Academic

Stanley Fish and Kittens: Too Quick and Not Dirty Enough

By John Inazu

Three weeks ago, Stanley Fish?s essay ?The First Amendment and Kittens? reflected on the Supreme Court?s recent decision in United States v. Stevens (invalidating a federal statute targeting animal cruelty videos) and the meaning of Stevens in a larger First Amendment context.  Fish critiqued the collapse of ?the social interest in order and morality? (quoting Chaplinksy v. New Hampshire) and the transformation of speech into ?a value in and of itself, no matter what its content or effect.?

While Fish admitted that his account of First Amendment theory was ?the quick and dirty version,? his failure to address obscenity (other than a passing reference to American Booksellers v. Hudnut) made it a little too quick and not quite dirty enough.  Surely obscenity plays into Fish?s critique at least as much as symbolic speech and defamation (the topics to which Fish devoted most of his attention), and virtual child pornography has even less of a claim to any First Amendment value than a protester burning a flag or the irreverent parody of a controversial religious leader. 

Of course, Stevens isn?t an obscenity case.  Neither is Schwarzenegger v. Entertainment Merchants Association, the case the Court has agreed to hear involving a law banning the sale to minors of video games depicting the ?killing, maiming, dismembering or sexually assaulting an image of a human being.?  Striking down the California law, the Ninth Circuit stressed that the Court?s obscenity jurisprudence ?relates to non-protected sex-based expression?not violent content.?  Indeed, it is difficult to fit much sex (let alone violence) under the Miller test?s ?prurient interest? and ?patently offensive? requirements, which mean that legally obscene material must ??turn you on and gross you out? at the same time? (quoting Jeffrey Rosen?s essay quoting Kathleen Sullivan).  But maybe Miller is wrong.

Opposing certiorari in Entertainment Merchants Association, the video gaming industry argued that ?video games contain the type of expression (music, art, narrative) that is protected by the First Amendment? and ?[l]ike great literature, games often involve themes such as good versus evil, triumph over adversity, struggle against corrupt powers, and quest for adventure.?  Here is how the district court described one of these paragons of ?great literature,? a game called Postal 2:

The game involves shooting both armed opponents, such as police officers, and unarmed people, such as schoolgirls.  Girls attacked with a shovel will beg for mercy; the player can be merciless and decapitate them.  People shot in the leg will fall down and crawl; the player can then pour gasoline over them, set them on fire, and urinate on them.  The player?s character makes sardonic comments during all this; for example, urinating on someone elicits the comment ?Now the flowers will grow.?

Nothing obscene here.  And that, presumably, leaves us without a label with which to squelch it.  But while an argument that can?t distinguish between The Catcher in the Rye and Postal 2 may carry the day, we ought at least to notice its absurdity.  And that is part of Fish?s argument.

Of course, any attempt to distinguish between different kinds of expression will soon encounter the ?slippery slope? objection.  Fish ignored the objection in his ?Kittens? essay, but he has argued elsewhere that: 

Slippery slope trajectories are inevitable only in the head, where you can slide from A to B to Z with nothing to retard the acceleration of the logic.  In the real world, however, the step even from A to B will always meet with resistance of all kinds from persons differently positioned, and, as a matter of fact, the chances of ever getting to Z are next to nothing.  Somewhere along the route some asserted interest will stop the slide, and a line will be drawn beyond which regulators will be prevented from going, at least for a time, until new pressures and new resistances provoke a new round of debates, at the end of which still another line will be provisionally drawn.

In a legal framework that sanctions virtual child pornography, videos showing the torture and killing of kittens, and marketing games like Postal 2 to teenagers, maybe it is time to start the slide down the slippery slope.

Full post as published by The Faculty Lounge on May 18, 2010 (boomark / email).