Media Regulation Takes Away Rights

With passage of a new federal telecommunications law effectively banning "indecent" communications on the Internet, the cost of illiberal, left-wing campaigns against pornography and other speech deemed hateful should be clear. Censorship is now regarded as an appropriate response to social problems by centrist and left-of-center politicians, as well as upholders of "family values" on the right. Overwhelming bipartisan support for the indecency ban demonstrates how leftist proposals to regulate speech further a right-wing social agenda.

Some 15 years have passed since the rhetoric of the feminist anti-porn movement was appropriated by social-issue conservatives, who were quick to recognize its value. In the early 1980s, when the notion that pornography caused violence against women was beginning to take hold of some feminists, anti-ERA activist Phyllis Schlafly included in her diatribes against sex education a note of concern about the effect of pornography on a "man who is already prone to violence against women." Borrowing from anti-porn activist Catharine MacKinnon, Schlafly wrote, "Pornography really should be defined as the active subordination of women. Nearly all porn involves the use of women in subordinate, degrading poses for the sexual, exploitative, and even sadistic and violent pleasures of men."

This insistence that "bad" speech is a direct cause of "bad" behavior was not new; 19th-century social purists and some leading conservative feminists fought to suppress "vicious" literature, as well as information about contraception. But a century later, the revival of a feminist anti-porn movement coincided with the election of Ronald Reagan and the rise of conservative Republicanism buoyed by an intolerant religious right. Left-wing protests of pornography and "hate" speech, in general, helped legitimate growing right-wing censorship campaigns. Their targets differed--activists on the right focused on sex and AIDS education, the study of evolution, literature about homosexuality and changing gender roles, while the left focused on speech considered sexist or racist--but their guiding principles were the same.

Speech was blamed for behavior and deemed protected by the First Amendment only so long as it was disassociated from whatever was considered really bad behavior--sexism to feminists on the left and sexual promiscuity to traditionalists on the right. (It's worth noting that the more extreme feminist protests of sexual misconduct, which helped shape the date-rape debate, made sexual promiscuity seem a kind of sexism, or false consciousness.) Liberal faith in the inherent value of saying something--anything--was abandoned. The act of speaking was considered only as valuable as the content of the speech.

That may seem like common sense to people disgusted with what they regard as gratuitous sex and violence in the media, or the promulgation of "bad attitudes;" the notion that speech must have redeeming social value in order to be protected is enshrined in the Supreme Court's definition of obscenity and reflected in demands to regulate popular entertainment. But civil libertarianism, which, I admit, many consider the opposite of common sense, reflects a belief that speech has not just instrumental but normative value, as an academic might say: In other words, we have not just a constitutional right but a moral right to think and speak freely, and badly if we choose.

Even civil libertarians, however, are hesitant to acknowledge this. Their usual arguments against censorship are practical, not moral. They focus on the slippery slope, fearing that censorship of action movies will lead to censorship of "Schindler's List." Defense of First Amendment freedoms is generally presented as a matter of enlightened self-interest. It's expedient: If I assume power to censor your words, you may someday assume power to censor mine. Professional civil libertarians (I include myself among them) tend to be liberals; they consider race and sex discrimination immoral and not just inexpedient (a waste of human resources), so they are loath to defend the moral right to harbor prejudices. Yet, if you value free speech, censorship is as immoral as bigotry.

Considering the tenacity of racism, reflected in the success of Pat Buchanan's nativist white power candidacy, any concession to bigotry does seem risky. Affirmative action is under attack, and racism in the criminal justice system is still rampant. In a society that values equality, or virtue, people shouldn't have a right to act on their biases; that is the basic premise of all anti-discrimination law. They do, however, have a right to believe in them. Civil rights laws reach actions, not speeches or ideas, and they don't even reach all actions. David Duke and Louis Farrakhan share a right to exclude black people or whites and women, respectively, from their inner circles or even their audiences in private spaces.

Aficionados of speech that liberals or conservatives might deem indecent have a similar, moral right to air their alleged perversities, or share information about sexual activity, even when children are eavesdropping. Since the possibility of eavesdropping on the Internet is practically unavoidable, the telecommunications law requires that adults limit their conversations to whatever a court may consider fit for children. (Even sexually explicit speech with "redeeming social value" is included in this ban; "indecency" is defined as a "patently offensive" description of sexual or excretory activities or organs.) Federal law now treats any "indecent" cyberspeech between consenting adults that children may hear as a criminal offense, as if it were a form of seduction or statutory rape. This provision is being challenged in federal court and should not stand; enforcement of it has already been temporarily enjoined.

But defeat of the indecency provision will not stop attempts, right and left, to regulate speech deemed anti-social. Freedom of speech, like the freedom to vote for whomever you choose, even a long-term incumbent, seems burden-some to many people. The campaign for government regulation of the media is a lot like the campaign for term limits: Both are driven by people who don't trust themselves to exercise their rights correctly. They want the government to save them from voting for incumbents or watching nasty videos or monitoring what their children watch. Communitarianism and right-wing proselytizers of virtue regularly charge that the exercise of rights has not been accompanied by assumptions of responsibilities. Today people seem resigned to their own weaknesses, defeated by their failures of judgment and will. Instead of more responsibility, they want to be endowed with fewer rights.

Wendy Kaminer is a public policy fellow at Radcliffe College. Her essay collection True Love Waits will be published in April.