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A Democracy of Voices: Free Expression in the U.S.
©1997 Nan Levinson, all rights reserved
Nan Levinson writes about free speech for publications in the U.S. and abroad and was U.S. correspondent for the International Journal Index on Censorship from 1988-95. She teaches fiction writing and journalism at Tufts University. This essay is a chapter from her book, Outspoken: A Democracy of Voices, which recounts the stories of people caught up in recent First Amendment controversies.
Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceable to assemble, and to petition the Government for a redress of grievances.
First Amendment to the United States Constitution
Americans used to like the First Amendment. Sure, sometimes we added a "but" at the end of our declaration of faith, but we had a real soft spot for the principle of speech safeguarded from interference by those in power. The first of our rights, freedom of expression was almost a civil religion, fundamental to how we defined ourselves as a nation and as individuals.
Not any more. Weekly, it now seems, we hear groups of angry citizens announce that they will accept this or that outrage no longer; something must be done and that something is shutting people up. Teachers who mention condoms, Web sites that mention sex, gay soldiers who mention whom they sleep with, artists who get grants, movies that provoke, songs that challenge, books that acknowledge ambiguity, anything that encourages independent thought, and nearly everything on TV. How commonplace it has all become.
The First Amendment used to be the province of lawyers, civics teachers, the American Civil Liberties Union, and the occasional politician in need of a tidy stump speech. Now, a student in my college journalism class declares, "Censorship is cool" -- which I take to mean that the topic is hot. Indeed, we are confronted with increasingly creative arguments charging that the First Amendment is not just inconvenient, but downright wrong when applied to speech we don't like.
Words and symbols matter deeply to most people, even when language or art is peripheral to their lives. Which ones we get riled up over may vary, as will the manner, intensity and sophistication of our response. But words cut close to the bone, and the umbrage taken at offending speech and ideas may be one of the few things that still unites across race, gender, class, sexual orientation, disability and all the other categories weíre not supposed to speak disparagingly about.
The urge to stifle anyone who disagrees with us also rages across the political and social spectrum, with moralists of all stripes vying to cut out competing views, as if free speech were a finite quantity that one group can have only when it is denied another. At the extremes, both right and left, tolerance is seen as a liberal conspiracy and compromise as capitulation to evil. Even at the center, debate about an idea is vilified as an attack on unassailable principles, opponents who aren't wrong enough must be demonized, and unregulated speech is used as a bargaining chip in cultural upheaval.
Not all motives are political. Fear and revulsion spur on many who would block pictures or words, and punishment for a journalist who refuses to reveal a source of information, for instance, is not always partisan, though the penalty can be as severe as imprisonment. Nor are these arguments necessarily played out on the political stage. Other countries kill their dissidents. We prefer to frustrate ours into silence. We trivialize deeply held convictions and turn their advocates into cranks, or bribe discontent with stardom and spots on talk shows and the covers of glossy magazines. Offending Artist of the Week. Teacher Who Can't Teach That of the Month. All the easier to dismiss their complaints. Still, the bulk of free-speech controversies arise from political convictions or political opportunism, since those with political ambitions know well that lewd pictures and loutish behavior leave few people dispassionate.
The moralist right has gotten the most press in this war of images, in part because it is better organized than the moralist left, which tends toward guerrilla censorship. (In one of the strange twists that typify debates about the First Amendment, its advocates are assumed to be on the left -- as if the Bill of Rights were Marxist doctrine.) Expression that incurs the wrath of the right most often involves dirty words, challenges to religious faith, divergence from conventional relationships (e.g. homosexuality and feminism), and sex. For the left, it is racism, "hate speech" (running the gamut from tasteless jokes to blazing crosses), and sex. It is because everyone is in a snit over sex that we get such unlikely alliances as in the anti-porn wars, where one group of feminists cozies up to the religious right and another locks arms with Playboy and Penthouse. Here, as in other speech controversies, words redefined become thought reconstructed and politics realigned.
THE GAG REFLEX
Whatever their political inclination, people who call for censorship share the conviction that some ideas are so dangerous, subversive or incendiary that they must not see the light of day. The variety comes in the arguments used to justify this premise. Governments tend to censor in the name of security, and religions to quell heresy, while current populist censorship arises primarily from three ways of thinking about speech.
The traditional objection is that certain words are embarrassing or rude. Nice people don't say them, small children shouldn't hear them, and adolescents must be stopped from shouting them loudly and often. The bad thing is the word itself, not what it conveys, though letting it pass unpunished is often said to "send the wrong message," particularly to kids, who are presumed to be at great risk.
Advocates of this kind of restraint acknowledge the significance of context. In the I'm-not-in-favor-of-censorship-but tradition, they claim not to want the offending material quashed, only restricted to a more "appropriate" setting. Compromise is often advised: banning a book with vulgarity from the sixth grade, but allowing it in the eighth, or moving sexy magazines to the top shelves of libraries and stores. In a classic instance of this desire to smooth over, when a line of soft drinks with names such as Fukola and Love Potion No. 69 hit convenience stores in Boston, the mayor objected, saying, "I'm embarrassed by this stuff. My concern is that the wrong message is being sent to young people. Yes there's a First Amendment issue here, but this beverage is too readily available to young people."1
A second rationale for limiting expression is a kind of Broken Window theory of speech. The original theory posits that if a broken window in a building is left unrepaired, people will feel freer to break more windows.2 Social disorder is seen as an epidemic, or, as a government official put it when he cited the theory in testimony before Congress, "if we tolerate the small degradations of life, we slowly begin to accept the major erosion of our social values and conditions."3 When this kind of thinking -- that once a threshold is crossed, bad behavior follows -- is applied to speech, the conclusion is that offending words and pictures lead not only to more "bad" speech, but also to anti-social or dangerous actions. Restricting expression, then, becomes necessary to save society from itself.
This idea is popular because it sounds as if it should be true. In a 1996 poll, 90 percent or more of those asked "expressed concern that television contributes to violence in the country" and "to young people having sex."4 In a similar blame-that-tune spirit, William Bennett, of Empower America, and DeLores Tucker, of the National Political Congress of Black Women, called on record companies to stop promoting rap and rock records because, said Bennett at a press conference, the violence- and sexually-charged lyrics were "leading society down the wrong road." Amended Tucker, "These companies have the blood of our children on their hands."5
Though big doses of violence and sex on TV may make viewers feel vulnerable, a causal relationship between speech and violence, or between speech and sex has never been reliably established. Anecdotal evidence is just that, and scientific research into links between expression and behavior is limited by factors such as the discrepancy between laboratory and real-life conduct, the difference between fantasy and reality, the unreliability of reporting, and the self-serving nature of "confessions."6 The imagination may work powerfully, but not, it seems, in such a reductive way.
