As Madonna ineffably puts it,
Freedom of speech is
as good as sex.
Well, not according to Nat Hentoff. After spending decades tracking violations of the First Amendment and exposing them in such publications as The Village Voice, The Washington Past, and The New Yorker, Hentoff is now convinced that the Iust to censor is far stronger than the desire for free speech or sex.
In Free Speech for Me--But Not for Thee, Hentoff examines dozens of cases of censorship during the last ten years or so, among them, the removal of Huckleberry Finn from the required reading list at Mark Twain Intermediate School (Fairfax county, VA), the censoring of sexist language by editors at NCTE Publications, the refusal of publishers and distributers to send books to South Africa, the use of the Racketeer Influenced and Corrupt Organizations Act (RICO) to suppress nonviolent protesters, the censoring of "abortion-speak" in federally subsidized clinics, the heckling of William Shockley at Yale (1974), the intimidation of politically incorrect students and teachers, the ejection of Playboy from Bette's Ocean View Diner, etc.
What these and other cases dramatically demonstrate, according to Hentoff, is that "free expression"--the freedom that underlies all our other freedoms--is under attack as never before. Alarmingly, most of these recent attacks aren't emanating from some centralized authority but from people and groups across the political spectrum. But Hentoff's book does not round up the usual suspects--barely literate, Bible-thumping yahoos from Tupelo, Mississippi. Instead, it focuses on "decent people" (read liberals) who ban speech for the "common good." Coming from a socialist background where the First Amendment was fiercely defended, Hentoff is clearly stunned by the fact that "liberals" have become "The Thought Police--With the Very Best of Intentions." The book's subtitle is therefore somewhat misleading. Although Hentoff does include some depredations of free speech by government agencies, his real concern is with how the "orthodox theology of the Left" imperils free speech.
This "well-intentioned" assault on free expression flows from, and is meant to enhance, "compassion" and "sensitivity." As far back as 1974, a Yale student upset that William Shockley was to debate on campus complained that he was "dismayed" by this "lack of sensitivity to others" and advised that the "feelIngs and dignity" of students should not be "sacrificed" "on the altars of freedom of speech and academic freedom." This view--now sanctioned in campus harassment codes that punish any expression that "stigmatizes" or "offends" designated "victim" groups--is quickly spreading throughout the culture. Huckleberry Finn has been removed from required reading lists because it is "morally insensitive" (22). A law professor was hauled up on charges after correcting the pronunciation of a black student. Show Boat was recently attacked by some Afro-American groups because it sympathetically but unflatteringly portrayed blacks in the age of steamboats as poor and oppressed. A male student who used "Dave Stud" to illustrate a point in his paper was threatened by his female TA with a sexual harassment charge. A student who called inconsiderate blacks students "water buffalo" was charged with having uttered a racial epithet violating harassment codes. A satiric cartoon portraying politicians as fat, greedy hedonists was removed from a gallery when a "woman of size" complained that it insensitively equated greed with fatness. A painting of a nude by Goya was removed from a classroom when a female professor claimed it was a form of sexual harassment. A professor who invited racists to address his class on tolerance and intolerance was attacked by administrators, colleagues, and students (not the ones in his class) for giving a forum to racist and insensitive speech, apparently something not to be tolerated from a professor who teaches about tolerance. Ray Bradbury's premonition in Fahrenheit 451 that freedom of speech would be whittled away not by the government but by contending ethnic and ideological groups each tryIng to curtail "offensive" speech is coming true.
