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THE 

HAMLYN 

LECTURES 

SPEECH 

AND 

RESPECT

THE HAMLYN LECTURES 

FORTY-FOURTH SERIES 

SPEECH & RESPECT

AUSTRALIA 

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PAKISTAN 

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SPEECH & RESPECT 

by 

RICHARD ABEL 

Professor of Law 

University of California Los Angeles 

Published under the auspices of 

THE HAMLYN TRUST 

LONDON 

STEVENS & SONS/SWEET & MAXWELL 

1994

Published in 1994 

by Stevens & Sons Ltd./Sweet & Maxwell Ltd. 

South Quay Plaza, 183 Marsh Wall, London E14 9FT 

Computerset by 

York House Typographic Ltd., 

London W13 8NT 

Printed by Thomson Litho Ltd., 

East Kilbride, Scotland 

A CIP catalogue record for this book 

is available from the British Library 

ISBN 0 421 50210 X (H/b) 

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All rights reserved. 

No part of this publication may be produced 

or transmitted in any form or by any means, electronic, 

mechanical, photocopying, recording or otherwise or stored in 

any retrieval system of any nature without the written permission 

of the copyright holder and the publisher, application for which 

shall be made to the publisher. 

Professor Richard Abel 

1994

Contents 

The Hamlyn Lectures vii 

The Hamlyn Trust xi 

Introduction 1 

1. The Struggle for Respect 4 

2. The Poverty of Civil Libertarianism 33 

3. The Excesses of State Regulation 81 

4. Taking Sides 123 

Appendix 175 

References 177 

Index 197

The Hamlyn Lectures 

1949 Freedom under the Law 

by the Rt. Hon. Lord Denning 

1950 The Inheritance of the Common Law 

by Richard O'Sullivan, Esq. 

1951 The Rational Strength of English Law 

by Professor F.H. Lawson 

1952 English Law and the Moral Law 

by Professor A.L. Goodhart 

1953 The Queen's Peace 

by Sir Carleton Kemp Allen 

1954 Executive Descretion and Judicial Control 

by Professor C.J. Hamson 

1955 The Proof of Guilt 

by Professor Glanville Williams 

1956 Trial by Jury 

by the Rt. Hon. Lord Devlin 

1957 Protection from Power under English Law 

by the Rt. Hon. Lord MacDermott 

1958 The Sanctity of Contracts in English Law 

by Professor Sir David Hughes Parry 

1959 Judge and Jurist in the Reign of Victoria 

byC.H.S. Fifoot, Esq. 

1960 The Common Law in India 

by M.C. Setalvad, Esq. 

