THE Framers of the Constitution recognized that most social ills result from conflicts over things that cannot be reconciled, and they created social and political machinery that allowed the expression of differing opinions but prevented any one opinion from taking over and squelching the others. That is the purpose of the First Amendment.
The President of the United States, William Jefferson Clinton, evidently does not agree. United States Attorney General, Janet Reno, does not agree. Congress does not agree. University of Michigan law professor, Catharine A. MacKinnon, does not agree. Each one dislikes something about the exercise of First Amendment rights by American citizens: odd or unpopular religious and political views; literature; art; photography; the content of film, television programs and video games; musical lyrics.
On April 7, 1990, police closed the Cincinnati Art Center and arrested its director, Dennis Barrett, for pandering, obscenity and child pornography in connection with the retrospective exhibition of photographs by Robert Mapplethorpe. For these crimes, both the director and gallery were brought to trial, though a jury found them not guilty.
In October 1993, United States Attorney General Janet Reno testified at Congressional hearings, warning the entertainment industry that if it did not take voluntary action to rid its products of violence then legislative action would be "imperative." Incredibly, Reno declared that "the regulation of violence [in film and television] is constitutionally permissible." (2)
A whole slew of bills targeting television broadcasting have now been proposed, including provisions which would prohibit certain programming during hours when children are likely to be watching; mandate FCC "report cards" on programming that depicts violence, and require warning labels and advance notification of shows that contain "violence or unsafe gun practices."
None of these measures actually define violence, or make any distinction between news, documentaries and dramatic programming. Janet Reno has actually said, in a meeting with television producers and actors, that "Murder, She Wrote," the rather benign mystery show, starring Angela Lansbury, should be banned from early evening view. [When questioned on this] the Attorney General said, "But the whole show is about murder." (3)
On June 9, 1990, E-C Records owner Charles Freeman was arrested for selling the album "As Nasty as They Wanna Be," by the Miami-based rap group 2 Live Crew. The sale was to an adult undercover officer of the Dade County Sheriff's Department. The group's label, Skywalker Records, had voluntarily placed the words "Warning: Explicit Language Contained," on each album. Sales of the record were banned on the 7th of June by U.S. District Court Judge Jose Gonzalez, who said that the music "is an appeal to 'dirty' thoughts and the loins, not to the intellect and the mind." (4)
In her book, Only Words, Catharine MacKinnon states, "Protecting pornography means protecting sexual abuse as speech." (5) Because of the impact of her book, we devote a considerable amount of time to her arguments.
Reno would ban both fictional violence and real religious or political oddballs, and since we may presume that the dog does not bark without its master's leave, so would Clinton. MacKinnon would ban whatever she wants to define as pornography, obscenity, hate speech, and racial or sexual slurs. Congress would ban, prohibit or restrict just about everything.
Political speech has throughout history had an uphill battle with the State, as it potentially constitutes a threat to the power, welfare and stability of the State itself. Its existence and tolerance, however, gives the State its legitimacy: "Governments are instituted among Men, deriving their just powers from the consent of the governed." (6) Hence, even totalitarian regimes sometimes pretend a love for free speech, and even its most vicious enemies grant lip-service to the idea of untrammeled political expression. (7)
Other forms of speech and expression, such as those that exceed the bounds set by polite society or which give offense to the sensibilities of private citizens, also threaten the political organism. They create friction between citizens; encourage, exemplify or exalt what may be perceived as dangerous social activity, provide a vector for dissent and a forum for protest. To challenge society at one level is to challenge at all levels. Art is the ultimate sedition. Accordingly, these forms have in this century and the last been equally, if not upon occasion more severely, constrained.
England, Canada and America, though by no means theocracies, are much governed by narrow Biblical references and even narrower interpretations. Many moralists find an ultimate appeal in theological sources, regardless of its irrelevance to society as a whole. American law is not based on the Bible, the Talmud or the Koran, nor may it be.
Restrictions on the content of nonpolitical speech waxed throughout the nineteenth century-so much so that ordinary English words disappeared from dictionaries, and despite their common daily use by innumerable citizens became not only illegal to print, but even to say.
But, it is difficult to portray human society while ignoring its most basic urges and biological needs, and artists and writers chafed under obscenity bans, challenging them repeatedly with varying degrees of success. (8)
Pornography and obscenity, like religion and politics, exist in the mind. As with religious belief or political opinion, there is no agreement concerning what pornography is or whether a given thing is obscene. (9) When even a Supreme Court justice is compelled to say of obscenity that the closest he can come to a working definition is, "I know it when I see it," we ought to consider that "trying to define what may be undefinable," is beyond reasonable legislation. (10) If no useful definition can be discovered, it is not easy to pass regulatory laws, and laws that are over-vague provide dangerous tools for over-zealous censorship. (11)
What one person finds pornographic, another may find merely dull or repulsive. What may be an artistic expression of timeless beauty to one person may outrage someone else. Obscenity, like beauty, is in the eye of the beholder. As George Bernard Shaw said, "Do not do unto others as you would that they should do unto you. Their tastes may not be the same."
The problems of definition of offensive, pornographic or obscene material have not changed much since the turn of the century: the test for criminality set out in the eleventh edition of the Encyclopedia Britannica, published in 1910, was
whether the exhibition or matter complained of tends to deprave and corrupt those whose minds are open to immoral influences and who are likely to visit the exhibition, or to see the matter published. If the exhibition or publication is calculated to have this effect, the motive of the publisher or exhibitor is immaterial. ... The use of obscene or indecent language in public places is punishable as a misdemeanor at common law. (12)
Even casually examined, this means nothing at all-and anything at all to the enforcer-and is no more than a blank warrant to facilitate repression.
Ideas and expressions acceptable within one culture may be rejected by another. A considerable confusion resulted from the collision of Victorian morality with "well-known and old-established works of widely recognized literary merit on the ground that they contain passages offensive to later notions of propriety. In the case of exhibitions of sculpture and pictures some difficulty is found in drawing the line between representations of the nude and works which fall within the definition [of obscenity] above stated ... . " (13)
More significant than the inability to define a crime is the inability to obey an undefined law. Though Justice Stewart might "know it when he sees it," neither the First Amendment, nor the Fifth (due process) would permit a law which requires that you "know it when you do it." Vague, overbroad laws also exert a "chilling effect," violative of other First Amendment guarantees.
If we consider intent, that is, the context within which the material is presented or viewed, we find ourselves peering fruitlessly into people's minds and, in the words of Susan Gellman, "criminalizing pure thought." (14)
Leaving aside the matter of non-definition, we come to the matter of original legislative intent. Though we must accept the argument that the Framers of the Constitution were concerned solely with political speech and matters of conscience, and that they by no means intended to include pornography or obscenity within the area of protected speech, we argue simply this: we will admit that the First Amendment is designed to protect political speech. If, however, a form of speech is banned by law, it then becomes political speech. Therefore, all forms of speech, whether envisioned within the original framework or not, are political speech insofar as they are legal or illegal. By this means all forms of speech do not, of course, become immune to regulation. But, there are no types of speech that are intrinsically unprotected.
Morality cannot be legislated. Or, rather, the only morality that can be legislated successfully is the morality that we already agree upon. (15) "Regulation is a relationship between a government and the governed," in which it is the task of government to "set standards so that compliance will be both attractive to the citizen and beneficial to society." (16) In order to work properly, a government must maintain "its reputation with its own citizens. To be effective, a government cannot enforce any standards it chooses but must elicit compliance from a majority of the governed. To do this requires setting the rules so that most of the governed find it profitable to obey most of the time. The implications of this are fundamental to authority." (17) When we try to legislate morality that we do not already agree upon, some of us obey the law, but many of us don't. (18) The trick is to figure out which laws are already enforced by society and then give them the official stamp of approval. An even better trick is to figure out what laws are not being enforced by society, and get rid of them. (19)
We must constantly be on our guard against "the illimitable human capacity for both evil and hypocrisy: self-regarding human beings acting wickedly while proclaiming virtue and launching moral crusades." (20) Freedom from narrow morality in the guise of law is a good thing in itself, forestalling great historical evils, such as the wholesale murder of law-abiding citizens because of their religious beliefs.
Attempts to legislate morality in the teeth of popular resistance have only one significant effect: they make everything much worse than it was before the law was passed. "Many, although not all, of the First Amendment dilemmas posed by victimless communicative actions would be eliminated if society were to refrain from prohibiting such conduct." (21)
If we are talking about highway speed limits, we can quantify an optimum for given conditions and vehicles. We can agree that gasoline consumption and fatalities increase if limits are too high, and that they are reduced if speeds are controlled. We then balance that against the need of people to travel and transport goods, and arrive at a compromise which pleases some and angers others, but which all agree is based on objective, rational criteria. This cannot be done in the areas of religion, politics and sex. (22) One person's meat is another's poison. In these areas, there are no "reasonable people." Consequently, the First Amendment does not say, nor does it care, that one form of speech is considered better or worse in a social sense.
The simplest approach to freedom of speech is also the best: to treat the First Amendment as though it means exactly what it says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.
The Supreme Court, when first presented with motion pictures, decided that, "like other spectacles, [motion pictures are] not to be regarded ... as part of the press of the country or as organs of public opinion." (23) Perceived as just another commercial entertainment enterprise, movies were not entitled to the Constitutional protection of freedom of speech and of the press.
