Book Review: The Irony of Free Speech

I recently finished Owen Fiss's The Irony of Free Speech, a book that focuses on hate speech, pornography, and campaign finance with a firmly governmental (Fiss's term is "democratic") stance regarding the First Amendment. Reading the summary of the book, I thought that I would agree with Fiss's argument, and I did...to a point. While he makes many valid points that I think have been missing from our discussions in class, mainly about how power operates through the First Amendment, the way he makes his argument is disappointingly problematic.

Fiss points out in the first chapter that "hate speech tends to diminish the victims' sense of worth, thus impeding their full participation in many of the activities of civil society, including public debate" (16). He goes on to make a connection to campaign financing, arguing that "the voice of the less affluent may simply be drowned out" if politicians must depend on their own funds rather than state-allotted financing. I completely agree that the "freedom" element of "freedom of speech" must not be viewed in a libertarian sense but in a more comprehensive, governmental sense. After all, how free are you if you are cast into the middle of the ocean and are told you are "free" to swim ashore if you please? Likewise, those who are targeted by hate speech are told that they are "free" to reply, even though they might not have the same publicity, spending and distribution power, access to fora, etc. of the speaker that targeted them. Fiss also argues that, if government can restrict freedom of speech in matters of national security, it should use the same sort of regulation to ensure the "fullness of debate," thus restoring power and agency where they are lacking (20).

Even though Fiss makes these crucial points about power, he also undermines his analysis by flippantly dismissing the actual language of the First Amendment, asserting that "the agency threatening speech values" need not be the state itself, and in fact showing state action in a case is "a purely technical matter." Since the goal of the First Amendment is to foster "full and open debate" according to Fiss, no state action is required (17). He casts aside "Congress shall make no law" in favor of uninhibited, robust, and wide-open debate, elevating the precedent set by NYT v. Sullivan to the level of the Constitution. Even though I may agree with his main point, the way he frames his argument here is rather presumptuous and troubling.

That being said, we must accept Fiss's assumption in order to evaluate his other ideas, one of which includes a reevaluation of freedom of the press. While Fiss admits that content-neutrality might be threatened if government regulated the press, he argues that the free market is actually worse for allowing full debate in the public sphere (52). As we've discussed in class, when a private newspaper is trying to turn a profit, they might not find that opportunity in allowing every view equal space in their publication. On the contrary, they usually find better luck by becoming explicitly partisan in order to retain a solid subscription base. We can see this at work locally. An acquaintance of mine who works in the subscription department at the local News-Gazette recently told me that after the conservative paper sold an ad to a Democratic candidate, they were flooded with subscription cancellations, prompting a discussion at the office about whether ad revenue or subscription base was more important for the financial outlook of the paper. Fiss's argument is definitely worth consideration, especially now that many print publications are in a crisis, declaring bankruptcy and desperately trying to find a way to stay in business.

While Fiss is quick to find flaws in the free market, he is relatively dismissive of the financial impacts of government regulation on private companies. In Pacific Gas & Electric v. Public Utilities Commission, a case he gives as an example, the power company sued the California Utilities Commission after it required the company to yield space in its billing envelopes for a community watchdog group to disseminate their reports on the company's rates and performance. Even though this would not cost the company extra postage, the citizens' bulletin did replace the company's newsletter, which the company understandably found to be more profitable than the alternative. The company won, not on the basis of its economic loss, but because the requirement was compelled speech. Friss acknowledges the financial loss, but claims it is of "no constitutional significance"; because all citizens' tax dollars are inevitably used for purposes counter to the taxpayers' will or interests, "[h]aving one's property or wealth used to support activities that one detests is widely held to be the price of citizenship in a democracy" (67-8). The problem here, however, is that corporations aren't citizens and should not be treated as such. If a corporation and the individual who runs that corporation are both under the same regulations, then the individual is regulated twice-over, which seems unfair.