Still the line between speech and action is far from definitive, even from a legal perspective. The courts have protected acts such as flag- and cross-burning as expressive speech, but have also upheld proscriptions against sexual speech as part of anti-sexual harassment policies in the workplace. A 1991 Oregon ruling muddied the waters further by finding two leaders of a white supremacy group guilty in connection with the murder of a black man, though they had been nowhere near the murder site, because they had encouraged racist violence in their TV programs and newsletters.
The third framework for reining in expression dispenses with this problematic distinction by claiming that speech is action. By this belief, we become what we hear and see, the word turned into offending flesh and impossible to ignore. Though, like Herman Melville's Bartleby, we'd prefer not to -- see it, hear it, read it, pass by it -- in this way of thinking, the obvious solution of walking away from a word or picture that bothers us doesn't work because we are stained by its very existence. The only possible solution is to wipe it out.
This idea has been developed most elaborately by anti-pornography feminists, who claim that sex talk is aggression and erotic images are rape. Since the government may punish those actions, they contend, it should also be allowed to regulate those kinds of expression. As Catharine MacKinnon, a leader of this movement, writes in a statement typical of her argument against sexual speech, "Only words, but because they are sex, the speaker as well as the spoken-about is transformed into sex. This is a dynamic common to sexual harassment and pornography."7
These feminists are joined in their word denouncing by a group of legal scholars known as critical race theorists, who argue that racially hostile speech is a form of discrimination and so is qualitatively different from other expression. Prominent among these theorists is Mari Matsuda, who maintains, "racist speech is best treated as a sui generis category, presenting an idea so historically untenable, so dangerous, and so tied to perpetuation of violence and degradation of the very classes of human beings who are least equipped to respond that it is properly treated as outside the realm of protected discourse."8 For both these schools of thought, the inequality and psychic harm that they believe stem from language are greater evils than censorship, leading them to advocate the latter when it comes to a face-off between the two, as, by their definitions, it inevitably will.
OUTRAGE DE JOUR
Arguments over speech are not all the same -- it does matter what the politics and issues are -- but in the end, they come to the same place. As individuals and as a nation, we have come to fear language, not just for what it can do, but for how our talk will be used against us. So it is little wonder that we are increasingly unable to conduct a civil public discourse, let alone decide what our American culture is or should be.
For all the fury of the current debate, culture doesn't come by fiat and is usually agreed on only once it is entrenched. But this creates its own paradox, since received opinion tends to ossify. In some ways, then, a vibrant culture is one that is forever at odds with itself. It is also frequently a seductive culture, since, like it or not, transgression entices, sex and violence sell, and the border between the sanctioned and the taboo is porous at best. In fact, what is condoned often relies on what is not to define and reinforce it, so we tolerate some language and images that flout conventional morality because we've agreed that their context -- fashion magazine, poetry reading, one's livingroom -- remove them from the fray, or because, at some level, we accept that it is the nature of desire to want what is off-limits.
This tension between stability and change is particularly apparent in popular culture, with its appetite for novelty, which it then repeats ad nauseam, and in contemporary art, with its penchant for subverting expectations and manipulating the familiar to make it seem strange. (When Robert Mapplethorpe photographed himself with a bullwhip or a skull, it's a good bet he wasn't trying to make nice little pictures to hang over the sofa.) Art, when it succeeds, touches a nerve, inviting its audience to look or listen in a way different from ordinary attention. Sometimes, as Robert Frost said of poetry, art begins in delight and ends in wisdom, but when it begins with an image or idea that we would prefer to ignore, being challenged to engage with and respond to it can be troubling. We may end up feeling that it is less the art than we, the audience, that is being manipulated.
Yet, while the form may change, the urge to shock, confuse or annoy is as ancient and robust as the urge to cover other people's eyes and ears. Anything is possible when you're making it up, which makes the imagination an appealing target for those who prefer clear boundaries. And some objects of the censor's wrath are meant to be in-your-face challenges: rock 'n' roll is all about rebellion, dissent courts the unorthodox, profanity intends to belittle, and pornography is supposed to turn us on. That's their appeal and their usefulness.
There are costs in this culture of liberty we claim for ourselves. At times, putting up with expression that is ugly, crass, scandalous, wrongheaded, bad manners, bad taste, or just plain dumb is one of them. To defend expression that oversteps limits by asking what all the fuss is about misses the point. The necessary question is what kind of fuss we will have. Will we meet speech that unsettles us with the catharsis of response -- discussing, debating, debunking, deflating -- or will we impose ever more elaborate limits on the speech we don't want to hear?
There are, after all, very many ways to shut people up: bans on specific words and images, speech codes, anti-indecency campaigns, lawsuits, conditions placed on employment, sponsorship or publication, intentional misinterpretation of ideas, control of information media and other restrictions of the marketplace, ostracizing of those who don't toe the line, spying, harassment, and physical threats and violence.
Censorship is the restricting or suppressing of words, images or ideas by someone with the power to do so. It stems from a perception of threat and sets penalties severe enough to make silence at least worth contemplating. Not every negative response to speech falls into this category, however, and nowhere does the First Amendment say that people cannot be held accountable for their words. So while it may be unpleasant to be shamed or mocked or made self-conscious by peers because of some utterance, presumably the shamed can answer back as effectively as wit, grit or righteousness allows. In contrast, censorship aims to stop discussion and criticism by tugging back into line those who have the nerve to answer back to authority or fashion. The classic censors are the state and the church, which claim the censor's right through powers official or divine. Other censors depend on their ability to enforce the ban, so struggles over what words or symbols will be allowed are almost always about who is in control, even when they appear to be about something else. Their resolution too is a matter of politics more often than justice. As John Stuart Mill tartly observed, about the only reason people don't act more frequently on the natural inclination to impose their opinions on others is because they lack the power to do so.9
The most successful censors, however, are those who have nothing to do because their work is being done for them. Nearly 150 years ago, Frederick Douglass warned, "Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong that will be imposed upon them." Arguably, the First Amendment's embrace is more expansive now than at any time in its history, but that easing of legal sanctions has run parallel with mounting social sanctions, which may be more pernicious because there are fewer curbs on public opinion.
Almost no one comes out in favor of censorship, but as doctrinal squabbles divide our society into ever smaller commonalities, we are in danger of becoming habituated to it as an acceptable response. Over the past fifteen years, free expression has been recast as one of many competing rights -- civil rights, commercial rights, the right to unruffled feathers -- until determining what will and won't be tolerated in its name has become America's defining controversy.