Literature and film present dramatized human events. That is their nature. If we were to object to the fictionalized portrayal of violent, stupid or wicked things on the grounds that it might cause real people to do the same we would reduce literature and film to a level that could not give offense to children or adversely influence weak minds. This would neither be reasonable nor possible. Should we ban "The Three Stooges" because it exalts stupidity? Should a television cartoon be censored because one unsupervised child lit his sister on fire? (24) Should we ban or censor Agatha Christie mysteries because their recurrent, central theme is wrongful death? Who is to judge what should or should not be filmed or written?
Whenever any business is so great and so intricate in its control and influence over the life and morals of the people, that business should be regulated by the United States Government or it should be regulated by some power big enough to regulate it-big enough to control it. - Canon Chase, General Secretary of the Federal Motion Picture Council in a speech before the House of Representatives, 1926.
The self-censorship evidenced by moving the television cartoon "Beavis and Butthead" from prime-time to late-night, and the excising of portions of Disney's film The Program call to mind similar responses to threats of prior restraint and regulation of content of speech in the past. Fearing that it faced Congressional regulation or prohibition, in 1922 the Motion Picture Producers and Distributors Association of America set up Will H. Hays, Postmaster General of the United States, as the head of an internal regulatory office that stifled freedom of expression for an entire generation. (25)
This country cannot afford the calculated risk involved in feeding its children, through comic books, a concentrated diet of crime, horror and violence. - Senate report on Comic Books and Delinquency, 1954
In 1954, Dr. Frederick Wortham published Seduction of the Innocent, an attack on American comic books. Subsequently, the U.S. Subcommittee to Investigate Juvenile Delinquency in the United States held public hearings on the deleterious effect of comic books on children. In October 1954, the comic book industry created the self-regulatory Comics Code Authority. Within a year, comic book production had dropped by fifty percent. (26)
Both the Hays Office and the Comics Code Authority accepted false logic, guilt by association and research based on anecdote: abnormal and criminal people read comics books and go to movies, therefore, comic books and movies cause abnormal and criminal behavior.
Instead of fighting for First Amendment guarantees, television and film are vying to snatch the emasculating knife from the hand of government so they can wield it voluntarily on their own bodies. (27) As we say in the trade, "no nuts, no glory."
The censor should beware that he does not himself fall into the pit he has dug for his neighbor. Censorship of thought and language, no matter how well-meaning, provides the enemies of free expression with just the tools they have waited for-and used historically-to stop forms of speech that challenge, chastise or hobble repressive power. As Aesop said in the fable of the wolf and the lamb-in which the lamb is eventually eaten no matter what it does-"Any excuse will serve a tyrant."
Moving from photographic representation, which can at least be criticized as exploiting real people, what about literature? Animated cartoons? (28) Paintings or drawings? Song? When true, the charge that real people have been exploited has merit, but when the people are entirely fictional, what is the objection? (29)
How are we to deal with illusion, such as a transvestite passing as a woman; or an adult passing as a child; or trick photography, editing, computer graphics of things that never happened? Who is the victim in such a case? Women in general? All children? What about pornographic material that features only women, is made or written by women, and is made for women? What about pornographic material that is made by, for and of only men? Where will the line be drawn? And, more important, who will draw it?
Fictional accounts may resonate more strongly within certain people, especially those who have experienced similar events and for whom the account may evoke dreadful memories or sensations. But one person's unpleasant experience does not provide a strong rationale for censorship. My loss of a leg on a fishing trip should not legitimize censorship of Moby Dick.
We often encounter demands that because children or others are easily influenced by pornography or graphic depiction of violence in film, television or literature, those depictions should be banned or substantially restricted. (30) The error in this line of thought is this: you cannot take away the rights of one group to protect another group. The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to "secure the widest possible dissemination of information from diverse and antagonistic sources," and "to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." (31)
No one argues that all materials are suitable at all times to all people, and the First Amendment cannot mean that society is powerless to restrict speech at all. But, this does not mean that everything should be reduced therefore to the lowest common denominator. If something is deemed dangerous or harmful to kids, this might justify restricting its availability to kids, but it cannot possibly justify other censorship. A ratings system on movies theoretically keeps kids from seeing ostensibly harmful material. Perhaps you might require that a person be a voting-age citizen before allowing him or her to get their hands on Playboy. But, on the whole, we remain convinced only that any censorship creates the foot-in-the-door or "slippery slope" danger. When the government gets its hands on a tool to suppress, you may be sure that it will use that tool to suppress speech of which it does not approve, on whatever grounds it can find.
At the very least, any law or other governmental edict that restricts speech must exhibit a very close fit with the evil it purports to address-and even then, that evil may not be the speech itself. It is classic First Amendment jurisprudence that a law that restricts free speech must further an important State interest; it must be closely tailored to match that interest; and the interest cannot be suppression of speech.
If we allow the government to decide what can be broadcast, shown or printed, on the basis of a narrow concern with the desire that part of society be protected, we essentially hand over the entire First Amendment to a board of censors. This agency will always fear that it is perceived as "soft on porn," or "soft on violence," and will always have an incentive to be more, rather than less, restrictive. The best course is to leave such censorship in the hands of private individuals, who can decide for themselves what they should see or read, and what sort of materials their children should be exposed to in the home.
The problem is the belief that pornography-like violence or stupidity in movies-either promotes unsavory action or is, by its nature, unsavory action. The ultimate expression of this position is that pornography is violence. Not that it encourages violence, but that it actually constitutes a form of violence. (32) If we accept this position, we are compelled to decide what pornography is, so that we may ban it and nothing else.
Like the problem of perpetual motion, squaring the circle, trisecting the angle and other impossibilities, the fact that many have failed to define pornography provides an irresistible inducement to others. Andrea Dworkin and Catharine MacKinnon have proposed a "Model Ordinance" making pornography actionable as a civil rights violation. It is explicitly, though vaguely, worded and is so broad as to make actionable just about anything made by hands, drawn, painted, written, filmed or imagined that depicts members of the human race:
[The Model Ordinance] defines 'pornography' as 'the graphic sexually explicit subordination of women through pictures and/or words that also includes one or more of the following: (a) women are presented dehumanized as sexual objects, things, or commodities; or (b) women are presented as sexual objects who enjoy humiliation or pain; or (c) women are presented as sexual objects experiencing sexual pleasure in rape, incest, or other sexual assault; or (d) women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or (e) women are presented in postures or positions of sexual submission, servility, or display; or (f) women's body parts-including but not limited to vaginas, breasts, or buttocks-are exhibited such that women are reduced to those parts; or (g) women are presented being penetrated by objects or animals; or (h) women are presented in scenarios of degradation, humiliation, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual.' In this definition, the use of 'men, children, or transsexuals in the place of women' is also pornography. (33)
MacKinnon's categories (e) and (f) are most troubling, because they encompass anything and everything. As Floyd Abrams said of this definition of actionable pornography, "[M]y point is not that [MacKinnon's] definition is vague, but that it is clear. It includes any art, whether it is good or bad, art or nonart, that [she has] concluded may do harm. That's an unacceptable basis, and it should be." (34)
If we accept that words are the same as acts, then all words become suspect to a profound degree. (35) An Agatha Christie mystery novel becomes the confession of a real crime committed against a real person, and we find ourselves hauling Dame Agatha into court and trying her for murder. Things break down very fast. Censorship is never good for minorities, such as those whose sexual, political or religious opinions and actions offend the mainstream. The government cannot be allowed to decide what is bad, degrading or offensive. Though it has been said before, it is important to remember that the First Amendment is, first and foremost, a minority rights tool. It is there to protect, not to attack, the dissident, the oddball, the disturbing.
The symbol is not the thing. The thought is not the deed. Words are not acts. Fantasy-no matter how strange or violent-is not reality. Fantasy plays an important role in human consciousness, and to confuse it with real intent or desire is dangerous foolishness. It is better to deal with reality as reality and literature as literature. A fictional account of murder, rape or arson, no matter how graphic and compelling, is still not a real murder, rape or arson. A song, no matter how provocative, is not an illegal act. "The hardly subtle difference between real violence and violence on disk seems lost on many pundits, polls and black spokespersons." (36) We learn as children to distinguish between real and imaginary, and if some of us do not, this is not a justification for censorship.
Ideas are communicated by speech. Speech in and of itself is meaningless. If words of command, political sentiment, religious significance or eroticism were presented in a language unknown to the listener, they would have no meaning. (37) Similarly, a suggestive or erotic picture may make no sense outside its cultural context. In order for words to exert an effect, they must be both sent and received. (38) They have no independent existence.
Words are not magic. If chanting "abracadabra" summoned up a hate-wracked demon hot from hell-mouth, boiling before you in a pentagram; or compelled your listener's muscles to contract and his fist to strike out, hitting someone on the nose, then we might argue that the word was in fact a deed. But, this does not and cannot happen. Speech either is attended to or it is not. This is not to say that there is no connection between speech and action. But actions resulting from speech are not the words that may have influenced them. "Words not backed by actions are so cheap as to be meaningless." (39)
If we suggest that we overthrow the government, the intelligent listener realizes that this is so unlikely to happen, even if we advocate it, that our speech will be without effect. If we urge the listener to refuse the military draft, we are expressing a political opinion which he may follow, but is not obliged to do so. If we urge the listener to hit you on the nose, the listener is still under no obligation whatever to follow my suggestion, though we will admit in this instance, that if we sincerely meant for the listener to strike you, and she did strike you, we would have urged her to commit a crime, and would in that context be a participant. Nonetheless, we are ultimately left with free will regardless of any command or coercive statement. We are responsible for our own actions.
