Genrich L. Krasko

In 2001, Rock Star Games released a new sequel to its Grand Theft Auto video game: GTA3.  Now the game is available for personal computers.  According to news agencies, thus far the game has brought its makers and distributors over $200 million. 

As in all the industries supplying violent entertainment, in order to survive the fierce competition, each new product must be more thrilling, more violent than the last.  In its ruthless violence, GTA3 far surpasses its predecessors.  Killing is indiscriminate, including killing cops (which is a federal crime leading to the death penalty) and innocent bystanders; one of the episodes invites the player to kill a prostitute after having sex with her.  The latter prompted the Australian government to ban GTA3 from being distributed in Australia.  Germany is also moving in that direction, and there is even a movement for international legislation banning video and computer games with sex and violence.

The level of violence the game’s players face is so high that our own legislature has tried to interfere.  The Protect Children from Video Game Sex and Violence Act of 2002, introduced to Congress in May 2002, would make it a federal crime to sell or rent violent video games to minors.  However, the bill’s language is vague.  To begin with, the concept of a minor is not properly defined; it is also unclear how the law, if passed, could be enforced (e.g., how can Internet sales be controlled?).

If one looks into Internet bulletin boards where the game and the proposed legislation are being discussed, one can see the general hostility toward “government interference.”  The main motif is: “It is not the government’s business to control what games children play: It is the parents’ business!”  With only a few objections like: “But shouldn’t the government interfere if parents do not care?  Shouldn’t the government be the second line of defense when the first – family – has been ineffective?”  Unfortunately, people forget that it is not the government, but rather their elected representatives that are attempting to stop the proliferation of violence among children!

We are so used to the presence of violence in our entertainment industry and our media that even those who care, who want their voices to be heard, do not mention the impact of these games on non-minors (18 is often mentioned as the age of becoming an adult).  It is taken for granted that the right to be immersed in the atmosphere of violence is a manifestation of our freedom of speech, guaranteed to adults by our Constitution.

Even aside from the hostility of people toward any restriction of their freedoms, the restriction of the most fundamental one – the freedom of speech – guaranteed by the First Amendment, seems absolutely intolerable.

Following in Australia’s footsteps – banning the GTA3 and similar violent video games from being distributed in the U. S – would strip America’s violent entertainment industry of hundreds of millions, if not billions of dollars.  Even if the American public could understand the necessity of that ban, our powerful ideological and political interest groups would not tolerate it.

Very rarely, however, do the objectives of these groups have anything to do with the interests of us, the people. They have their own agendas, and the politicians, who succumb to their pressure, willingly or unwittingly, exercise their right to be irresponsible to the true needs of our society.

Almost none of these acts of irresponsibility are anti-constitutional, and therefore cannot be stopped.  And these irresponsible people often claim the First Amendment as the basis and justification for their actions.  The proliferation of violent video games is thus under the protection of the First Amendment armor making it an important example of the abuse of the greatest article of our Constitution.

Abused and Exploited

This article of the American Constitution is perhaps the most abused in our political and judicial life today.  Its abuse knows virtually no limits, verging sometimes on the farcical. This is how the First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.

The freedom of speech part – the one usually meant when claiming First Amendment rights – is interpreted as unrestricted freedom of speech in all its forms: oral, handwritten, printed, sung, transmitted by electronic media – and even just contemplated, although not yet realized.  Interpreted that broadly, the amendment simply invites abuse.  We, the people, are so used to it that we rarely question it or even recognize its abuse.  Here are a few examples.

• Racial, religious, or ethnic slurs, so-called “hate speech,” is acceptable – in spite of the controversy over it that has persisted for decades.  Samuel Walker, in his book Hate Speech. The History of an American Controversy (1994) writes (p. 4):

Most countries prohibit the expression of offensive racial, religious, or ethnic propaganda.  According to Human Rights Watch, “The United States stands virtually alone in having no valid statutes penalizing expression that is offensive or insulting on such grounds as race, religion or ethnicity”. 

In the paragraphs that follow, the author quotes from the corresponding laws of Britain, Brazil, Turkey, Germany, and Canada, as well as from several international human rights declarations.

