A Democracy of Voices
Americans used to like the First Amendment. Sometimes we added "but" at the end of our declaration of faith, but we had a real soft spot for the idea that speech should be safe 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. Sometime in the mid-1980s, we began to hear angry citizens announce that they would accept this or that outrage no longer; something had to be done, and that something was shutting people up. Throughout the following decade and spilling into the present, we learned of more and more targets: teachers who assigned books with profanity, Web sites that mentioned sex, artists who got grants, movies that provoked, songs that challenged, books that acknowledged ambiguity, anything that encouraged 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 ACLU, 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. We do indeed live in a time of talk: rap, memoir, news headlines that read like experimental fiction, conversations that erupt into blame mongering and moral certitude. When this logorrhea spills over into the public arena, we turn ourselves into a nation of buttonholers, 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.
In this riot of word blame, not all motives are political, nor are all speech disputes played out on the political stage. Other countries kill their dissidents. We frustrate ours into silence, trivializing deeply held convictions and turning their advocates into cranks, or bribing 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. Those with political ambitions know well that lewd pictures and loutish talk leave few people dispassionate.
The urge to cover other people's eyes and ears is as ancient and robust as the urge to shock, defy, or annoy, and 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 may be one of the few things that unites across race, gender, class, and all the other categories we're not supposed to speak disparagingly about.
There are costs to this culture of liberty that we claim for ourselves. At times, putting up with expression that is ugly, crass, wrongheaded, bad manners, bad taste, or just plain dumb is one of them. 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 heterodox, profanity aims to belittle, and pornography is supposed to turn us on. That's their appeal and their usefulness. Defending expression that oversteps some line 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 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?
Governing the Tongue
There are many ways to shut people up: bans on words, images, or discussions; decency campaigns; conditions placed on employment, funding, or publication; control of information media and other restrictions of the marketplace; destruction of books or art; ostracizing of those who don't toe the line; lawsuits; spying; threats; violence; imprisonment. Not every negative response to speech is censorship, however. Censorship is the restricting or suppressing of words, images, or ideas by someone in a position to enforce the ban. It stems from a perception of threat and sets penalties severe enough to make silence worth contemplating. Yet nowhere does the First Amendment say that people cannot be held accountable for their words, so while it is unpleasant to be mocked or made self-conscious because of some utterance, presumably the shamed can reply as effectively as wit, grit, or righteousness allows. In contrast, censorship aims to stop discussion and disagreement by punishing those who have the nerve to answer back to authority or fashion.
The classic censors are the state and the church, which claim censorial powers official or divine. Other censors depend on their ability to dictate the rules, 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 beliefs on others is that they lack the power to do so.1
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." In many ways, the First Amendment's embrace is more expansive now than ever before, but that easing of legal sanctions has run parallel with mounting social sanctions. The result is that we, as individuals and as a nation, have come to fear language, not just for what it can do, but for how it will be used against us. We have colluded remarkably with those who would muzzle our mouths and our minds and have allowed free expression to be recast as one of many competing rights—civil rights, commercial rights, the right to unruffled feathers—until determining what will and will not be tolerated in its name has become America's defining controversy.
At the legal and rhetorical center of these arguments lies the First Amendment, a forty-five-word addendum to the U.S. Constitution that prohibits the government from either compelling or proscribing any religion, controlling what the press publishes, or restricting individual beliefs or speech, peaceful gatherings, or public protests. As a prerequisite for justice, the right from which others spring and on which others depend, this uncommonly broad 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 is a product of the liberal, constitutional state that evolved in the late eighteenth century. Perhaps reflecting ambivalence on the part of its framers, it is a law that says no law should be made and so sets up the paradox of enforced liberty. While its words are stirring, they are also vague, and it was not until after World War I that the courts began to wrestle with the question of just how this guarantee should play 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, and it responded inevitably to the tensions inherent in balancing freedom and order.2 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 sparse on commercial speech, for instance. Other significant areas of conflict, such as the regulation of political donations or the speech rights of students, are 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; "true threats"; "fighting words," defined narrowly since 1969 to include only speech that promotes "imminent lawless action";3 and obscenity, currently judged by a three-part test known as the Miller Standard.4 (Though ill-defined, obscenity is a legal category, in contrast to pornography, whose definition is anybody's guess and whose legal status is the subject of continuing controversy.) Despite a fair amount of disagreement over what expression should be safeguarded, the First Amendment has been interpreted quite consistently to mean that the government may not try to control action by controlling speech, that ideas themselves cannot be regulated, and that bad taste, for better or worse, is not a crime. The law covers more than just political speech, also tucking under its mantle artistic expression, satire, and parody, even parody "calculated to injure."5 Perhaps most important, 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 as much protecting.
