Giving the Devil the Benefit of Law

Here is my favorite bit from Robert Bolt's "A Man for All Seasons":



It's a great speech--so great that it stayed with me for decades after I first encountered the play (a gift I owe the Marianist brothers at Chaminade High School). In fact, I took the title for my first publication, Giving the Devil the Benefit of Law: Pornographers, the Feminist Attack on Free Speech, and the First Amendment from that speech. The article addresses the the-hot issue of the model anti-pornography ordinance drafted by Catharine A. MacKinnon and the late Andrea Dworkin, and seeks to demonstrate its unconstitutionality. And now, it's 20 years since I published "Giving the Devil." I've published a bunch more articles--one on criminal justice, two on judicial biography, but, up until recently, mostly on freedom of speech and the First Amendment. From those articles, I came up with about half of a book, and then went and wrote up the other half, which was, mirabile dictu, published.

And then I stopped.

From 2001 through 2006, I had a First Amendment challenge to the application of obscenity law's "local community standards online to litigate,and that cut into my time for scholarship. (By the way, a little marked result of the Nitke case was that because our three judge panel declined to follow United States v. Thomas (1996), which allowed the applicable local community standard to be any community from which a government agent could visit the website in question, that decision no longer holds sway, and some connection of the defendant with the forum must be shown. Not what we were hoping for, but a slight step forward.)

But in 2007, I published another article, this time on the question of whether or not liability for creating a hostile work environment was consistent with the First Amendment. And then I really did stop. I'd said all I had to say, and didn't feel like repeating myself. More to the point, I was less interested in the questions of what the scope of liberty as against the government should be--"freedom from"--and more interested in how freedom should be used, the questions in political philosophy of "freedom to." In particular, I became interested in the question of legislating morality--Christian morality, in particular, as my own faith became increasingly central in my life. And so that's where my scholarship is now--looking at the plusses and pitfalls of religious engagement in civil life, and how such engagement effects Church and State. And, I must say, I'm finding it rich. The logical and fulfilling next step.

But looking back on that first phase--and, especially, that first piece? Well let's admit it: I was brash as hell in it. Not just in writing, too--when I found out that a response had been commissioned, and I was not to see it pre-publication, I blew my stack, and leveraged for myself the chance to respond contemporaneously. Typical of me at that stage--and I was right to do it, but could have been more diplomatic. And, frankly, I could have phrased my critique more irenically on places--although I do myself the justice of noting that I engaged with MacKinnon's and Dworkin's ideas, and not the sort of personal attacks that typified some of their critics. Still, right out of law school, I was a little self righteous. I hope I'm less so now.

But am proud of that young man, and of the passion he brought to free speech issues. And the resulting vein of writing and activism was, to my mind, well worth doing. Just as the new vein is worth exploring.

And would I today give even the devil the benefit of law?

More than ever.

[Edited for clarity]