FOR ALL THAT WE EXPECT FROM WORDS
We live in a time of talk. The vogue in scratch-the-scab memoir, the rat-a-tat-tat of rap, shock-chic online and on-air, newspaper headlines that read like experimental fiction, conversation that erupts regularly into a frenzy of blame-mongering, squalid arguments and moral certitude, mostly of the outraged variety.... The list is very long. When this logorrhea spills over into the public arena, we turn ourselves into a nation of button-holers, all insisting that attention be paid to our story, our beliefs, our gripe. This, we tell ourselves, is democracy: one big call-in show where fervor is a guarantee of truth and having an opinion is practically a civic duty.
Through it all, we stalk words, making numerous and noisy claims for their ill effects: dirty ones cause licentiousness, sexy ones cause rape, rabble-rousing ones cause, well, roused rabble. The implication is that words encompass all action and experience and account for all the bad things that happen to us; if we could just change the lyrics, our lives would be one long hit parade.
Then there is the sheer mass of stuff coming at us through a variety of media, though currently most controversial online. The argument over what material should be permitted there -- played out in initiatives such as the Communications Decency Act, the installation of censoring software in public libraries, and proposals for universal labeling systems that are based on the mistaken belief that technological fixes are less repressive than human ones -- purports to be about the material itself, though no words or pictures show up on computer screens that can't be found elsewhere. What is new is the availability of the material and its openness to manipulation. In this moment of head-spinning growth of the Net, it is so easy to put words together and send them out into the world unmediated. No longer must someone have access to a press to enjoy its freedoms, but no longer can readers rely on editors or librarians to do their culling and verifying for them. (We're pretty ambivalent about this gatekeeping role too, but that's another story.)
The uneasiness, bordering on panic, that the new communication technologies engender is summed up in the preface to a proposal circulated at a White House meeting about ensuring "a Family Friendly Internet." Despite a plethora of blocking software, say the proposal's authors, parents continue to feel insecure "because negligent publishing of data eventually allows material that can harm the child to enter the home. Once this material is experience by the child, its damage is done. There is no 'oops' factor, no way to undo the unwanted intrusion into a child's innocence."10 Censorship "reflects a society's lack of confidence in itself," Supreme Court Justice Potter Stewart wrote in 1966; it seems also to reflect a lack of confidence in our machinery. (Ginzburg v. United States, 1966)
Not surprisingly, in the modern-day morality tales we tell ourselves about how we talk, we fall back on our two favorite metaphors: war and shopping. The language of censorship has long been that of battle, crusades and fighting faiths. Now, everything from what we listen to on our Walkman to how we zone our cities gets slugged out in a "culture war," with victors, victims, body counts, and a siege mentality that brooks little ambiguity and dismisses free speech as a peacetime luxury.
Equally popular is the "marketplace of ideas," that vaunted supermarket of the mind, in which concepts and beliefs compete for buyers like Brillo and SOS.11 The best will triumph, we are assured, never mind that the market is hardly a guarantor of quality in other realms. The utility of the metaphor is that we are used to market discrimination in content as well as quality, especially in the news and culture industries. We can try to fill a gap or protest an imbalance or write a letter to the editor (published or withheld at the discretion of the marketplace), but, at base, we accept that money buys visibility for ideas as well as for things. One idea that has sold particularly well is that everything has its price, so that we now find it difficult to imagine a thinker who can't be bought or an idea that exists for a reason other than to make us want things, preferably things we can buy. This explains in part why description or analysis is often mistaken for advocacy.
When this confusion of word and deed, information and factoid, meaning and marketing, bumps into the question of what expression will be permitted, we are expected to choose up sides quickly (these conflicts are seldom presented as having more than two sides), but often the sides can't even agree on what language to use in discussing the dispute.
Take the legal briefs in a Massachusetts lawsuit in which a female supervisor in the state welfare department successfully sued her much younger male colleague for sexual harassment when he demonstrated his opposition to her candidacy for union president by pasting a photo of her head atop a crotch shot from a girlie magazine. As the defense talked blandly of "caricature" and "graphic utterance," briefs for the plaintiff insisted that it was nothing less than "pornographic attack." (Bowman v. Heller, 420 Mass. 517 (1995)) Granted, the purpose of a legal argument is to make only one position seem credible, but, even so, how can there be hope of finding common ground when there isn't even common vocabulary?
There is, to be sure, a good dose of disingenuousness in many battles over language, and censors habitually dress up what they are doing in Sunday-go-to-meetin' clothes. When Brent Bozell, chairman of the right-wing Media Research Center, was charged a while ago with blacklisting in his newsletter that reported the political allegiances of entertainers, he grew offended. "That's an ugly term," he said. "We call it exercising free will."
At the legal and rhetorical center of these arguments lies the First Amendment, a 45-word addendum to the U.S. Constitution, which prohibits the government from making any religion compulsory, from controlling what the press publishes, or from restricting peaceful gatherings, public protests, or individual beliefs or speech. Conceived as a prerequisite for justice, the right from which others spring and on which others depend, this protection of expression and conscience was meant to keep in check the tendency of those in power to try to thwart those who disagree with them.
The First Amendment, a product of the liberal, constitutional state evolving in the late 18th Century, remains unique in the world as a written guarantee of "free expression." But while its words are stirring, they are also vague, and it was not until the 20th Century, in the decade after World War I, that the courts began to wrestle with the question of just how this guarantee should play itself out in day-to-day interactions.
First Amendment law developed, as the legal scholar Harry Kalven noted, through a dialogue between the courts and society, so it reflects the tensions inherent in balancing freedom and order and in determining what must be tolerated for liberty to exist.12 Because the law has been defined in response to specific cases, our understanding of free speech is haphazard and partial -- extensive on government censorship, but sparser on private censorship, for instance. Also, significant areas of conflict, such as the regulation of political donations or the speech rights of students, have yet to be resolved.
Historically, the courts have permitted few general exceptions to the rule of free expression: defamation, when presented with careless disregard for truth; false or fraudulent commercial speech; "fighting words," defined narrowly since 1969 to include only speech that promotes "imminent lawless action"13; and obscenity, which joined this rogues' gallery in the mid-19th century and is currently delineated by a vague three-part test known as the Miller Standard.14 Though ill-defined, obscenity is a legal category, in contrast to pornography, whose definition is anybodyís guess and whose legal status is the subject of continuing controversy.15
For a long time, the Supreme Court has maintained that the First Amendment covers more than just political speech. Given current controversies, it is worth noting that artistic expression, including "low" or popular culture, is tucked under its mantle, though if or how it may be restricted is less clear. Satire and parody are also protected, even parody "calculated to injure." (Falwell v. Hustler, 1988)
Despite a fair amount of disagreement over what expression should be protected, it has long been a cornerstone of First Amendment law that the state must remain neutral on the content of speech, even when this ends up sheltering what is abhorrent to minority or majority -- the latter being the real test, since what is acceptable to most people doesn't need much protecting. The law has also been interpreted consistently to mean that the government may not try to control action by controlling expression. This means that ideas themselves cannot be regulated, and that bad taste, for better or worse, is not a crime.
