SEX, DEATH, AND THE FIRST AMENDMENT:
A Recent First Circuit Case Ignores Free Speech Precedents

By SHERRY F. COLB

Wednesday, May. 08, 2002

The United States Court of Appeals for the First Circuit recently upheld a Massachusetts state statute that prohibits target shooters at specified gun clubs from taking aim at images of human beings and human-shaped targets. Pursuant to the Massachusetts law, shooting at bullseyes and other non-human representations (of animals, for example) is permitted, but shooting at human pictures is not. The statute contains a limited exception for "public safety personnel performing in line with their official duties."

The Gun Owners' Action League and other gun enthusiasts sued, arguing that the Massachusetts law violates the First Amendment. But in a ruling issued at the end of March, in Gun Owners' Action League, Inc. v. Swift, the First Circuit rejected their challenge.

The court's ruling was in error. Indeed, the First Circuit's decision implicitly embraces a line of reasoning that the U.S. Supreme Court has rejected in other contexts.

The Interest in Preventing Violence

The First Circuit held that, even on the assumption that the law regulates expressive conduct (an assumption that triggers First Amendment concerns), it is still justified by the important governmental interest in reducing violence. A question that immediately comes to mind is "how does the law reduce violence?"

In the court's words, Massachusetts claimed that "the Act's purpose was to stop target practice that arguably increases the practicer's capacity to shoot human beings." In other words, by aiming at human images, the shooter could be gaining skill in shooting real human beings.

This claim is an ambiguous one. It could, for example, mean that shooting at human images enhances one's level of expertise. If this is what the court means, however, then the claim that the statute might prevent violence is dubious, because the skills of manual dexterity necessary to shoot accurately at a person are very similar to those needed to hit other sorts of targets.

If humans were unique targets - for example, if they went in and out of visibility like strobe lights - one might need practice specific to humans to become expert at shooting them. But in fact, they are not.

Furthermore, if manual skill were truly the target of the legislation, then one would expect the law to ban images the size of an actual human being. Shooting at a small bull's eye would do more to create an accurate shooter, for example, than aiming for a giant image of a human being. Yet the statute allows the former, and prohibits the latter.

Thus, it appears that a different sort of "capacity" to shoot human beings is in play - one that is distinct from the ability to hit a human being effectively. But what capacity?

Mental and Emotional Capacity

Consider the following scenario. If a shooter is aiming at a picture of a human being, his thought processes might go something like this: "I see there a picture of a man. I am going to hit that man right between the eyes. My goal is to kill the man."

The shooter (unless delusional) knows that he is not in fact harming a real man. To borrow a turn of phrase from the gun lobby, "Pictures don't get killed by guns. People do." Still, perhaps by engaging in this active homicide fantasy, the shooter is unconsciously disinhibiting his otherwise dormant violent impulses toward other people.

Normally, a natural psychological resistance or even repugnance might keep such impulses safely repressed from consciousness. But taping a picture of a human being to a target allows the shooter to become that much more comfortable with accepting and even nurturing his anti-social drives.

Just as repeated exposure to virtual high places might help overcome a fear of heights, repeatedly shooting at human-esque figures might desensitize the shooter and make the real McCoy less anxiety-provoking than it was before. If enough people indulge the virtual illusion of killing, it follows, the odds that one or more of them might make it a reality could increase.

Does that mean that the Massachusetts statute does not violate the First Amendment? No.

This "desensitization" phenomenon does appear to link the state's law to the substantial interest in reducing violence that it is supposed to serve. But if the statute's effectiveness is based on preventing desensitization, that means that the statute addresses a cause of violence that works primarily through mental "intermediation" - through the shooter's thoughts and feelings. Under existing law, this process - and the expression that prompted it - are protected by the First Amendment.

Pornography and Desensitization: A Parallel Argument Rejected by Courts

The "desensitization" argument - that the mind can be trained to relax about violence, and that images that encourage this relaxation should be suppressed - is not a new one, although its application to regulating target practice might be. Catherine MacKinnon and others who urge bans of some or all pornography have made this argument in defense of their position. In that context, however, courts have repeatedly rejected the approach as contrary to the First Amendment.