VII


VIII 

1961 British Justice: The Scottish Contribution 

by Professor Sir Thomas Smith 

1962 Lawyer and Litigant in England 

by the Rt. Hon. Sir Robert Megarry 

1963 Crime and the Criminal Law 

by the Baroness Wootton of Abinger 

1964 Law and Lawyers in the United States 

by Dean Erwin N. Griswold 

1965 New Law for a New World? 

by the Rt. Hon. Lord Tangley 

1966 Other People's Law 

by the Rt. Hon. Lord Kilbrandon 

1967 The Contribution of English Law to South Africa Law; 

and the Rule of Law in South Africa 

by the Hon. O.D. Schreiner 

1968 Justice in the Welfare State 

by Professor H. Street 

1969 The British Tradition in Canadian Law 

by the Hon. Bora Laskin 

1970 The English Judge 

by Henry Cecil 

1971 Punishment, Prison and the Public 

by Professor Sir Rupert Cross 

1972 Labour and the Law 

by Professor Sir Otto Kahn-Freund 

1973 Maladministration and its Remedies 

by Sir Kenneth Wheare 

1974 English Law—The New Dimension 

by the Rt. Hon. Lord Scarman 

1975 The Land and the Development; or, The Turmoil and 

the Torment 

by Sir Desmond Heap 

1976 The National Insurance Commissioners 

by Sir Robert Micklewait


1977 The European Communities and the Rule of Law 

by Lord Mackenzie Stuart 

1978 Liberty, Law and Justice 

by Professor Sir Norman Anderson 

1979 Social History and Law Reform 

by Professor Lord McGregor of Durris 

1980 Constitutional Fundamentals 

by Professor Sir William Wade 

1981 Intolerable Inquisition? Reflections on the Law of Tax 

by Hubert Monroe 

1982 The Quest for Security: Employees, Tenants, Wives 

by Professor Tony Honore 

1983 Hamlyn Revisited: The British Legal System Today 

by Lord Hailsham of St. Marylebone 

1984 The Development of Consumer Law and Policy—Bold 

Spirits and Timorous Souls 

by Sir Cordon Borrie 

1985 Law and Order 

by Professor Ralf Dahrendorf 

1986 The Fabric of English Civil Justice 

by Sir Jack Jacob 

1987 Pragmatism and Theory in English Law 

by P.S. Atiyah 

1988 Justification and Excuse in the Criminal Law 

byJ.C. Smith 

1989 Protection of the Public - A New Challenge 

by the Rt. Hon. Lord Justice Woolf 

1990 The United Kingdom and Human Rights 

by Dr. Claire Palley 

1991 Introducing a European Legal Order 

by Gordon Slynn 

1992 Speech & Respect 

by Professor Richard Abel 

IX

The Hamlyn Trust 

The Hamlyn Trust owes its existence to the will of the late Miss Emma 

Warburton Hamlyn of Torquay, who died in 1941 at the age of 

eighty. She came of an old and well-known Devon family. Her 

father, William Bussell Hamlyn, practised in Torquay as a solicitor 

and JP for many years, and it seems likely that Miss Hamlyn founded 

the trust in his memory. Emma Hamlyn was a woman of strong 

character, intelligent and cultured, well-versed in literature, music 

and art, and a lover of her country. She travelled extensively in 

Europe and Egypt, and apparently took considerable interest in the 

law and ethnology of the countries and cultures that she visited. An 

account of Miss Hamlyn by Dr. Chantal Stebbings of the University 

of Exeter may be found, under the title "The Hamlyn Legacy," in 

volume 42 of the published lectures. 

Miss Hamlyn bequeathed the residue of her estate on trust in terms 

which it seems were her own. The wording was thought to be vague, 

and the will was taken to the Chancery Division of the High Court, 

which in November 1948 approved a Scheme for the administration 

of the trust. Paragraph 3 of the Scheme, which closely follows Miss 

Hamlyn's own wording, is as follows: 

"The object of the charity is the furtherance by lectures or 

otherwise among the Common People of the United Kingdom of 

Great Britain and Northern Ireland of the knowledge of the 

Comparative Jurisprudence and Ethnology of the Chief European 

countries including the United Kingdom, and the circumstances 

of the growth of such jurisprudence to the Intent that the Common 

People of the United Kingdom may realise the privileges which in 

law and custom they enjoy in comparison with other European 

Peoples and realising and appreciating such privileges may recognise 

the responsibilities and obligations attaching to them." 

xi

The Hamlyn Trust 

The Trustees are to include the Vice-Chancellor of the University of 

Exeter, representatives of the Universities of London, Leeds, Glasgow, 

Belfast and Wales and persons co-opted. At present there are 

eight Trustees: 

Professor J.A. Andrews, M.A., B.C.L. 

Professor T.C. Daintith, M.A. 

Professor D.S. Greer, LL.D., B.C.L. (Chairman) 

Dr. D. Harrison, C.B.E, M.A., Ph.D., Sc.D., F.R.S.C, F.I.Chem. 

E., F.Eng. 

Professor B. Hogan, LL.B. 

Professor A.I. Ogus, M.A., B.C.L. 

Professor J.P. Grant, LL.M. 

Professor D.E.C. Wedderburn, M.A., D. Litt. 

From the outset it was decided that the Trust's objects could best be 

achieved by means of an annual course of public lectures of 

outstanding interest and quality by eminent Lecturers, and by their 

subsequent publication and distribution to a wider audience. Details 

of these Lectures are given on page vii. In recent years, however, the 

Trustees have expanded their activities by organising supplementary 

regional lecture tours and by setting up a "small grants" scheme to 

provide financial support for other activities designed to further 

public understanding of the law. 