Yet for all the First Amendment's inclusiveness, the right of free expression remains tenuous and is regularly put to the test. In the late twentieth century, as the Enlightenment optimism that long underpinned our political culture foundered on the rock-hard debate over what constitutes a just society, the First Amendment increasingly came under attack because of the limits of the law itself. It does not guarantee that all voices will be heard equally or at all, or that all ideas will win acceptance, or that protected speech will not clash with other important rights, including the most basic right to be left alone. It is here, where the value of tolerance comes under question, that the First Amendment has been particularly vulnerable to recent challenges. The right charges that it undermines authority, the left that it is a weapon of authority, but the First Amendment is, in fact, antiauthority, and sooner or later it ticks off nearly everyone who pays attention to such things.
The Gag Reflex
Arguments over speech are not all the same—the politics and issues involved matter—but they arrive at the same place. Whatever their political or moral inclinations, 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 classic objection to "bad" words is that they 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 problem 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 perennially at 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 to want it restricted to a more "appropriate" setting. Compromise is often advised: banning a book with vulgarity from the sixth grade but allowing it in the ninth, or moving sexy magazines behind the counter at stores. In a typical 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."6
This objection also applies to timing, as when exceptional circumstances are said to put dissenting views off limits. In the aftermath of the September 11 massacres, when unity of thought seemed a prerequisite for sharing in the national mourning, the White House press secretary responded to a television host's comment that cast aspersions on American military policy by saying, "They're reminders to all Americans that they need to watch what they say, watch what they do, and this is not a time for remarks like that; there never is."7 People frequently assess their words for appropriateness, but the assessment changes when it is the government telling us to watch our mouths.
A second rationale for limiting expression is a kind of "broken windows" theory of speech. The original theory, which addressed how police maintain order in a community, posited that when a broken window is left unrepaired, people tend to feel freer to break more windows because they assume no one cares.8 Social disorder is seen as an epidemic, or, as a government official put it when he cited the theory in prepared testimony to Congress, "If we tolerate the small degradations of life, we slowly begin to accept the major erosion of our social values and conditions."9 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 antisocial or dangerous actions. It then becomes necessary to restrict expression to save society from itself.
This idea is popular because it sounds as if it should be true. An influential 1996 poll found that 92 percent of respondents thought TV contributed to violence,10 and a 2001 survey found 59 percent of fifteen- to twenty-four-year-olds agreeing that "seeing pornography on the Internet encourages young people to have sex before they're ready."11 In a similar spirit, William Bennett, then 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 sex- and violence-laden lyrics were "leading society down the wrong road." Amended Tucker, "These companies have the blood of our children on their hands."12
Add to this concerns about the sheer mass of stuff coming at us online. The argument over what material should be permitted there purports to be about the material itself, though few words or pictures show up on computer screens that can't be found elsewhere. What is new is the availability of the material, its openness to manipulation, and the head-spinning ease with which we can put messages together and send them out to the world unmediated. The apprehension, bordering on panic, that our new communication technologies engender was captured in the preface to a proposal circulated at a 1997 White House meeting about creating "a Family Friendly Internet." Despite a plethora of filtering 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 experienced by the child, its damage is done. There is no 'oops' factor, no way to undo the unwanted intrusion into a child's innocence."13 Censorship "reflects a society's lack of confidence in itself," Supreme Court Justice Potter Stewart wrote;14 it apparently reflects a lack of confidence in our technology too.