Consider the steps in the argument against violent pornography. A man rents a pornographic film that depicts women being sexually aroused by rape. The man masturbates while watching the film. Over time, the man might begin to feel less inhibited about his desire to rape a real woman, particularly if he uses such pornography regularly.

The viewer's capacity for actual rape might thereby increase. But it is not a "capacity" that has much to do with skill. It is instead an emotional, mental ability, an anti-social bent that encounters less resistance after use of the pornography. The virtual rape experience might accordingly serve as a catalyst and rehearsal for a real rape.

Thus, the parallel between the anti-pornography argument to suppress the "virtual" experience of rape, and the anti-"human-shaped targets" argument to suppress enactments of murder, is a very close one.

Insights from a Former Child Molester

In December 1998, I interviewed former child molester Leroy Hendricks, a resident of the Sexually Violent Predator (SVP) Unit within a Kansas penitentiary. After completing his prison term, Hendricks was placed in the SVP unit to protect the public.

In the course of his interview, Hendricks described another resident of the facility as likely to re-offend if he is ever released. The reason for the pessimistic prognosis? The resident watches television shows that feature children, while he simultaneously engages in "deviant fantasies."

By contrast to others within the program, Hendricks did not view such fantasies as harmless or benign. As he put it, no one ever molested a child without first having fantasized about doing it. The facilitated fantasy, in other words, can give rise to the reality.

The First Amendment and Facilitated Fantasy

The U.S. Supreme Court has rejected the emotional or mental training scenario - the desensitization argument - as a basis for regulating pornography.

For this reason, for example, the Court last month invalidated a federal statute criminalizing the possession of "virtual" child pornography. (The distinction between real and virtual child pornography is that when the material is "virtual," then no actual child is involved in its creation.)

The harm of whetting deviant or destructive appetites for children (through virtual child pornography), the Court said, is a speech harm - the sort of harm that results from the expressive content of the pornography. The Court made clear, moreover, that "the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it, absent some showing of a direct connection between the speech and imminent illegal conduct."

Like a book that advocates bigotry or hatred, in other words, virtual child pornography is protected by the First Amendment.

Perhaps this and other similar decisions are flawed. Many have criticized them for making it impossible to address some of the most toxic and destructive forms of communication. According to critics, the decisions protect activities that train our minds to feel more comfortable about misogyny and violence, largely by bypassing cognitive processes to access more basic sexual or violent impulses. Furthermore, they do so at the expense of the most vulnerable among us.

But the Supreme Court has rejected these criticisms and has similarly refused to embrace the distinction between advocacy and subconscious conditioning. The First Circuit was therefore not at liberty to do otherwise.

The First Amendment and Target Practice

The First Circuit apparently ignored the Supreme Court's binding precedents in this area when it upheld the "no human targets" rule. Without even referring to this body of law, the court treated the regulation of images as subject to the most gentle, deferential First Amendment scrutiny.

Different people come to different conclusions on these difficult questions about freedom of expression and competing safety interests. Yet however one feels about the issue, one's approach cannot be different for shooting human representations than it is for using pornography.

If the First Amendment protects the consumer of child and adult pornography who dreams of raping a real person, then it would also appear to protect the shooter at target practice in the enjoyment of his facilitated fantasy of killing a real human being. (He may even pretend this human being is a specific person, such as his boss at work or perhaps the neighbor whose children are more successful than his own, and he would still be protected.).

The Supreme Court's pornography precedents should therefore have compelled the First Circuit to strike down the Massachusetts law as contrary to the First Amendment.

In a country where freedom of thought is absolute, the government may not prohibit fantasies, no matter how destructive they might be. Under the current law of the First Amendment, moreover, neither may the government bar people from providing visual material through which such fantasies may take flight.


Sherry F. Colb, a FindLaw columnist, is a Visiting Professor at the University of Pennsylvia Law School, and a Professor at Rutgers Law School in Newark.

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