• Burning the American flag is acceptable.  In spite of numerous attempts by the Congress to enact a law prohibiting desecration of the national flag, the Supreme Court insists that flag-burning is a kind of speech and therefore protected by the First Amendment.  If it is a “speech,” it is a variety of hate speech expressing hatred of our political system, our symbols and our traditions.  As speech, it does not contain any positive meaning.  Its sole intended objective is to insult the millions of people to whom our traditions and values are dear, and, even worse, to insult the memory of all who have given their lives defending these values. 

• Violence in the media and entertainment industry is acceptable.  Violence never occurs without hate – in fact, it is initiated by hate.  But since the propaganda of hate, as a form of speech, is OK, why should violence not be OK?  It is the true expression of hate; it is the propaganda of hate by direct action.

The violent video games we have mentioned are just drops in the ocean of violence our society is exposed to.  From the Internet page Rising Subculture Iceberg I have learned that

a six-volume set of books on killing techniques is available in America but banned in Canada.  This set is found in the hands of young skinheads, gang members, serial killers, psychotics, etc.  Many lesson plans come with each volume.  This set of books is protected under freedom of speech in America. 

For a few dollars, one can order from a publisher in Washington State a book on interrogating a kidnapped victim.  It is legal, with full protection guaranteed by the First Amendment!

• What about “indecencies,” “obscenities,” and “offensive language”?  Well, these cannot be precisely defined, but they are definitely a kind of speech, and therefore they are OK.  In America, therefore, the level of elementary civility in relations among people is lower than anyone could ever have imagined.  The f-word is common in everyday speech, song lyrics, and movies.  Just attempt to prohibit the public usage of this word, and the First Amendment right will be invoked in its defense!  On occasion, when “indecent” people are interviewed on “decent” radio programs, the interviewers substitute electronic bleeps for any words from a long list of f-word derivatives.  But is not this blatant censorship that, in principle, could be the target of a lawsuit, should the First Amendment be cited?

• Child pornography?  No, no!  Yet adult pornography is OK.  Just look at the Internet: hundreds of pages of free and subscription adult sites.  But most people believe that child pornography is absolutely unacceptable and must be forbidden – and it is, in spite of the amendment, as it is understood today.  Recently, a seemingly un-resolvable controversy has arisen.  It is about what can be called virtual child pornography, in which an image of a naked child is created by a computer program.  This is not actually the image of a real child, but rather either a composite picture or an image created completely from scratch.  How can this type of child pornography be interpreted in the light of the First Amendment?  Can only the image of a concrete person be interpreted as pornography, not any indecent child image?  In December 2001, our Supreme Court refused to ban virtual child pornography from the Internet.

• Against the background of unrestricted and sometimes simply vicious sex propaganda in virtually all spheres of our society, our children are under permanent assault.  Just watch MTV or look at magazines addressed to adolescents such as YM or Seventeen.  Suppose we agree that, those magazines, though poisonous, are inevitable.  But recently we saw a girl (that seemed to be thirteen or so) buying Cosmopolitan at an airport magazine stand, and noted a few flashy items from the cover: “His Pleasure: There Are Four – Yes, Four Levels of Male Bliss!”  “Naked Men!  Well, Half-Naked.  Feast Your Eyes on Our Hunks and Trunks!” “Loving Gestures that Secretly Irk Him.”  Later, at the same airport we saw an older girl (about seventeen) reading the same magazine.  All those publications are completely protected by the First Amendment.  By allowing unrestricted access to such material, we risk damaging the moral health of our children and adolescents.  We request picture ID before selling a pack of cigarettes to teenager, but selling him or her magazines published for adults may not be prohibited or restricted, because it is authorized by the First Amendment.  Dollar über alles!

• What about the political correctness campaign that haunts our university campuses and, in fact, our media?  Don’t even mention it!  Nobody dares challenge this ideology, although it blatantly violates the First Amendment, for it forbids the expression of views different from the ones approved by a particular ideological establishment. And nobody has the guts to remind them that political correctness that blatantly abuses freedom of speech is a direct successor to the Communist and Nazi concept of the one and only true ideologies.