Yet, for all the First Amendment's inclusiveness, the right of free expression remains a tenuous one, regularly being put to the test, and open to attack because of the limits of the law itself. The First Amendment does not guarantee that all voices will be heard equally or at all, nor that all ideas will win acceptance, nor that protected speech will not clash with other important rights, including the right not to hear. It is here, where the value of tolerance comes under question, that the First Amendment has been particularly vulnerable to contemporary challenges. The right charges that it undermines authority, the left that it is a weapon of authority, but the First Amendment is, in fact, anti-authority and so, sooner or later, likely to tick off nearly everyone who pays attention to such things.
SECRETS, CUNNING, SILENCE
Censorship has two major thrusts: efforts to keep people from saying or representing things deemed dangerous or disturbing, and efforts to keep information secret. The philosopher Sissela Bok has written that secrecy inevitably leads to greater concealment than was originally planned. Censorship, secrecy's sister, also tends toward excess, as we have seen during the repressive eras that surrounded the Alien and Sedition Acts of 1798, the Comstock Law of 1873, the sedition trials of World War I, and the McCarthy witch hunts of the 1950s. As legal theorist Thomas Emerson points out, there is consistency in how expression was restricted during these and other dark times: a tendency to overestimate the need for censorship, a penchant for pushing regulation to extremes, overzealousness on the part of enforcers, restrictions that are vague, unenforceable and easily abused, and minimal social gains paired with heavy social losses.16
In this country, the pendulum has swung back and forth between secrecy and tolerance as a governmental predisposition. A round of openness was ushered in with a patriotic flourish on the Fourth of July 1966, when the Freedom of Information Act (FOIA) became law. It was followed ten years later by the Sunshine Act, aimed at making information about federal decision-making more readily available. Together, these laws codified a presumption toward openness, which prevailed, more or less, until the advent of the Reagan administration in 1980.
Then, in the name of national security, information of all kinds was locked up. A series of Presidential executive orders made the FOIA harder to use, government policies restricted the dissemination and sharing of research, and spending cuts truncated the government's collection, publication and distribution of information. By 1983, we had reached the mind-numbing statistic that the government kept 6.8 million "original and derivative" secrets in its "classified" information system -- a decrease, actually, from previous years because the Navy changed the way it kept count. (Though new classification actions were nearly halved by 1995 to 3.6 million, this still constitutes a mountain of hidden information.)17
The government justified its stranglehold on information by way of a concept known as an "information mosaic," which enjoyed a vogue in the 1980's. This theory asserted that bits of apparently benign information had the potential to be pieced together into a harmful whole and therefore needed to be restricted. A favorite example of the peril inherent in an information mosaic was an article published in The Progressive in 1979 that gave the recipe for an H-bomb, based solely on information culled from various unclassified journals. Though this theory seems to have been put to rest for the moment, the fear of readily available information has, if anything, grown, with the Internet replacing paper as the medium of danger, and terrorism taking over from Communism as the excuse to censor.
In the Reagan era, the fondness for concealment quickly leaked beyond "national defense" considerations to include practices such as spying, gag orders, and other pressures on scholars, teachers, artists, journalists, and researchers to control what they said and wrote in exchange for employment, funding or publication of their work. Nor was the limiting of expression confined to the scribbling class. Federal government workers -- 300,000 of them -- were required to sign lifelong secrecy pledges; the FBI instructed librarians to keep tabs on the reading habits of people who looked like they were from countries the government didn't like; the Federal Communications Commission expanded its restrictions on "indecent" programming, while shrinking the Fairness Doctrine, which had required broadcasters to air controversy, into non-existence; the President pocket vetoed legislation meant to protect whistleblowers; and the Department of Health and Human Services barred health organizations receiving federal dollars from mentioning abortion to their clients. As a particularly destructive consequence of these policies, history was recast so that questioning and dissent came to be seen as un-American.
For all that, Ronald Reagan didn't invent censorship. Governments everywhere keep secrets and dislike protest, and reformers' zeal has been a part of America longer than there have been laws to protect us from it, showing up regularly as patriotism, prudery, sex panics, and a deep suspicion of intellectual activity and artistic endeavors. (In 1842, when a group called the American Art Union was charged with promoting bad art, it responded huffily, "No one fears mediocrity in religion or learning, why should we fear it in Art?") But as government in recent decades became increasingly the domain of technocrats, and politics the playground of publicists, moralism re-emerged as one of the few public arenas in which the average person could feel effective, and perhaps the only one in which heartfelt sentiment trumped irony. This resulted in a kind of freelance vigilantism, whose target is not political nonconformity, but the everyday actions of the American people.
Ironically, around the time this public moralism was beginning to take hold, "dialogue" became a verb and we couldn't get enough of it. If "dialoguing" had been more successful at resolving the tensions it was supposed to address -- which was pretty much everything -- we probably wouldn't have switched from talking a problem to death to shouting down anyone who mentions it, but that transition is the story of the past two decades.
Though the speech confrontations we hear about are usually played as revolts of the fed-up -- spontaneous outbursts by individuals brought together over burning issues -- many of these quarrels are nurtured or orchestrated by organizations of the moralist right, which is well-financed, well-versed in community organizing, and well aware that little attracts attention in the United States today better than controversy reduced to sound bites.
This moralist right arose as a political force early in the 1980s, when conservative religious groups joined with veterans of the Goldwater presidential campaign and direct-mail pioneer Richard Viguerie. In the Reagan administration, these groups found a government comfortable with their vision of an American society delineated by moral pieties and conveniently disdainful of the First Amendment. As the government promoted policies that weakened the boundaries between public and private and made it clear that intolerance would be tolerated, it became easy for some people's lives to become other people's crusade. (And as the AIDS epidemic spread, this was assisted by a growing association in the public mind between sex and disease and danger.) In this climate, moral absolutism rose to prominence through shrewd use of the law, mass media, and marketing techniques. By 1997, Pat Robertson's Christian Coalition, one of the largest and most influential of the groups, would claim two million members and a budget of $27 million.
Though not monolithic, the groups constituting the moralist right generally describe themselves as "pro-family" and dedicated to upholding "Judeo-Christian" or "traditional" values in American society and politics. These they define to include church, country and the Father Knows Best family. (Closely related is the protection of children, who are always described as "innocent," though it's unclear of what.) Originally, these groups argued that whatever strayed from this trinity of values was immoral; more recently, they have drawn on social science and some progressive thought to add the charge that it is harmful.