More alarming is the fact that academic intellectuals, including law professors, are providing the theoretical justification for this assault on the "uncompassionate" First Amendment. Stanley Fish, for instance, has argued that "There's No Such Thing as Free Speech, and It's a Good Thing, Too." "Compassionate" and "sensitive" law professors have argued that free speech has been unjustly privileged over other and equally important rights, such as the "right" not to be offended. A law professor at the University of Oregon, for example, has argued in The Chronicle of Higher Education that our fixation on First Amendment rights is dysfunctional and deranged. Another "liberal" professor believes that "we don't put as many restrictions on freedom of speech as we should" (158). Law professors have even justified blatant double-standards, maintaining that women and certain minority groups should have more free speech than "those in power" (read white people, 171). Indeed, the left-wing National Lawyers Guild attacked the ACLU for its "poisonous evenhandedness" in defending the free speech of racists (256). At one law school, students and professors would not debate in Moot Court hypothetical arguments that offended their convictions and presumably posed a threat to society (205). Clearly, these forward-thinking legal radicals have one thing in common with right-wing Puritans and other coercers: the conviction that freedom of speech is not in the best interests of this country (248). Hentoff puts all this in perspective by quoting Arthur Gilbert, a justice on the Second District Court of Appeals in Ventura, California:
the Bill of Rights was enacted just so that politically incorrect points of view could be expressed. If lawyers become intimidated by enforcers of correct thought, then we are in big trouble.... If lawyers forget this, we will ultimately have a society where ideas are crimes. Fahrenheit 451, Brave New World, and 1984 will have been written in vain. (215)
Though these sensitive censors are convinced that they are working for an undeniable good and that their opponents raise the issue of free speech to cover their own racism or sexism, Hentoff argues persuasively that speech and harassment codes hurt the very people they desire to protect. Although the primary purpose of such codes is to make black and other (selected) minority groups feel more at home on campus, the codes exacerbate racial tensions. In one case at the University of Michigan, the anti-harassment statute was actually invoked by a black professor to punish a black student who said he had heard that minority students weren't treated even-handedly in the professor's class (179). Speech codes, Hentoff contends, also seduce women and minorities into seeing themselves as "fragile victims" easily wounded by even unintended slights. The politics of victimization "is not the way to learn empowerment" (229). An essential part of education, as deconstructionists have shown, is to learn to demystify language, "to strip it of its ability to demonize and stigmatize" (161). The way to deal with bigoted language, Hentoff contends, "is to answer it with more and better language of your own."
Hentoff argues throughout Free Speech for Me--But Not for Thee that freedom of expression is "indivisible" and that one person's loss of freedom threatens the freedom of others. When free speech is not extended to white racists, it will eventually not be extended to black racists, and then to others who offend the tender sensibilities of the thin-skinned. If radical feminists (holding hands with Edwin Meese) can suppress the dissemination of Playboy and Penthouse, then somebody else can suppress the dissemination of Our Bodies--Our Selves and the lesbian erotic magazine Bad Attitude. If feminists can shut down Andrew Dice Clay because he "tends to promote hate against women," then Iron Johns can stop Andrea Dworkin because she is hostile to men (168). Hentoff quotes Jane Callwood's words of warning to The Feminist Thought Police:
Mistrust of civil liberties reveals a lack of historical perspective. The freedom enjoyed by today's feminists owes everything to civil liberties groups who fought for the right of marginal organizations and minorities to disagree with the majority.... Feminism and civil liberties are inextricable. The goal of both is a society in which individuals are treated justly. Civil libertarians who oppose censorship are fighting on behalf of feminists, not against them. (352-53)
Once you begin to exclude some forms of discourse on the ground that they are wrong or offensive, Hentoff warns, you start in motion a process that inevitably ends up justifying suppression of the unpopular ideas of unpopular minorities. It is fanciful to think that bigots cannot beat you at the game you have begun. They always have and they always will (208).
Hentoff recognizes that a truly liberal commitment to free speech is painful, arduous, and antithetical to the instincts of human nature. In the words of Donald Kagan,
The truth is that hardly anyone really believes in free speech. We all believe in it for ourselves, for those who agree with us, and some of us, oven for those who don't disagree too much. But we are generally not eager to defend the rights of those whose views trouble us, or frighten us, or threaten us. That is natural, and the founding fathers, in their wisdom, knew it. They knew that a free government required freedom of speech and that the majority could not be trusted to protect the freedoms of unpopular individuals or groups.... Freedom of speech cannot survive unless it is rigorously protected by law, defended by the established institutions of society and their officers, and devotedly cherished by the citizens who understand its importance. (113)
Because the principle of free speech does not come naturally, Hentoff explains, it must be taught. Most American kids
are ignorant of their history as a free people. They know very little of what's in the Bill of Rights and the Fourteenth Amendment, and they know less of what it took to secure these liberties and rights. And if they leave school with such ignorance, they are hardly likely, as adults, to fight to preserve their own liberties--let alone anyone else's. (356-57)
Hentoff believes that schools must "train people in how to deal with free speech" (164), must offer them "gentle instruction" in the history and logic of free speech in this country if free speech, and the country, are to endure.
Free Speech for Me--But Not for Thee is a stirring, courageous, and, at times, thought-provoking book, sure to quicken the reader's commitment to freedom of expression at a time when the contending armies of the culture war are hacking it to pieces. But it is certainly not a penetrating examination of the thornier problems that test the limits of free expression in a postmodern society-of- the-spectacle.
