The four traditional police powers of government are to protect public health, safety, welfare, and morality. In American law, the police powers are legitimate and even compelling justifications for government legislation and regulation. Usually, government exercises of the police powers can pass any level of judicial scrutiny. Within these realms, the courts do not challenge the legislature or executive branches in their capacity to regulate behavior and enforce social order.
However, some courts have explicitly rejected the power of government to protect citizens' morality. Courts began to embrace moral relativism in the context of pornography and indecency cases under the First Amendment.
In Cohen v. California (1971), the Supreme Court heard a case about a man, Cohen, who had been convicted under a California statute prohibiting anyone from "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct." Cohen had worn a jacket that prominently displayed the phrase "F*** the Draft" in a government building with children. Although the Court could have held narrowly on the unconstitutional overbreadth of the California statute, it articulated a broader ruling. The Court held that California cannot censor profanity in public places because "one man's vulgarity is another man's lyric." Such a holding seems to endorse an almost unlimited personal autonomy. It chants the selfish mantra, "you can do whatever you want, so long as you don't hurt anyone." Justice Burger, Justice Blackmun, and Justice Black dissented in part because they (correctly) asserted that we do not "live in a world so incapable of communication that it can be said that 'one man's vulgarity is another's lyric.'"
More recently, Justices Kennedy and O'Connor seem to have accepted moral relativism by asserting that the Court cannot rule on morality in cases dealing with abortion and same-gender sex (Lawrence v. Texas; Planned Parenthood v. Casey). But, I will keep the scope of this post to the First Amendment.
Judge Robert Bork criticized the Court's capricious admission of moral relativity in, among others, the Cohen case. He points out that moral distinctions stand at the very foundation of the law. If it were not for morality, law could be established in very few areas, "[a]fter all, one man's larceny is another man's just distribution of goods." Moral relativism as a formula for justifying and fashioning the law is totally vapid. A change in deeply entrenched and widely accepted moral environment is harmful.
One of the chief objections to Bork's critique of moral relativism in the judiciary is that, with Cohen, the Court was not dealing with regulations of Conduct like larceny, but speech, which has special status under the Constitution. This seems to me to be a widely accepted tenant of First Amendment theory. That, somehow, speech, as a right, is superior to other rights because it is memorialized in the First Amendment. First Amendment jurisprudence demonstrates a belief that the First Amendment enthrones speech and self-expression as higher than all other values save health, safety, and financial well-being of others. Since Judge Stone penned the famous footnote four of the United States v. Carolene Products case, rights specifically mentioned the Constitution have been blindly treated as superior to other rights.
I refute this notion. I believe most all of the founding fathers would heartily agree. The purpose of the First Amendment was not to give speech superior status relevant to other rights, but to declare the status of speech as a right where it had previously been treated only as a privilege in the law. Thus, speech is on no greater footing than other rights and must be balanced against other rights. Whether Cohen's "absurd and immature" form of protesting the Vietnam War can be regulated, I am not decided. However, the Court proceeded incorrectly, and in so doing, set dangerous precedent. Rather than proceeding on the assumption that no morality exists, the Court should have recognized the rights of parents to steer their children away from such indecency or the right of persons to function normally in society without having their moral sensibilities accosted. Then, the Court should weigh the rights of the speaker against the rights of the audience to come to a conclusion. Judicial consideration should take into account the justifications for free expression, asking: (1) Does the speech have a positive or negative affect on the marketplace of ideas, as a step to truth? (2) Does the speech have importance in checking government abuse or in sustaining a healthy democracy? And, (3) how important is the person's interest in autonomy and self-expression as compared with the opposing party's rights.
Although we may dispute the definition of moral good at the margins, there are certain ubiquitous virtues that should define the contours of the law. We may disagree about exactly what it means to be kind. But, virtually every society across time and geography values kindness and dishonors cruelty or selfishness. Rather than shun morality, Courts should sculpt the contours of the law around fundamental principles of morality.
Americans have the right to pursue a broadly virtuous life without being unduly burdened. While we can argue at the margins of what it means to be good; there is a central core in the American tradition of what it means to be virtuous: wise, courageous, kind, temperate, and transcendent. Our freedom of expression cannot be superior to the right to live normally without being exposed to a waterfall of profanity, lustful nudity, gratuitous violence, outright lies, and verbal abuse. Our policies must support virtue. Or, we will lose virtue. Benjamin Franklin understood well the results of a morally relativistic citizenry when he said, “Only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.”