It is one thing to say, "because of your race, you may not eat here," and quite another actually not to serve the person to whom the words were directed. If we were to say, "We will not serve you," and then serve you, would you have been hurt? Or, if we were to say, "Come on in," and then fail to serve you, would you have been unhurt? Clearly, the hurt lies in eating or not eating, not in the words that precede the eating or not eating. A restaurateur is under no legal obligation to be polite.
"Hate speech" or "fighting words," no matter how offensive, do not constitute acts. An epithet or slur is not the same as the act of discrimination or abuse. A cruel word may hurt the listener in very real ways, but it does not by that measure constitute an act. Note that this potential consequence has been described with the word "may." Not "will" or "must." The consequence is neither automatic nor inevitable. (40) If harm results from the speech, such as might happen with slander or libel-reckless and knowing falsehood being the criteria-or if the person spoken to had a heart attack on the spot and the speaker knew he had a weak heart, then the speech may be judged hurtful by the measure of harm that ensued. Speech however, per se, is not and cannot be violence. If we tell you to go to hell, the words contain neither the ability to enforce nor a compulsion to obey. Even if intended to inflict harm, it is our opinion that such speech ought also to be protected, as the degree of harm is entirely subjective and circumstantial, as is the degree of harm intended. (41)
Nor does "hate speech" or pornography constitute an infringement of Fourteenth Amendment (equal protection under the law) rights. You cannot use the Fourteenth Amendment as a weapon against the First. The Constitution was not designed to devour and digest itself. The Fourteenth Amendment was designed to compel the Several States to treat all their citizens-especially their newly-freed former-slave citizens-equally. It was not designed to provide a destructive wedge into any other pre-existing body of rights, particularly not those enumerated in the first ten Amendments as fundamental. Indeed, the Fourteenth Amendment, through its due process clause, makes the fundamental rights set out in the Bill of Rights applicable to the states. Any piece of legislation which is intended to interfere with "the transcendent value of speech," no matter what other goals it may serve, is clearly in conflict with First Amendment guarantees. (42)
The First Amendment is not at odds with, not at war with, not even in conflict with the principles of equality. It is one of the great forces by which equality comes to occur in our society. ... We do not permit and should not permit the First Amendment to be overcome on the basis of some sort of continuous balancing, where we simply look at the supposed harm caused by speech as against the supposed value of what is said. ... In only the rarest case do we even start down the road of saying, well this speech is so likely to cause harm of such extraordinary, provable, damaging nature that we won't allow it. (43)
First Amendment antagonists have also mounted an attack based on the notion that harm to specific individuals can result from speech that refers to an entire class. Though it may be true that all, many or some members of a class are hurt by a word or image, there is no legal ground for a specific individual to claim damages unless the class is quite small, and the claimant can establish that he or she suffered damage because of the defamatory publication. (44)
Taffy was a Welshman, Taffy was a thief, Taffy came to my house and stole a piece of beef; I went to Taffy's house, and Taffy wasn't in, I jumped upon his Sunday hat, and poked it with a pin. (45)
If we were to say, "All Welshmen are thieves," this is not sufficient grounds for Taffy, the Welshman, to claim individual hurt. The individual is not the class. If we were to say, "Taffy, the Welshman, is a thief," it would either be true or false, but in either event Taffy would be personally involved, and it would not be because he was Welsh, but because he was Taffy. We may not prohibit speech because it may hurt a class or individuals in it.
Though hate speech-or any speech-may give a clue about the motives behind a crime, it is not itself the crime. The motive behind any act significantly changes the nature of the act. An accident, in which there is no motive, is different from a premeditated, intentional act. An act of self-defense is different from an act of criminal aggression. Discovering the intention, as conveyed by words or actions, is important if the nature of the act is to be discovered. However, the words are in themselves neither criminal nor punishable. The idea that a crime becomes a "hate crime" because the perpetrator used language leading to the belief that his motive was racist is entirely contrary to the protections guaranteed by the First Amendment. If he is punished one way for a crime in which no words are used, and more harshly if racist words are used, then he is being punished for the content of speech, which is the very thing protected. Indeed, the better of the hate crime statutes specifically require more than "words alone" as evidence of the offense.
So far, the lyrics, "Brother, you can't go to jail for what you're thinkin'," from the song "Standing on the Corner (Watching All the Girls Go By)," still apply to American citizens. (46) However, you can get in serious trouble for "inappropriately directed laughter," "prolonged and intense staring," or calling a noisy bunch of co-eds "water buffalo." We are moving nicely along the path towards Thought Crime.
Catharine A. MacKinnon, professor of law at the University of Michigan, has published works representative of attacks mounted on the First Amendment by right-wing feminists. In her 1993 book, Only Words, the central concept is that words themselves are acts, and should be regulated as such.
In her book, MacKinnon fails to distinguish between speech as crime and speech as evidence of a crime. The latter fits much more comfortably within the First Amendment, while the former does not. In conspiracy, for example, or job discrimination, the words are evidence of the offense, but do not in and of themselves constitute the offense. The words may in fact be the best evidence a plaintiff could dream of, but they're only bad if they mean what they say. If a sarcastic boss says, "I'm firing you because you're black," it's a foolish thing to say. But if the boss doesn't really mean it, and actually fires the person for incompetence, the ill-considered words don't change that and don't make it discrimination.
MacKinnon's Only Words repeatedly cites as "speech acts" the class of "snuff" movies in which a real human being is actually murdered for the sexual gratification of viewers. (47) At the very least, such a film would be the incontrovertible record of a serious crime in which everyone involved would be an accessory. We grant that there have been films and videotapes made by murderers of their crimes, but to employ these acts of madmen (and madwomen) as a lever against the First Amendment is beyond perverse.
The First Amendment is not designed to protect otherwise illegal acts, and the whole matter of "snuff" films is a red herring, having no relevance to the discussion. Surely Ms. MacKinnon realizes her rhetorical error when she says, "Suppose the consumer could not get in any other way the feeling he gets from watching a woman actually be murdered. What is more protected, his sensation or her life? Should it matter if the murder is artistically presented?" (48) Of course not. No such film, artistic or otherwise, is protected by the First Amendment, nor has it ever been. To conflate legitimate, protected speech with utterly unprotected criminal activity is perhaps an effective debate technique, but it hardly serves the best interests of the search for truth and justice.
To paint a swastika on a synagogue is an act of trespass and vandalism. To burn a cross on the lawn of an African-American is an act of trespass, vandalism and arson. These are not First Amendment issues and should not be used as illustrations of "speech acts." (49) Rather than struggle with First Amendment issues, the would-be censor might better invoke existing laws of general application and avoid the quagmire.
Furthermore, the much-dwelt-upon illustration is predicated on the premise that there are, in fact, such things as "snuff" movies. Except for the somewhat spoofish, 1976 low-budget film of the same name, in the making of which nobody was killed, there is no reliable evidence that any commercial film which records the pornographic murder of a real human female actually exists. With the exception of MacKinnon's associate and mentor Andrea Dworkin, we know of no one who claims to have seen such a film. MacKinnon certainly doesn't cite any specific film, and neither does Ursula K. Le Guin in her ACLU newsletter article, "Pornography + Responsibility," though both go on about the evils of such films at length. (50) Though the absence of specific citation is not evidence that no such film exists, where there is no smoke, there may be no fire. In any event, the burden of proof resides with the accuser. At least for now in the United States, though this is not the case in Canada.
What about the exploitation of children for pornographic purposes? Once again, this is not necessarily a First Amendment issue. Rather than transgress into First Amendment territory, the exploitation of children can be addressed by invoking child labor laws and laws that specifically prohibit child abuse.
Though these laws may protect American children, it would not have an effect on the exploitation of children in countries that make no such provision. Thus, a pornographic film made in another country might legally be imported, sold and possessed. Though there are international remedies, such as trade sanctions or import prohibitions, this opens other uncomfortable areas. The most obvious is that there is no good reason to suppose that the morality or law of the United States should be made a criterion for international activity. We have no special insight into right and wrong, and no authority to compel other nations to accept our moral code. Many nations have no provision for a trial by jury, freedom of worship, or a free press, and we deal with them nonetheless. If we conclude that we have a power to regulate the laws and morality of other nations, we concede, quid pro quo, that they have an equal right to interfere with ours. Either we address all issues seriously, or we get out of the international moral arbiter business, clean our own house as best we can, and mind our own affairs. (51)
There are, however, international human rights treaties, (most of which the United States has not ratified) that set up international standards. It is a thorny problem, though, when enforcement of those standards interferes with free-trade provisions of other treaties.
