As Robert Bork joins Mitt Romney’s presidential campaign as an adviser on judicial issues, it’s worth a reminder where he stands on the First Amendment and art. Namely, that he doesn’t think the former protects the latter: “Constitutional protection should be accorded only to speech that is explicitly political,” he wrote in the Indiana Law Journal in 1971. “There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”
This is silly, of course, and invites all kinds of brightline questions: art is a means of speech, but the fact that speech is screened in a movie theater, or on a television, or written in a book sold in the fiction or literature section, or webcast, doesn’t mean that it inherently cannot be political. Under Bork’s definition, would there be a certain threshold art would have to meet to be considered political? Would you have to devote a certain percentage of song lyrics to political expression, or minutes of a television show to gain protection for it? Does art have to be electoral, or in support of a particular piece of legislation or regulation, to count as political and protected?
The news this week that The Daily Show was censored Britain because it’s in contravention of U.K. law to air parliamentary footage if your intention is to use it for the purposes of “light entertainment (including satire) or drama programmes” is a useful illustration of that kind of brightline challenge (and a worthwhile reminder that for all that the phone hacking scandal is terrible, British expression laws are really restrictive). Would general mockery of Parliament be protected? Or of Congress? Our political debates, which in addition to featuring funny-looking procedure, are eminently mockable for the ridiculous things our lawmakers say, are badly in need of satire and critique.