The Internet would seem a form of pure speech, but the line between speech and action in many realms is far from definitive. The courts have protected acts such as flag and cross burning as expressive speech but have also upheld some bans on sexual expression in the workplace as redress against sexual harassment. 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 see and hear; 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—in this way of thinking, the obvious solution of turning away from an image 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 elaborated primarily by antipornography feminists, who have charged that sex talk is aggression and erotic images are rape. Since the government can punish those actions, they contend, it should also be allowed to regulate those kinds of expression. As Catharine MacKinnon, a leader of this movement, wrote 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."15
These feminists have been 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 is therefore qualitatively different from other expression. Prominent among these theorists is Mari Matsuda, who maintained that "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."16 For both these schools of thought, the inequality and psychic harm they believe stem from expression are greater evils than censorship. This leads them to advocate censorship when it comes to a face-off with other harms, as, by their definitions, it inevitably will.
Outrage du Jour
In the modern-day morality tales we tell ourselves about how we talk, we fall back on two favorite metaphors: war and shopping. The language of censorship has long been that of battle and fighting faiths. In the 1990s, everything from what we listened to on our Walkmans to how we zoned our cities got slugged out in a "culture war," with victors, victims, body counts, and a siege mentality that brooked no ambiguity and dismissed 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.17 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 accustomed to market discrimination in content as well as quality. We can try to fill a gap or protest an imbalance or send a letter to the editor, 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. This explains in part why depiction is often mistaken for advocacy and denounced as such.
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 sides quickly (controversies over speech 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. Many fights over language contain a good dose of disingenuousness, and censors habitually dress up what they're doing in Sunday go-to-meetin' clothes, and so words redefined become thought reconstructed and politics realigned.
The past two decades have seen moralists of all political 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. The moralist right has gotten the most press in the censorship game, in part because it is better organized than the moralist left, which tends toward guerilla censorship. (In one of the odd twists that typify First Amendment arguments, 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 (i.e., 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 antiporn wars, where one group of feminists cozies up to the religious right and another locks arms with Playboy and Penthouse.
At the extremes, both right and left, tolerance has come to be seen as liberal whitewash and compromise as capitulation to evil. Even at the center, debate is regularly 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. How these tensions played themselves out through word-blame is the story of the past two decades.
Secrets, Cunning, Silence
Censorship has two main thrusts: efforts to keep people from saying 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 in such repressive measures as the Alien and Sedition Acts of 1798, the Comstock Laws of 1873 and beyond, the sedition trials of World War I, the internment of Japanese Americans during World War II, and the McCarthy witch hunt of the 1950s. These policies were instituted in response to extreme circumstances, but we came to regret them all long before we managed to get rid of them. As legal theorist Thomas Emerson pointed 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.18
Throughout our history, our government has fluctuated between secrecy and openness. A round of transparency was ushered in with a patriotic flourish on the Fourth of July in 1966, when the Freedom of Information Act (FOIA) became law. It was followed ten years later by the Sunshine Act, meant to make 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, a series of 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. The government justified its stranglehold on information by way of a concept known as an "information mosaic," a theory positing that bits of apparently benign information have the potential to be pieced together into a harmful whole and therefore need 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 a hydrogen bomb, based on data culled from various unclassified journals.
Control of the flow of information became the order of the day, a proclivity apparent in military-media relations. Since the end of the Vietnam War, the military had been planning how to control journalists in wartime, and when the United States invaded Grenada in 1983, the press was not allowed to accompany invading forces. The media squawked, prompting the Pentagon to allow a limited number of journalists to tour part of the island under escort and the Defense Department to appoint a panel to study the issue. One of the panel's recommendations was the formation of temporary press pools, in which a small group of journalists accompanied by military officials would be allowed near the front to report back to other journalists. This too proved problematic; when the United States invaded Panama in 1989, the press pool didn't even leave Washington until near the time the invasion began, and reporters who followed were confined to a military base.
The Defense Department again reassessed its relationship with the press and again proposed new rules, which were instituted for the 1991 Gulf War. Then, a limited number of reporters were herded into press pools and mostly kept away from the fighting, while the rest of the large press corps cooling its heels in Saudi Arabia reported out of daily military briefings so uninformative that they became fodder for TV parodies. The military determined which reporters were permitted to visit which units and, to a degree, what soldiers were permitted to tell them. It also reviewed stories, delayed those it disliked, and made it difficult for reporters who asked tough questions to schedule interviews with senior officers.19 The military has good reasons for secrecy in wartime, and journalists for honoring military discretion, but not all secrets are kept for strategic purposes. In both Panama and the Persian Gulf, one effect of restricting reporters was to cloud forever the question of how many people died there.