Part of the problem is that Hentoff relies, as most traditional civil libertarians do, on a set of words and concepts that have long ago outlived their usefulness as analytic tools. Take the word "censorship." It no longer has any denotative significance; it is always a "bad" word, never a "good" one. As James Hunter points out in Culture Wars, "the cry of censorship from both sides of the cultural divide, then, becomes an ideological weapon to silence legitimate dissent" (246). We need more neutral terms to replace "censorship," "banning," "suppression," etc., if we are to really understand why the First Amendment is now under attack as never before.
Other terms that strike me as both otiose and misleading are "speech" and the "market place of ideas." Both terms conjure up democratic images of two people standing before an audience deliberatively debating important social issues, as Lincoln and Douglas debated slavery. Only in this ideal forum can Hentoff's antidote of "counterspeech" shine "a pitiless verbal light on the lies and distortions and sheer meanness" of hate-talk.
But in what sense is "counterspeech" an effective strategy for dealing with hate-TV, with movies that glorify drug addiction or serial killing, with ad images that sexualize children, with epithets screamed by a mob, with the scatology of shock radio, with imposed school texts that portray offensive or dangerous sexual behavior approvingly, and with the Primitive Baptist minister who pickets funerals of gay AIDS victims with a sign proclaiming "God Hates Fags. Romans 9:13"? Should offended mourners carry their own signs proclaiming "No, God Loves Fags"? Or should this minister be legally prevented from antagonizing and assailing these grieving people?
I suspect that people (of all political persuasions) are now attacking ads, movies, TV programs, school texts, etc., precisely because "counterspeech" is ineffective in combating what is perceived to be the baneful influences of these powerful forces, precisely because these mass-media messages drown out even the most cogent rebuttal.
Hentoff describes himself as a "free-speech absolutist" in the tradition of Justice Hugo Black, who said "my view is, without deviation, without exception, without any ifs, buts or whereases, that freedom of speech means that you shall not do something to people either for the views they have or the views they express or the words they speak or write" (390). I find the term "free-speech absolutist" troubling on several counts. Taken literally, it suggests that Hentoff would oppose any and all efforts to suppress, restrict, or curtail any information at any time, that he would allow anything to be said, published, displayed, or performed any time any where for any one. This position, of course, is socially suicidal. As Orrin Klapp has made very clear in his book Opening and Closing: Strategies of Information Adaptation in Society (1978), all societies must control--limit, restrict, provide access to--all kinds of "information." They do this "successfully"--that is, within suitably adaptive boundaries (depending on the needs and nature of the particular society)--by using both opening and closing strategies. No person, group, or society can exist with everything in the open. Every person, group, and society closes to some information at some times; closing, just as much as opening, is part of the rhythm of life and a strategy for personal and social survival.
Hentoff's "absolute" and programmatic commitment to opening, to "full exposure," and to the breaking down of taboos and the defrocking of all pretentions of "respectability," aligns him with the progressivist cultural orientation that more and more social commentators, from both the right and the left are seeing as a contributing cause of our social decline. For instance, in Culture Wars, James Hunter urges "absolutists" from both camps to recognize the inherent weaknesses, even dangers, in their moral commitments and convictions. He admonishes progressivists in particular for refusing to talk about "the limits or boundaries of the acceptable and the unacceptable," to articulate "the constituent elements of the public order." Among specific groups chastised by Hunter are "staunch advocates of free speech," who avoid confronting
the ways in which their personal rights and professional obligations might be constrained by certain codes of civic responsibility or community obligation.... The libertarian emphasis on rights and personal autonomy can only lead to the conclusion that constraints are arbitrary. Thus, the very ideal of "limits" must be relegated to the realm of personal inclination, of decisions individuals make about their own lives. In any case, the argument goes, such limits certainly cannot or should not be imposed upon public and collective life for to do so would place the very traditions of personal freedom in America in jeopardy. The problem, of course, is that collective life by definition ceases to exist without some agreed upon standards defining what the community or nation will embrace and what it will eschew and in both cases, why. (322-23)
Although "absolute" positions are simple and ostensibly "pure," they can be socially destructive, as John Sparrow has explained in Too Much of a Good Thing (1977). His essay on "Liberty" makes clear that freedom is best achieved through a delicate balancing of individual rights with the legitimate needs of the social order.
