (p. 922). Pornography, in short, serves precisely the same role for people as a “sexual surrogate”: it is just another means of generating precisely the same sexual excitement that could be generated by “rubber, plastic, or leather sex aids.” (p. 923). Schauer, of course, is aware that sexual excitement is a type of feeling, and thus a type of mental sensation: “Physical sensations, including sexual arousal, have mental elements.” (p. 923). But that does not automatically transform every stimulus that causes a physical sensation into an instance of First Amendment speech. As he points out, sensations of pain are also mental sensations. But acts that cause pain do not thereby become First Amendment speech. Rather, says Schauer, certain acts – presumably including those aimed at cause sensations like pain or sexual arousal – remain non-speech acts because the reactions they generate have “so few mental attributes that [they have] none of the characteristics of the intellectual process constituting the core of the constitutional definition of speech.” (p. 923).
These accounts of why obscenity is left unshielded by the First Amendment are now 30 to 40 years old, but the constitutional law they were intended to explain and justify is still around. It seems to me that, to the extent his area of law relies on claims like those of Finnis and Schauer then it is and should be subject to empirical questioning. We can ask whether psychologicy or neuroscience provides any support for Finnis’s argument that films, art, and music generally leave us with a “psychic distance” that pornographic films or images destroy. Or whether what we can learn from science about our emotional lives is consistent with the distinction Schauer proposed between films or images that count as “mental stimuli” and those that should be considered “physical stimuli.”
For example, if Antonio Damasio is right in his proposal that all feelings have their origin in “the mappings of myriad aspects of body states in sensory regions designed to receive signals from the body,” then the physical basis of sexual arousal does not, by itself, distinguish it from any other emotional reaction. (Looking for Spinoza: Joy, Sorrow, and the Feeling Brain, p. 87). The fact that a pornographic film, image, or book has powerful physical effects does not, considered by itself, distinguish it from any other emotion-generating stimulus in film, photography, or literature. If there **is** something that happens to our mental processes in watching sexual imagery that justifies treating it differently – and less generously – under the First Amendment than imagery eliciting fear, disgust, or some other emotional response – then it’s fair to ask just what it is, and whether this purported difference can be bolstered with scientific observation.
This is not to say that every single assumption the law makes about human thought and behavior has to be grounded in science, or else immediately abandoned. Scientists may in some cases have not yet have any answers for some of the questions about human behavior asked by lawyers and legal thinkers. And some of the questions that judges ask about human affairs may not be questions of the sort best addressed by scientists.Indeed, John Finnis makes precisely this claim about the use of the distinction between “reason” and “passion” in understanding obscenity law: “Empirical psychology could abandon the distinction between intellect and emotions,” he writes, “ without the distinction being thereby invalidated either for common-sense or for the philosophy of human nature.” (p. 227).
But it is hard to root obscenity law in widely-shared views of human nature and emotional life when those views are no longer widely-shared – but on the contrary, regarded by many as highly dubious. Thus, while Finnis argues that the artistic speech preserves “psychic distance” from our emotions, that’s not obviously true of the movies we watch, songs we listen to, and photographs we view under the First Amendment’s shield: Popular thrillers, horror movies, and action films don’t merely allow us to reflect on fear, disgust and tension. They often pull us into the grip of these emotions. As Andrew Koppelman points out, “Finnis's argument depends on a dubious aesthetic, in which artistic value depends on a degree of detachment from the narrative to which few readers aspire.” Does Obscenity Cause Moral Harm?, 105 Colum. L. Rev. 1635, n136 (2005). (See also Koppelman, Is Pornography Speech?) Schauer’s characterization of obscene imagery as a “physical stimulus” has similarly been challenged by David Cole, Steven Gey, and other scholars. See, for example, David Cole, Playing by Pornography’s Rules: The Regulation of Sexual Expression, 143 U. Pa. L. Rev. 111 (1994); Steven G. Gey, The Apologetics of Suppression: The Regulation of Pornography as Act and Idea, 86 Mich. L. Rev. 1564 (1988).