During the Reagan era, the fondness for concealment quickly leaked beyond national defense considerations to include spying, gag orders, and other pressures on scholars, teachers, artists, journalists, doctors, and researchers to control what they said and wrote in exchange for employment, funding, or dissemination of their work. The limiting of expression was not confined to the scribbling classes. Federal government workers—three hundred thousand of them—were required to sign lifelong secrecy pledges; the FBI instructed librarians to keep tabs on the reading habits of people who looked as if they were from countries the government didn't like;20 the Federal Communications Commission expanded its restrictions on "indecent" programming; the president pocket-vetoed legislation meant to protect whistleblowers; and the Department of Health and Human Services barred organizations receiving federal dollars from mentioning abortion to their clients, a principle of control that would eventually be applied as far afield as funding for artists.
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. It shows 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 a particularly destructive and far-reaching consequence of these policies was to recast history so that questioning and dissent came to be seen as un-American.
It was in this climate that the religious right came to prominence. Conservative politicians and fundamentalist religious leaders had been working since the 1960s to organize groups with names using the same unimpeachable words—American, family, morality, freedom—in varying order. (Liberal anticensorship groups later named themselves similarly, making it hard to tell the players even with a scorecard.) Declaring themselves newly awakened to the evil that words do, these groups promoted political and social policies based on their version of virtue as a kind of penal code for pleasure. Though not monolithic, the organizations constituting this moralist right have much in common. Nearly all describe themselves as "profamily" and dedicated to upholding "Judeo-Christian" or "traditional" values. These they define to include the Father Knows Best family, church, and country (which appears to include corporate interests). 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 challenged their values was immoral; later, they drew on social science and, ironically, radical feminist theory, to call such divergences harmful.
For a while, the purity police on the right concentrated their attacks on public education, independent women, and commercial culture (movies, TV, pop music, video games), but in time, their condemnation spilled over, as these things do, to include "high culture." They were not alone in their uneasiness. Culture doesn't come by fiat and is usually agreed on only once it is entrenched, which creates its own paradox, since received opinion tends to ossify. In many ways, then, a vibrant culture is one that is ever at odds with itself. In our modern world, 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 living room—removes 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 undercutting expectations and manipulating the familiar to make it seem strange. (When Robert Mapplethorpe photographed himself with a bullwhip, it's a good bet he wasn't trying to make a nice little picture 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 we prefer to avoid, being called to engage with it can be troubling, and we may end up feeling that it is less the art than the audience—ourselves—that is being manipulated.
Anything is possible when you're making it up, so the imagination is an appealing target for those who prefer clear boundaries. At the end of the 1980s, the National Endowment for the Arts (NEA), as the federal representative of the imagination, became the bull's-eye. Though the attacks on the NEA were characterized as a taxpayers' revolt, in the realm of unintended consequences, the subsequent efforts to limit what artists were allowed to create or display focused more attention on art than all the grants and good intentions of the preceding thirty years. The language these right-wing groups used was that of moral certainty, conversion experiences, martyrdom, and apocalypse, but their strategies mirrored those of successful political operations. When they embarked on what they portrayed 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,21 then added a few of their own.
A favorite was to take words and images out of context and interpret them as literally and humorlessly as possible so that they sounded really stupid. A related trick was to condemn material sight unseen, then parade the juicy parts before a claque of tongue clickers. Both strategies were particularly effective with words that had acquired a luster of taboo through repeated attacks. Sex words were an obvious target, but others got coyly reduced to a letter, such as "the N word"—as if euphemism snuffed out racism. The purpose of these ploys—presenting opinion as fact, misconstruing cause and effect, lying—was to scare people. Other techniques included framing issues divisively to pit groups or goals against each other—gays against blacks, AIDS research against cancer research—in a kind of misery sweepstakes that made compromise an insult. Perhaps most effective was the stratagem of surprising opponents. Again and again, the objects of morality campaigns didn't see them coming and by the time they were ready to defend themselves, the terms of the debate had been set, seldom to rise above the level of did-not, did-too.