• What about a special interest group that donates, as a part of an election campaign, a large sum of money (the so-called “soft money”) to a party or a candidate in the hope that, if elected, he or she will defend that group’s interests?  It is OK: The group is simply expressing its First Amendment rights, protecting its intentions to achieve benefits by promoting the propaganda of their ideas.  If this is not a form of corruption, then what is a bribe?  Is not a bribe always directed at promoting somebody’s interests that can be coined as ideas, expressed as persuasive speech (mostly off record!), and therefore protected by the First Amendment?  This is because in 1976, in the case Buckley v. Valeo, the Supreme Court ruled that political contributions and campaign spending are equivalent to political speech.  The consequences of this have been devastating for the moral climate of our politics.

Arizona Senator John McCain has launched a battle in the Senate – despite fierce resistance by both parties to pass a law prohibiting soft money.  “Sooner or later it’s going to break,” he said in 2001.  “Americans are going to get fed up and rebel.  They’re going to demand reform because it is corruption.  It’s the worst I’ve ever seen. ...They’re without shame.  I’m talking about members of Congress, not the lobbyists, who are doing what they are paid to do.  It’s the system that makes good people do bad things because of the corrupting influence of money.”

In March 2002 our Congress finally passed, and President Bush signed into law the McCain-Feingold bill, also known as Bipartisan Campaign Reform Act (BCRA), whose objective was to eliminate soft money and thus prevent the corruption of our legislators.  However, since the Buckley v. Valeo ruling was still valid, both the Left (including the AFL-CIO) and the Right (including the NRA) immediately launched an attack and prepared to fight tooth and nail this restriction of their “political speech” rights. It took them 8 years to kill the law: In January 2010, the Supreme Court by its 5 to 4 decision struck down the most important law provision prohibiting corporations, unions and other interest groups from unlimited financing of election campaigns.

Just a few more words about the hate speech problem and one more example of the most blatant abuse of the First Amendment.  Both cases have had important social consequences; in fact, the latter case has changed the moral face of America.

Samuel Walker in his book Hate Speech, which we have already mentioned, suggests an explanation of why the United States has failed to protect its citizens from hate speech and its consequences.  According to his theory, our judiciary has always been under the strong influence of powerful ideological interest groups, such as the American Civil Liberties Union, which tend to defend and promote unrestricted human rights.  “And there was virtually no political force powerful enough to counter-balance this pressure.  The organizations defending the interests of Jews and African Americans, the two groups being the main targets of hate speech, were not willing to fight.”  Walker suggests that the reason was purely political: “The major civil rights groups [such as the American Jewish Congress, the American Jewish Committee, and other Jewish interest groups, and the NAACP on the African-American side] abandoned group libel legislation because they perceived it as a threat to their larger program of achieving equal rights” (p. 15).  The whole situation was possible because the majority of Americans were excluded from the debate in the decision-making process.  Just a handful of people were instrumental in making the decision: “To be sure, these people were not the mass of average Americans.  The key actors were members of a policy-making elite: judges, lawyers, activists” (p.159).  This has not happened in other democratic countries – not because they lacked the American Spirit of Freedom we are so proud of, but because political interest groups there do not have the power they have in America.

Our second example has to do with the so-called litigation explosion in America. While writing this essay, we came across a book: Walter K. Olson, The Litigation Explosion: What Happened When America Unleashed the Lawsuit, 1991.  The book reads like an adventure story! 

Litigation Explosion

Until the mid-60s, the widely accepted attitude of both the general public and the American Bar Association toward lawsuits was that they should be the last resort in solving legal problems.  In fact, the American Bar Association’s Moral Code was as powerful in regulating the professional behavior of lawyers as the Hippocratic Oath of the medical profession.  In its Ethical Canon Number 28, it explicitly disapproved “stirring up litigation.”  The code also absolutely prohibited using two important tools of any commercial enterprise: general advertising and solicitation of legal services.