As I read Friss's book, I wanted to agree with him. In fact, I did agree with him based on my own subjectivity and opinion of right and wrong. But, drawing on my knowledge of First Amendment law from class, I kept finding holes in his arguments. Now, I'm no Mike Huckabee, but I wonder if the public's interest might best be served if we could somehow alter the language of the First Amendment so that scholars like Friss could argue on firmer ground. Of course, the power structures that Friss decries would probably corrupt any attempt to restructure the Constitution in order to maintain their power.

Can Porn Be Educational?

Last week, Maryland state Senator Andrew P. Harris (R) proposed an amendment to the state budget denying all funding to public universities that screened a XXX-rated film on campus, unless the film was part of an academic course. Harris's proposal was in response to the planned screening of Pirates II: Stagnetti's Revenge, an extremely high-budget adult movie ($10 million--the highest ever for an adult film) that has already been screened at several universities across the country, including UCLA, Northwestern, and Carnegie Mellon.

The vice-president of student affairs at Maryland canceled the screening, which would have been accompanied by a presentation from Planned Parenthood about safe sex practices, after the uproar led by Harris. In protest, a student group screened the film in a lecture hall and turned the event into a discussion of First Amendment rights and the effect of pornography on society. The university allowed, but did not condone, this event and insisted it carry some educational value. Watch excerpts from the event below:



Now, the student-planned event was obviously a success--but the originally-planned event should never have been canceled in the first place, and I think it's safe to say, for several reasons, that Sen. Harris was bluffing when he introduced his proposal.

First and foremost, Sen. Harris's attempt violates the doctrine of unconstitutional conditions, which holds, in Kathleen M. Sullivan's words: "that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether" (102 Harv. L. Rev. 1415). As we are about to see, and as you may already have guessed, the constitutional right in this case is the First Amendment.

It's easy to argue that the originally-planned event could have passed the Miller Test for having (at least) political and scientific value. But, with the presentation from Planned Parenthood and the chosen venue of a student union, the full-length screening would have been just as legal. This story provides a contrast to seedier porn venues, indicating that context is key when judging obscenity. One thing the community gets from screening an adult film on a university campus that it probably didn't get at an old Times Square theater is the opportunity for criticism and debate. From the Baltimore Sun article: "Showing a movie like this opens up a discussion, a discourse on sexuality and gender roles, and for them to stifle that discourse from happening is amazing," said Christopher Ruth (a spokesman for Digital Playground, the film's production company). Yes, pornography can be violent and demeaning to women, as Linda Clement argues (and there's actually some contention about this; see A Feminist Defense of Pornography), but a great way to address these issues is by critiquing the films in an academic setting. This is another example of that great "radical thought" of libertarianism: if the original speech is dangerous, the danger can be mitigated by more speech. That's just what happened at last year's "Who Wants to be a Porn Star" lecture, and it's what wound up happening at the student-planned event at UMCP (Sorry for the lame link; I guess no one at the DI found that lecture newsworthy).

On a more basic level, I wonder where the state interest is here. Yes, UMCP is a public (and therefore taxpayer-funded) university, but no taxpayer dollars would have been used for the screening. The film was provided for free by the producers as part of their marketing, and ticket sales would have covered any other costs. So, it's not actually "about the use of taxpayer dollars," as Sen. Harris would like everyone to believe. If a public university is not using tax money or student fees for a controversial event, they should be no more subject to government scrutiny than a private university would be.

A state legislature's attempt to censor speech on a university campus almost always challenges intellectual freedom, and as a result it is almost always unacceptable. At the risk of sounding elitist, I think that one of the most productive spaces to hold "uninhibited, robust, and wide-open" debate is a public university, where diversity of opinion is often seen as an integral part of our quest for knowledge.

In Defense of Title VII: Why Workplace Harassment Law is Constitutional

I recently stumbled upon an interesting dialogue at Slate titled "Free Speech vs. Workplace Harassment," in which Professors Eugene Volokh and Deborah Epstein debate whether harassment law, specifically Title VII of the Civil Rights Act of 1964, violates the First Amendment. With relatively sparse case law in this area, Epstein and Volokh both accuse the other of misrepresenting the facts of cases to suit her or his needs. On the whole, however, I tend to agree more with Epstein's "governmentalism" than Volokh's sometimes callous liberatarianism, even though he makes a very interesting argument. While I think that Epstein successfully proves that workplace harassment survives First Amendment strict scrutiny in this Georgetown Law Journal article (84 Geo. L.J. 399), I'll focus on Volokh's arguments in this post.