The forty-fourth series of lectures was delivered by Professor Abel 

at the University of Wales College of Cardiff in December 1992. The 

Trustees regret the delay in the publication of these Lectures, which 

arose in part as a result of Professor Abel's decision to include 

material not delivered in the original lectures and concern on the 

part of the Trustees and the publishers that some of this material 

might be regarded as objectionable or distasteful. In the event, it was 

decided to accede to Professor Abel's request that the additional 

material should be included in the published version of the Lectures 

on the basis that readers will judge for themselves the appropriateness 

of Professor Abel's decision, and, like the Trustees, become 

involved in a practical way with an issue which is central to The 

Lecturer's thesis. 

February 1994 DESMOND GREER 

Chairman of the Trustees 

XII

Introduction 

The goal of the Hamlyn Trust is to educate "the Common People of 

the United Kingdom" to "realise the privileges which in law and 

custom they enjoy in comparison with other European Peoples [so 

that they] may recognise the responsibilities and obligations attaching 

to them." Why did a Victorian/Edwardian single woman from a 

good West Country family feel the need to assert such superiority— 

to the Common People, whom she sought to instruct so that they, in 

turn, would feel superior to other European Peoples? With the 

condescension that each generation bestows on its predecessors we 

may look with amusement at the parochialism and ethnocentrism of 

Ms. Hamlyn's will, written before World War Two and expressive of 

attitudes formed more than a century ago. But such assertions of 

social superiority are no less pervasive today, if they take different 

forms. Status inequality and the challenges it provokes are the 

subject of my lectures. The Hamlyn Trust was inspired by a sense of 

paternalistic obligation. I explore the responsibilities of those privileged 

today by virtue of class, race, ethnicity, gender, religion, or 

sexual orientation. 

I was very pleased that the Trustees chose Cardiff as the venue for 

the 1992 lectures, for several reasons. First, I probably owe my 

invitation to deliver these lectures to an invitation from Phil Thomas 

a decade earlier to participate in a conference on the Report of the 

Royal Commission on Legal Services (the Benson Commission). 

Although I had been teaching and writing about American lawyers, 

the 1600 page report introduced me to the legal profession in 

England and Wales and launched me on a comparative study of legal 

professions throughout the common law and civil law worlds. (The 

Report arrived during the 1979/80 winter—the rainiest in recent Los 

Angeles history; the constant drizzle not only inspired nostalgia for 

my days as a post-graduate student in London in the 1960s but also 

1

Introduction 

created the necessary atmosphere for mastering the anachronistic 

minutiae of kite fees, court attire, and the conveyancing monopoly.) 

Second, for more than 20 years Cardiff has been a centre for sociolegal 

studies, not only in Britain but throughout the world. The 

Journal of Law and Society was founded there in 1973, just three 

years after the law school was established in the Faculty of Social 

Science, and quickly became one of the leading international 

journals in the field. Cardiff has hosted numerous conferences; its 

curriculum introduces undergraduates to sociology of law; and 

many faculty members engage in sociolegal research. Since my 

approach in these lectures is more sociological than legal, Cardiff 

offers a hospitable environment. Finally, it seems fitting that lectures 

about insiders and outsiders, dominant and subordinate cultures, 

should be delivered in Wales. 

There is something anomalous about an American law professor 

addressing a British audience on the superiority of their laws and 

customs (which may be why I am only the second to be invited and 

the fifth from outside Britain). Because I naturally have drawn on the 

American experience and literature, I fear that many of my examples 

may appear arcane and exotic. Yet I believe there are common 

lessons to be learned. Status inequalities do not respect national 

boundaries; indeed, the massive increase in international migration 

has aggravated and complicated those inequalities. My first lecture 

deals at length with the conflict surrounding The Satanic Verses; and 

its other two topics—pornography and racial hatred—have provoked 

almost as much controversy in Britain as they have in the 

United States. I believe that the struggle for respect will continue to 

intensify in both countries. The United States often seems about a 

decade ahead of Britain in the construction of social problems (and 

California a decade ahead of the rest of the United States). When I 

moved to England in autumn 1965, after a summer as a civil rights 

lawyer in Mississippi, I was asked to speak about that experience to 

local Labour and Conservative Party meetings and at conferences. 

Those audiences always assured me that race was not a problem in 

Britain—an opinion I found hard to reconcile with the "no coloured" 

signs I constantly encountered in seeking a flat in London. 