We confess ourselves totally confused by a legal mind that cannot understand the difference between an actual crime and words. Catharine MacKinnon either does not understand what the First Amendment is, or does not understand what a rape is, or both. In any case, she is making an incredible hash of the Bill of Rights:
A First Amendment properly understood would give everyone greater access to speech. It would also recognize that to violate someone, to subordinate someone, to abuse someone, are not First Amendment-protected activities. They aren't what the freedom of speech is about. Trafficking in sexual slavery is not a discourse in ideas anymore than an auction block is a discourse in ideas or burning a cross is a discourse in ideas. They are activities that subordinate people. They are, of course, expressive. Rape is expressive. Murder is expressive. My punching someone in the face to express my contempt for that person's ideas is expressive. That doesn't make it protected expression. (52)
True enough, you might say. Why is MacKinnon bringing this up? And why is she equating protected speech and expression with crimes such as murder, rape and assault? We do not know.
"The worst thing that can be said about pornography is that it leads not to 'anti-social' acts but to the reading of more pornography." -Gore Vidal, Reflections upon a Sinking Ship, 1969. (53)
Even if it can be demonstrated that an act was influenced by a film, television program, song or book, this does not provide a rationale for regulating the content of speech.
This "incitement" argument is among the cornerstones of Catharine MacKinnon's anti-pornography stance: "Sooner or later, in one way or another, the consumers of pornography want to live out the pornography further in three dimensions. Sooner or later, they do. It makes them want to; when they believe they can, when they feel they can get away with it, they do " (54)
There is no evidence for this, either pro or con. Ursula K. Le Guin begins her ACLU essay--itself an attack on pornography--with the express admission that "No psychological or sociological study has proved, or disproved, a connection between pornography and sex crime." (55)
Not only does the phrase "sooner or later," dodge the vital, Constitutionally required, test of "imminent threat," but the use of "they" in this context flagrantly commits the very sin of which MacKinnon violently complains: it objectifies a class.
MacKinnon consistently confuses the pornography industry with the ideas in pornography. (56) The former might do harm; the latter is quite a different story. She should focus her attention on the doing, not the expression of it.
MacKinnon and Dworkin's theories are getting a test in Canada. In 1992 the Canadian Supreme Court ruled that words and images which "degrade" women are "harmful" to them and should be outlawed. (57) Not surprisingly, much of the support for MacKinnon's arguments has come from those who otherwise seek to limit every effort to improve women's status, and government attacks on feminist bookstores and publishers were immediate.
Most feminists know that campaigns to suppress sexual expression have often been used to control women's sexual expression: to limit access to information about reproduction, sexual attitudes and practices, art, or education. Among Canadian artists, writers, readers, activists and scholars, there is widespread anger at Ms. MacKinnon, Ms. Dworkin and their followers. At a recent symposium in Toronto, a lesbian speaker noted that Ms. MacKinnon and the Canadian high court had both used the terms "degrading and dehumanizing." "You handed them the language they had been looking for," she said, "and now they are busting our bookstores."
Since the Butler decision, the incessant customs seizures have netted novels by noted authors like David Leavitt and Kathy Acker, and 1,500 copies of "Black Looks: Race and Representation,' by the black feminist scholar Bell Hooks--the last on suspicion that it contains 'hate speech."
"The Butler decision belongs to the right," said the Canadian sociologist Thelma McCormack. "The Supreme Court of Canada doesn't give a damn about gender equality. It is concerned about control, and was pleased to have a feminist gloss on it."
To some, the Canadian standard would seem to help women. But what is to be considered "degrading"? Too often, the decision makers are those who believe that women are degraded by sex itself and all its representations. It's no wonder that many feminists are organizing to dispel the myth that women can benefit from censorship. (58)
Kathleen Mahoney, who successfully argued on behalf of the Women's Legal Education and Action Fund in the [Butler] case, said that the reasoning underlying the decision was sound, even if customs officials seem to be going too far at times.
"There's an evolving kind of recognition in Canada that the law has not treated women and other minority groups fairly," she said. "If we truly believe in democracy in the fullest sense of the word, then everyone should be able to participate. That means some sort of cutting back of individual rights as we've always known them." (59)
As we understand Butler, this case upheld the already in-force MacKinnon/Dworkin anti-porn statute. "[T]he Supreme Court of Canada rejected its morality-based standard for obscenity and held that when pornography hurts equality, it can be stopped." (60) With the judicial stamp of approval, government authorities could then go on the seizure rampage with impunity. But the attacks on feminist bookstores had started as soon as the law was passed.
When the American government proposes to regulate expression on the grounds that people can be influenced to commit crimes or hurt themselves, it denies the very foundation of democracy. Such anti-democracy lies at the heart of the MacKinnon/Dworkin anti-pornography argument. The "pornography industry forces, threatens, blackmails, pressures, tricks, and cajoles women into sex for pictures." (61)
Though MacKinnon complains bitterly about objectification of women, her lumping together of nearly all female porn participants as victims accomplishes the very objectification she rails about:
Empirically, all pornography is made under conditions of inequality based on sex, overwhelmingly by poor, desperate, homeless, pimped women who were sexually abused as children. The industry's profits exploit, and are an incentive to maintain, these conditions. These conditions constrain choice rather than offering freedom. They are what it takes to make women do what is in even the pornography that shows no overt violence. (62)
In MacKinnon and Dworkin's universe, women are never anything more than victims and men are only and always predators. Women have no free will, no capacity for choice. Women may demand equality, but they require protection as well, because they are incapable of making rational adult decisions in the face of the overwhelming rapacity of men. Women are, in short, not competent to be full citizens. This demeaning, degrading, false portrayal of women cuts against every argument for democracy. The center of the anti-pornography argument is profoundly totalitarian, claiming that its objects are in dire need of guidance, by force if necessary, because they are incapable of making any valid choice as responsible adults. And, it puts the arbiters, such as MacKinnon, in the role of demagogue. This echoes the nineteenth century argument that a woman must for her entire life be either the ward of her husband, father or some other responsible male, or failing that, a ward of the State. The woman as incompetent, second-class citizen is the construct of a melodramatic view of female innocence in the face of male sexual aggression.
In a real sense, the nineteenth century came to an end with the passage of the 19th Amendment. Women have the vote, and they are in the numerical majority. This is not to deny that physical and social differences exist between men and women, nor that women continue to suffer from great social inequality. Nonetheless, women are full citizens, responsible for their own actions and the consequences of those actions. It is outrageous to imagine that they are not; that they need the protection of the State beyond that which is extended to every citizen; that they are weak and will-less in the face of masculine blandishments; that they are not and never will be as capable, competent or smart as any other adult American.
Novelist Anne Rice remarked that when she joined the women's movement, at the outset "it was about power, earning the same pay for the same job. Now it's about protection. We are saying we want to be allowed in a man's world, but we can't take it. You have to protect us." (63)
Not only are MacKinnon-Dworkin women not responsible for their actions, but they need to be so ensconced within protective mechanisms that they don't have to think for themselves at all. (64) "The Sexual Offense Policy at Antioch College goes beyond the usual date-rape slogans like NO MEANS NO and requires 'for each new level of physical and/or sexual contact/conduct' a clear and vocal yes-to a kiss, to a touch, to unzipping. Each and every time. No exceptions. Of course, this does not actually happen, and because of the harsh punishments meted out in the event of a complaint, all that is really created is a fertile source of blackmail.
Katie Roiphe has become anathema on campuses around the country because she decries campus date-rape policies that encourage young women to view men as a lurking threat and suggests that women should be responsible for their own drinking, their own bad judgments." (65)
The First Amendment is about choice and responsibility; that is, participants in a democracy are all responsible citizens, capable of and allowed to make their own choices, and responsible for the consequences. MacKinnon denies all that in favor of a protective shield for what can only be deemed (based on her characterization) the weaker sex. For that premise to pass as "feminism" is straight out of Alice in Wonderland.
Ms. MacKinnon likely does not extend this incapacity to think or act as a responsible citizen to herself, though on what grounds we cannot imagine, since she is, and will remain, all her days, a woman, victim and sex-object. Ms. MacKinnon is, of course, not powerless at all. She fulfills to a "T" the description of a totalitarian demagogue, who whips the people into a frenzy, and deludes them into surrendering real power for false security. A central fallacy of her argument is that one party can only acquire power by taking power away from another, failing to realize that the confiscated power would flow only away from the people and into the hands of the government, without commensurately increasing the power of the weaker party. Nowhere does she advocate the acquisition of power by women and minorities without phrasing it in terms of taking power away from another social element. She displays no concept of creating power or building equality. Her scale of social justice can only work if one side is diminished, rather than adding to the lesser side from an exterior source or from within. When MacKinnon is finished, both sides are equal, but smaller, and the excess has gone to the State.
Ms. MacKinnon, furthermore, is being more than misleading when she maintains, loudly and frequently, that access to the press is denied women: "Those who are hunted down, stigmatized, excluded, and unpublished are the women who oppose their [women appearing in pornography] burning." (66)
She repeats this allegation in even stronger terms, and less plausibly, when she says,
It seems to me that the lack of access to speech by those with dissident views--views not allowed to be expressed by the media, by a publishing world that excludes these, as well as by systematic forms of exclusion like lousy educational systems that promote illiteracy--are all forms of trouble for the First Amendment. (67)
And no less divisively when she accuses the defenders of free speech of "speaking on behalf of a large pile of money in the hands of a few people, as it is now." (68) Here we might mention that we have yet to see or be offered any part of that large pile of money.