If the term "free speech absolutist" is not to be taken literally, as I have done, then Hentoff is faced with the same problems everyone else is faced with: where to draw the lines of the permissible and impermissible (including speech and expression). Hentoff may want to draw them as expansively as possible in the interest of social survival and health. But others may want to draw them a little, or a lot, more narrowly for the very same reason. We are constantly negotiating--through a variety of strategies and venues--what is to be permitted and not permitted. Unfortunately, we can never know at the time whether drawing the line here and not there, or there and not here, will help or hurt the ability of society to endure and thrive in the long run, an unsettling fact even free-speech absolutists can't avoid confronting. Although the First Amendment is constantly referred to as a way to "settle" these line-drawing disputes, it does not tell us where to draw these lines, we tell it. Save for his programmatic commitment to "free speech," Hentoff does not provide us with cogent principles that could guide us in future disputes about what forms of expression should and shouldn't be permitted.
What Hentoff is unwilling to recognize is that we are undergoing a paradigm shift in our thinking about free expression. The standard argument in support of free speech is that while harmful actions should be punished, "hurtful" words and expressive images are the coin of opinion and thought and so deserve protection. Words and gross images may anger and offend us, but they cannot "hurt" us. But this position has been severely weakened during the last thirty years. The shift began, perhaps, with the publication of Rachel Carson's The Silent Spring (1962). Carson's book explained how apparently isolated and innocuous acts affect the natural and social systems we live in. It thus introduced the average American to what the biologist Garrett Hardin calls "ecolate" thinking, thinking that takes into account the multifaceted and various effects actions have on systems and sub-systems.
Ecolate thinking is now being applied by both conservatives and liberals to our "cultural environment." Both sides now justify their efforts to restrict this or that form of expression in ecolate terminology. For example, the radical feminist editor of Peace magazine (Canada) explicitly connects her efforts to restrict all depictions of violence to the ecolate awareness driving environmentalism:
Displaying violence in the common space violates my human rights, just as smoking in the common space violates my rights as a nonsmoker. There is nothing undemocratic about combatting air pollution or the pollution of a common cultural space. I wish I could defend my rights through simple appeals to the custodians of public spaces. Unfortunately, more seems to be required because only the most conscientious cultural gatekeeper will respond to complaints. Must we turn to law to ban the public portrayal of physical violence, as we turned to law to ban smoking in common closed spaces? The defence of civil liberties does not preclude protecting the quality of our public life.
We are relentlessly censoring each other because, to put it simply, most Americans now subscribe to Richard Weaver's famous dictum that "ideas have consequences," and we want to protect ourselves from those with harmful consequences. Catharine MacKinnon and Jesse Helms are cozy anti-pornography bedpartners because both believe that certain utterances, images, stories, movies, magazines, songs, etc., are not just "obscene" or "immoral" but make some people do hurtful things to other people. It is not just that certain words are deemed "hurtful," a bogus argument that is dismantled by Jonathan Rauch in his incisive book Kindly Inquisitors, but that the messages of some fictions contribute to causing injurious behavior. Although it is almost impossible to track the ways in which and the degrees to which a given fiction or media "message" may have contributed to a specific crime, this "harmful-effects" sanction for suppression makes Hentoff perceptibly edgy, and it should. In an effort to beat down this challenge, Hentoff quotes several experts who say there is no "conclusive" evidence that pornography results in antisocial effects (347), a denial that sounds disconcertingly like boilerplate from the tobacco industry. And what if there were evidence that pornography did help cause criminal acts?
As our recent debate about violent fictions makes increasingly clear, Americans know that images, symbols, books, movies, TV programs, etc., have both positive and negative effects (though in some cases these effects are hard to detect and to agree upon). So, what are we to do about cultural productions that are harmful to society? How are we to deal with songs that advocate the killing of police, that celebrate the imagined murder and posthumous rape of a white woman who pleads for her life? The notion that if one doesn't like it, one doesn't have to listen (or read or see) is nugatory because such cultural productions affect us by affecting those around us. That's why people are doing whatever they can to protect themselves and others from what they perceive to be the harmful effects of certain movies, books, paintings, photographs, ad images, etc. Applying ecolate thinking to culture, people are no longer willing to Iet the cultural elite (and others) pump toxic messages into the cultural environment in the name of "free speech."
There is no escaping the fact that liberal, conservative, and communitarian cultural critics are saying that if we are to rescue American society from its slide into increasing dysfunction, we are going to have to draw the lines of what is and is not permissible more narrowly than we have drawn them in the past few decades. The task that confronts civil libertarians and defenders of free speech is to devise far more accurate and subtle measures of harmful effects than mere personal offense and dislike and to develop a range of restrictive strategies that preserve the most generous portion of freedom compatible with social survival. Unfortunately, such crucial matters are not satisfactorily addressed in Free Speech for Me--But Not for Thee.