Democracy and the Problem of Free Speech. - book review

Public Interest, Wntr, 1994 by Walter Berns

THE WORLD HAS never had a good definition of liberty, and the American people, just now, are much in need of one." What Abraham Lincoln said in 1864 about liberty in general can be said today about liberty or (in the words of the First Amendment) freedom of speech: we are very much in need of a good definition. That wasn't thought to be true a generation ago. Then--it seems like only yesterday--civil libertarians were confident that the Supreme Court had seen the errors of its ways and that there would be no more punishing of "mere speech," that is, ideas or advocacy at some remove from act or deed, Communist Party speech for example; and, while unhappy with the Court's exclusion of obscenity from the protection of the First Amendment, they had no reason to complain of its definition of the term. That definition guarantees that almost nothing is punishable because, however prurient, disgusting, vulgar, foul, filthy, lurid, lewd, or lascivious, almost nothing is obscene in the eyes of the law. The principle governing the disposition of speech cases was (and officially still is) the one originally propounded by the venerable Justice Oliver Wendell Holmes, Jr., to wit, that the First Amendment guarantees "the free trade in ideas," and that free speech means freedom even for, in fact especially for, speech that we hate (or "loathe," as Holmes put it in the most famous of his dissenting opinions). Accordingly, judges might take account of the time, place, and manner (or the when, where, and how) of speech but not of the content of speech, or of what is said or expressed. So it is that we are free to read John Cleland's Memoirs of a Woman of Pleasure, otherwise known as Fanny Hill, as well as Jane Austen's Pride and Prejudice; that the Nazis may march in Skokie, Illinois, and the Irish in New York City; that Gregory Lee Johnson may express himself by burning the American flag in Dallas, Texas, and Martin Luther King, Jr. by organizing a bus boycott in Montgomery, Alabama. Until recently, this was the view of free speech accepted by all liberals. Then students started draping Confederate flags outside their dormitory windows, and the universities responded by adopting speech codes and requiring attendance at "sensitivity training" sessions where students and faculty alike were to be alerted to (and purged of) their racism, sexism, and homophobia. Apparently (although the universities would be among the last to admit it), conservatives were right all along: ideas do have consequences (some of them undesirable, even unacceptable), whether expressed in books, newspapers, pictures (including moving pictures), or shouted as imprecations from college dormitory windows. What to do?

The old civil libertarians had a simple answer to this: nothing. Ideas may have consequences, or speech may lead to acts, but who is to define those consequences or acts as undesirable or unacceptable? Not government. Not a government obliged to respect the First Amendment. Holmes became famous for making this point. "If in the long run |he wrote~ the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community the only meaning of free speech is that they should be given their chance and have their way." The point was echoed later by another famous civil libertarian judge, Justice Hugo Lafayette Black: "|E~ducation and contrary argument" may provide an adequate defense against communist or fascist speech, but if that "remedy is not sufficient, the only meaning of free speech must be that the revolutionary ideas will be allowed to prevail." Which implies that the "only meaning of free speech" is that it is worse to suppress the advocacy of Stalinism or Hitlerism than to be ruled by Stalin, Hitler, or their American disciples. Hence, Communist Party members may run for public office even though they refuse to file an affidavit saying they do not advocate the overthrow of government by force or violence.

BUT IF STALIN'S or Hitler's disciples may speak, or to put the question more plainly, may offer their ideas for our consideration, why not the campus disciples of Justice Roger Brooke Taney (who, in his opinion of the Supreme Court in Dred Scott v. Sandford, said that Negroes "had no rights which the white man was bound to respect")? In our capacity as private persons we may hate their ideas, but not, or so the argument goes, not in our capacity as citizens; the First Amendment requires us to treat all ideas as equal, as equally deserving of protection, which is to say, as equally deserving of respect. That may be hard to do, in some cases very hard, but civil liberty depends on our doing it. As Leonard Levy said in his influential book, Legacy of Suppression, "|f~reedom of speech could not become a civil liberty until the truth of men's opinions . . . was regarded as relative rather than absolute." It is obvious that, defined in this way, freedom of speech cannot accommodate the demands of the enemies of hate speech and pornography; what is needed for that purpose is a new definition of civil liberty, or a new answer to the question, why protect speech, or why is free speech good? Enter now Catherine A. MacKinnon, professor of law at the University of Michigan and staunch supporter of campus speech codes. Her answer is, we shouldn't because it isn't. It isn't because there is no separating speech from act, or, at least, despicable speech from despicable act. In Only Words(*)--the title is, of course, meant to be ironic--MacKinnon resumes the occupation that has made her famous in some circles and notorious in others, that of anti-pornography crusader. It is an obsession with her. Pornography, defined here as "the graphic sexually explicit subordination of women through pictures and/or words," is effect as well as cause, act as well as speech. Pornography is one of the means, perhaps the principal means, by which men not only express their contempt for women, but subordinate women, exercise power over women, commit violence against women; and in her world every man is a pornographer. She hates pornography--or would have us believe she hates it--because she hates men; she hates it with such a passion that she would do away with free speech itself. Speech "defines the lines within which much of life can be lived |and~ speech belongs to those who own it, mainly big corporations," the male-dominated big corporations. Obsessed with pornography, yes, but does she really hate it? She provides us with reason to doubt it. "To express eroticism," she writes, "is to engage in eroticism, meaning to perform a sex act." "To say it is to do it, and to do it is to say it." As she puts it later, "talking sex is having sex," and the fact is, Catherine MacKinnon talks a lot of sex.