[From the PIC Newslwtter February 1995, Volume III, issue ii]
In his column last Christmas Eve, Joe Bob Briggs defined free-speech advocates as "People who think you oughta be able to say, print, broadcast any dang thing you want to, any TIME you want to, without the government sayin' diddly squat about it." Like Joe Bob, I'm a free-speech advocate. And I've long wrestled with the question: Are there legitimate limits to freedom of expression?
No limits whatsoever are specified by the First Amendment of the US Constitution, which simply states "Congress shall make no law...abridging the freedom of speech, or of the press." Courts, including the Supreme Court, have taken a very different view and have created a long and ever expanding laundry list of First Amendment "exceptions." No coherent theory, however, provides any rational basis for this list. Many "exceptions"--such as the one for obscenity--reflect nothing more than the personal prejudices of judges.
Historically two arguments have been used to justify censorship. One: some materials are just too "extreme"--too obscene, too offensive, too distasteful, too racist, too homophobic, too sexist, too at variance with "community standards"--to be allowed to exist, even if such materials are viewed or read exclusively by people not offended by them. The assumption is that people not offended are so "sinful" or so "sick" that they no longer possess basic human rights. This approach--favored by conservatives, but popular with liberals as well--has been very successful in suppressing and censoring the speech of all sexual minorities.
The second argument: certain materials cause harm either directly, by "corrupting" those who read or view them, or indirectly by "causing" those who read or view them to harm others. This justification is more favored by liberals, but conservatives use it as well. For many years, the direct-harm argument was the main one that was used to suppress sexual material. According to the Hicklin doctrine, formulated in England in 1868, the state had the right to suppress obscene material, which had a "tendency" to "deprave and corrupt those whose minds are open to such immoral influences." Contemporary censors prefer the indirect-harm argument. The problem with such materials--according to Andrea Dworkin, Catharine MacKinnon, John Stoltenberg, and their devout followers--is not that such materials "corrupt" the innocent but that they "drive" men to rape and murder defenseless women and children. Liberals also employ the indirect-harm argument in their ill-considered moral crusade against fictional depictions of violence.
No believer in free speech can consistently support either of these "justifications." For one thing, who decides what is too "offensive"? Who decides which materials are "harmful"? Enforcement of censorship necessarily empowers a segment of society to screen materials for society as a whole. This may seem "democratic" if the censors claim to represent the "majority." This, after all, is the justification for enforcing "community standards." But civil rights are not the exclusive property of the majority--minorities have the same rights. Moreover, censors in fact represent not majority values but rather the values of the powerful.
When I was a kid, I was always perplexed by the notion that an exception could "prove" a rule. Someone finally explained that an exception that "proves" a rule is an apparent exception that turns out not to be an exception after all. It's an exception that tests a rule. Free speech, I believe, is subject to certain limiting principles. But, if these principles are exceptions, I hold that they are exceptions that prove the rule. The four principles: (1) freedom of speech is not freedom of action, (2) those injured by deliberate lies may have a legal right of redress, (3) no one is privileged under the First Amendment, and (4) there is no right to steal.
Freedom of speech differs from freedom of action. But speech and action are so closely interwoven in human behavior that it's not always immediately obvious which is which. Thus it's not surprising that we often criminalize speech as well as, or even instead of, the action that it accompanies. This is a mistake. Consider, for example, the apocryphal "snuff" movie. (I say apocryphal because, in my years of anti-censorship activism, I've encountered no credible evidence that such things actually exist. I believe that they're as much a myth as "Satanic ritual abuse.") A "snuff" movie, by definition, would entail murder. Therefore, someone who made a "snuff" movie should be prosecuted for first-degree homicide.