Volokh (and pretty much everyone else, for that matter) agrees that "quid pro quo" harassment (e.g. mandating sexual favors for continued employment) and "one-to-one" harassment (e.g. calling someone a racial slur directly) should remain prosecutable offenses under harassment law; he calls these "directed speech" (Comment: Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791). It is with "undirected speech" that Volokh takes issue. This type of speech can contribute to a "hostile environment" if it is "severe or pervasive" enough.

If you pretend Jesus, Mo, and Ganesh are all at work, this comic would be a good example of the kind of undirected speech Volokh thinks should be protected (I know, I should cite a case, but there are plenty to be found on Volokh's site, and it turns out Professor Helle loves web comics).



Volokh wants to decriminalize what he calls "one-to-many" speech, and prevent the creation of a new exception to the First Amendment for harassing speech, for several reasons. To keep this post brief, I'll try to focus on what I consider his main points to be, but if you have the time, you should peruse his very extensive analysis of this issue.

Volokh argues that harassment law can restrict "political statements, religious proselytizing, legitimate art, sexually themed (perhaps not even misogynistic) jokes, and other kinds of speech that are generally seen as being entirely constitutionally protected."

He adds in the Slate dialogue that, because we spend a third of our lives at work, we need to be able to freely express ourselves while on the job. I would argue that because the state has an interest in keeping its residents employed, it has an interest in maintaining an environment in which workers don't feel uncomfortable or threatened. Even if we cast empathy aside, we must recognize that lower morale will eventually lead to lower productivity, as Deborah Epstein points out in her response (85 Geo. L.J. 649) to one of Volokh's law review articles.

Volokh also argues that employers will tend to err on the side of extreme caution when framing their harassment policies. He gives several examples of "zero-tolerance policies" that prevent all types of speech, regardless of whether it is severe or pervasive, for fear that an accumulation of individual expression will accrue to legally become harassment. But I'm not sure that this is acceptable evidence of a chilling effect on speech, and neither does Epstein, who asserts that zero-tolerance policies result from, among other things, poor legal advice. The burden of having to accomodate a law is not the greatest argument against that laws existence. Employers, she argues, have several options:

by educating workers about the scope of hostile work environment harassment law, training them to improve interpersonal communication, and creating grievance procedures that allow effective evaluation of and response to harassment complaints, an employer can protect itself from liability while allowing workers breathing room for expression.

Another argument against the constitutionality of workplace harassment law has to do with employer liability. Volokh gives the impression that an employer is liable for any and all hostile environment harassment that takes place on company grounds. But in the Berkeley Journal of Employment and Labor Law (17 Berkeley J. Emp. & Lab. L. 321), Oppenheimer cites Klessens v. United States Postal Service, where the employer was found not liable for a worker being subjected to continued sexual harassment due to lack of notification; even though Klessens filed complaints with her supervisor and, when met with further degradation from him, his supervisor. Still, the court found that the U.S.P.S. was not properly notified.

It seems to me that Volokh is exaggerating the dangers and free speech restrictions, especially when cases like Klessens's are so difficult to prove—which brings me to my final point. There is a societal need for harassment law, and any restrictions on free speech are the price we pay for striving toward an equitable society. In her law review article, Epstein points out that issues of power prevent women from being able to confront their harassers without access to the judicial system. In fact, even with that access, many do not come forward for fear of reprisal: "Their concern is well-founded; one study reveals that twenty-four percent of victims surveyed were fired because they complained about sexual harassment." (Epstein).

Our legislators, representing their constituents, decided that equality was a worthwhile goal with the Civil Rights Act of 1964. If we truly value making every workplace equally accessible to all, then hostile environment workplace harassment should be regulated by the government.

