Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Friday, October 29, 2010

The Physics of Censorship

On November 2, the Supreme Court will hear arguments in Schwarzenegger v. Entertainment Merchants Association. The case asks whether a California statute that restricts the sale of violent video games to minors runs afoul of the First Amendment.

It is a case worth watching, not just because it raises interesting questions but because of the quality of the lawyering. Paul Smith of Jenner & Block, one of the most talented Supreme Court advocates of our generation, will be arguing on behalf of EMA.

I also think the case is intriguing because the California statute is a good example of what I like to call "the physics of censorship."

In my view, there is a quasi-Newtonian principle that describes how a large number of decisions are made within our political process: for every action, there is an unequal and opposite overreaction.

Here’s how the principle plays out.

Congress or a state legislature panics about some new development that supposedly threatens the moral fabric of our nation. Because really big problems call for really big laws, a hopelessly vague and overbroad statute follows. The fact that the statute is grossly overreaching simply shows that our elected officials took the matter very, very seriously.

Another quasi-Newtonian principle then helps drive things along: once this process is set in motion, it tends to stay in motion. It grinds relentlessly toward its illogical conclusion. It does not pause for consideration of such fundamental questions as whether the legislation is within the government’s constitutional authority or whether it is even necessary.

These principles have had a profound influence on the jurisprudence of the First Amendment. Indeed, the introduction of any new art form or medium of communication has consistently triggered them. Motion pictures, radio, television, cable, and the Internet all bred alarm and overreaction. It is perhaps particularly embarrassing that, in 1954, Congress decided to devote significant time and energy to holding hearings on the evils of comic books.

These overheated legislators may not have acted with pernicious motives. But good faith does not transform an overreaction into good law or good policy.

Judges and scholars have described the role of the First Amendment in many different ways. It creates a marketplace where ideas can freely compete for our allegiance. It fosters an institutional media capable of checking the power of the government. It enables individuals to express and govern themselves. It embodies our respect for the value of tolerance—even, as the Supreme Court has said—of the speech we hate.

But it turns out that the First Amendment does something else as well. To borrow a phrase from Kipling, it helps us keep our head when all about us are losing theirs. And it enables us to interrupt the otherwise unstoppable momentum of the physics of censorship.