As these quarrels became routine, discussion of the art or the offense it gave rarely moved beyond bluster and ridicule. In an early exchange that presaged arguments to come, 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."22 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."23
The strategies of censorship have worked, sometimes directly, as when challenges to educational and creative material mounted through the mid-1990s.24 Other times, the chipping away at protected speech is subtler. In a 2002 survey by the First Amendment Center, 49 percent of those asked if the First Amendment "goes too far in the rights it guarantees" agreed.25
The Speech We Hate
Inevitably, this emphasis on measuring our words generated a backlash, which took its most vehement form in controversies over the regulation of language labeled "hate speech," "verbal harassment," "assaultive speech," or "discursive violence"—terms more loaded than enlightening. In the late 1980s and early 1990s, cities, states, and universities responded to a spate of nasty confrontations by creating speech codes that set punishment for insult, cloddishness, and belligerence 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 who didn't make the list.) 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. Speech codes were ruled unconstitutional all the way up to the Supreme Court, which, in 1992, struck down a citywide hate crime law outlawing certain expressive conduct,26 but such codes remain on the books at many private universities. Unenforceable though speech codes have proved to be, they trained the spotlight on the controversies surrounding them, in part because they brought questions about free expression into the realms of opinion makers, such as classrooms and newsrooms, and in part because they pulled the political left into the fray.
Antibias speech codes arise from a mixed bag of impulses. Some are classic censorship, such as the desire to clean up the world or irritation because opponents think the principle of free speech applies to them too. Other arguments are newer: that speech is a form of action, that racial slurs are discrimination, that the government is justified in regulating speech to promote communal values, or that a community must make it clear that it will not tolerate such treatment of its members. These contentions arise from the belief that desirable behavior can be legislated and appeal to the hope that by making something unsayable, it will eventually become unthinkable. And so, censors from the left joined the tradition of Americans who treasure the First Amendment—until it becomes difficult, as, bless its little heart, it always eventually does.
These efforts to banish the discouraging word took place as the academy itself was changing. It is stylish to contrast today's academic institutions with some mythical enclave of the past, where overarching civility and 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 parking problems), but they forget how limiting such a place can be.
While the academic harmony of yore may be a fantasy, the essential homogeneity of university campuses was very real. In 1960, 94 percent of American college students were white, and 63 percent were male, as were almost 80 percent of faculty.27 By the late 1990s, 27 percent of students were classified as "minority," and 56 percent of students28 and 36 percent of faculty were female (faculty remained overwhelmingly white, at 92 percent).29 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.
As campuses diversified, everything came up for grabs—what knowledge is, who possesses it, how it is acquired or passed on. 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, safety, dignity, and empowerment. In academic circles, the means of dealing with upheaval is talk and lots of it. As censorship showed itself to be an equal opportunity employer, traditional allies turned into enemies, who exhibited all the bitterness of lovers scorned. By this time, the liberal antidotes to antisocial behavior—education, affirmative action, democratic participation—were falling out of favor politically and intellectually. Taking up arms against a perceived evil, be it drugs, poor women, terrorists, or hateful ideas, was in. Still, the distance between criticizing speech and criminalizing it is great, and it is this gulf that made the hate speech issue so unsettling to contemplate.
Why, for instance, the eagerness to believe that threat is everywhere, particularly on the part of people whose lives are not routinely threatened? It is a question Daphne Patai, a professor at the University of Massachusetts at Amherst, raised as she examined the apparent willingness of her colleagues and students to let their speech be curtailed by a typically gung-ho speech code proposed in 1995. 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."30 Statistics on rape are notoriously inaccurate, but even so, the sense of danger here is out of proportion. Yet these young people of relative privilege did feel threatened, confident only of their fragility and of the perils of speech.
