The First Amendment: Indispensable and Indivisible
[Here are the prepared remarks by Judith Platt, Director, Free Expression Advocacy, Association of American Publishers, delivered at the ALA Annual Conference in Orlando, FL on June 27, 2016. Judy, a Freedom to Read Foundation Roll of Honor awardee, was one of two speakers at “Taking the Cake: A Generational Talkback“.]
The First Amendment is Indispensable
Let me begin by saying that, not surprisingly I’m pretty close to a free speech absolutist. I believe our First Amendment and what it represents and encompasses is the basis of every other human and civil right. I do not believe we can ever hope for social justice in the absence of unfettered free speech.
By the First Amendment I don’t mean just the 14 words in the Bill of Rights. Those fourteen words cannot in themselves account for our unique freedom. When we say today that the First Amendment guarantees our freedom, we mean not only its brief text but the vast body of law built up over the years, carefully delineating the limits that a free society can place on speech and specifically defining the types of speech not protected by the Constitution: child pornography, defamation, obscenity, perjury, fighting words, blackmail, incitement to imminent lawless action, true threats and solicitations to commit a crime. Speech is assumed to be protected unless it falls into one of these categories.
I am proud to say that the Association of American Publishers and the industry it represents has been a staunch ally of America’s librarians and booksellers in the fight for intellectual freedom, a fight that has never been easy, and often unpopular. A substantial number of the court cases and free speech fights we’ve been involved in have not related to books or publishing, and often we have had to line up on the side of the indefensible in the cause of free expression: a liar claiming to be a Congressional Medal of Honor winner in the Alvarez case, despicable homophobic bigots in Snyder v. Phelps, a purveyor of films of animal cruelty in U.S. v. Stevens, to name a few recent examples.
We haven’t always been on the side of the angels. As my friend and colleague Chris Finan points out in his marvelous book From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech In America, in the early years of the 20th Century “Book publishers, authors, librarians and booksellers took pride in their role as purveyors of culture, and many considered it part of their job to protect the public from bad books.” An early president of the American Library Association warned that American literature was being undermined by immigrants “whose standards of propriety are sometimes those of an earlier and grosser age.” Publisher Henry Holt warned of the growing sexual explicitness in literature in a letter to the New York Times.
We did see the light, however, and by mid-century librarians and publishers were in the forefront of the fight for freedom of thought and speech and among the earliest voices to speak out against the demagoguery and red-baiting of Joseph McCarthy. In May 1953 a small group of librarians and book publishers met at the Westchester Country Club to talk about what might be done to counter McCarthy-inspired attempts to suffocate free expression and purge America’s libraries at home and at U.S. missions overseas. The result was a statement on The Freedom to Read issued by ALA and the American Book Publishers Council (AAP’s predecessor), and subsequently endorsed by other organizations. I have a framed copy of that statement hanging in my office and it is as relevant today as it was when it was issued more than 60 years ago. The statement concludes by saying:
“We realize that the application of these propositions may mean the dissemination of ideas and manners of expression that are repugnant to many persons. We do not state these propositions in the comfortable belief that what people read is unimportant. We believe rather that what people read is deeply important, that ideas can be dangerous, but that the suppression of ideas is fatal to a democratic society. Freedom itself is a dangerous way of life, but it is ours.”
Sacrificing Free Speech in the Interest of a Greater Social Good
There has been a good deal of discussion lately, especially on college campuses, about increasing awareness of the hurtful, destructive effects some speech can have on vulnerable segments of the population. There have been calls for greater sensitivity to racial, multi-cultural, and gender-based concerns, identity-based oppression, micro-aggression, trigger warnings. Uprisings on college campuses including Yale, Oberlin, and Amherst are protesting what a group at Amherst called “the negative social climate created towards our peers of color and other marginalized groups.” These protests have been accompanied by demands for disciplinary action against students who put up posters saying “All Lives Matter,” and “In Memoriam of the True Victim of the Missouri Protests: Free Speech.”