In fact, even some scholars who agree that at least some pornography should be excluded from the scope of the First Amendment differ from Schauer in finding that the emotional response produced by pornography is akin to that produced by other, protected forms of speech. As James Weinstein observes:
"an anti-abortion protester has the right to forego any appeal to the intellect and instead distribute leaflets on a public street bearing only a photograph of an aborted fetus in an attempt to persuade people that abortion is wrong only through the experience of disgust that this picture elicits. Similarly, Mothers Against Drunk Driving would have a right to distribute a film that consisted solely of images depicting in gruesome detail the carnage that can result from drunk driving."
James Weinstein, Democracy, Sex, and the First Amendment, 31 N.Y.U. Rev. L. & Soc. Change 865, 887-888 (2007).
One response to this similarity between the psychological effects of sexual imagery, and that of other imagery that elicits disgust or horror, is to find some other grounding for the law of obscenity – one that does not rely the alleged effects of pornography on our mental processes. Weinstein, for example, argues that most pornography is likely to be unprotected not because of its psychological effect, but rather because even if it is speech, it is not speech that serves the core purpose of First Amendment law, which is to safeguard “the right of each citizen to participate freely in the speech by which we govern itself.” (p. 866). Pornography does not generally educate us about public affairs or in other ways contribute to self-government (and when it does, the courts should find that it has “political value” and is, for this reason, doesn’t fit into the Miller case’s three-pronged definition of obscenity). Others might argue that pornography generally does not elucidate any truths for viewers, and thus does not add anything of value to “the marketplace of ideas” that, in the view of some writers, it is the First Amendment’s key purpose to shelter and nourish. But such limits on the First Amendment’s scope – to matters of public concern or self-government, to expression that elucidates the truth, or some combination of the two – are hard to square with the fact that First Amendment speech protection shield not only political editorials, public speeches, and science lectures, but also video games like Doom and Grand Theft Auto, movies like Attack of the Killer Tomatoes or David Lynch’s Eraserhead, and entirely abstract visual and aural sequences, like that in the animations of Oskar Fischinger, Harry Everett Smith, Mary Ellen Bute, Jordan Belson, John and James Whitney, and many other artists. As Justice Souter wrote in 1995: The First Amendment “unquestionably shield[s]” the non-representational “painting of Jackson Pollock, music of Arnold Schoenberg, [and] Jabberwocky verse of Lewis Carroll.” Hurley v. Irish-American Gay Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569 (1994). It is hard to see why a First Amendment speech principle broad enough to include such abstract works could simultaneously be too narrow to include significant numbers of sexually-themed films, images, and books.
(To be sure, one can imagine a different constitutional division-of-labor, whereby the First Amendment protects politically-significant speech while the other, broader liberty protections of the due process clause (in the Fifth and Fourteenth Amendments) protect other kinds of speech. Scholars such as Weinstein and Gregory Magarian have offered powerful and intriguing arguments for such a division of labor. But as the Hurley case demonstrates, it doesn’t seem to be the model underlying all of the Court’s key First Amendment decisions. See James Weinstein’s argument in the N.Y.U. Rev. L. & Soc. article that I’ve cited above and Gregory P. Magarian, Substantive Due Process as a Source of Constitutional Protection for Nonpolitical Speech, 90 Minn. L. Rev. 247 (2005)).
It is more likely that those who exclude the latter do so because of the sense that pornography tends to cause mental harms (or other psychological effects) that are less likely to characterize other artistic expression. But if that is what justifies obscenity law, then there is no reason it should be based solely on folk psychology, and immune from scientific questioning. In numerous recent cases extending First Amendment protection to video games, courts have vigorously questioned – and ultimately rejected – the expert evidence offered by California and other states and cities that video games cause harms to minors distinct from (and more serious than) those caused by watching similarly-themed films, and it’s not clear why the claims that underlie obscenity law should not likewise have to show that the harms alleged to justify it are real ones (and that the speech restrictions presented as responses to them are rational responses).
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