Last week’s Supreme Court decision striking down California’s ban on selling violent video games to kids is no victory for free speech. In fact, the majority decision, authored by Justice Antonin Scalia, actually maintains America’s oldest and most powerful prohibition of expression: sexual content.
Scalia argues that because violent speech has always been central to American culture, even in childrearing, it should be protected now. But while the framers intended to protect violent speech, according to Scalia, they specifically carved out an exception to the First Amendment for expressions of sexuality, allowing them to be banned by any legislature that deems them obscene. Though Scalia’s embrace of violence and shunning of sex have been characterized by some as “bizarre,” the historical record brims with evidence supporting the Justice’s claim that the United States was indeed founded on violence and against sex.
The California law that the Court struck down prohibited the sale or rental of violent games to minors “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being.” To Scalia and the majority of the Court, only the latter is obscene and therefore subject to censorship. “California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter,” Scalia wrote in the majority opinion. “That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct.’” Arguing that “violence is not part of the obscenity that the Constitution permits to be regulated,” Scalia makes clear that sex, not violence, is the problem: “Because speech about violence is not obscene, it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York. That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child.”
In one of the more provocative paragraphs in Scalia’s decision, he maintains that violence has always been central to American childrearing practices:
California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read–or read to them when they are younger–contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just desserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.
Indeed, American children during and after the founding of the nation experienced not just violent imagery in their bedtime reading but also a prodigious amount of actual violence against their bodies. Corporal punishment was promoted and frequently practiced in American homes and schools until the middle of the 19th century. Parents and teachers used the birch, rod and whip, as well as the open hand, to keep children in line. Noah Webster’s American Spelling Book, the most commonly used textbook in early American schools, contained this admonition: “As for those boys and girls that mind not their books, they will come to some bad end, and must be whipt till they mend their ways.” Early American schools “resounded with strokes of the rod,” as one historian has put it. Schoolmasters beat their pupils not only with wooden rods but also with cat-o’-nine tails and leather whips. Children caught talking in class were gagged and then had their necks clamped together between wooden blocks called “whispering sticks.” Because Quakers were barred by their religion from using violence, their schools in Pennsylvania instead disciplined students by locking their necks and hands in pillories, shackling their legs, or hanging them in sacks. Six out of nine childrearing books published in the United States in the early 19th century advocated the use of corporal punishment, and government authorities rarely took action against it. Typical was one Massachusetts judge’s ruling that corporal punishment was an “imperative duty” of schools and necessary “to maintain good government . . . and secure proper subordination in all.”
Scalia, a strict constructionist, claims that his decisions are guided by the intentions of those who wrote the Constitution. In allowing the censorship of sexual expression even while protecting depictions of violence, he undoubtedly followed the framers’ guidance. In fact, the historian Clare Lyons has written that a central and necessary part of the founding of the nation was an “assault on nonmarital sexuality.” The framers argued that a people who lived for their own personal liberty and pleasure could not rule themselves. Benjamin Rush, a signer of the Declaration of Independence, participant in the Continental Congress and surgeon general of the Continental Army, best explained why America had to attack sensual pleasure, writing in 1788 that they had a “pernicious influence upon morals, and thereby prepare our country for misery and slavery.” In the 1810s and 1820s, Rush authored a series of sexual manuals for the new nation, in which he declared that indulgence in bodily pleasures, “when excessive, becomes a disease of both the body and mind.” Too much sex could cause not only vertigo and epilepsy, but also “seminal weakness, impotence … pulmonary consumption, hypochondriasis, loss of memory … and death.”
In the decades after the revolution, a raft of medical literature appeared that counseled against all forms of non-marital–and even many forms of marital–sex. Various behaviors were described in great detail and labeled as “deviant.” Men were advised to redirect their sexual energies into work, and women were told that females were naturally nonsexual and that “good” women were pure and chaste. Even masturbation was suddenly dangerous, a number of doctors claimed. One of the most prolific fields of invention in the young United States was anti-masturbation. By the middle of the 19th century, one could purchase a wide variety of devices and medication to control the desire to play with oneself, including penis cases and sleeping mitts. More than 20 patents were awarded for hobbles to keep women from spreading their legs.
Following the admonitions of the founders, prosecutions for illicit sex spiked after the revolution. The number of arrests for prostitution in Philadelphia grew by more than 60 percent over the first 20 years of independence. Then came “reform.” Beginning shortly after the ratification of the Constitution, several organizations were founded to rid America of what the founders called corruption, depravity, viciousness and vice. In Philadelphia in 1790, The Association of the District of Southwark for the Suppression of Vice and Immorality was the first of many anti-vice organizations to be established in the early years of the republic. These groups targeted gambling houses, brothels, dance halls and lower-class taverns. This movement gained institutional teeth in the second decade of the United States with the rapid growth of reformatory asylums. The Magdalen Society was founded in Philadelphia and New York with the mission of “relieving and reclaiming unhappy females who have Swerv’d from the paths of virtue.” Members of the society visited not only prostitutes but also women who were simply promiscuous in prisons and almshouses and attempted to persuade them to enter the Society’s asylum, where in exchange for free room, board and medical care, they would give up a life of sexual license for a program of chastity, domestic labor, regimentation and moral instruction.
So, far from bizarre, the Supreme Court’s decision to protect violent speech and leave sexual expression open to censorship is indeed grounded in the intentions of the framers of the Constitution and the foundations of American culture. But for those of us who wish to be free of the puritanical values of the nation’s founding generation, it might also present another reason to treat the Constitution as a living, changeable document.
Thaddeus Russell teaches history and American Studies at Occidental College and is the author of A Renegade History of the United States.
Photo courtesy of El Negro Magnifico.