You can not decriminalize an act by adding a speech element to it. Abusing a child, for example, is a crime. Photographing the act does not make it less of a crime. (The child-pornography analogy, of course, is misleading. When most people imagine child pornography they visualize pictures of children being raped. According to Congress, the Justice Department, and the Courts, however, any photograph of any person under 18, clothed or unclothed, can be prosecuted as child pornography if the government decides to harass you.) Linked speech and action are not always concurrent. Consider, for examples, conspiracies, bribes, or threats. (I'm talking about credible conspiracies, bribes, or threats. I'm not talking about a parent who says, "Stop making that racket or I'm going to wring your neck.") In these cases, the criminal act occurs later in time than the associated speech. Sometimes, speech is a direct and immediate incitement to action. As Alan Dershowitz points out in his 1989 Atlanta Monthly essay "Shouting Fire!", "The message `Fire!' is directed not to the mind and conscience of the listener but, rather, to his adrenaline and his feet. It is a stimulus to immediate action..the shout of "Fire!" is not even speech, in any meaningful sense of that term. It is a clang sound, the equivalent of setting off a nonverbal alarm. Had Justice Holmes been more honest about his example, he would have said that freedom of speech does not protect a kid who pulls a fire alarm in the absence of a fire." Inciting a frenzied mob to rioting or lynching is somewhat analogous. The Supreme Court, to its credit, recognized in 1969 in Brandenburg v. Ohio that speech advocating violence is protected unless the speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Limiting freedom of action is clearly not an exception to the First Amendment. Endless debate is possible, of course, over what constitutes speech. Some conservatives, for example, believe that images have no First Amendment protection. I personally believe that individual freedom should be maximized and that speech must be interpreted as broadly as possible.
As a fiction writer, I certainly defend the right to lie. Reasonable people (who become scarcer every day) know that fiction is not literally true. But even outside the sphere of fiction the best weapon against lies is the truth. In reality, fighting lies with the truth is often difficult because wealth and power is so unfairly distributed within our society. In some instances, therefore, it is morally defensible for the state to help weaker parties redress injury caused by deliberate lies.
The relation between information and action must be clearly understood. Information never "causes" action. Information belongs to a different universe of discourse than matter and energy. Information cannot be measured in units of mass, energy, or any other physical characteristic. Information thus has no direct physical effect. Our brains process information. We evaluate information and make decisions. These decisions lead to action. The process, of course, can be short circuited. When we respond instantly to someone shouting "Fire!" we have not processed fire as information. We've responded to a stimulus, using primitive parts of our nervous systems. Information processing, like stimulus-response reactions, evolved because it helps us survive.
Give people false information and they may make terrible decisions and do terrible things. People, of course, have a responsibility to be skeptical. People should be very wary, for example, about believing anything they read in the Weekly World News or The New York Times. But sometimes reasonable people believe lies and innocent people are injured as a result. In such cases, it's reasonable to grant people a legal cause of action. Both civil and criminal penalties may be appropriate. That's why we have laws against libel, slander, fraud, false advertising, and falsely shouting "Fire!".
I don't, however, under any circumstances support laws against "dangerous" books, regardless of the amount of misinformation they contain. For example, this issue of The PIC Newsletter contains two articles about the dismissal of a lawsuit against the authors of a book called The Courage to Heal. Many people believe (I am one of them) that this particular book abounds in false information that has caused, and will continue to cause, immeasurable harm. (I don't believe, however, that the authors' intent was malicious: I give them the benefit of the doubt and presume that they believe what they've written and that their intent was to help people, not to hurt them.) Although I disagree vigorously with it s content, I believe absolutely that The Courage to Heal is protected by the First Amendment.
The limits-to-lying argument, of course, can be taken to absurd extremes. Examples of this are attempts to ban speech that "libels" groups, not individuals. If you permit this, it could become illegal to criticize any group whatsoever--even (or especially) Republicans. Another absurdity is the claim of anti-pornography activists that pornography should be banned because it "defames" women or tells men that women want to be raped. (Some pornography, of course, assumes that women enjoy sex and some censorship advocates--such as Andrea Dworkin--believe that intercourse and rape are equivalent.) But pornography is fantasy and is not taken literally by reasonable people. As for unreasonable people, who knows what can set them off?
I'm unsure whether permitting victims of malicious lies legal redress is an "exception that proves the rule" or a true First Amendment exception. I don't support any form of prior restraint. And sanctions against lying are not content based. That is, truth or falsehood is not a form of "content" but rather a relationship between speech and reality. Nevertheless, permitting legal redress for lying certainly has a "chilling" effect, and this chilling effect can in some instances constitute censorship. In Britain, for example, it is much easier to sue for libel than it is in the US. I much prefer the more stringent libel requirements that exist in America.
Advocates of censorship--such as Catharine MacKinnon and Pat Robertson--reject the principle of equality. They believe that a certain segment of society, by virtue of its moral superiority, should have the power and privilege of controlling access to information for society as a whole. Free-speech advocates, on the other hand, believe that people should decide for themselves which books to read, which movies to view, which images to observe, and what recordings to listen to. MacKinnon cleverly argues the contrary--that equality dictates censorship to curb abuses by the powerful. What she refuses to acknowledge is that whenever a censorship mechanism is established it is always used by the powerful to silence the powerless and not the other way around.