Within a few years, not surprisingly, Britain heard Enoch Powell 

warn of "rivers of blood" and witnessed violent racial conflict, 

which has continued to escalate. At the same time, Britain is ahead 

of the United States in acknowledging the ways that speech reproduces 

status inequality and seeking to do something about them. 

I have not re-written the lectures for this book (although I had to

Introduction 

cut them slightly for oral delivery). Instead, I have appended extensive 

textual notes and references for those interested in greater detail, 

further examples, and the relevant literature. 

I am grateful to those who read earlier drafts: my wife Emily Abel 

(chapters one to three), C. Edwin Baker and Steven Shiffrin (chapter 

two), Joel Handler and Lucie White (a shorter version), and my 

critical legal theory seminar (the entirety, or so they claim). All of 

them have reservations about both substance and format—as do I.

1. The Struggle for Respect 

I am going to begin these lectures with three stories, which illustrate 

the drama, variety, and complexity of the struggle for respect 

through speech. 

/. Pornography 

By the end of the 1960s the champions of free expression and sexual 

liberation had declared victory over a century of prudery and 

Puritanism. 1 Notorious novels like Ulysses and Lady Chatterley's 

Lover, banned just decades earlier, no longer raised many eyebrows. 

Pornography proliferated in movies, books, and magazines 

and eagerly exploited the new media of videos, cable television, and 

telephones. This provoked a counterattack, not just from religion but 

also from the contemporaneous second wave of feminism. Gloria 

Steinem proclaimed: "A woman who has Playboy in the house is 

like a Jew who has Mein Kampf on the table." 2 Diana Russell 

condemned pornography as a backlash against feminism, "a male 

fantasy-solution that inspires nonfantasy acts of punishment for 

uppity females." 3 Susan Brownmiller maintained that "pornography, 

like rape, is a male invention, designed to dehumanize women, 

to reduce the female to an object of sexual access . . . ." 4 Judith Bat- 

Ada hyperbolised these diatribes. 

Sexual fascism means that ... a few powerful men control our 

behavior, attitudes, fantasies, concepts of love and caring, integrity 

... to whom and how we make our genitalia available. . . . 

[the] triumvirate—Hugh Heffner, Bob Guccione, and Larry Flynt 

[publishers of Playboy, Penthouse, and Hustler) ... are every bit 

as dangerous as Hitler, Mussolini, and Hirohito .... Just as the

Pornography 

Nazis built prisons around the Jews, and the white man put chains 

on the Black women and men, so pomographers have put women 

into equally constricting "genital service" structures. ... All the 

special glitter that this male society produces for women—the 

makeup, the high-heeled shoes, the tight little dresses—single us 

out as women as effectively as did the yellow stars on the coats of 

the Jews in Nazi Germany. 5 

Yet feminists were deeply divided about pornography. Gayle Rubin 

denounced the inclusion of sado-masochistic images in the antiporn 

documentary "Not a Love Story" as "on a moral par with . . . 

depictions of black men raping white women, or of drooling old 

Jews pawing young Aryan girls, to incite racist or anti-Semitic 

frenzy." 6 The 1982 Barnard conference on the "politics of sexuality" 

sought to examine the "link between sexual 'political correctness' 

and other forms of 'political correctness' both on the Left and 

the Right." 7 It was preceded by a "Speakout on Politically Incorrect 

Sex," organized by the Lesbian Sex Mafia, "self-identified 'S/M' 