For a while, the purity police concentrated their attacks on public education, independent women, and commercial culture -- movies, TV, rock and rap music -- but at the end of the 1980s their condemnation spilled over, as these things do, to include the world of "high art" that was supposed to be inviolate. The moralist right then enlisted the help of politicians, who understood that moral indignation costs nothing and plays well at the polls. Together, they challenged the concept of government funding for culture by attacking the most vulnerable part of the arts world: individual artists. In no time, scores of artists found themselves in the uncomfortable position of being both victims of a smear campaign and beneficiaries of a publicity one.
Though these quarrels became commonplace, discussion of the art or the offense it gave rarely moved beyond bluster and ridicule. In an early, but typical exchange, a police chief in Providence, Rhode Island, who had yet to see the art exhibit he was condemning, announced to the press that the artists and organizers "think they can do whatever they want to, and I don't agree. If it's obscene, it's obscene. There's no two ways about it."18 To which an art reviewer replied with equal predictability, "It's about as erotic as a ham sandwich (without mayo) and only slightly pornographic around the edges."19 This exchange echoes Anthony Comstock, granddaddy of American anti-smut crusaders, who, at the beginning of the century, proclaimed, "Art is not above morals." Part of the anger directed at the National Endowment for the Arts appears to be that some artists think it is. Leading the charge, Senator Jesse Helms tirelessly proposed restrictions (always ruled unconstitutional when they got as far as court) on the content of what Congress would allow the NEA to fund. His 1996 salvo, added to an NEA appropriations bill, stipulated that "none of the scarce funds which have been taken from all taxpayers of the United States" could be used to pay for art that denigrated religion or depicted sex or excretion -- another interesting trilogy.
In the realm of unintended consequences, these efforts to limit what artists are allowed to create with government money or to display in public and private settings have focused more attention on art than all the grants and good intentions of the preceding 25 years succeeded in doing. At the same time, government funding, or the possibility of it, gave artists something to lose. Not much -- we're talking pennies per capita here -- but enough to make some artists willing to fit their work to funding fashion and so, hand the censors an easy victory.
The language of these fundamentalist groups is that of moral certainty, conversion experiences, martyrdom and apocalypse, but their strategies mirror those of successful political operations. When they embarked on what they portray as a holy war against those who would trample the sensibilities of the American public, they adopted the tactics of the anticommunists of the 1950s,20then added a few of their own.
A favorite is to take words, images and ideas out of context and to interpret them as literally as possible and always with maximum humorlessness, so that they sound really stupid. Related to this is the trick of first condemning material sight unseen and then parading the juicy parts before a claque of tongue clickers. Both strategies are particularly effective when specific words have acquired a shimmer of the taboo through repeated attacks. Words about sex are the obvious target, but others get coyly reduced to a letter, such as "the N word" -- as if euphemism snuffs out racism.
The point is to scare the uninformed by presenting opinion as fact, misconstruing cause and effect, and lying. To take one example out of many possibilities, early in the debate over gays serving in the military, the publication of a charismatic church in California quoted an Army officer as saying, "There are hundreds of reputable, scientific arguments and documents that outline the predatory nature of the homosexual in terms of young heterosexual boys."21
Other techniques include fielding candidates for political office who keep their affiliation with fundamentalist groups from the public until after elections, and framing issues divisively to pit groups against each other -- gays against blacks, advocates of AIDS research against advocates of cancer research -- often in a kind of misery sweepstakes which makes compromise an insult. Then there is the stratagem of censoring someone and then claiming to be the wronged party. After a school board in New Hampshire fired a high school English teacher for defying instructions not to teach two previously-approved novels with gay protagonists, a board member complained about the outcry that ensued: "We have been publicly maligned, received hate mail, and overwhelmed with phone calls. Those who preached tolerance didn't practice it."22
Perhaps most effective is the technique of surprising opponents. The objects of morality campaigns rarely see them coming, so by the time they are ready to defend themselves, the terms of the debate have been set and seldom rise above the level of did-not, did-too.
These strategies work, sometimes directly: the liberal, anti-censorship group, People for the American Way, reports that, in the 1995-96 school year, 41 percent of the attempts they learned of to restrict educational materials succeeded to some degree. They also found that in 1995, nearly three-quarters of challenges to art that they noted resulted in removal or restriction of the work in question. Other times, the chipping away at protected speech is subtler, as we are trained by vivid object lessons to test what we say or think according to someone else's acceptability scale. According to a 1990 study by the Thomas Jefferson Center for the Protection of Free Expression, although 90 percent of those surveyed thought the government shouldn't tell them what to say, 59 percent thought the government should have some censorship power.
THE SPEECH WE HATE
Inevitably, in this climate a reaction against measuring words arose, taking its most vehement form in controversies over the regulation of language labeled "hate speech," "verbal harassment," "assaultive speech" and "discursive violence" -- terms more loaded than enlightening. In the late 1980s and early 90s, cities, states, and universities responded to a spate of nasty confrontations by creating speech codes which set punishment for insult, cloddishness and hate-filled messages aimed at a notably thorough list of targets. A 1988 policy at the University of Michigan, one of the first, was typical in outlawing any act, "verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status." (Presumably, it was okay to offend the few people not listed.)
A year later, two-thirds of the colleges and universities contacted by the Carnegie Foundation for the Advancement of Teaching had speech codes and another 11 percent were developing them. These codes were found to violate the First Amendment whenever they were tested in court, all the way up to the Supreme Court, which, in a divided decision, struck down a citywide hate crime law outlawing certain speech and expressive conduct (R.A.V. v. St. Paul, 1992).
Unenforceable as speech codes proved to be, the spotlight was trained on the controversies surrounding them, in part because they brought questions about First Amendment protections into the realm of opinion-makers, such as newsrooms and classrooms, and in part because they pulled the political left into the fray. As censorship showed itself to be an equal opportunity employer, traditional allies turned into enemies, who exhibited all the bitterness of lovers scorned.
The impulse behind these efforts to banish expression deemed intolerable by some remains strong, stemming from and adding to an uneasiness about how we represent ourselves. It is also influenced by the changing nature of the Academy itself, brought on to a large extent by the change in its make-up. Academics may now find the subjects they studied appearing in person in their classrooms: a sociology professor with expertise in welfare policy, for instance, teaching a woman who received public support while raising her children. It is the authority of scholarship coming face-to-face with the authority of having been there, and everything is up for grabs -- what knowledge is, who possesses it, how it is acquired, how it is passed on. It is always disconcerting when lines are being redrawn, and in academic circles, the means of dealing with upheaval is talk and lots of it.