Although some people in our society are without doubt unfairly privileged, a free-speech advocate must hold to the principle that no one is privileged under the First Amendment. No one can validly use their free-speech rights to silence another. A simple example of this is that shouting down a speaker is not a legitimate exercise of First Amendment rights. (Falsely shouting "Fire!" in a crowded theater abridges the First Amendments rights of both the actors and the rest of the audience. Unless it's in the script.) Free speech is a right, not a privilege: it belongs to all of us equally.
The right of choice belongs to both producers and consumers of speech. I have the right to choose what I read, what I listen to, what I watch. I also have the right to choose not to read, not to listen, not to watch. No one has the unlimited right to impose unwanted speech upon another.
For example, I have noisy upstairs neighbors who sometimes play their music so loudly that my apartment literally shakes. At times like that, even though I'm a First Amendment absolutist, I go upstairs and ask them to turn it down. They have no right to invade my personal space and force me to listen to their awful music. As another example, I have joined with several others and am suing the Massachusetts Bay Transit Authority to try to stop them from permeating the entire subway system with TV monitors blaring commercial messages. If a billboard in a station offends me, I simply walk away. But you can't move away from one of those monitors without encountering another one.
In our suit against the MBTA, we're using a principle enunciated by no less a First Amendment absolutist than the late Justice William O. Douglas in the 1949 case of Public Utilities Commission v. Pollack. In his opinion, Douglas states "The right to be let alone is indeed the beginning of all freedom." The Pollack case involved an attempt to impose audio messages upon a streetcar audience. Douglas argued that a "streetcar audience is a captive audience...there as a matter of necessity and not by choice." Douglas also said: "One who enters any public place sacrifices some of his privacy. My protest is against the invasion of his privacy over and beyond the risks of travel."
In applying the captive-audience principle, several relevant questions suggest themselves: Has the unwanted speech invaded personal space? Can one move away from the offending speech without incurring an unacceptable cost for doing so? Does one have the opportunity to respond to the offending speech without risking unjust retribution?
Clear examples of unwanted speech imposed upon an unwilling audience are verbal abuse and sexually harassing speech. If either of these, of course, are accompanied by actions (usually the case), we are no longer dealing with instances of pure speech. But the captive-audience principle is relevant if the unwanted speech invades personal boundaries or permeates an environment--such as the workplace--where one is by necessity and not by choice. Unfortunately, the captive-audience doctrine is seldom employed in cases of harassment, and, when it is, it's often employed inappropriately.
For example, here in Massachusetts the Supreme Court is considering a suit of sexual harassment brought by a social worker named Patricia Bowman, who was running for president of her union. David Heller--a long-time political enemy and supporter of Bowman's opponent--satirized her campaign literature by making tasteless collages that appended Bowman's head to nudes found in Penthouse and Hustler. Heller made seven copies, which he showed to allies. After the election, a Bowman supporter obtained copies of the collages and showed them to Bowman, who subsequently sued Heller. Part of Bowman's argument is that the collages were shown to people in the workplace and that the workplace is a captive environment. But there was no imposition of the collages upon anyone who chose not to view them, nor was there any permeation. Also, although Heller had battled Bowman for years, this was the only time he'd ridiculed her with sexually explicit images. (The NWU joined other civil-libertarian groups in signing an amicus brief that argues the First Amendment issues in the Bowman case.)
Rather than use the captive-audience doctrine, courts have unfortunately relied upon the vague and dangerous hostile-environment principle, originally stated in Title VII of the Civil Rights Act of 1964, upheld by the Supreme Court in the 1986 case of Meritor Savings Bank v. Vinson, and reaffirmed in 1993 in the case of Harris v. Forklift. According to this principle, harassment includes anything that creates a discriminatorily hostile or abusive working environment. The problem with the "hostile environment" principle is that people apply it to anything they see or hear that they don't happen to agree with or to like. In November of 1991, for example, Professor Nancy Stumhofer of Penn State University complained that a reproduction of Goya's Naked Maja hanging on a wall of the Schuylkill campus music room constituted sexual harassment. She was vigorously supported in this absurd claim by a Penn State Commission for Women committee and the director of the university's Affirmative Action Office. The painting came down.
