FIRST AMENDMENT FASCISM

Just how interested in upholding the Constitution are the people at Playboy and the Arizona Civil Liberties Union? Consider two recent episodes.

Last October, in the aftermath of the Tailhook imbroglio, Navy officials announced that they were thinking about removing Playboy from the shelves of Navy exchanges. Lawyers for Playboy, predictably, cried "censorship" and threatened the Navy with litigation on First Amendment grounds. Once again, Playboy stood posed, if you will, to make First Amendment history. Such a suit could set a very dangerous precedent.

Traditionally, censorship occurs when the state prevents certain material from being printed, broadcast, etc. Nothing of the sort is happening here. No one is keeping Playboy from being published or distributed, and no one is stopping sailors from reading it. Who's freedoms are being threatened?

I am a supply petty officer in the Navy Reserve. Just outside the gates of many naval installations, Playboy is one of the mildest available forms of titillation. I also know that if I ever started a bookstore, I think I would rather do time in the Hanoi Hilton than sell Jane Fonda's Workout Book. Although it ought to be obvious, I ask again: whose freedoms would be threatened by my decision?

The second relevant episode is last fall's brouhaha over the Mesa Public Library and its decision not to carry Madonna's book Sex. As the storm over Sex gathered Arizona Civil Liberties Union Director Louis Rhodes wrote a letter to Mesa Mayor Willie Wong accusing the city of -- what on earth did you expect -- "censorship." If a plaintiff surfaced, Rhodes has said that he would consider suing the library to get Sex on the library shelves. This suit would likewise set a most dangerous precedent.

If such a suit were ever successful a whole new field of litigation could arise. The First Amendment could be used to force retailers and libraries to carry certain publications or risk expensive legal battles. The same people who exalt the virtues of "consent" and "freedom of expression" would no longer have to bother with such frivolous concerns as whether a certain bookseller consents to sell girlie magazines or whether the sale of such magazines conflicts with his freedom of expression as, say, a born again Christian.

Just where in the First Amendment do the free speechniks at Playboy and the Arizona Civil Liberties Union find a right to coerce booksellers and libraries? I don't know, but it is not difficult to imagine some federal judge unearthing such a right in the same "penumbra" which past courts have used to debauch the Constitution.

Jeremy Voas of The New Times quotes Mesa Library director Vince Anderson as asking, "Wouldn't you rather fight your battles for something more substantial than Madonna's Sex?" Voas writes that Anderson's words "should chill the blood of artists and libertarians everywhere."

Implicit here is the idea that libertarians believe in absolute unfettered artistic freedom, regardless of any external considerations whatsoever. Voas thus confuses libertarianism with anarchy.

In a civilized society, rights are of necessity limited by other considerations and, often, other rights. What we have here are just two examples of the narcissism of certain "artists" which leads them to believe that their rights are absolute and that these include the right to steamroll anyone who will not genuflect before them.

Traditional censorship is about as common as slavery in America today. Three years ago, during the holy war over public funding for an exhibit featuring the work of Robert Mapplethorpe, not even Jesse Helms argued that the First Amendment did not protect Mapplethorpe's photos. The debate hinged on whether or not the taxpayer should be forced to pay for the display of such sewage.

In the cases of the Mesa library and the Navy, we see certain entities simply deciding not to act as conduits for certain publications which are widely available elsewhere. Plenty of literature is not available in libraries or on Navy bases for any number of reasons. Is such literature being censored, or are people simply exercising their rights under that pesky Ninth Amendment? Those on the vanguard of the sexual revolution seem to have forgotten about what Justice Brandeis called "the right to be left alone."

Perhaps, though, I should not complain. If a lawsuit such as those threatened by Playboy or the Arizona Civil Liberties Union is ever successful, we Libertarians might one day be able to sue newspapers for not reporting on our activities.

Freely Speaking: Essays by Doug Newman

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