With the “will for money” – greed – gradually becoming the main objective of life for many people, the ethical dams of the law profession began to collapse.  This is how it happened (p. 4): 

By the 1970s the climate in the law schools had turned around on the subject of litigation, first to ostensible neutrality and then to admiring support.  One oft-cited article on legal ethics struck a typical note when it assailed as “distinctly medieval” the view that litigation is “at best a necessary evil” and litigiousness is vice.  Lawsuits increasingly came to be described as litigious persons themselves describe them, as assertion of rights...  The process culminated in 1977 with a five-to-four decision of the U. S. Supreme Court officially endorsing the new idea that a lawsuit was no longer to be considered an evil.

The advertising dam was the first to crumble.  That 1977 Supreme Court decision declared that the First Amendment protects advertising of lawyers’ services as commercial speech.  The impact was astounding (p. 21):

Overnight, the most drastic sort of change came over America’s legal profession.  On June 26, 1977, in every state of the union, lawyer advertising was kept under close wraps if not banned altogether.  On June 27, from Kiska to Key West, no combination of public discomfort and peer opposition could stop it.  Because lawyers’ newly discovered right to advertise was found to be lodged in the Constitution, it could not practically be revised (short of a change of heart of the Court) no matter what lessons experience might turn out to hold.

However, if advertising to a million readers (or watchers) is all right, why is it not all right to just one?  Why shouldn’t the solicitation of a lawyer’s services to a specific person be allowed?  Fair enough!  And the 1978 Supreme Court decision that followed ruled that “solicitation with a primarily ‘political or ideological’ motive could not be banned” (p. 24).  Thus, the last dam disintegrated.  The American Bar Association’s resistance, no matter how strong it had been at the beginning, could not withstand the pressure of overflowing greed.  The litigation industry had been born.

It is a fundamental fact of economics that a business is doomed unless its technology is state-of-the-art.  Litigation technologies are extremely sophisticated and are constantly improving.  Among them is “ambulance chasing,” the practice of penetrating emergency rooms, hospital wards, and intensive-care units – sometimes disguised as electricians or plumbers – in order to seduce a new client to litigation.  Another practice is scanning public hospital records for potential cases of malpractice suits, to say nothing of using sophisticated psychological methods to antagonize parties in divorce or property conflicts, thus expanding opportunities for litigation.

But the most ingenious and perhaps the most successful technology of the litigation industry is the so-called contingency fee device: “No Fee Unless Successful.”  If the lawyer is successful, the fee is typically 30 percent of the client’s winning.  The corruptive effect of this practice on American society cannot be overestimated (p. 37):

And we are again in complete isolation from the civilized democratic world:

The tradition of the English common law, the French and German civil law, and the Roman law all agree that it is unethical for lawyers to accept contingency fees.  In 1975, British judges strenuously opposed even a closely regulated version of the fee, in which a contingency suit could go forward so long as leading lawyers verified its reasonableness.  They explained that lawyers would no longer make their cases “with scrupulous fairness and integrity”.

Lawyers are members of probably the most hated profession in America; numerous jokes are circulated and eagerly repeated about their greed, ruthlessness, and the way they must be treated (ruthlessly!).  But how many people would throw a lawyer down the stairs (or, in a less violent scenario, hang up on him) for the suggestion of suing someone for a large amount of money – and with no effort or responsibility on one’s part?

Not only does the litigation industry in America corrupt both our people and our social institutions.  It costs us, the people billions of dollars.  Widespread insurance fraud instigated by lawyers, and epidemics of malpractice suits against our health-care providers, trickle down to inflate the bills of all Americans.

Most reprehensible of all is the lawyers’ assault on those who care for our health.  Doctors and nurses so often spend sleepless nights at their patients’ bedside, sacrificing their own families, and even their own health, only to be sued by irresponsible greedy lawyers – for it is the lawyers, not the alleged victims of the alleged malpractice, who are the real litigators.  No wonder medical doctors have to pay a good chunk of their income for malpractice insurance – an expense that then trickles down to increased medical insurance costs.  In addition, the whole strategy of medical treatment is now built on measures designed to preventing a possible malpractice suit – measures like unnecessary tests and second-opinion consultations – rather than on true medical necessity.