The stories in this book cover years in which the U.S. economy sagged, soared remarkably, then soured again, and, not surprisingly, our national optimism followed a similar trajectory. In the boom years, our word anxiety abated somewhat and turned its focus inward, so that at the turn of the century, the bulk of our free speech arguments concerned technology, privacy, public protest, and those perennials, sexual imagery and children—or better yet, sexual imagery in combination with children. Then, in the heavy-hearted days after September 11, when our real vulnerability seemed to provide good reason to rein in speech, attention switched to governmental controls, bringing us back to where this cycle began.
Too Bad for Words
Oscar Wilde claimed that whenever people talked about the weather, he felt sure they were really talking about something else. I share that suspicion when it comes to censorship and suspect too that we fight over words and pictures because it is easier to make rules than to make changes. It is also safer, which is why speech battles are usually about problems and resentments we don't know how, or are afraid, to talk about.
Though a good portion of recent attempts to censor have been stopped by the courts, community pressure, or good sense, 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. 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.
Many would-be censors are cynics, fanatics, or spoilsports, but those bent on doing good can present as great a threat to free speech and thought. Blaming words is a way to whittle stubborn social dilemmas down to a manageable size. It lets us feel like we're doing something, even if that something is investing symbols with the power to make the improvements that we can't. And feeling right and righteous among the like-minded is comforting and exciting, as anyone who has ever advocated a cause knows. So 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 remove books from 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 assaults the senses and talk that is so cheap it might as well be free because no one in his right mind would pay for it. The temptation to squash vexing speech comes in the specific instance too. When someone says something that upsets us, making 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 scare 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 a computer, we can turn it off or turn away. And still, words haunt. Underlying the intolerance of words is the fear, justified or manufactured, that our society is coming apart at the seams. Speech codes, cyberfilters, stamp-out-smut drives, 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.
Why Fight It?
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 that 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 mean, ugly epithets are a form of racism that interferes with people's 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 don't want to see or hear, but I still don't understand how anyone can believe that getting rid of pornography or off-color jokes will improve her life in any significant way. (On the other hand, equal pay for women, adequate health care, and universal literacy, to name just three concrete goals, would get us much closer to the feminist aims of fairness and groceries, and if we put the same effort into achieving these as we have into arguing over pictures, they might just come to pass.) Still, a lot of people do believe passionately that antiporn campaigns will help them, so I'm left to figure that they believe it 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.
Yet arguments for free speech must be made. Otherwise, it all comes down to who hollers loudest. Free speech gets defended on two fronts: for the principle and for the expression itself. When I can't bring myself to do the latter, I take refuge in the former; hence, my arguments with censorship are both philosophical and practical.
First, being able to speak our minds makes us feel good. 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 vastly more interesting than the systems designed to limit them. It's not hard to make a list of absurdities—I'm particularly fond of a rash of state laws that forbid the disparagement of agricultural products—but simplistic explanations and simple-minded responses are as dangerous as they are ditzy. In one of the few places that postmodern theory and common sense intersect, it is obvious that the meaning and perception of words regularly depend on such variables 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 democracy. Cloaking ideas and information in secrecy encourages ignorance, corruption, demagoguery, a corrosive distrust of authority, and an historical memory resembling Swiss cheese. Open discussion, on the other hand, allows verities to be examined, errors to be corrected, disagreement to be expressed, and anxieties to be put in perspective. 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. Opinions, tastes, social values, and mores change over time and vary among people. Truth can be a protean thing. The earth's rotation, its shape, the origins of humankind, and 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, especially for people whose lives are routinely limited, since the poor and politically weak are the censor's first targets.
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,31 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 its name. But hateful ideas by another name—disguised as disinterested intellectual inquiry, or given a nose job like Ku Klux Klansman David Duke before he ran for governor of Louisiana—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. 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 contribute much to debate, the pursuit of truth, self-knowledge, or the practice of democracy, the things the framers of the Constitution appeared to have in mind when they sought to safeguard expression. But banned words get replaced by equally offensive ones with a speed that makes our heads whirl. People who want to affront and wound will find a way to do so, no matter how they are constrained, and people who offend inadvertently (probably all of us at one time or another) can be corrected in other, less drastic and more constructive 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 antinudity ordinance in Florida that took 346 words to define buttocks, these statements are inevitably too narrow or too broad. More important, the decisions will always be made by people in positions of control, 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.
