Abstract
We live in an image culture, a world in which images are so ubiquitous as to be unremarkable. It is said that the image has surpassed the word as the dominant mode of communication. It seems preposterous to suggest that in this modern, digital, visual culture, we might still feel the ancient, bewitching pull of images, the instinct that images possess an uncanny power or danger. Surely, this view of images is archaic; it resembles the view that motivated both idolaters and iconoclasts in earlier, supposedly more primitive, cultures. Yet I believe this ancient view of images is alive and well (although we don’t acknowledge it) in the modern and supposedly rationalistic world of contemporary First Amendment law. In my view, First Amendment law consistently and unthinkingly favors text over image, and it does so for reasons that bear a remarkable similarity to the reasons that motivated iconoclasts throughout the history of religious and secular struggles over images.
In this chapter, I explore a variety of free speech doctrines to establish that First Amendment offers greater protection for verbal as opposed to visual forms of representation. Curiously, this consistent preference for text over image is buried in the doctrine; assumed and almost never acknowledged, its real-world implications are dramatic. I then show that the First Amendment treatment of images echoes the approach to visual imagery that animated the biblical prohibition on graven images and the historical, religious impulse to destroy images. The view of images that motivated iconoclasts, the perception of images as invested with magic powers or indistinguishable from what they represent, persists unrecognized in contemporary First Amendment law and theory.
Emily Kempin Professor of Law, NYU School of Law. Many thanks to Felicity Kohn for superb research assistance. I would like to thank the Filomen D’Agostino and Max E. Greenberg Research Fund for generous support. This chapter builds on two of my previous pieces, The Art of Censorship (2000) and Inverting the First Amendment (2001). I dedicate this chapter to the memory of Ed Baker, a great friend and a great First Amendment scholar.
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Notes
- 1.
David Morgan has said that in debates on iconoclasm that “difference between representation and the person represented had… become unclear” (2005, 145).
- 2.
The idolater perceives the image as having power over himself. The iconoclast fears that others perceive the picture as having power over them. The image’s power is to be celebrated in the former case and destroyed in the latter. But as David Freedberg puts it, “the love and fear of images… are indeed two sides of one coin” (1989, 405).
- 3.
Although they do acknowledge a qualification to this rule, citing the potential fetishization of the Torah or occasionally of names (1992, 52).
- 4.
Perhaps this double vision of images as both trivial and dangerous bears something in common with what W.J.T. Mitchell suggested when he wrote: “We need to account not just for the power of images but their powerlessness, their impotence, their abjection” (2004, 10).
- 5.
Goodman, of course, disagrees with this perception.
- 6.
Adler describes recent trend of using obscenity law to compensate for limits of child pornography law. See also U.S. v. Whorley, 550 F.3d 326, 335 (4th Cir. 2008) another case in which obscenity law is applied to text. Here, defendant was convicted of receiving obscene anime cartoons and sending or receiving obscene textual emails about sexual fantasies involving children in violation of 18 U.S.C. 1462. Judge Gregory, concurring in part and dissenting in part, claimed that the text-only emails should be protected as “pure speech.” Insisting on the special importance of words as opposed to images in the First Amendment, Judge Gregory cited the special “ability to consider and transmit thoughts and ideas through the medium of the written word.”
- 7.
She contends that when women consent to posve for pornography, such consent is tainted because “all pornography is made under conditions of inequality based on sex, overwhelmingly by poor, desperate, homeless, pimped women who were sexually abused as children” (Dworkin and MacKinnon 1988, 20).
- 8.
Many of the questions I discuss here raise issues not only of images in general, but of photography in particular. I have addressed the unusual vulnerability of photography to censorship in prior scholarship. Here, I do not focus on photography as a genre but rather on photography as a subset of images more generally. Like all images, photography often raises assumptions that it is crude, dangerous, powerful, or true. Although photos often present these assumptions more forcefully than do other types of images, for purposes of this chapter, I posit that it is a difference of degree not of kind.
- 9.
