Proof-Texting the Law?

The West Bend censorship debate includes many completely ridiculous interpretations of US law regarding pornography, obscenity, Free Speech, and censorship. While one needs a law degree (which I don't have) to fully understand the nuances -- and this is a very nuanced field of study -- even a modest introduction to the basics of the US legal system goes a long way to clearing up many of the misconceptions, both accidental and deliberate. I want briefly to describe one particular type of legal analysis that seems to be causing the most egregious abuses.

Proof-texting, at least in its negative sense, is something many of us have encountered in the context of some (definitely not all) Christian interpretations of biblical scripture. In this context, proof-texting refers to "fishing" for a quote to support a particular idea or position for something. Note that the conclusion has already been made, and the only objective of this quote-fishing is justify a foregone conclusion. Proof-texting requires a number of assumptions about the nature of scripture. It assumes that the Bible is a single work by a single author, and expounding a unified theme, rather than being a collection of different essays by different authors written centuries apart, each addressing the different circumstances of it's own place and time. It assumes that every sentence is of cosmic importance, allowing it to stand alone and out of context as a pronouncement on general principles. It assumes that the Bible is so perfect that the result is valid even if the research method is not.

Whether or not any of that is a valid way to interpret the Bible is irrelevant to the question at hand. There is no doubt, however, when we're talking about secular law in modern day America: that kind of abusive logic does NOT work.

Laws are not perfect. We know they are written by flawed human beings using flawed human language. We know that many different authors are involved, separated sometimes by centuries. We know that different sections of law were designed to address different issues, and that some laws are intended to state broad principles while others focus narrowly on specific circumstances. We understand that broader laws often conflict with one another, and so we have courts whose job it is to clarify which parts of the law have precedence over another, and under which circumstances, and what the broad principles mean when they're not just theories but are applied to specific situations.

WHY THEN DO THE CENSORS CONTINUE TO PROOF-TEXT THE LAW?

To me, this is the most frustrating aspect of the debate. While Dan/SafeLibraries provides a number of extreme examples of proof-texting the law, and recent posts on his blog are what prompted this essay, the habit is not unique to him. Ginny Maziarka reading Wisconsin statutes she clearly didn't understand during her WBKV radio interview is another example. But this proof-texting habit goes far beyond West Bend. It's been a pervasive feature of censorship debates across the US over the last 20 years.

The result is a legal muddle. Somebody reads a court decision about Internet filters and quite arbitrarily extends its meaning to books on a library shelf. Somebody reads a decision that uses a phrase like "inappropriate for minors," or "pervasively vulgar," and doesn't stop to think about the meaning the original author of the decision gave to that phrase, and thus profoundly changes that meaning. Somebody reads a ruling about removing books from a school library, and thinks (hopes?) that it says something (or anything at all) about putting a warning label on books in a public library. Somebody reads about one exception to the principle of Free Speech and takes it as a general repudiation of the First Amendment.

This is proof-texting at its worst. It's fishing for isolated quotes in order to support a foregone conclusion, instead of asking what the law itself actually says. It's taking things out of context and applying them arbitrarily to different circumstances. It's ignoring the specialized meanings of words and phrases in their original context and assuming that the more general and ordinary meanings apply everywhere. It's taking a phrase from one law and connecting it to a phrase in another law, in ways the original writers never intended or even imagined.

I would not presume to speculate as to the religious background of one or another would-be censor. But beyond certain kinds of Biblical interpretation, I can't think of any field of study that teaches this research method. They've certainly never seen it in any legal analysis written by a competent expert.

There's really no excuse for this. It isn't a question of intelligence or even of specialized training. It's a question of a willingness to face simple facts. If you're challenging a book, especially after library staff have turned your challenge down, you have to face the reality that the legalities of Free Speech have something to say about the issue. You might not agree with the interpretations given in your particular case, and you can argue that point within the context of applicable law, but you can't just pretend the First Amendment doesn't exist. I am continually amazed at the self-delusional ability of would-be censors everywhere to deny that their goal has anything to do with Free Speech.

And if you're going to pursue your challenge over the long term, is it not incumbent upon you to educate yourself about the legal framework of your own issue? Wouldn't that just be prudent and practical? I'm not saying you should become a lawyer. I'm just saying learn a little bit about what the law really says instead of just what you wish it said, learn a little about the give and take of the principles and issues that apply. This is especially easy to do in the area of Free Speech, since there is a wealth of material explaining the principles in plain English and exploring how the courts have applied those principles to example cases.

If all you want to do is win an argument in the blogosphere, then I guess you can make up whatever ridiculous crap you want and hope nobody notices (here I refer especially to SafeLibraries, but not to him alone). But changing particular practices in a particular library isn't just about winning an argument, it's about pragmatic change in the real world. That means dealing with the legal framework as it really exists, not the version you made up to sound convincing in a blog post. Your opponents understand this, and you have no chance of accomplishing anything if you don't take that into account. If you limit your use of the law to fishing for out-of-context quotes, if all you're willing to do is go proof-texting, you're just setting yourself up to fail.

Let's get a little more specific. Free Speech implies free and equal access to information and ideas. The law allows some exceptions to be made where minors are concerned, but free access to ideas is NOT a right limited to adults. One of the biggest exceptions to Free Speech is in the area of obscenity, but nothing in the law enables you to arbitrarily label anything you don't like as obscene. The fact is that where literature is concerned, it is extremely difficult for most works to meet the legal definition of obscene, and NONE of the materials argued about in West Bend come even close.

Protecting children is a noble and laudable goal, but it isn't magic, and it doesn't automatically trump any and all Free Speech concerns. Just shouting, "but we're protecting children," doesn't make trampling the First Amendment OK, even if it's true -- and that's doubtful in most censorship cases. Yes, the Supreme Court has acknowledged a compelling state interest in protecting children from some pornographic and otherwise harmful materials, but that doesn't mean YOU get to decide what's pornographic or harmful, or that you can define those terms to suit your personal world-view.

None of these decisions or laws come anywhere close to implying that Ginny Maziarka and/or The WBC4SL get to decide which books to put a warning label on, or that Dan/SafeLibraries gets to decide where to shelve them.

ABOVE ALL, the law requires specificity. If you're willing to be practical about real-world goals, there MIGHT be a path through the maze of First Amendment concerns to a sustainable compromise. But accomplishing that will require specific criteria for deciding how to classify books and other materials, and unambiguous direction as to what the library is to do and is not to do. The devil is in the details. More on that tomorrow.