MacKinnon's book, which has become the center of a lively debate, was published by Harvard University Press, scarcely a hole-in-the-wall vanity-press operation. To this we may successfully contrast Franklyn S. Haiman's "Speech Acts" and the First Amendment, which presents a contrary point of view. "Speech Acts" was published by a small press, and has received no publicity.
Considering that Ms. MacKinnon is a professor of law at a major American university, and that she should know better, her work is either inexcusably sloppy, consciously deceptive, or both. She gets away with mistakes that lesser scholars would be trashed for. One gets the sense that she overpowered whatever editor may have tried to intervene. She is a true believer, and appears willing to cast off, ignore, explain away anything that cuts against her fundamentalist mission. Her vision shapes her world, but it is a world few, if any, of the rest of us encounter. (69)
It is telling that many of MacKinnon's factual assertions lack any citation while other points are precisely footnoted. MacKinnon's casualness in this regard reveals the overwhelmingly result-oriented style of the good professor's scholarship. She is no fool, and one would expect that if solid, citeable authority existed for her points, she and her team of research assistants would have found and cited them.
Finally, unspoken, but clearly implied within MacKinnon's arguments is the bizarre conceit that ordinary heterosexual congress is necessarily exploitive and coercive; an unequal relationship consisting at best of near rape. She dwells at salacious length on the image of a "penis ramming into a vagina," (70) leaving the reader somewhat confused by the pejorative presentation of what people have for countless millennia willingly and necessarily done for procreation, bonding and recreational union.
The overwhelming implication is that the only acceptable sexual relationship must be between members of the same gender, and not always then. Probably men should bow out altogether. Even male masturbation is found deeply offensive, based as it must be on the cerebral entertainment of some sort of sexual activity.
If we begin with the premise that "heterosex" is inherently abusive of women, and accept the idea that "so-called normal sexuality depends on women's oppression," (71) it is not difficult to find evil in any heterosexual expression: "Prof. Catharine MacKinnon of the University of Michigan and the writer Andrea Dworkin long ago pointed to the institution of marriage as a legal cover for the act of rape and the permanent humiliation of women." (72)
MacKinnon wants it both ways: Pornography is defined by the intent of the creator or purveyor, with the intent or existence of the consumer irrelevant; while simultaneously, pornography is defined by the intent of the consumer, regardless of the creator's intent. In other words, she would like to define pornography to include both the intent of the creator and of the consumer. These theories would make her own book pornography; make Jimmy Carter a criminal for having said that he had lust in his heart and take us all a heartbeat away from the Thought Police. (73)
Without invoking or attacking the content of speech, there are other remedies open to Americans: protest, write letters, picket. There is nothing to stop a boycott by private citizens. All these are also protected forms of legitimate protest-First Amendment remedies for social and political problems.
No matter how serious our disapproval of a matter of morality may be, it is important to remember that none of us, despite what Catharine MacKinnon, Andrea Dworkin, Ronald Reagan or Oliver North may think, has a special line to God, by which we and only we receive Divine wisdom. The crux of MacKinnon's problem with the First Amendment is that she thinks she and Andrea Dworkin can determine what is good speech and what is bad speech, and that they have a special insight superior to the rest of us. But: (A) she's dead wrong about her own special powers; and (B) even if she were right, she won't be around or in power forever-if she ever is. Indeed, the First Amendment does its best work when it prevents us from being ruled by the likes of Ms. MacKinnon. There may in fact be good speech and bad speech, but except in the extreme case, the First Amendment protects us against majority determination of which is which. MacKinnon of course sees pornography as an extreme case, but there her augment fails empirically. She attempts to debunk the notion that the First Amendment means we must tolerate some bad speech in order to protect against totalitarianism and restriction of good speech. (74) She assumes that the government, acting under her advice, is equipped to decide which things are good (don't suppress) and bad (suppress). She's got her faith in the wrong place.
Only Words, though expressly attacking the First Amendment, is not only absolutely protected by it, but serves ultimately, through the debate engendered, to vindicate and strengthen its precepts.
The First Amendment honors the principle that matters of human thought are not absolute. It recognizes that people have differing opinions, and that those opinions cannot be classified as right or wrong, but remain relative. The First Amendment does not protect some expressions of political speech to the exclusion of others, nor does it protect some religious beliefs while leaving others open to dispute.
Therefore, in any discussion of ideas within the context of the First Amendment, we should begin by assuming their innocence. Unless and until an idea is proved hurtful, it should be allowed the freest examination, and even the most offensive should not be put to death. In the words of Justice Brennan, the First Amendment protects "all ideas having even the slightest redeeming social importance-unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion." (75)
What Brennan has addressed with this statement is one of the fundamental paradoxes of the First Amendment. We accept that democracy requires free speech in order to function. The more suppression, the less democracy. At the same time, the First Amendment erects a protective barrier against a tyrannical majority, and is in that sense anti-majoritarian and arguably anti-democratic. This internal tension is a vital aspect of the whole concept of checks and balances. The only way out of the apparent conundrum is to create, by means of the unfettered marketplace of ideas, an electorate which has learned to tolerate dissent and discordant voices, to examine hurtful ideas and reject them, and to refrain from crushing the minority opinion regardless of inconvenience. This can only be accomplished with more, rather than less speech.
The First Amendment is designed to protect the expression of views on which there is serious disagreement. It should be plain that on matters in which there is substantial agreement, there is no need for the First Amendment. The First Amendment does not say anything so fatuous as, "It's okay to agree with each other." Quite the opposite. "The price we pay for the right to express ourselves is the burden of listening to others whose views we hate. The remedy is to contest these views." (76)
The First Amendment, as is the case with the entire Bill of Rights, is designed to keep decisions about fundamental freedoms out of the hands of unreasonable people, as well as hypothetical "reasonable people," and make any attack on these freedoms, for any reason, extraordinarily difficult. So difficult, indeed, that we have managed not only to keep these rights more-or-less intact but allow them to grow and flourish.
There are many reasons why speech should be as undiluted as possible: (77)
Free speech promotes democracy, and democracy is a good idea. In a democracy the leaders are responsible to the electorate. If they don't do what the people want, they lose their jobs and their political influence. (79)
Furthermore, citizens in a democracy are better off than under other forms of government. They lead safer, more productive lives. They have less to fear from famine, plague, pestilence and war. (80)
That democracy can be demonstrated to be both inherently and instrumentally good, and that freedom of speech and religion are good for democracy, makes these freedoms good things without any further justification.
The Constitution trusts the average citizen to do right. When we hold elections, we trust every citizen with the most powerful political tool in the world. The only substantial qualification is that the citizen must be eighteen years old. We look no further. (81) The goal of a healthy nation is to entrust the people with more authority, more freedom, more democracy. The governments that most fear their citizens are the ones that have given the people good reasons to destroy them.
The First Amendment cuts the Gordian knot of moral disagreement by proclaiming that all forms of speech are allowed, and that none is to be censored.
If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. -- Justice Thurgood Marshall, speaking for the majority of the court in the 1969 case Stanley v. Georgia. (82) - BIBLIOGRAPHY
The Evolution of Cooperation, Robert Axelrod, Basic Books, 1984
Banned Films: Movies, Censors & the First Amendment, Edward de Grazia & Roger K. Newman, R. R. Bowker Company, New York, 1982
"Speech Acts" and the First Amendment, Franklyn S. Haiman, Southern Illinois University Press, 1993
"The First Amendment Under Fire from the Left," a discussion between Floyd Abrams and Catharine MacKinnon, moderated by Anthony Lewis, New York Times Magazine, March 13, 1994.
Only Words, Catharine A. MacKinnon, Harvard University Press, 1993
On Liberty, John Stuart Mill (1859)
- The Language Instinct: How the Mind Creates Language, Steven Pinker, William Morrow, 1994 * Mr. Goines is a writer and artist in Berkeley, California. His books include THE FREE SPEECH MOVEMENT (1993). His posters are represented in national and international collections. Mr. Goines expresses sincere thanks to Linda Parker Guenzel.
á A.B., J.D., University of California, Berkeley; M.A., Tufts University. Mr. Popovic is an attorney in the International Program of the Sierra Club Legal Defense Fund in San Francisco, California.
(1) 413 U.S. 49, 73 (1973) (Douglas, J., dissenting).
(2) Like any other form of speech, "violent" expression is fully protected by the First Amendment. The Supreme Court has repeatedly held that "above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." And a 1986 federal appeals court decision addressed violent expression directly, declaring it to be "protected as speech, however insidious. Any other answer," said the court, "leaves government, in control ... of the institutions of culture, the great censor and director of which thoughts are good for us." --Letter from the ACLU to members (Jan. 28, 1994.)
(4) By the end of the legal fracas, the album had sold 1.7 million copies. Indeed, one of the authors of this essay purchased it for the other precisely to find out what the fuss was all about.
(5) CATHARINE A. MACKINNON, ONLY WORDS 9 (1993) (emphasis in original).
(6) Declaration of Independence para. 2 (U.S. 1776).
(7) Many repressive regimes are parties to human rights treaties that include free speech provisions; and many also have--largely dormant--constitutional free speech guarantees.
