Wednesday the Times editorialized against a Supreme Court ruling that upheld a 2003 federal law making it a crime to offer sexually explicit images of children, whether or not the material is real or fraudulent. Times editors posed as brave First Amendment absolutists in "A Discomfiting Threat to Free Speech."
The Supreme Court upheld a law on Monday that sweeps too broadly in its attempt to ban child pornography, which is repellent and illegal. Those who traffic in it must be punished, but this law is drawn in a way that also criminalizes speech that should be protected by the First Amendment.
The dissenters are right that the court should have made Congress go back and pass a more carefully written law. They are also right that the court's analysis undermines protections for political speech.
It may seem hard to muster much concern about the speech at issue here. But the implications go beyond child pornography. As Justice Souter reminds us, it is an important principle in the court's political speech and sedition cases that speech cannot be banned based on bad intent, only on a "realistic, factual assessment of harm."
If the court had struck down the offensive parts of the law, the damage to child-pornography prosecutions would be minimal. The harm of weakening the protections of free speech is far more substantial.
One can debate the paper's logic in defending fake child porn as free speech, but its sudden concern for preserving political speech is undeniably hypocritical, given the editorial page's previous endorsement of squelchingof political speech in the name of liberal "campaign-finance reform."
That anti-First Amendment position is demonstrated most bluntly by its June 26, 2007 editorial criticizing the court's decision in defense of free speech involving actual political speech - as opposed to the repellent images the editorial page thinks are in need of defense.
The Supreme Court hit the trifecta yesterday: Three cases involving the First Amendment. Three dismaying decisions by Chief Justice John Roberts's new conservative majority....First, campaign finance. Four years ago, a differently constituted court upheld sensible provisions of the McCain-Feingold Act designed to prevent corporations and labor unions from circumventing the ban on their spending in federal campaigns by bankrolling phony 'issue ads.' These ads purport to just educate voters about a policy issue, but are really aimed at a particular candidate.... The decision contained a lot of pious language about protecting free speech. But magnifying the voice of wealthy corporations and unions over the voice of candidates and private citizens is hardly a free speech victory .
Apparently only liberal newspapers should be allowed to influence the electoral process.