When this reassessment turned its attention to hate speech, civil liberties were pitted against civil rights, and the primacy of the First Amendment was attacked in the name of equality, security, dignity and empowerment. The liberal antidotes to antisocial behavior -- education, affirmative action, democratic participation -- are out of favor politically and intellectually. Taking up arms against a perceived evil, be it drugs, terrorists, poor women, or hateful ideas, is in. But there is a great distance between criticizing speech and criminalizing it, and it is this gulf that has made the hate speech issue so unsettling to contemplate.
Anti-bias speech codes arise from a mixed bag of impulses. Some are classic censorship: the desire to clean up the world, or irritation because opponents think the principle of free speech applies to them too. But other arguments are new. Some advocates of codes charge that historical inequalities and imbalances of power give the lie to the First Amendment's claim of neutrality and that referring back to it is just another way of reinforcing those injustices. Others appeal to the belief that desirable behavior can be legislated or the hope that by making something unsayable, it will eventually become unthinkable. And so these censors from the left join the grand tradition of Americans who treasure the First Amendment -- until it becomes difficult. And bless its little heart, it always eventually does.
But why this eagerness to believe that threat is everywhere, particularly on the part of people whose lives are not routinely threatened? It is a question raised by Daphne Patai, one of only a handful of faculty at the University of Massachusetts at Amherst who voiced objection to a typically gung-ho speech code proposed in 1995. In an essay examining the apparent willingness of her colleagues and students to let their speech be curtailed, Patai writes, "On one of the stalls in the bathroom right outside the classroom in which I was teaching, I read that one out of every two women will be raped in her lifetime. The young women in my course do not seem to question such statistics, and are willing to give away much in exchange for the security they feel they lack."23Statistics on rape are notoriously inaccurate, plagued by under-reporting, blurred definitions, sexism and sexual politics, but even taking all that into account, the sense of danger here is out of proportion. Yet these young people of relative privilege do feel acutely threatened, confident only of their fragility and of the perils of speech.
It is stylish to contrast our academic institutions today with some mythical enclave of the past, where overarching civility and a shared common purpose made explicit proscriptions unnecessary. There was no orthodoxy then, we imply, because we automatically knew what was right and did it. We were all endlessly tolerant of each other and everyone understood what we meant, even when what we said was foolish or unfeeling. Americans grow nostalgic for that kind of empathic community (its corporeal form is a pretty little New England town with leafy trees and no traffic problems), but they forget how limiting and narrow-minded such a place can be.
While the academic harmony of yore may be a fantasy, the essential homogeneity of university campuses was very real until recently. In 1960, 94 percent of American college students were white, and 63 percent were male, as were almost 80 percent of faculty. Three decades later, non-white and Latino enrollment had grown to nearly 20 percent, female enrollment to 55 percent, and female faculty to about 25 percent.24 If hate speech is one response to those who are different, it's not surprising that it appeared less prominent before. When everyone is alike, tolerance (or intolerance) is easy.
Attempts to banish the discouraging word were not confined to academia, though it may sometimes seem that way, since the loopiness of some measures enacted there made such good copy. Throughout the country, individuals and groups continue to declare themselves newly awakened to the evil that words do, and while these stabs at censorship sometimes foster the very debate they are meant to smother, too frequently they deteriorate into spats over how many angels can dance on the head of a pin, only you can't call them angels and you aren't allowed to say "pin."
Nonetheless, the idea that a word or image can harass has proved to have legs as offended parties object to everything from waiting on a customer reading Playboy at a restaurant to teaching in a classroom with a picture of a nude on the wall. In the last instance, as if to prove that censorship is a boomerang, a professor at Pennsylvania State University, who demanded that a reproduction of Goya's "Nude Maja" be removed from the room she taught in, was subsequently charged with sexual harassment over a book about representations of the female figure that she used in her teaching.
As it became clear that such events added up to a pattern of censorship, a number of other people began to organize in opposition. Groups with names using the same three or four unimpeachable words in differing order sprang up around the country until we had, God help us, an anti-censorship industry, with retirement plans, pecking orders and the chance to work in an enterprise whose measure of success should be to put itself out of business. These organizations and the people who work there -- determined, dedicated and increasingly savvy -- have come to fill an essential function in America today, but when so many people are spending so much time advocating for what was long thought to be an inalienable right, something is out of whack.
TOO BAD FOR WORDS
Whether or not society is going to hell in a hand basket is the subject of considerable debate at century's end, but Americans certainly seem to feel overwhelmed and dispirited. Maybe it's millennial malaise or the loss of Communism as the all-purpose bogeyman, more likely that we are cleverer at addressing social and economic problems than social and economic resentments.
In these heavy-hearted times, it is tempting to believe that by pointing an accusing finger at a word or picture, we are striking a blow for morality or equality or whatever rates high on our list of virtues. Feeling right and righteous among the like-minded is both comforting and exciting, as anyone who has ever advocated a cause knows, and blaming words is a way to winnow stubborn social dilemmas down to a manageable size, so that we can feel like we're doing something, even if that something is investing symbols with the power to make the changes we can't.
For all their virulence, there is something poignant in campaigns to control TV programs because we can't control our kids' behavior, in attempts to make books unavailable at libraries because we can't make sex less powerful in life, in bans on ethnic slurs because we haven't resolved the question that plagues us from our first foray onto the playground of what to do when someone says something rotten to us and it hurts.
Even for those who don't take up morality as a hobby, what we are asked to stomach in the name of free speech can seem like too much: a culture that feels like assault -- on the senses, equilibrium, common sense; talk that is so cheap, and coarsened, and debased, that it might as well be free because no one in his right mind would pay for it; a gap between the principles of the First Amendment and their application that allows the legal questions to be resolved while the human ones are left raw. The temptation to squash vexing speech comes in the specific instance too. When someone says something that upsets us, being able to make him or her stop offers more immediate and tangible satisfaction than the idea of free speech. Self-protection is innate, tolerance an acquired taste.
Then too, words have weight and consequences. If we didn't believe that, why all the fuss over what we can and can't say? Separate from any action it may bring about, language contributes to an atmosphere, and contrary to the children's rhyme, names can hurt or frighten or disgust us. We may know that words and pictures are representations, not the thing itself, know that tolerating a message is not the same as agreeing with it, know too that should we come across something unbidden and unappealing on TV or the Net, we can turn it off or turn away. And still, words haunt.
Many would-be censors are cynics, fanatics, or spoil sports, but it may be those bent on doing good who present the greater threat to unconstrained speech and thought. Underlying the current riot of intolerance is the fear, justified or manufactured, that our society is coming apart at the seams. Speech codes, stamp-out-smut drives, labeling systems, curriculum restrictions and other attempts to hobble expression are a direct response to that fear, as if all our talk about talk will keep the lid on an explosive situation.
