And yet somehow the dark night of fascism has not descended over America. Indeed, no one gives these speech exceptions a moment's thought. They are not sufficiently counterintuitive to tweak the pseudo-intellectual instinct.
Dalton's journal is obscene -- an exception to free speech with a longer pedigree than many other exceptions. If criminalizing Dalton's journal today means the thought police will be confiscating Republican Party pamphlets tomorrow, why didn't prohibiting the Gay Olympics from using the Olympic trademark do the same?
Even more galling than the intellectual pretensions and annoying arguments of Dalton's defenders is hearing the ACLU praised for its stalwart defense of the First Amendment. This is on the order of congratulating William Tecumseh Sherman for his defense of the South.
In its take-no-prisoners approach to the First Amendment, the ACLU brought a lawsuit against the Lubbock Independent School District demanding that high school students' extracurricular, private religious speech be banned. The ACLU's anti-speech position has been repeatedly rejected by the Supreme Court, including just last term in Good News Club v. Milford Central School.
The ACLU won a prior restraint prohibiting an Avis employee from using a specified set of derogatory words in the workplace in Aguilar v. Avis Rent A Car System. The late Justice Stanley Mosk, a liberal, dissented from the California Supreme Court's endorsement of this novel interpretation of the First Amendment, noting that the injunction banned speech that other employees would never even hear. It was mind control, pure and simple.
The ACLU has argued that a private employer's irritating religious statements to an employee were not protected expression and could be banned as a violation of the establishment clause. The Oregon Supreme Court unanimously rejected the ACLU's position in Meltebeke v. Bureau of Labor and Industries.
Taking another "absolutist" view of the free speech clause, the ACLU argued that the University of Virginia was required to deny student activity funds to a religious magazine, Wide Awake. In Rosenberger v. Rector and Visitors of University of Virginia, the Supreme Court held that the denial violated religious students' free-speech rights.
The Massachusetts ACLU argued that the organizers of a St. Patrick's Day parade did not have free-speech rights to exclude a contingent of gay marchers. The Supreme Court unanimously reversed in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston. (The national ACLU, realizing the jig was up, filed an amicus brief with the U.S. Supreme Court taking no clear position).
Listening to the ACLU on speech may not be a "slippery slope," but it's a bad principle. The ACLU would see that Dalton's journal is obscene only if it mentioned God or referred to females as "broads."