(8) In February 1915, after having reviewed D. W. Griffith's film The Birth of a Nation, the Supreme Court declared that moving pictures were unsheltered by the First Amendment. Mutual Film Corp. v. Industrial Comm'n of Ohio 236 U.S. 230 (1915), (Of course, this was not too harsh a blow because for all practical purposes the First Amendment did not at that time shelter any other discordant form of speech either.) It was not until 1952 that the Court, after thirty years of badgering by the ACLU, granted that protection to a motion picture: concerning the Marshall, Texas, ban on the film Pinky, Justice William O. Douglas wrote that the
evil of prior restraint...is present here in flagrant form. If a board of censors can tell the American people what it is in their best interests to see or to read or to hear, then thought is regimented, authority substituted for liberty, and the great purpose of the First Amendment to keep uncontrolled the freedom of expression defeated.
Gelling v. Texas, 343 U.S. 960, 961 (1952) (Douglas, J., concurring). It strains credulity that this statement was made at the height of the Communist witch hunts.
The 1964 Supreme Court decision on the film The Lovers established the further principle that "material dealing with sex in a manner that advocates ideas . . . or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity." Jacobellis v. Ohio, 378 U.S. 184, 191 (1964) (citations omitted). For a while this meant that even the coarsest pornography carried a transparently fraudulent academic introduction giving the work the cachet of scholarly or literary value. The first novel openly brought under the protection of the First Amendment was Henry Miller's Tropic of Cancer in 1964. Grove Press v. Gerstein, 378 U.S. 577 (1964); see also EDWARD DE GRAZIA & ROGER K. NEWMAN, BANNED FILMS: MOVIES, CENSORS & THE FIRST AMENDMENT (1982).
(9) Catharine MacKinnon of the University of Michigan school of law is being disingenuous when she claims it is
only pornography of which it is said that the experience is not one of access and power but one of thought; only of pornography that it is said that unless you can show what it and it alone does, you cannot do anything about it; and only pornography that is protected by a constitutional right.
MACKINNON, supra note 5, at 18. To say it is "protected" means only that it is a First Amendment issue; not that it necessarily goes utterly unregulated.
Pornography is not unique in this respect. Though its sins were as scarlet, pornography cannot hold a candle to the indefinable nature of political disagreement, religious conviction, and the utterly irreconcilable, totally undefinable nature of these similar edifices of belief which exist in large measure as thought and opinion alone.
(10) Justice Potter Stewart, concurring in the 1964 case Jacobellis v. Ohio, 378 U.S. 184, on the matter of the French filmmaker Louis Malle's movie The Lovers.
I shall not today attempt further to define the kinds of materials I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
On May 10, 1994, in an article Television by Elizabeth Kolbert, the New York Times reported that when one Dr. Pober was asked what constituted gratuitous or excessive violence in a video game, he said only that "When you see it, you know it." Elizabeth Kolbert, Television, N.Y. TIMES, May 10, 1994
11 In 1991 Steven Knox was convicted in Pennsylvania of possession of child pornography. The material at issue showed young girls clothed in bathing suits and underwear, and the camera zoomed in on their genital areas. The law under which he was convicted made it a crime to distribute or possess tapes or pictures of minors involved in sexually explicit conduct, defined by Congress as "lascivious exhibition of the genitals or pubic area." Reacting to the Justice Department's November, 1993 admission to the Supreme Court that it no longer believed the current law allowed for prosecution, the Clinton administration ordered the Justice Department to frame tougher laws. "On Thursday, the White House made public a letter from the President to Attorney General Janet Reno, saying he agreed with the Senate that the child pornography laws should have the broadest possible reach." Patrick A. Trueman, the director of government affairs at the American Family Association, said, "the issue of whether the genitals were unclothed was less important than focusing on the child's behavior. He said that he prosecuted several cases of people distributing films of children acting without any intent to titillate-like children bathing nude." N.Y. TIMES, Nov. 13, 1993
The Protection of Children Against Sexual Exploitation Act of 1977 does not require that the distributor or recipient know that the performers are not adults. 18 U.S.C. ñ 2252. On February 28, 1994, the Supreme Court upheld a Federal appeals court decision that because the Federal law does not require proof of such knowledge, the law violates First Amendment guarantees. N.Y. TIMES, Mar. 1, 1994 but see United States v. X-Citement Video, 94 Daily Journal D.A.R. 16738 (U.S. Nov. 29, 1994) (reading in a knowledge requirement in order to save the statute from unconstitutionality).
12 Obscenity, ENCYCLOPAEDIA BRITTANICA (11th Ed. 1910).
13 Obscenity is defined in the 1910 Brittanica as "something offensive to modesty or decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or lewd." Id. Ordinary, ancient, English words that accurately described parts of the human body, words for daily physical activities and words concerned with the propagation of the species were prohibited, and we were compelled by prudery to wander in a fog of euphemism and Latin medical terms. Long passages of the classics were left untranslated (or stranger yet, translated from Greek into Latin); whole collections of ancient Greek vases and entire rooms of paintings from the buried cities of Pompeii and Herculaneum were locked away from the public gaze. Id.
Carried to extremes, nothing was sacred, including the Word of God itself: Thomas Bowdler, a sort of old-time Joe McCarthy of anti-obscenity, actually decided that the Bible was too raunchy for gentle ears and issued a sanitized version. He also produced an expurgated version of Gibbon's Decline and Fall of the Roman Empire and in 1818 published The Family Shakespeare "in ten volumes, in which nothing is added to the original text; but those words and expressions are omitted which cannot with propriety be read aloud in a family." Algernon Charles Swinburne thought Bowdler was swell, saying of him in Prose and Poetry (1894) that "no man ever did better service to Shakespeare than the man who made it possible to put him into the hands of intelligent and imaginative children" and stigmatizing adverse talk about the expurgations as "nauseous and foolish cant."
14 Susan Gellman, Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence, 39 UCLA L. REV. 333 (1991), cited in FRANKLYN S. HAIMAN, "SPEECH ACTS AND THE FIRST AMENDMENT 43 (1993).
15 An interesting effort to legislate morality on the grounds that the "Presumed belief of majority of Georgia electorate that homosexual sodomy is immoral and unacceptable provided rational basis for Georgia's sodomy statute," is found in the United States Supreme Court case Bowers v. Hardwick , 478 U.S. 186 (1986). In this case, the Court found that "the fact that homosexual conduct occurs in the privacy of the home does not affect the result." Id. at 195. When Justice Powell (who had concurred with the majority) retired from the bench, he is reputed to have said that if he could re-decide any case, it would be Hardwick.
16ROBERT AXELROD, THE EVOLUTION OF COOPERATION 168 (1984). This book is an exposition of the "Prisoner's Dilemma" problem and a presentation of the successful "Tit for Tat" strategy. For further references, see below.
17Id. at 23, 24; see also id., ch. 8, at 145, The Social Structure of Cooperation.
18 The subject of cooperation can be discussed in terms of a simple game, "Prisoner's Dilemma," which is an offshoot of the Theory of Games.
The Theory of Games was developed by mathematician John von Neumann and economist Oskar Morgenstern, both of Princeton University. Their collaboration led to the highly influential treatise THEORY OF GAMES AND ECONOMIC BEHAVIOR (1944). The game Prisoner's Dilemma was formulated in 1950 by Melvin Dresher and Merril Flood of the RAND Corporation, and Albert W. Tucker wrote the first article on it.
The game originates with a trading problem: assume that two traders must trade by leaving a bag of goods in a remote place and getting a bag of goods left by the other in another remote place. The alternatives are either to cooperate or defect. If both leave full bags, both will be satisfied. If one cooperates and the other defects, the defector has gotten something for nothing. Since this is the most satisfactory to the defector, and both parties know it, both will be tempted to leave empty bags.
The elaboration, Prisoner's Dilemma, starts with the following scenario: Two people, suspected of being partners in a crime, are arrested and placed in separate cells so that they cannot communicate with each other. Although they are in fact guilty, without a confession from at least one suspect, the district attorney does not have sufficient evidence to convict them of the crime.
In an attempt to extract a confession, the D.A. explains to each suspect the following consequences of their joint actions. If one suspect confesses and the other does not, the one who confesses can go free for cooperating with the state, but the other gets a 10-year sentence. If both suspects confess, they get reduced sentences of five years. If both remain silent, each goes to prison for one year on a lesser charge.
The possible results are: compromise (both remain silent and get the lightest sentence); one or the other goes free and his accomplice gets the maximum sentence (one confesses and the other remains silent) or equilibrium (both confess and get the medium sentence).
The question is: Does logic prevent cooperation?
For more information on Prisoner's Dilemma and its social ramifications, see Douglas R. Hofstadter, The Prisoner's Dilemma and the Evolution of Cooperation, in METAMAGICAL THEMAS (1985); see also Never Give a Sucker an Even Break, SCI. AM., Oct. 1993, at 22 (discussing two ways of playing the game); AXELROD, supra note 16; Steven J. Brams, Theory of Moves, 81 AM. SCIENTIST 562 (1993) (discussing STEVEN J. BRAMS, THEORY OF MOVES (1994)).
19 For a discussion of this premise at length, see HAIMAN, supra note 14, at 81-86 (discussing "Morality and the Law").
20 Calvin Woodard, Speak No Evil, N.Y. TIMES, Book Review, at 12.
21 HAIMAN, supra note 14, at 78.
22 Though this is where MacKinnon disagrees. She sees the harm of pornography as objectively verifiable and thus fair game for legislation. But, she dodges the vital question of definition, and places the criteria for what constitutes pornography in the most dangerous, subjective, area of all: perception and intent.