Although the Harris decision was unanimous, Justice Anthony Scalia voiced a cautionary comment in his concurring opinion:
Abusive (or hostile, which in this context I take to mean the same thing) does not seem to me a very clear standard--and I do not think clarity is at all increased by adding the adverb objectively or appealing to a reasonable person's motion of what the vague word means.Equality under the First Amendment is in no way an exception to the First Amendment. And using this principle helps us avoid the trap of inventing bogus rights--the right not to be offended, the right not to have one's feeling hurt, etc.--that somehow must be "balanced" against the inalienable right to free speech.
I am a free-speech absolutist and I also strongly defend intellectual property rights. My right to free speech does not permit me to steal words that belong to another and treat them as my own. Thou shalt not plagiarize. Thou shalt not violate copyright. Thou shalt not sell your employer's trade secrets to his or her competitors.
Although I've some sympathy for the notion that "property is theft," I don't believe that this in any way applies to intellectual property. That which I create--especially that which I create entirely within the realm of imagination and information--belongs to me, unless I contractually transfer ownership to another. The right to own your own words and ideas is as fundamental as the right to express them. Also fundamental is the right to be paid for expressing them. (In the words of Samuel Johnson, "No man but a blockhead ever wrote, except for money.")
At times, freedom of expression and intellectual-property rights come into apparent conflict. A recent example was the LaMacchia case, discussed in The PIC Newsletter (June 1994). A 20-year-old MIT junior, David LaMacchia, was indicted on one count of conspiracy to commit wire fraud because he ran a computer bulletin board, Cynosure, and it was alleged that Cynosure users used the BBS to exchange copyrighted software. The case was thrown out of Court by the judge who stated that what had happened was not covered by existing law. Although I don't support copyright violation, I believe that charges should be brought directly against the perpetrators and that computer communication systems are "common carriers" and their operators should be indemnified against criminal activity by users. As LaMacchia's attorney, Harvey Silverglate, said in the response to the indictment, "this case raises the hotly disputed question of whether the operator of a `common carrier' may be held criminally responsible for the manner in which others use his communication system."
As a writer, I'm allowed to use words belonging to another if I do so according to "fair use" guidelines. For example, in this article I've so far quoted Joe Bob Briggs, Alan Dershowitz, William O. Douglas, Anthony Scalia, Samuel Johnson, and Harvey Silverglate. I attributed each quote to the appropriate author. Furthermore, the quotes from Scalia, Douglas, Johnson, and Silverglate are in the public domain. Brief quotes, such as the ones by Briggs and Dershowitz, qualify as fair use. As Gerard Colby points out elsewhere in this newsletter, rich and powerful people can use copyright law to harass writers even when there's no violation of the principles of fair use.
Recently, there've been some outrageous examples of this kind of censorship. The Church of Scientology, through its attorneys, has been threatening systems administrators with lawsuits for carrying internet newsgroups that discuss (and criticize) Scientology. The lawyers are alleging that some messages posted in these newsgroups infringe Church of Scientology copyrights or intellectual property rights.
Another particularly outrageous instance was recently perpetrated by media mega-mogul, Ted Turner, and reported in the February 6 edition of Newsweek. (The Turners--whose greed is approximately infinite--are now salivating over the prospect of even more obscene profits with the anticipated demise of the Corporation for Public Broadcasting.) Turner, it seems, demanded that Salman Rushdie remove two lines from a story called "The Courter" from his recent collection, East, West. The lines?
"Flintstones! Meet the Flintstones!Turner, it seems, owns (in addition to approximately half the known universe) the rights to the Flintstones theme song. When Rushdie was informed of Turner's request, he asked "If I quoted these lines, somebody would shoot Fred Flintstone?"
They're the modern stone age family."
This short essay is far from the final answer to the original question: Are there legitimate limits to freedom of expression? But I hope that the four stated principles might at least provide a rational way of structuring discussion. (Within each of the four areas, of course, there is much for intelligent and reasonable people to disagree about passionately.)
My own thinking on the question will, I hope, continue to evolve. I haven't always been a First Amendment absolutist and sometimes I forget that I once took very different positions. (The question of hate speech, for example, was particularly challenging for me.) We often find it difficult to be tolerant when we hear others express opinions that we formerly avowed but later abandoned. But it's only by embracing and abandoning positions that we intellectually grow. As Emerson said, "A foolish consistency is the hobgoblin of little minds..."
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