Although I do not discuss it here, another result of this fusion is that MacKinnon, like many others, attributes a special truth value to photography. She writes: “[T]he pictures are not so different from the words and drawings that came before, but your use for the camera gives the pictures a special credibility, a deep verisimilitude, an even stronger claim to truth….” (1993, 5).
- 10.
Cf. U.S. v. Whorley, 550 F.3d 326 (4th Cir. 2008), where verbal accounts of child sexual conduct were prosecuted as obscenity, not child pornography.
- 11.
Wholly computer-generated images are not child pornography, since their production does not entail the abuse of a real child. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (striking down provisions of Child Pornography Prevention Act that treated “virtual” child pornography as if it were child pornography). This reasoning, which distinguished between “real” images and “virtual” ones, is based in my view on the faulty but common assumption that certain images, especially photographs, are unquestionably “true.”
- 12.
The materials at issue in Ferber had been found not to be obscene according to a jury. Thus, the issue for the Court was sharply defined.
- 13.
Ferber, 458 U.S. 747, 756 (1982). The five rationales set out in Ferber were as follows:
-
1.
The State has a “compelling” interest in “safeguarding the physical and psychological well-being of a minor.” Ibid., 756–57.
-
2.
Child pornography is “intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the child’s participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed” in order to control the production of child pornography. Ibid., 759 (citations omitted). The Court went on to explain that the production of child pornography is a “low-profile clandestine industry” and that the “most expeditious if not the only practical method of law enforcement may be to dry up the market for this material” by punishing its use. Ibid., 760.
-
3.
“The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production” of child pornography. Ibid., 761 (citations omitted).
-
4.
The possibility that there would be any material of value that would be prohibited under the category of child pornography is “exceedingly modest, if not de minimis.” Ibid., 762.
-
5.
Banning full categories of speech is an accepted approach in First Amendment law and is therefore appropriate in this instance. Ibid., 768–69.
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1.
- 14.
This is contrary to what MacKinnon intimates in the opening of Only Words, where she appears to suggest that taking pictures decriminalizes the underlying crime of rape (MacKinnon 1993, 4). For a statement of the conventional First Amendment rule, see, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991).
- 15.
See Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 102 (1979) (“[State action to punish the publication of truthful information seldom can satisfy constitutional standards].”); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 845 (1978) (upholding the newspaper’s right to publish accurate information about confidential judicial proceedings); New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam) (allowing publication of so-called Pentagon Papers despite the fact that the papers had been stolen from the Pentagon); Food Lion, Inc., 194 F.3d 505 (4th Cir. 1999) (holding that torts committed while newsgathering may be actionable, but news that is obtained as a result of those torts is protected expression); Bartnicki v. Vopper, 532 U.S. 514, 529–30 (2001) (distinguishing Ferber and noting that outside of child pornography law “it would be quite remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party.”).
- 16.
The visual nature of the speech at issue explains the Court’s novel reasoning on two levels, not only the Court’s treatment of the image as if it were the crime itself, explained above, but also the assumption that a photograph is indisputably “true.” See supra note 9 (describing assumption that images have a deeper connection to truth).
- 17.
This view of images may explain a puzzling recent discrepancy that critics have observed in sentencing law. Sentences for people who download (but do not produce) child pornography are at times so lengthy that they exceed the sentences given to people who commit physical crimes of molestation against children.
- 18.
Of course, as I have claimed, both views share a common vision of images as possessing special power.
- 19.
See Barnette, 319 U.S. 624, 629 (1943) (“Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says: ‘Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.’”).
- 20.
Ibid., 400 (quoting Texas Penal Code Ann. § 42.09 (1989)).
- 21.
Compare the Court’s recent statement in Pleasant Grove v. Summum about the greater variation in meaning produced by visual as opposed to text-based monuments: “[T]ext-based monuments are almost certain to evoke different thoughts and sentiments in the minds of different observers, and the effect of monuments that do not contain text is likely to be even more variable” 129 S. Ct. 1125, 1135 (2009).
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Adler, A. (2014). The First Amendment and the Second Commandment. In: Wagner, A., Sherwin, R. (eds) Law, Culture and Visual Studies. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9322-6_8
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