Constitutional Prior Restraint in Media Coverage of Sexual Assaults

Prior restraint is one of the most egregious threats to our First Amendment right of freedom of expression. The Constitution's framers intended the doctrine against prior restraint as a reaction to the British licensing system. However, we move into more subjective territory when issues of court orders and injunctions arise. The Supreme Court has established that any effort to restrain publication carries with it a "heavy presumption against . . . constitutional validity" (New York Times Co. v. United States, otherwise known as the Pentagon Papers case). Some members of the press have argued that court injunctions and gag orders that prevent them from publishing the details of a legal case do not meet the "heavy burden" of proof established by the court, especially when dealing with a high-profile case. Supreme Court Justice Brennan has argued against the existence of injunctions: "Commentary and reporting on the criminal justice system is at the core of First Amendment values, he would hold, and secrecy can do so much harm 'that there can be no prohibition on the publication by the press of any information pertaining to pending judicial proceedings or the operation of the criminal justice system, no matter how shabby the means by which the information is obtained' (Nebraska Press Ass'n v. Stuart)" (as quoted here). In People v. Bryant, just such a case, the court ordered that transcripts of in camera (in private) proceedings that were accidentally leaked to the press could not be published. The seven media entities involved filed a petition against the injunction, claiming it was an unconstitutional form of prior restraint. The Supreme Court of Colorado upheld the decision, finding that the scope of the order (as they had rewritten it) was narrow enough for it to be constitutional and in the interest of the public and recognizing that "protecting the privacy of rape victims is a highly significant state interest" (Justice Hobbs, Opinion of the Court). The 4-3 decision indicates, however, that this state interest may not be enough to overrule Justice Brennan's earlier opinion.

Jeffrey Matrullo built an argument that the press has a right to complete and accurate information, no matter what, in his Spring 2005 article in the Connecticut Public Interest Law Journal. Part of the function of the press, he writes, is to keep the public informed and to "impose checks on government abuses." He goes on, in what only amounts to a sycophantic attempt to appeal to justices, Matrullo contends that if the public does not receive sufficient information about a trial, they will think that the system has failed or been corrupted. But this is why Supreme Court justices have lifelong terms—they needn't worry about public opinion, only the interpretation of the law.

Matrullo makes a legitimate point when he frames the Bryant ruling in contradiction to several historical precedents. For instance, in Florida Star v. B.J.F., the details of a sexual assault case were accidentally put in the press room at a Florida police department, and the Star published the victim's name. The SCOTUS overturned the lower courts' rulings, stating that the paper had a right to assume that it had lawfully obtained the information. Throughout the case, though, the justices emphasize the importance carefully determining the facts of the case to discern whether the prior restraint could be justified. The court even explicitly states that "in a different case, the results might be different." This decidedly neoliberal attitude in favor of ad hoc judgment ensures that victims' rights will be carefully measured against the First Amendment right of the press.

To continue in the case-by-case tradition, let's consider the Bryant case on its merits. When the victim's name, personal contact information, and other very personal information was made available to the public, her security was put in great danger; in fact, the victim was so negatively affected by the leak that she dropped the charges in an effort to escape the undue public scrutiny forced upon her and her testimony. So, public access to this information made the victim stop cooperating with the prosecution and would act as a deterrent for future victims of sexual assault—a crime that is already drastically underreported.

As for the assertion that releasing this information is in the public interest, I think Paul Grobman of the Boston University Law Review said it best (keep in mind that the leaked information in Bryant contained the same material that would be present in a rape shield hearing, which decides whether a victim's sexual history should be admissible evidence):

It is not clear that access to the rape shield hearing would promote the public perception of fairness or provide an outlet for community hostility and emotion. The rape shield hearing focuses not on the actual events at issue, but only on proof of the victim's prior sexual conduct. Access to a proceeding which examines the victim's conduct rather than the defendant's might actually delegitimize the criminal system and increase rather than lessen community hostility. Exposure to the proceeding would prove especially upsetting to women, the primary victims of rape, by convincing them that the criminal justice system is slanted against them.

The Endless Debate over Founders' Intent

Virtual Kiddie Porn: Where is the Harm?