There may be much the founding fathers didn't anticipate about America two centuries later, 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. An anomaly in the mythology of our American selves, it allows us, on occasion, to win arguments with words and expressiveness instead of bank accounts and bullets. It doesn't set up an official truth, but it offers our best hope for getting to some public truth over time. The First Amendment is integral to forging the 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.
A character in a story by Grace Paley rails against dumbness, which she defines as "silence and stupidity." "By silence," Paley writes, "she meant the refusal to speak; by stupidity she meant the refusal to hear."32 The First Amendment may be a whistle in the dark of dumbness, but it is where we begin.
About This Book
As a principle and an aspiration, free expression is fundamental to a society that treats its members decently, but censorship is ultimately a transaction between people. When I reviewed a book several years ago, I found myself lamenting the shortage of stories about the people who had fought the free speech battles reported there. "Imagine the wonderful array of reasons!" I wrote, and then I began to imagine and to recall the stories I had heard, stories that added the human struggle to the theoretical one.
So I began to talk with people who had refused to let someone whittle away at their right to speak, think, create, or demur as they pleased. For this book, I chose the stories of twenty people, hoping they would be both emblematic and individually revealing. They tell of conflicts that were alarming, confusing, mean, or just plain silly, of fights that were never as straightforward as they seemed, of arguments in which many sides had a point and no one had a particularly good solution. While several of the controversies resulted in legal challenges, others make it clear that contemporary disputes over acceptable expression are broader than just what the law allows.
I approached these people wanting to know what they had learned and lost, what it felt like to be at the center of such a controversy, and why their words mattered enough to fight over. I wanted to find out at what point principles trump self-preservation and what happens when people stop being afraid. (When your politics and your self-interest coincide, a friend advised, it's a good idea to look at your politics. To which I might add, beware the man who is convinced he's right.)
The result is a series of portraits told primarily from the subject's perspective, though I sought to verify facts and acknowledge differences of opinion when significant. Taken together, the stories also form a larger picture of the United States and its laws, politics, and culture at a particular moment. I make no claim to speak for other countries, though I think the desire to express oneself unimpeded is widely shared. I'm leery of making sweeping declarations for this country too, since, if nothing else, these accounts illustrate how various Americans are in their thought and expression. I began this book with the working title "A Democracy of Voices" because I liked the way the phrase sounded, but that turned out to be exactly what I found. The voices don't always agree, among themselves or with me, which is as it should be. Democracy is messy, and these stories are meant to make room for the necessary contradictions.
In my talks with these people, I asked if they regretted the roles they had played, and over and over, the answer came back, no. Despite bureaucratic callousness, despite the expense (neither free speech nor censorship comes cheap), despite repercussions ranging from lost jobs to jail time to disrupted families and friendships, each person found relief, joy even, in fighting what felt like the right fight. At the risk of grandiosity, I would claim that they were fighting for democracy, not just in form, but also in practice, making their tales part of our long national conversation about what we mean when we talk about free speech.
A version of this introduction appeared as a paper in the Andy Warhol Foundation for the Visual Arts Series on Arts, Culture, and Society in August 1997.
1. John Stuart Mill, On Liberty and Utilitarianism (New York: Bantam, 1993), 17.
2. Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America (New York: Harper and Row, 1988).
3. This definition from Brandenburg v Ohio, 395 U.S. 444 (1969), supplanted Chaplinsky v New Hampshire, 315 U.S. 568 (1942), where fighting words were defined more broadly as words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace."
4. For a work to be legally obscene, it must be taken as a whole and, according to community standards, appeal to prurient interest; depict sex in a patently offensive way; and lack serious literary, artistic, political, or scientific value. Miller v California, 413 U.S. 15 (1973).
5. Falwell v Hustler, 485 U.S. 46 (1988).
6. Richard Chacon, "Tonics with Titillating Titles Test Limits of Good Taste," Boston Globe, February 28, 1997.
7. Transcript of press briefing by Ari Fleischer, September 26, 2001, retrieved December 12, 2002, from White House Web site: www.whitehouse.gov/news/briefings.
