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OutspokenFree Speech Stories
By Nan Levinson
University of CaliforniaCopyright © 2003 Nan Levinson
All right reserved.
IntroductionA 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.
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. 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"; and obscenity, currently judged by a three-part test known as the Miller Standard. (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." 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."
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." 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. 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." 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, 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." 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."
Add to this concerns about the sheer mass of stuff coming at us online.
Excerpted from Outspoken by Nan Levinson Copyright © 2003 by Nan Levinson. Excerpted by permission.
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