Stripping Away Freedom
- by David Matthews 2
"Necessity is the plea of every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves." - William Pitt
There are times when I look at the American system of government and I breathe a sigh of relief that there is a system of checks and balances. Times when I look towards the judiciary and be thankful that the members of the US Supreme Court are not beholden to polls or to special interest groups. That they look to a document called the US Constitution and all of its amendments, and decide not on what some poll or what some focus group says is right, but what is right by the Constitution.
Sometimes they make the right decision, a decision that reminds people of what freedom is all about. Those are the times I take that breath of relief, because in those instances, the American system works.
Then there are times when they are wrong. Times when they stray away from enforcing the Constitution and start placing priority on redefining the Constitution in what is "for the good of society". Those are the times when I have very grave fears about America. It doesn’t happen often, but it does happen with enough frequency to make one concerned.
This is one of those times.
The case involves an ordinance passed by the local government in Erie, Pennsylvania, which outlawed nudity. The ordinance specifically target Erie’s adult-only strip club, requiring the dancers there to cover up certain parts of the female anatomy. The local government knew that eliminating nudity would help bring the demise of that club.
This ordinance was challenged in the courts, and the Pennsylvania Supreme Court ruled that it violated the freedom of speech.
But then it went to the US Supreme Court, and in a 6-3 decision, the justices said that Pennsylvania’s highest court was wrong. Writing for four of the six justices, Justice Sandra Day O’Conner said that even though nudity is a form of expression that deserves SOME First Amendment protection, local communities CAN outlaw nudity to prevent what they say are "negative secondary effects." And that even though the ban violates speech, O’Conner says the effect is "minimal."
The majority decision, though, was not in complete agreement by all six justices. Justices Anthony Scalia and Clarence Thomas said they supported the ban to support "the traditional power of government to foster good morals.. and the acceptability of the traditional judgement.. that nude public dancing itself is immoral."
Now folks, I’ll be brutally honest with you… I believe that Justice O’Conner and the other five justices are Constitutionally wrong. Not just mistaken. Not just wrong. CONSTITUTIONALLY WRONG. They have erred on the belief that any Constitutionally-protected right can be limited simply because of so-called "negative secondary effects."
This decision does have some very dangerous consequences. For instance, the government can now use this decision to outlaw gun sales, claiming that recent gun-related violence poses "negative secondary effects" that outweigh the right to bear arms as guaranteed by the Second Amendment. And besides, one would argue, the effects to limit individual gun sales would be "minimal." After all, we do have the police, don’t we?
Using this decision, government can now outlaw certain religious practices, claiming that certain religious-based incidents pose "negative secondary effects" that outweigh the First Amendment freedom of religion. Say good-bye to any religion that does not hold a domineering stance in society. Besides, as one would argue, government has a "responsibility to foster good morals", right? And wouldn’t it be in the "best interests" of society if religious beliefs that some would consider to be cult-like be stifled? (By the way, did you know that some have called Judaism, Catholicism, Hinduism, and Buddhism to be cults?)
Using this decision, government can now claim that incidents of rioting, as demonstrated at last year’s chaos surrounding the World Trade Organization’s meeting, constitute a "negative secondary effect" that outweigh the freedom to assemble peaceably as guaranteed in the First Amendment. After all, you can still protest… just not in large groups.
Do you see now how dangerous this decision is? ANY right guaranteed in the US Constitution can now be made null and void by the government if they claim that right has some "negative secondary effects."
But I reserve the brunt of my disgust for Justices Scalia and Thomas, who piously believe that government has a "traditional" role to foster morals. How many times do we have to pound this into people’s heads… THAT IS NOT THE ROLE OF GOVERNMENT! Maybe once upon a time it was, but NOT in a society that is established on the basis of individual freedom.
And certainly Clarence Thomas should remember that there were OTHER things that government traditionally supported. Things like slavery and race-based discrimination. Things that would have kept him from being a member of the Supreme Court if the government continued to support them as they have in the past. These were also supported by the courts "for the good of society." The fact that government traditionally supported these things does not make it right.
Don’t think, however, that this is an easy win for the moralists, though, because the Supreme Court has left open one crucial avenue of attack… and that is attacking the "negative secondary effects" themselves. In the majority opinion, Justice O’Conner noted that NOBODY questioned the validity of those "secondary effects". In a separate dissent, Justice David Souter wanted to have the government prove those effects really existed.
And that is where the government is at its weakest. Indeed, few people ever challenge the validity of those claims of "negative secondary effects." What constitutes those claims? Actual police reports? An in-depth study by impartial bodies interested in presenting unbiased and indisputable facts? Hardly. In most instances, any kind of "proof" is based on studies conducted by questionable or biased sources. Those studies may even be thirty years outdated and have absolutely nothing to do with the affected establishments. Yet those "facts" - if you can even call them such - are accepted on face value simply because some politician, whose bias is often well-documented, offers them for consideration.
As I have often mentioned, moralist-led laws are not written based on fact as much as they are founded on baseless fears, superstitions, rumors, innuendoes, and sometimes even slanderous lies. Moralists use these to intimidate those in government to do their bidding because they are faster and more effective than trying to collect facts to support their claims. Believe it or not, those in the adult entertainment business have the truth on their side, and it is a powerful weapon they must now wield like a machete to cut through the government-endorsed lies.
Granted, strip clubs are not for every adult. Watching naked women - or men for that matter - dance about on a stage or on top of tables is truly an acquired taste. Then again, some people get their thrills watching others line dance, or do the polka, or do the Lambada. Some people even get their jollies watching large congregations assemble like mindless sheep to hear their every word as though it was from God above. The only difference is that nobody ever tries to claim "negative secondary effects" to shut down churches or dance halls. Maybe that’s something that should be changed as an object lesson in what tyranny is really all about.
Tyranny does not show itself all at once. Like the Dance of the Seven Veils, tyranny exposes itself one layer at a time, gracefully removing each layer of protection, each pretense of justification, until there is just naked aggression. It is a far greater evil in a society that claims to cherish freedom than any mythological "negative secondary effects" erroneously associated with strip clubs.
That, unfortunately, is yet another lesson that the members of the US Supreme Court have failed to learn.