8. The broken windows theory, proposed by James Q. Wilson and George Kelling in 1982, gained visibility after it was embraced by the New York City Police Department as a rationale for cracking down on "quality of life" crimes. See James Q. Wilson and George Kelling, "Broken Windows: The Police and Neighborhood Safety," Atlantic Monthly, March 1982, 29-38.
9. Statement regarding FY 1997 appropriations by Thomas A. Constantine, Administrator, Drug Enforcement Agency, before House Appropriations Committee Subcommittee on Commerce, Justice, State, the Judiciary and Related Agencies, 104th Cong., 2d sess., May 1, 1996.
10. Jim Impoco et al., "TV's Frisky Family Values," U.S. News and World Report, 15 April 15, 1996.
11. Henry J. Kaiser Family Foundation, Generation Rx.com: How Young People Use the Internet for Health Information (Menlo Park, CA: Henry J. Kaiser Family Foundation, December 2001). The survey also found that of fifteen- to seventeen-year-olds who had gone online, 70 percent had stumbled across porn, but 55 percent of that group were not particularly upset by it.
12. "Rap Attack Back on Track," Newsletter on Intellectual Freedom (American Library Association), September 1996, 147.
13. SafeSurf, "Proposal for the Online Cooperative Publishing Act," presented at White House working meeting, July 16, 1997, retrieved July 20, 1997, from www.safesurf.com.
14. Ginzburg v U.S., 383 U.S. 463 (1966).
15. Catharine A. MacKinnon, Only Words (Cambridge, MA: Harvard University Press, 1993), 67.
16. Mari J. Matsuda, "Public Response to Racist Speech: Considering the Victim's Story," in Mari J. Matsuda et al., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, CO: Westview Press, 1993), 35.
17. The phrase comes from Oliver Wendell Holmes, Jr., who wrote in Abrams v United States, 250 U.S. 616 (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 didn't stand a chance in the market of World War I jingoism.
18. Thomas I. Emerson, Toward a General Theory of the First Amendment (New York: Random House, 1966), 23-25.
19. When the United States began bombing Afghanistan in October 2001, access of journalists to the fighting was limited, but three months later, the Pentagon officially disbanded its press pool system and permitted open coverage.
20. In response to the events of September 11, 2001, a provision in the USA Patriot Act again permitted federal agents to gather information from the reading records of library users.
21 See Richard Bolton, Culture Wars: Documents from the Recent Controversies in the Arts (New York: New Press, 1992).
22. Daniel Hackett, "Ricci Moves to Close Show of Erotic Art," Providence Evening Bulletin, May 16, 1978.
23. Edward J. Sozanski, "Crowd Shows up for Peek after Unfavorable 'Review,'" Providence Journal-Bulletin, May 16, 1978.
24. Before it stopped counting in 1996, People for the American Way documented record highs of 137 challenges to artistic freedom in 1995 and 475 challenges to educational material in the 1995-96 school year.
25. In 1991, 39 percent agreed; in 2000, 22 percent agreed. First Amendment Center, State of the First Amendment 2001 (Nashville, TN: First Amendment Center, 2001), 11.
26. R.A.V. v St. Paul, 505 U.S. 377 (1992).
27. Louis Menand, "Illiberalisms," New Yorker, May 20, 1991, 104.
28. U.S. Department of Education, "Getting There: A Report for National College Week," November 1999, retrieved December 11, 2002, from U.S. Department of Education Web site: www.ed.gov/pubs/CollegeWeek. Statistics are for 1997.
29. Higher Education Research Institute, "The American College Teacher: National Norms for 1998-99 HERI Survey," Executive Summary retrieved December 16, 2002, from www.gseis.ucla.edu/heri/press_faculty.htm.
30. Daphne Patai, "There Ought to Be a Law," William Mitchell Law Review 22, no. 2 (1996): 124.
31. According to a 1992 review of hate speech laws worldwide conducted by the free speech organization called Article 19, such laws had little connection to lessening ethnic or racial violence or tension. See Sandra Coliver, "Hate Speech Laws: Do They Work?" in Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination, ed. Sandra Coliver (Essex, England: Article 19 and Human Rights Centre, University of Essex, 1992).
32. Grace Paley, "Midrash on Happiness," Index on Censorship, March 1990, 19.