Despite (or maybe because of) the attention these protests are drawing, we need to remind ourselves that attempts to subordinate free speech rights to the greater social good are not new. Radical feminist Catharine MacKinnon was committed to limiting Constitutionally-protected free speech as a means of achieving gender and racial equality. My thanks again to Chris Finan for his informative and scholarly report “Catharine A. MacKinnon: The Rise of a Feminist Censor.” (A complete copy of this report can still be accessed on the Media Coalition website.) MacKinnon’s view that “pornography, as it subordinates women to men, is a form of discrimination on the basis of sex,” found its way into local laws in Minneapolis and Indianapolis, allowing women to sue producers or distributors of pornographic works for civil rights violations. She defined pornography as “the sexually explicit subordination of women, graphically depicted, whether in pictures or words.” Although the Minneapolis ordinance was vetoed, it found a home in Indianapolis where conservatives were only too eager to get rid of sexually explicit material that did not meet the Supreme Court’s criteria for obscenity. The Indianapolis law, which took no account of the artistic, educational or social value of the work in question, was struck down in federal court on First Amendment grounds in a lawsuit brought by ABA, AAP, and the Freedom to Read Foundation. The ruling was upheld by the 7th Circuit and confirmed by the U.S. Supreme Court. Fortunately, after the defeat of the Indianapolis ordinance, MacKinnon’s dangerous views on sexually explicit materials gained little legal traction in this country. Our neighbors to the north weren’t so lucky. Her view of pornography as a violation of women’s rights has been adopted by the Canadian Supreme Court.
In her writings MacKinnon broadened her assault on the First Amendment by arguing for the restriction of hate speech. In her book Only Words she maintained that no real equality can be achieved “until the government limits the free speech rights of the powerful and gives these rights to women, minority groups, and others who have been silenced by their powerlessness.” MacKinnon saw social equality and free speech as warring values “on a collision course in this country.”
Another attempt to achieve social good through limits placed on free expression can be seen in efforts by various states to compensate crime victims not only for financial loss but for the pain and suffering they have endured. To accomplish this a number of states passed so-called “Son of Sam” laws mandating that the proceeds of books written by convicted felons be turned over to victims’ compensation authorities. In 1992 the Supreme Court struck down New York state’s law in a challenge brought by Simon & Schuster, the publisher of Nicholas Pileggi’s Wiseguy: Life in a Mafia Family which was written with the help of former mobster Henry Hill. The Supreme Court said that while it might be lawful to mandate that all of a convicted felon’s assets be directed to compensating his victim, the Constitution did not permit the state to single out First Amendment-protected expression for specific punitive action. We submitted a brief to the Court stressing the law’s chilling effect and citing important books that might never have been published with such a law in place, including Thoreau’s Civil Disobedience, The Autobiography of Malcolm X, and the Confessions of St. Augustine.
The Abuse of Satire
Barely four months after the terrorist attack on the French satirical magazine Charlie Hebdo that left ten staff members and two police officers dead, cartoonist Garry Trudeau denounced the murdered cartoonists and editors saying that “by punching downward by attacking a powerless, disenfranchised minority with crude, vulgar drawings…Charlie wandered into the realm of hate speech….Satire punches up against authority of all kinds….Ridiculing the non-privileged is almost never funny—it’s just mean.” But as David Frum pointed out in a piece in The Atlantic: “There are many dogs in any fight, and the task of identifying which one is the underdog is not so easy.…it’s hard to ignore that many whom Trudeau regards as European victims are simultaneously engaged in large-scale violence against people they regard as their enemies.”
One of my personal heroes, Doug Marlette, the Pulitzer Prize-winning editorial cartoonist and author, who styled himself “an equal-opportunity offender” wrote brilliantly in the Columbia Journalism Review about the new face of censorship. Long before Charlie Hebdo or the Danish cartoons, Marlette came under attack by the Council on American-Islamic Relations for a cartoon skewering the faith-based politics of radical Islam. A few years later, he came under attack by the liberal literary establishment in his North Carolina town, this time accused of homophobia because of his fictional depiction of a gay writer in his novel, The Bridge. Marlette saw similarities between the attacks. He wrote: “The threads that connect the CAIR and the literary fatwas…are entreaties to ‘sensitivity,’ appeals to institutional guilt, and faith in a corporate culture of controversy avoidance. Niceness is the new face of censorship in this country. The censors no longer come to us in jackboots with torches and baying dogs in the middle of the night. They arrive now in broad daylight with marketing surveys and focus-group findings. They come as teams, not armies, trained in effectiveness, certified in sensitivity…”
The First Amendment is Indivisible
Twenty years ago Ted Sorensen, President Kennedy’s close adviser and speech writer, spoke to a publishers gathering, and his words have stayed with me for two decades. “If I have a single message to deliver to you…it is simply this,” Sorensen said:
“The First Amendment is indivisible. It protects the free exercise of religion, the freedom of speech, the freedom of the press, the right to peaceably assemble, and the right to petition the government for a redress of our grievances; but it is not really about five different freedoms. It basically protects one–the freedom of expression. Whether that expression takes the form of words or music or art or symbols, whether that expression is conveyed by speech or prayer or petition, by cable or computer or crowd, by airwaves or printing press, that freedom is indivisible…Where there is no liberty for the dissident or the heretic, there is no liberty for the author or the publisher. I am sure it is not a quirk or a coincidence that, except for a different mark over the letter “i”, the Latin word “Liber” meant both “freedom” and “book.”