23 The film in question was D. W. Griffith's Birth of a Nation, which reached the Supreme Court as Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 230 (1915).
The precedent established remained in force for fifteen years. Birth of a Nation has been banned more often than any other film in motion picture history. Its right to be screened is known to have been challenged in well over 100 incidents in and out of court, as recently as 1980; in 60 instances the picture was completely banned or partially censored.
EDWARD DE GRAZIA & ROGER K. NEWMAN, BANNED FILMS: MOVIES, CENSORS & THE FIRST AMENDMENT 5 (1982).
24 The animated cartoon Beavis and Butthead was moved from prime time to 11:00 at night as a response to a 1993 incident in which a small boy, left unsupervised by his mother, apparently emulated the cartoon characters' pyromania.
ABC children's cartoons are now (1994) subject to internal censorship which recalls the similar response of the motion picture industry in the 1930s and the comic book industry in the early 1950s to threats of Congressional regulation. The "Comics Code Seal of Approval," voluntarily adopted by the industry, drove EC and similar publishers from the stands. The measure applied to children's cartoons, in addition to the usual odd assortment of moral strictures, is to avoid "dangerous and imitable" portrayal of characters and events.
25 GRAZIA & NEWMAN, supra note 23.
26 MIKE BENTON, THE COMIC BOOK IN AMERICA, AN ILLUSTRATED HISTORY, (1989).
27 The wildly successful-4 million copies sold since fall of 1993-video game Mortal Kombat, has come in for significant criticism for its violence. In an attempt to silence criticism, the manufacturer, Acclaim, plans to add-on non-violent features. Instead of ripping out opponent's hearts and tearing off their heads and spines, the player can turn his opponent into a baby or, instead of ripping off his opponent's had with his tongue, end with a "friendship move" such as making a doll for the victim. S.F. CHRON., Mar. 16, 1994
28 A Canadian broadcasting code that took effect on January 1, 1994, bans television shows depicting "gratuitous violence," and limits those that include scenes of violence "suitable for adults only" to the hours after 9 PM. In addition, the code demands special "sensitivity about violence against vulnerable groups," such as women and minorities. The code also puts special restrictions on children's shows, demanding, for example, that on animated shows, "violence will not be the central theme," and violence "not be shown as a preferred way of solving problems," and that the consequences of violence be demonstrated. Accordingly, the animated children's cartoon series "Teen-age Mutant Ninja Turtles" has been banned. N.Y. TIMES, Jan. 11, 1994
29 The Child Pornography and Corrupting Morals Amendment, passed by the Canadian Legislature in June, 1993 was first invoked on December 16, 1993 against a Toronto painter, Eli Langer. Five paintings and 35 drawings were seized by the Police Morality Squad from the Mercer Union, one of Toronto's most respected artist-run galleries. Langer's paintings, drawn from imagination without the use of models, depict adults and children engaged in sexual behavior. Exceptions to the law exist for works of artistic merit, or educational or scientific or medical purpose. But, the law puts the burden of proof on the accused. N.Y. TIMES, Jan. 7, 1994
30 This is exactly the case in England, which similarly circumscribes other civil rights that Americans take for granted. Stanley Kubrick's 1971 film, Clockwork Orange, based on the novel by Anthony Burgess, though couched in futuristic terms, is a scathing satire on the English welfare state. Containing graphic and disturbing depictions of violence, it was banned in England and to this day cannot be shown publicly or privately. Under the guise of preventing an undue influence on weak minds, the government has effectively prohibited legitimate social commentary.
31 Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) (limits on campaign expenditures violate First Amendment) (quoting New York Times v. Sullivan, 376 U.S. 254, 266, 269 (1964) (quoting Associated Press v. United States, 326 U.S. 1, 20 (1945); and Roth v. United States, 354 U.S. 476, 484 (1957))).
32 "To express eroticism 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." MACKINNON, supra note 5, at 33. Of Ms. MacKinnon's argument that reality exists only in the mind, one is tempted to kick a stone and cry, "I refute it thus."
33 Id. at 121.
34 The First Amendment Under Fire from the Left, N.Y. TIMES MAG., Mar. 13, 1994, at 57 (discussion between Floyd Abrams and Catharine MacKinnon, moderated by Anthony Lewis) (hereinafter First Amendment Under Fire).
35 The perplexing nature of words and ideas, and the degree to which they exist as things, has provoked philosophers from Plato to Wittgenstein. Lately, a class of words called "word acts" has been described by John Searle and J. L. Austin. These words are distinguished from ordinary words "on the ground that their mere utterance brings about some new state of affairs." HAIMAN, supra note 14, at 10. In disagreement with this, we may observe that "words alone, without human agents, who are persuaded, for whatever reasons, to act upon them, change nothing. It is, therefore, difficult ... to see how they qualify as 'deeds.' " Id. at 12.
36 Now that gangster rap has become the subject of Congressional inquiry (two hearings were held last month [February, 1994], and two more planned) the criminalization of the music threatens to be passed into law. Unable to address the sources of black America's economic, political and psychological problems, elected officials have turned to the true source of our woes: Dr. Dre and Snoop Doggy Dog.
Greg Tate, Above and Beyond Rap's Decibels, N.Y. TIMES, Mar. 6, 1994
37 HAIMAN, supra note 14, at 4.
38Id. at 17.
39 AXELROD, supra note 16, at 12.
40 HAIMAN, supra note 14, at 27, 28.
41 See the case of Jerry Falwell against Hustler magazine, in which the Supreme Court held "Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently 'outrageous.'" Hustler Magazine v. Falwell, 485 U.S. 46, 53 (1988). Falwell
contends...that the caricature in question here was so "outrageous" as to distinguish it from more traditional political cartoons. There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is such a standard, and we are quite sure that the pejorative description "outrageous" does not supply one. "Outrageousness" in the area of political and social discourse has an inherent subjectivity about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. An "outrageousness" standard thus runs afoul of our long-standing refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.
Id. at 55.
42 Justice William J. Brennan, Jr., cited in DE GRAZIA & NEWMAN, supra note 23, at 106.
43 First Amendment Under Fire, supra note 34, at 71, 81 (remarks of Floyd Abrams).
44 Barger v. Playboy Enterprises, 564 F. Supp. 1151 (N.D. Cal. 1983). This case established that "Plaintiffs who sue for defamation must show that the allegedly libelous statements were made 'of and concerning' them, i. e., referred to them personally," id. at 1153, and that a "group of at least 500" women involved in extramarital sexual relationships with motorcycle club members was far too numerous to satisfy the "of and concerning" standard, id. at 1155. This
limitation on liability safeguards freedom of speech by effecting
a sound compromise between the conflicting interests involved in libel cases. On the one hand the societal interest in free press discussions of matters of general concern, and on the other is the individual interest in reputation. The courts have chosen not to limit freedom of public discussion except to prevent harm occasioned by defamatory statements reasonably susceptible of special application to a given individual.
Id. at 1153 (quoting Service Parking Corp. v. Washington Times Co., 92 F.2d 502, 505-06 (D.C. Cir. 1937) (emphasis by Barger court).
45 This song was sung on the first of March on the Welsh borders and other parts of England. Baiting the Welsh was certainly customary in London on St. David (Taffy's) Day. In an early eighteenth-century chapbook, Taffy's Progress to London, it is narrated "how Despiseable the poor Welsmen alaias Britains were made in England on St. Tafy's day, by the Rabbles hanging out of a Bundle of Rags in represtation of a Welshman mounted on a red Herring with a Leek in his Hat."
IONA AND PETER OPIE, EDS., OXFORD DICTIONARY OF NURSERY RHYMES 400, 401 (1951).
The British Racial Relations Act of 1965 prohibits the publication of "Threatening, abusive, or insulting" material aimed at fomenting "hatred against any section of the public in Great Britain distinguished by color, race, ethnic or national origins.. . ." HAIMAN, supra note 14, at 33. By this measure, it is a criminal offense to sing or recite the ditty about the larcenous Taffy on Saint David's Day.
In America, the First Amendment promotes discussion and protects all forms of speech, even the ones found offensive. The logic is best expressed by Justice Louis Brandeis' 1927 opinion rendered in Whitney v. California, 274 U.S. 357, 377 (1927):
If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution.
See HAIMAN, supra note 14, at 34.
46 Frank Loesser, The Four Lads (Columbia Records 1956).
47 Considerable doubt exists as to the reality of such films, and to hang so much rhetorical weight from such a flimsy support seems risky, at best. To cite only one source, Brewer's Dictionary of Twentieth-Century Phrase and Fable, under the category "Snuff movie or snuff film," says,
Slang for an underground pornographic film that has as its climax the murder of an unsuspecting actress or actor, usually a child. It is rumored that these films began to appear in California in the late 1960s, although not one example has ever been verified. Faked snuff movies, however, have been made for commercial purposes.
BREWER'S DICTIONARY OF TWENTIETH-CENTURY PHRASE AND FABLE 567 (1981).