One would think that child pornography is illegal because the production of images of children engaging in sexual acts is potentially harmful to those children. However, the legal definition of “child pornography” extends beyond depictions of actual sex to include “a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct” and depictions that have “been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct” (18 U.S.C. §2256). As of 2003, the PROTECT Act criminalized even an unrealistic image that depicts or appears to depict minors engaging in sex, “including a drawing, cartoon, sculpture, or painting” as long as it is deemed “obscene” via the Miller test. Pornography containing the images of actual children is illegal even if it does not pass the Miller test because its criminality lies in how it is produced: by sexually assaulting children (as established in New York v. Ferber, 1982). Child porn, then, does not have to involve actual children in its production in order to be illegal, as long as it is "obscene." From a libertarian viewpoint, the law might seem too restrictive; after all, if real children are not assaulted, there seems to be no harm in creating these images. Some researchers have even argued that the availability of these images acts as a "safety valve" that prevents actual children from being victimized, as cited in this presentation of an international perspective of child pornography (opens as a PDF; see footnote 24).

Indeed, in 2002, the Supreme Court took a more libertarian stance and struck down the Child Pornography Prevention Act of 1996 (CPPA), “finding it to be substantially overbroad because it bans materials that are neither obscene under Miller nor produced by the exploitation of real children as in Ferber.” (Ashcroft v. Free Speech Coalition, also known as Reno v. Free Speech Coalition). Justice Kennedy cites then-contemporary films such as Romeo + Juliet and American Beauty in his majority opinion as examples of artistic expression that would be outlawed by the CPPA, merely because the actors are portraying minors having sex. Justice Rehnquist, in his dissenting opinion, interprets the CPPA differently, insisting that only "actual sexual activity" by "youthful looking adult actors" would be banned under the law. As sex scenes in mainstream films are almost always simulated (here's a fun page of scenes that allegedly are not simulated), Rehnquist's interpretation of the law would only apply to intentionally pornographic films that feature actors who appear to be minors, essentially criminalizing the "teen" porn genre. Of course, if the language of the law was so subjective that Supreme Court Justices could disagree about whether the word "simulated" was modifying "sexual activity" or "minor," the law was in fact too vague and was rightfully ruled unconstitutional.

Some legal scholars still believe that the Court made the wrong decision in this case due to the harmful effect that simulated child pornography can have on children. In her article "Stimulation by Simulation" in the Capital University Law Review, Kelley Bergelt is in favor of laws like the CPPA because they correspond with the federal goal of complete elimination of the child porn market. Taking a firm neoliberal stance, she asserts that "there is no value to society in permitting this form of speech" and that it will "inevitably harm society as a whole." Bergelt cites two main reasons for defending the CPPA. First, virtual pornography can still be used as a "luring device" for prowling pedophiles who present these images as "exciting or acceptable" to their intended victims. And second, because "simulated images appear indistinguishable from real children," the state will have a more difficult burden of proof if child pornographers can claim that the images are not of actual children.

Debra D. Burke responds to the first point in the Harvard Journal on Legislation. Because the sociological research in this area is so sparse and inconclusive due to obvious ethical issues, Burke has plenty of leeway to say that the correlation between child porn and child abuse lacks evidence. Furthermore, Burke claims that other forms of speech, like adult pornography, are also used as luring devices by pedophiles, but that this fact alone does not warrant their suppression. And while Burke agrees that eliminating child sexual abuse is an obviously worthy goal of the state, criminalizing virtual child porn will not single-handedly achieve this. As for placing the burden of proof on the state, no libertarian would find a problem with ensuring that the government has to prove the defendant's guilt.

I find myself agreeing with Burke over Bergelt, whose reasons for placing virtual child porn outside the realm of protected speech are simply not compelling enough to infringe upon this fundamental right. These porn images do not record actual abuse and are being used as an alternative to images that caused more harm in their creation; therefore, I see no problem in protecting this kind of speech. They are, after all, only concrete evidence of thoughts, not actions, and thoughts don't cause harm.

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