Yesterday the U. S. Supreme Court decided 8 to 1 to uphold freedom of speech and overturn a federal statute (18 U.S.C. Section 48) that criminalized audio and video depictions of illegal acts of animal cruelty unless the depictions had “a serious religious, political, scientific, educational, journalistic, historical, or artistic value.” (Ironically, in light of the recent decision on Campaign Finance Reform restrictions of political speech and Justice Alioto’s famous headshake, Justice Alito was the sole dissenting opinion).

Yesterday was also the day on which the judge (Judge Stan Strickland) presiding over the highly publicized, sensationalized trial of Casey Anthony recused himself, because he read blogs and communicated with a blogger privately. Judge Strickland’s recusal order used the phrase “self-aggrandizing publicity hound” ironically. And, indeed, it is ironic, since the State of Florida has videotaped Ms. Anthony in private conversations with her parents and then “released” the videos to the press to be plastered all over cable TV, copied and published Ms. Anthony’s personal correspondence, and permitted cameras to broadcast from the courtroom every time Ms. Anthony’s attorneys file a motion, including a motion to have her declared indigent, in which she had to reveal in public how she had paid for her constitutionally guaranteed right to a defense.

Freedom to “Depict” Crimes

The Supremes got it right in U. S. v. Stevens (above). Justice Alioto protested that it should be legal to outlaw depictions of patently (“facially”) illegal acts when the depiction’s only purpose is the illegality. I understand his argument that freedom of speech can be taken to a logically absurd conclusion such that all illegal acts could be committed if they are committed on camera.

However, the federal law in question stupidly permitted depictions of illegal acts when they have a “value” other than satisfying a sexual fetish. Get real, feds: Speech is only “free” if its value is not regulated.

Consider this real scenario from history: A man broke the law repeatedly and was repeatedly imprisoned as a result. While in prison late in his life, he wrote a book promoting his illegal conduct and urging others to adopt his illegal ways. The government subsequently banned the book because of its illegality. No one could legally publish it, reprint it, or sell it.

The man was John Bunyan. The book was The Pilgrim’s Progress.

Freedom to Discuss Crimes

As kids we’re taught the jingle “Sticks and stones can break my bones, but words can never harm me.” Of course, the jingle is a way of saying we ought not to worry about the slurs that people throw at us. But in every other situation, we’re taught not only that slurs are “torts” for which we can demand monetary compensation but that some words we’re forbidden to utter.

Most people fear free speech. That never surprises me. I honestly can’t count the number of times people have asked me if I’m worried that I’ll give someone information in my mystery writing about how to commit a crime. My answer is always the same: No.

If someone is so dumb he has to turn to my fantasies in order to figure out how to commit a crime, he’s too dumb to get away with it. But I was rather surprised when recently someone asked me to help exonerate a convicted murderer.

Since then, I’ve been researching the issues involved in writing about a crime from a prisoner’s perspective and discovered that there are quite a few laws against freedom of speech when it involves crime. For example, I’ve learned that any communication I might have with anyone involved in a court action is subject to subpoena. If I write about a crime, I can be judged to be in contempt of court if I don’t turn over all my research to any judge who’s curious about it. I can be sued by just about anybody who’s even tangentially involved in the events I write about.

For example, last fall the Cook County States Attorney subpoenaed all the notes of Northwestern University journalism students who exonerated a convicted murderer.

And then, of course, there’s always the risk that writing about “suspect” topics will lead any writer to be scrutinized by federal security agencies.

Freedom of Speech in Prison

If John Bunyan were in prison in America today, The Pilgrim’s Progress would not be published or sold. Most states have so-called “Son of Sam” laws that prohibit prisoners from profiting from their crimes in any way, no matter how tangential. Effectively this makes it illegal for a prisoner to write a book and publish it.

If Casey Anthony had written those now notorious letters as a memoir for publication, they could not have been released to the public.

But arguably the world would be a worse place today if prisoners had always been prohibited from publishing. The list of significant literature written by prisoners is very long. For example, an Amazon list compiled by Robert Moore has 21 titles, some of which are collections of other works.

Off the top of my head, I can add to this list:

• Eldridge Cleaver’s Soul on Ice
• Alexander Solzhenitsyn’s The Gulag Archipelago
• Cavalier poets, such as Robert Lovelace (“stone walls do not a prison make”): In fact, in the 16th and 17th centuries virtually every English poet regardless of his politics or religion ended up in prison at least once. Shakespeare is the rare exception.

But now in America no prisoner can write a book, even if he or she maintains innocence and claims to have been wrongfully convicted. No one in prison can even write about what it’s like to be in prison (even though such a book might deter a few people from committing a crime). And few writers are safe in writing about a prisoner’s story either.

It seems to me—a non-lawyer—that freedom of speech is either absolute or not a freedom at all. The Supremes’ decision yesterday in U. S. v. Stevens is a tiny, baby step toward acknowledging that as a fact.