48 MACKINNON, supra note 5, at 22.
49 HAIMAN, supra note 14, at 6, 7.
50 My perception is that commercial pornographic writing and films, by presenting sexuality without responsibility, reinforces a social climate which condones irresponsible or aggressive behavior, from harassment to rape, incest, battering and murder. ... Pornography reinforces this belief-the hard stuff, but even more pervasively the soft stuff. Not only the snuff movies which some men watch, but also the Hollywood movies which everybody watches ... .
Ursula K. Le Guin, Pornography + Responsibility, CIV. LIBERTIES, fall 1993, at 4 (national newsletter of the ACLU).
51 For an interesting discussion of this subject see Thomas L. Friedman, Let's Play Geo-Monopoly: Diplomacy is Minding Other Nation's Business, N.Y. TIMES, Jan. 30, 1994, see also Thomas L. Friedman, Trade vs. Human Rights, N.Y. TIMES, Feb. 8, 1994
52 The First Amendment Under Fire, supra note 34, at 71.
53 As quoted in FRED METCALF, ED., THE PENGUIN DICTIONARY OF MODERN HUMOUROUS QUOTATIONS 198 (1987).
54 MACKINNON, supra note 5, at 19 (emphasis in original).
55 Le Guin, supra note 50, at 4.
56 MACKINNON, supra note 5, at 15.
57 Butler v. Her Majesty the Queen, 2 W.W.R. 1 (1992). [CHECK CITATION]
58 Leanne Katz, Censors' Helpers, N.Y. TIMES, Sept. 4, 1993 59 Sarah Lyall, At Canada Border: Literature at Risk?, N.Y. TIMES, Dec. 13, 1993; see also The First Amendment Under Fire, supra note 34.
60 The First Amendment Under Fire, supra note 34, at 57 (remarks of Catharine MacKinnon).
61 MACKINNON, supra note 5, at 15.
62 Id. at 20 (emphasis in original).
63 Julia Reed, The Burden of Proof, VOGUE, Jan. 1994, at 32 (quoting Anne Rice).
64 See Brent Staples, The Rhetoric of Victimhood, N.Y. TIMES, Feb. 13, 1994, (discussing philosopher Albert Borgman's recent book, Crossing the Postmodern Divide).
65 Julia Reed, supra note 62, at 33.
66 MACKINNON, supra note 5, at 104.
67 The First Amendment Under Fire, supra note 34, at 42.
68 MACKINNON, supra note 5, at 109.
69 For example, although she acknowledges that the U.S. Supreme Court reversed the Wisconsin Supreme Court in the 1993 hate crime case, Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993), she declines to explain the Court's reasoning, apparently because the U.S. Court makes some of the very word/action distinctions MacKinnon refuses to accept, and because she cites Mitchell as an example of courts "protecting" harmful speech, when in fact the High Court went the other way. Perhaps ironically, Mitchell is a hate crime case against a Black defendant, who committed a hate crime against a White male. To acknowledge the Mitchell case for what it is would be to admit that carefully-drafted laws can address bias-motivated acts without prohibiting bias-motivated speech. Indeed, though the Wisconsin state court struck down Wisconsin's hate crime law as violative of the First Amendment; the Supreme Court reversed the Wisconsin court. MacKinnon's footnote 29 on page 142 says "cert. granted," which means the Supreme Court agreed to hear the case. She fails to mention until her footnote 47, at page 143, that the High Court upheld the Wisconsin law, i.e., reversed the Wisconsin court. This might seem a bit petty, but this pettiness is the stuff that law reviews are all about, and MacKinnon's failure to be precise is inexcusable, given the resources she has at her command. If she did this in a brief, to a court rather than in a book, the court might impose sanctions for mis-citing authority. Even in a book, she owes the reader an explanation. At page 85, MacKinnon incorrectly states that hate crimes are struck down based on the First Amendment. In reality, those laws that punish acts motivated by bias survive First Amendment scrutiny. Those that punish the speech aspect of the act, or the speech itself, do not pass constitutional muster.
Another example of sloppiness, or deception, lies in footnote 53 at page 124. Here, MacKinnon appears to be discussing the Rodney King case, although she inexplicably fails to identify the case. MacKinnon states that two officers were "convicted" in a civil trial. Any first year law student knows that civil trials do not lead to convictions, they lead to judgments of liability. Only criminal trials lead to convictions. In the Rodney King case, the officers were acquitted in a state court trial, but convicted in a federal court trial. Both trials were criminal cases.
70 MACKINNON, supra note 5, at 23, 24.
71 JANICE G. RAYMOND, REPRODUCTIVE TECHNOLOGIES AND THE BATTLE OVER WOMEN'S FREEDOM (1993), reviewed in Robin Marantz Henig, N.Y. REV. BOOKS, Feb. 6, 1994
72 Stephanie Morriss, N.Y. TIMES, Jan. 19, 1994, (letter to the editor).
73 Applying MacKinnon's "damned if you do and damned if you don't" theories, Canadian border authorities did indeed seize two of Andrea Dworkin's books on why pornography should be banned. After much uproar and media coverage, the authorities released these books. Canada also has a Police Morality Squad, which closes down art shows and bookstores, and confiscates books and magazines.
74 MACKINNON, supra note 5, at 76, et seq.
75 These ringing words occur in the case Roth v. United States, 354 U.S. 476, 484 (1957). However, this case upholds the conviction of Stanley Roth for pornography, and specifically states that "obscenity is not within the area of constitutionally protected speech or press." Id. at 485. "But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." Id. at 484. Furthermore, it cites as exceptions to those expressions of ideas that are fully protected, the case of Schenck v. United States, 249 U.S. 47 (1919), a cornerstone of those who would stifle political protest. The words are wonderful, but the case begs the central problem of usefully defining obscenity. We are not satisfied with the "Standard for judging obscenity is whether the average person, applying contemporary community standards, dominant theme of material taken as a whole appeals to prurient interest." First, we insist, "So what if it appeals to the prurient interest," and secondly, "whose prurient interest are we talking about as defining what shall constitute prohibited speech?"
76 Ira Glasser, N.Y. TIMES, Feb. 19, 1994,] (letter to the editor from the Executive Director of the American Civil Liberties Union).
77 HAIMAN, supra note 14, at 7-9.
78 Linda Greenhouse, Two Visions of Free Speech, N.Y. TIMES,
79 The people have a right to criticize their government, and to replace it-severally or collectively-if necessary. This makes the government responsive to the needs of the people. In non-democratic political systems, the rulers are isolated from the citizenry. The pain of the people is rarely the pain of the ruler, and since the ruler does not starve in the famine, or get shot in the war, or suffer abuse at the hands of the police, the ruler has no incentive to care about the needs and desires of the people. In a democracy, the people can take the government to task, thus providing it with a genuine incentive to accede to their demands; to listen to their needs; to follow their suggestions.
80 It is significant that no democratic country with a relatively free press has ever experienced a major famine (although some have managed prevention more efficiently than others). This generalization applies to poor democracies as well as to rich ones. A famine may wipe out millions of people, but it rarely reaches the rulers. If leaders must seek reelection and the press is free to report starvation and to criticize policies, then the rulers have an incentive to take preemptive action. In India, for instance, famine ceased with independence. A multiparty democratic system and a relatively unfettered press made it obligatory for the government to act. In contrast, even though postrevolutionary China has been much more successful than India in economic expansion and in health care, it has not been able to stave off famine. A serious famine occurred after the agricultural program of the Great Leap Forward failed. The lack of political opposition and a free press allowed the disastrous policies to continue for three more years. The death toll consequently climbed to between 23 million and 30 million people.
Many countries in sub-Saharan Africa, among them Somalia, Ethiopia and Sudan, have paid a heavy price for military rule. Conflicts and wars are conducive to famine not only because they are economically destructive but also because they encourage dictatorship and censorship. Relatively democratic sub-Saharan countries, such as Botswana and Zimbabwe have, in general, been able to forestall famine. Of course, even an undemocratic country can avoid famine through luck: a crisis might not arise or some benevolent despot might implement effective famine-relief policies. But a democracy is a more effective guarantee of timely action.
Amartya Sen, The Economics of Life and Death, SCI. AM., June 1993, at 43-44.
81 Democracy is a work in progress, with no clear borders or lines. When this nation was founded, the franchise-though in terms of specifics left up to the Several States-was generally granted to every male citizen of good character, who owned property, was White, and over the age of twenty-one. Manhood suffrage expanded the franchise to White males over twenty-one, regardless of financial status. Americans of Black African ancestry were brought in after the Civil War; women in 1919; during World War II the army got the vote; in 1960 the residents of Washington, D.C. could vote; and in 1972 the voting age for all citizens was dropped to eighteen. As a result of expanding the franchise, what has happened? Not much, except that more people have been brought into the decision-making process. No upheavals, no turmoil, no chaos. Democracy did not degenerate into anarchy, as Plato feared.
82 394 U. S. 557, 565 (1969).
* Mr. Goines is a writer and artist in Berkeley, California. His books include THE FREE SPEECH MOVEMENT (1993). His posters are represented in national and international collections. Mr. Goines expresses sincere thanks to Linda Parker Guenzel.
Neil A. F. Popovicá A.B., J.D., University of California, Berkeley; M.A., Tufts University. Mr. Popovic is an attorney in the International Program of the Sierra Club Legal Defense Fund in San Francisco, California.
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