Of course, this flourishing business of robbing innocent people of their money, health and dignity would be impossible if the power of money were not so strong in our society today.  Although it would be utopian and unrealistic to hope that every person who finds a wallet would contact its owner or bring the wallet to a nearby police station, many Americans do so.  However, if one day the police were removed from the town’s streets, the town is likely to be looted.  That is what happened when the Supreme Court, by abusing the First Amendment, gave the green light to greed.

In no way do we imply that the whole law profession is criminal or corrupt.  Democracy – any democracy – is based on law.  Law is the basis of every developed civilization. What is tragic about our situation is that the abuse of the law – in this case a basic law – has unleashed an avalanche of what in a humane, civilized sense can be called unlawfulness that victimizes much of our society.

A tragic consequence of this is the corruption of our young and talented, for many of our most promising youngsters aspire to the law profession, some of them motivated by the lure of easy money.  Ask a ten-year-old what he or she would like to be.  If the child is smart enough you may well hear “a lawyer or a doctor.”  Ironically, at this age – and possibly even at the threshold of the university – the smarties do not know which of these two options to take.  Both are the best moneymaking professions today.  Ironically enough, the latter is often a prey of the predatory former!  Fortunately, we still have many good and honest lawyers, and good, dedicated and selfless doctors.  And yet, the situation can sometimes resemble a town abandoned by the police.

We are certain that a political reason having nothing to do with the interests of the majority of Americans may be found behind many such absurd interpretation of the First Amendment. It is interesting that the Left, the principal defender of unrestricted interpretation of the First Amendment, is silent when political correctness is in question!

Abandoned Ninth Amendment

As one can see, the great First Amendment can easily be turned into a farce by anyone who is sufficiently irresponsible and morally corrupt and has enough political power.  But why is it that this great amendment is so vulnerable to abuse?  What is wrong with it?

At first glance, it seems that the basis for possible abuse lies in the fact that there are no restrictions on the rights protected by the amendment.  That is why attempts to single out special cases, such as child pornography or hate propaganda, and exclude them from guaranteed rights seem to be unconstitutional.

It is unlikely that those who formulated the amendment in 1791 were unaware of this vulnerability.  But might they also have thought that formulating restrictions would open a Pandora’s box of abuses, which no one would be able to control?  That including a qualification like “so far as the above freedoms do not infringe on the rights and interests of other people” at the end of the amendment would have created more problems than solutions?

That is what we used to believe, as many people still do, and this is probably true.  But not many know – and to us, it was a shocking revelation – that our Constitution does contain a clause that, in its spirit, is exactly what should have been included in the First Amendment.

What we refer to is the Ninth Amendment, enacted together with the First Amendment in 1791.  Here is its text:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Is this not, in fact a paraphrase of our suggested modification: “so far as they do not infringe on the rights and interests of other people”?  Why then don’t we ever hear, in situations such as the spewing of violence and indecencies on all wavelengths, these words from our Supreme Court: “No, you are not protected by the First Amendment!  Your actions are violating the rights of our citizens to have a safe and dignified environment!”  Aren’t the rights enumerated in the First Amendment QUALIFIABLE as certain that can deny or disparage other rights un-enumerated?  Or is the Ninth Amendment to be construed as meaning that only those rights that are also explicitly mentioned in the Constitution must not be denied or disparaged?

Being virtually ignorant of the judiciary aspects of the American Constitution (as most of Americans are), we have spent quite some time reading from at least half a dozen books by experts in constitutional law (among them, P. Bobbit’s Constitutional Interpretations, 1995, and The Rights Retained by the People, 1989 – a collection of essays on the Ninth Amendment).  And this is what we learned.

Authored by James Madison, for over 200 years the Ninth Amendment has been neglected and ignored by both legal scholars and acting courts.  In 1987, during the Supreme Court nomination hearing of Judge Robert Bork, the following dialogue took place (Constitutional Interpretations, p. 91):

Senator Thurmond: What do you believe the Ninth Amendment means?

Bork: That is an extremely difficult question, Senator, because nobody has ever to my knowledge understood precisely what the Ninth Amendment did mean and what it was intended to do.