I confess to a little envy here. Being able to speak without official sanction has always seemed such a basic and glorious need to me, so I would like to be as certain as the speech-blamers appear to be, but what I am, more often, is baffled. For instance, it seems clear that the right to be left alone is intrinsic to freedom, as Supreme Court Justice William O. Douglas pointed out, and also that mean, angry racist epithets are a form of racism that interferes with that freedom. But humankind has spent millennia figuring out ways to discriminate against some of its members and most of those ways undermine much more effectively than invective. So while I don't know how to end racism, I suspect that it won't be by rewriting the dictionary. Or this: I can make a long list of things I really, really don't want to see or hear, but I still don't see how anyone can honesty believe that getting rid of porn or off-color jokes will improve her life in any significant way. Yet a lot of people do believe these things passionately, so I'm left to figure that they believe because they want to. It is a leap of faith, then, which is why I've come to understand that repeating arguments against censorship will not eradicate it any more than censorship will eradicate the evils it is said to fight -- even as I understand that those claims must be made. Otherwise, it all comes down to who hollers loudest.
Moreover, to understand or account for something is not to render it harmless. Measures to control speech confuse a policing action with a political one, and it is not a giant step from policing words to policing people. "Chilling effects" and "slippery slopes," those icy threats brandished in the face of bad laws and policies, are cause for genuine concern, as we are reminded whenever we stop our bickering long enough to listen for those voices that have been stifled in countries around the globe and throughout history. Although censorship is often done in the name of the weak, it is rarely championed by anyone who has felt its effects, probably because they know the consequences: for those who are censored, lost jobs, opportunities, education, friends, security, and, in extreme cases, liberty; for society at large, limited technological advancement, eroded scholarly inquiry, endangered health, educations resembling Swiss cheese, and corrosive mistrust of leadership and authority.
There may be much the founding fathers didn't anticipate about America two centuries hence, but they were prescient and self-interested enough to craft the First Amendment, which is still admirable for its elegant simplicity, for its defiance of pettiness, and for what it tries to do.
What the First Amendment tries to do is support the shut up, the shoved aside, the left out and the picked on, particularly when they try to speak truth to power. An anomaly in the mythology of our American selves, it allows us, on occasion, to win arguments with words and expressiveness instead of bullets and bank accounts. It doesn't set up an official truth, but it offers our best hope for getting to some truth over time. The First Amendment is integral to forging a common awareness that is key to the functioning of democracy, and it suggests a way to bridge the growing gap between the autonomy we cherish and the community we need if we're to live in any sort of harmony; it certainly illuminates that gap like a sound and light show over the Grand Canyon. Finally, in its own roundabout way, the First Amendment gives muscle to the idea that what is best about America needs not just praise, but also protection, and scrutiny, and honest appraisal.
WHY NOT CENSORSHIP
My arguments with censorship are both philosophical and practical. First, efforts to throttle speech touch us profoundly because the desire to express ourselves unmediated is at the core of our humanity and individuality. True, we tailor our words to civility, persuasion, kindness or other purposes, but that is our choice. Censors claim the right to purge other people's talk -- all the while insisting that it is for our own good.
Second, much censorship appears irrational and alarmist in retrospect because the reasons people choose and use words are more interesting than the systems designed to limit them. It's not hard to make a list of absurdities -- I'm particularly fond of laws in 13 states that criminalize the disparagement of agricultural products; Oprah Winfrey is being sued under one of them for publicly eschewing hamburgers -- but simplistic explanations and simple-minded responses are dangerous as often as they are ditzy.
In one of the few places that post-modern theory and common sense intersect, it is obvious that the meaning and perception of words regularly depend on variables such as speaker and spoken to, individual experience and shared history, and the setting, company and spirit in which something is said. To give courts or other authorities the power to determine all this is, to put it mildly, mind-boggling.
Third, censorship is inimical to real democracy. Cloaking ideas and information in secrecy encourages ignorance, corruption and demagoguery, and leaves a nation open to all the dangers that flow from a citizenry with the power to govern itself, but without the knowledge to do so. Open discussion, on the other hand, allows verities to be examined, errors to be corrected, disagreement to be expressed, and misplaced anxieties to be put in proportion. It also forces communities to confront their problems directly, which is more likely to lead to real solutions than covering them up.
Fourth, censorship backfires. Opinion, tastes, social values and mores change over time and vary among people, and truth can be a protean thing. The earth's rotation, its shape, the origins of humankind, the nature of matter, were all once widely understood to be something different from what we know today, yet those who challenged the prevailing faith were mocked and punished for their apostasy. Banning ideas in an attempt to make the world safe from doubt, disaffection or disorder is limiting. It is especially so for those whose lives are routinely limited, since, along with people with new ideas and independent spirits, censors tend to target the poor and politically weak.
Finally, censorship doesn't work. It doesn't get rid of bad ideas or bad behavior. It usually doesn't even get rid of bad words,25 and history has shown repeatedly that banning the unpalatable merely drives it underground. It could be argued that that's just fine, that vitriolic or subversive speech, for example, shouldn't dare to speak their names. But hateful ideas by another name -- disguised as disinterested intellectual inquiry, or given a public relations campaign and a nose job like David Duke, the former Ku Klux Klan Grand Wizard, when he ran for governor of Louisiana in 1992 -- are probably more insidious than those that are clearly marginal.
The problem is that it is just not practically possible to outlaw only the bad words and leave the good ones unscathed. For one thing, as Oscar Wilde said of socialism, it would take too many evenings. There is simply too much variety of expression, and censorship is so damned unimaginative. We may be able to make a list of words or phrases that could be dropped from the language with no significant loss of expressiveness or communication. Profanity, epithets and adolescent nasties don't challenge beliefs, other than the value of good manners, nor do they contribute much to debate, the pursuit of truth, self-knowledge, or the practice of democracy. More often, they are a form of bullying and bigotry, likely not what the framers of the Constitution had in mind when they sought to safeguard expression. But the desire to affront and wound being what it is, the banned words will be replaced by equally offensive ones with a speed that would make our heads spin. People who want to offend will find a way to do so, no matter how they are constrained, and people who don't want to and offend inadvertently (which is probably all of us at one time or another) can be corrected in other, less drastic and more effective ways.
