Did your heart beat quicker when you read the much-quoted words written by Supreme Court Justice Anthony Kennedy in a ruling this week?
"Content-based prohibitions, enforced by severe criminal penalties, have a constant potential to be a repressive force in the lives and thoughts of a free people," he told us as the court decided, 5-4, that a congressionally passed law had to go back to a lower court for more review.
Indeed, we must watch out for repressive forces. But this case was not about the political speech protected in the First Amendmentor with free expression in literature or discussion of any subject.
No, the case was about pornography on the Internet, and even then the case was not about what adults are allowed to produce or see. All it says is that the Web sites need to take some reasonable precautions to keep children from looking at the stuff, such as first requiring use of a password or credit-card number.
This law does have criminal penalties, as Kennedy noted. It allows for a six-month jail term and stiff fines for porn-business operators who don’t comply with these easy steps. But as another, dissenting justice said, the law does nothing to call into being those court guidelines saying Congress should have located the least restrictive means of achieving its end. The majority insisted that the easiest thing would be for parents to buy Internet filtering devices, although they are reportedly about as precise as sledgehammers.
This same court ran and hid when a real free-speech issue came its way not so long ago. After a lower court denied Nike the right to respond to what some critics were saying about the firm’s overseas labor practices, the Supreme Court dismissed an appeal on the same sorts of technical grounds one close observer says it often ignores. People were actually being told to shut up when they wanted to defend themselves, as clear an infringement on free speech as you could want.
Kennedy, to his credit, was among the justices wanting the court to rule on the Nike case’s merits. If it had, maybe he could have given us a quote that really would have made our hearts beat quicker.