The Judiciary Committee was not satisfied with the answer.  Senator DeConcini, a non-lawyer, insisted on more clarification; here is the response (p. 105):

Bork: Senator, if anybody shows me historical evidence about what they meant, I would be delighted to [apply] it.  I just do not know… I do not think you can use the Ninth Amendment unless you know something of what it means.  For example, if you had an amendment that says “Congress shall make no” and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the Court can make up what might be under the ink blot.

Judge Bork’s nomination was rejected, and yet, the above opinion of a distinguished law scholar on the Ninth Amendment as a judiciary “ink blot” was shocking.

We also learned that interest in the Ninth Amendment was revived after 1996 when the U. S. Supreme Court struck down an anti-birth-control law in Connecticut.  That decision was based on Supreme Court Justice Arthur Goldberg’s opinion invoking the Ninth Amendment.

Since then, a host of scholars has been discussing this amendment, but mostly in connection with the extent of individual liberties and un-enumerated rights (such as the right to privacy).  Scholars’ main concern has been to guarantee the maximum possible extension of individual rights.  Indeed, a conventional reading of the amendment implies protection of un-enumerated rights in addition to the rights already enumerated.

At the same time, an obvious interpretation of the amendment – the possible restriction of enumerated rights in order to protect un-enumerated rights has been completely ignored.  In most jurisprudential discussions of the Ninth Amendment, the focus has been to defend individual rights against the power of government.  However, the amendment may and should be also interpreted as protecting un-enumerated individual rights from abuse by the freedom guaranteed by other, enumerated, individual rights, without any government involvement! 

An obvious example: protecting the right to dignity (un-enumerated) of an African-American whose dignity is threatened by the racial slurs of a bigot (a fully enumerated right – Free Speech!).  Most scholars agree that the broad language of the amendment demonstrates that the Founding Fathers wanted it to be adaptable to the needs of a changing society.  Isn’t it high time? Aren’t the needs of our society today crying out for a proper adaptation of the amendment?

Of course, it is a matter of interpreting, which rights are certain and which are not.  It is also true that the Constitution does not contain as a law “the right of our citizens at large to have a safe and dignified environment.”  But then, why is any presence of religion in public schools or even mentioning the name of God in the Pledge of Allegiance, interpreted as a violation of the First Amendment: “Make no law respecting an establishment of religion”?  Studying history of religion or reading the Bible or meditating is not “making a law.”  Again, both in the case of religion and of freedom of speech, it is a matter of the interpretation. 

The interpretation of American Constitution is the responsibility of our Supreme Court.  Why then cannot the Ninth Amendment be interpreted in such a way as to stop the abuse of the First Amendment and, in fact, protect the right of Americans, and our children in the first place, to a life without the unrestricted propaganda of violence, indecency, and sex?

Of course, we do not have the answers to these burning and mind-boggling questions, nor do millions of Americans.  We implicitly believe that our Supreme Court does a good job in interpreting our Constitution.  But the above examples of abuse of the First Amendment, and failure to call the Ninth Amendment to its defense, simply show, in our view, a lack of integrity in our Supreme Court judges and the political or ideological interest groups they implicitly or explicitly support.

True, if properly interpreted, the Ninth Amendment would open a Pandora’s box: If one believed one’s rights to be infringed upon by an action allegedly protected by the First Amendment, or some other amendment, one could call on the Ninth Amendment in one’s defense.  Fierce clashes between those relying on the Ninth and First Amendments (and the Second – the right to bear arms) would bring about a litigation explosion even more powerful than the one that haunts our society today.

This is where our courts, especially the Supreme Court, would be put to the test.  They would have to decide, guided by the spirit of our great Constitution rather than by ideological or political interests, which rights are to be protected, and which must be sacrificed.  It would not be easy, and would require enormous effort and integrity from our judges.  Then, gradually, we would begin to understand that freedom is first and foremost, responsibility.  We hope that the Ninth Amendment will eventually be resurrected to fulfill what is now its most important – a function perhaps not anticipated by the Founding Fathers – to counter abuse with responsibility.  We simply have no other option, for our Constitution is in danger.