The alternative to spelling out what is not allowed is to fashion a vague statement of intent and then determine what speech is forbidden on a case-by-case basis. But, with the possible exception of an anti-nudity ordinance in Florida that takes 346 words to define "buttocks," these statements are inevitably inadequate, either too narrow or too broad. Most important, the decisions will always be made by those in power -- who else can enforce the ban? -- and those who hope sanitized speech will bring about greater justice are well-advised not to trust the powerful to help them out. History is fickle and nowhere does power give itself up willingly.
Though a good portion of recent attempts to censor have been stopped by individual or community pressure or by the courts, these fights leave a bad taste in everyone's mouth, and treating lawsuits as a kind of twelve step recovery program is not a particularly good use of anyone's resources. For many would-be censors, that's the idea -- culture wars as bread and circuses that intentionally miss the point by a mile. In other instances, though, I suspect that people continue to try to fashion the perfect system that will outlaw only the right words because it is easier to make rules than it is to make changes.
Speech controversies focus efforts to create a more just or moral society on symbols and expression, not on actions, money or policies, which is where real change occurs. Equal pay for women, uniformly adequate health care, and universal literacy, to note just three concrete objectives, would get us much closer to the feminist aims of fairness and groceries than bans on pornography ever will, and if we put the same effort into achieving the former as we have into arguing over the latter, they might just come to pass.
Besides, there are better alternatives. The old chestnut that the best antidote for bad speech is more speech happens to be true, especially when everyone has a point and no one has a particularly good solution. More speech includes educating, arguing, correcting, criticizing, mediating and holding public forums -- the noise of democracy working. It also includes shaming those who speak shamefully and allowing people to challenge what is being said while still championing the right to say it.
Those who must struggle to be heard need to create places where they will be heard. Following A.J. Liebling's dictum that freedom of the press is guaranteed only to those who own one, they and their friends must find ways to get their hands on their own presses or whatever technology works best for them. They can start with the Internet, which needs knowledgeable advocates now to keep it from overregulation and over-commercialization.
Then all those concerned with free and fair speech can, must, use their presses to object whenever censorship is attempted -- of others as well as of themselves. Autocrats dislike publicity, especially bad publicity, so shining light on abuses of power can be surprisingly effective.
Parents and others concerned about the influence of various expression on children have alternatives to retreating into fear or ceding responsibility to the government or its stand-ins. Many of these conflicts are generational, and kids have always needed to be taught, by talk and example, how to make their way through the words and images they encounter and how to respond to the ideas they don't like.
Perhaps most important, when squabbles break out over how we talk to each other, it is essential to try to refocus the debate onto the real issues that underlie word blame, and to offer other, convincing explanations and perhaps solutions.
A character in a story by Grace Paley rails against dumbness, which she defines as "silence and stupidity." Paley writes, "By silence, she meant the refusal to speak; by stupidity she meant the refusal to hear."26The First Amendment may be a whistle in the dark of dumbness, but it is where we begin. It canít be meted out piecemeal, and once its inviolability is broken, it becomes very hard to repair.
1. Richard Chacon, "Tonics with Titillating Titles Test Limits of Good Taste," The Boston Globe, Feb. 28, 1997, p. B2.
2. The Broken Window theory was proposed by sociologist James Q. Wilson and criminologist George Kelling in a 1982 article in The Atlantic. It gained visibility when it was embraced by the New York City police department as a rationale for cracking down on "quality of life" crimes, and overall crime rates declined in subsequent years.
3. Testimony of Thomas A. Constantine, Administrator, Drug Enforcement Agency, before House Appropriations Committee Subcommittee on Commerce, Justice, State, the Judiciary and related Agencies, May 1, 1996.
4. Jim Impoco, "TV's Frisky Family Values," U.S. News and World Report, April 15, 1996, pp. 58-62.
5. "Rap Attack Back on Track," Newsletter on Intellectual Freedom, American Library Association, Sept. 1996, p. 147.
6. For a comprehensive review of research into the relationship between behavior and sexually-explicit material, see Marcia Pally's Sex & Sensibility: Reflections on Forbidden Mirrors and the Will to Censor (New York: Ecco Press, 1994).
7. Catharine A. MacKinnon, Only Words (Cambridge: Harvard University Press, 1993), p. 67.
8. Mari J. Matsuda et al, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder: Westview Press, 1993), p. 35.
9. John Stuart Mill, On Liberty (1859).
10. Proposal for "The Online Cooperative Publishing Act," by SafeSurf, presented at White House meeting, July 16, 1997.
11. The phrase comes from Oliver Wendell Holmes, Jr., who wrote in Abrams v. United States (1919) "that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market..." Holmes was in the minority here; the majority of the Supreme Court upheld harsh punishment for a group of antiwar activists whose thought didnít stand a chance in the market of WWI jingoism.
12. Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America (New York: Harper & Row, 1988).
13. This definition from Brandenburg v. Ohio (1969) supplanted Chaplinsky v. New Hampshire (1942), where fighting words were defined more broadly as words which "by their very utterance inflict injury or tend to incite an immediate breach of the peace."
14. As set out in Miller v. California (1973), for a work to be legally obscene, it must, according to community standards: appeal to prurient interest; depict sex in a patently offensive way; and lack serious literary, artistic, political or scientific value.
15. For a fascinating review of pornography and the law, see Walter Kendrick's The Secret Museum: Pornography in Modern Culture (Berkeley: University of California Press, 1987).
16. Thomas I. Emerson, Toward A General Theory of the First Amendment (New York: Random House, 1966), pp. 23-25.
17. Report of the Commission on Protecting and Reducing Government Secrecy, Daniel Patrick Moynihan, Chairman, U.S. Government Printing Office, 1997.
18. Daniel Hackett, "Ricci Moves to Close Show of Erotic Art," Providence Evening Bulletin, May 16, 1978, p. 1.
19. Edward J. Sozanski, "Crowd Shows Up for Peek After Unfavorable 'Review'," Providence Journal-Bulletin, May 16, 1978.
20. See Richard Bolton, ed, Culture Wars: Documents from the Recent Controversies in the Arts (New York: New Press, 1992).
21. "The Report," Ty & Jeannette Beeson, Executive Directors, Lancaster, CA, April 1993.
22. Jessie Salisbury, "Board to Appeal Culliton Ruling," The Telegraph, Nashua, NH, April 16, 1996, p. 1.
23. Daphne Patai, "There Ought to Be a Law," William Mitchell Law Review, Vol. 22, n. 2, Winter 1996.
24. Louis Menand, "Illiberalisms," The New Yorker, May 20, 1991, p. 104; and United Nations Statistical Yearbook, 1992.
25. According to 'Hate Speech' and Freedom of Expression, a 1992 review of hate speech laws worldwide, conducted by the New York-based Human Rights Watch, such laws had little connection to lessening ethnic or racial violence or tension.
26. Grace Paley, "Midrash on Happiness," 1986.