lesbian feminists who argue that the moralism of the radical feminists 

stigmatizes sexual minorities such as butch/femme couples, sadomasochists, 

and man/boy lovers . . . ." In response, the Coalition for 

a Feminist Sexuality and against Sado-Masochism picketed the 

conference, protesting the exclusion of "feminists who have developed 

the feminist analysis of sexual violence, who have organized a 

mass movement against pornography, who have fought media 

images that legitimize sexual violence, who believe that sadomasochism 

is reactionary, patriarchal sexuality, and who have worked 

to end the sexual abuse of children." 8 

The renewed American legal battles over pornography were 

fought in this emotionally charged atmosphere. In 1977 Minneapolis 

neighbourhood groups had secured passage of an ordinance 

zoning out adult bookstores, which they believed lowered property 

values. Five years later the courts declared it unconstitutional on the 

application of the Alexander family, who dominated the local 

pornography industry and were represented by the Minnesota Civil 

Liberties Union. When the city sought to redraft the zoning law, 

Naomi Scheman, a feminist philosophy professor at the University of 

Minnesota, put councillors in touch with Catherine MacKinnon and 

Andrea Dworkin, who were co-teaching a course on pornography at 

the Law School. Never ones to mince words, Dworkin had identified 

"the eroticizationof murder" as "the essence of pornography," and 

MacKinnon had asserted: "if you understand that pornography

The Struggle for Respect 

literally means what it says, you might conclude that sexuality has 

become the fascism of contemporary America and we are moving 

into the last days of Weimar." 4 Anticipating my second story, she 

called pornography a "Skokie-type injury" and condemned the 

ACLU and MCLU as "pornographers' mouthpieces," while Dworkin 

dismissed the First Amendment as "an instrument of the ruling 

class." 

MacKinnon and Dworkin drafted an innovative ordinance, whose 

preamble declared that "pornography is central in creating and 

maintaining the civil inequality of the sexes." It prohibited the 

sexually explicit subordination of women, conferring rights to 

damages and an injunction on both women coerced into producing 

pornography and sexual assault victims who could show a causal 

nexus with a specific publication. Controversy about the ordinance 

was intense. Women poured ink over Playboy and Penthouse in the 

student union, threw magazines on the floor of the Rialto (adult) 

Bookstore, and disrupted the screening of a pornographic movie at 

the Rialto Theatre. Dworkin ridiculed the zoning approach: "I think 

you should say that you are going to permit the exploitation of live 

women, the sado-masochistic use of live women, the binding and 

torture of real women and then have the depictions of those women 

used in those ways sold in this city . . . ." The star witness was Linda 

Marchiano, who testified that she had been coerced into portraying 

Linda Lovelace in "Deep Throat" and was raped on screen. Other 

witnesses found the hearings cathartic, voicing abuses they had 

never disclosed. The audience was partisan and vociferous, "booing 

and hissing, moaning and crying." City councillor Barbara Carlson 

described the campaign for the ordinance as "onslaught, onslaught, 

onslaught! I mean literally, they were in everyone's office. A month 

and a half!" 

The MCLU vigorously opposed the ordinance, which its director 

called a "constitutional mockery" and an "obscenity in itself." So 

did the library board. Catherine MacKinnon sought to discredit gay 

and lesbian criticism, asserting that "the gay male community 

perceives a stake in male supremacy, that is in some ways even 

greater than that of straight men." The city's Office of Civil Rights 

was uncomfortable with its enforcement role. And the president of 

the Minneapolis Urban League saw it as a "white folks issue," which 

would divert energy from the struggle for racial equality. 

When the liberal mayor vetoed the ordinance, which had passed 

by one vote, Dworkin responded: "This city doesn't give a damn 

about women." "There's only one question before the City Council:

Pornography 

Are they helping the pomographers or helping women?" During 

debate over an amended bill a woman with a history of mental 

illness, who had testified at the earlier hearings, set fire to herself at 

the pornographic Shinder's Read-More Bookstore, leaving a note 

declaring that "Sexism has shattered my life. Because of this I have 

chosen to take my life and to destroy the persons who have destroyed 

me." As she lay in hospital in a critical condition 24 women were 

arrested for disrupting the climactic council meeting, which passed 

the revised ordinance by the same vote, only to have it vetoed again. 

Dworkin blamed the defeat on the Council's links to the Mafia. In the 

backlash against the campaign, Forum (a Penthouse publication) 

listed the names of some of the women who had testified to sexual 

abuse, exposing them to further harassment. While the Pornography 

Resource Center, which had organised support for the ordinance, 

continued to make presentations to women, the Rialto Theatre and 

Bookstore across the street expanded its offerings to include nude 

dancing. 10 

The struggle shifted to Indianapolis, the largest Republican city in 

the nation, headquarters of the American Legion and birthplace of 

the John Birch Society, with a smaller feminist community than 

Minneapolis and weaker civil libertarians. City Councillor Beulah 

Coughenour, who led the crusade, had chaired the state's successful 

Stop ERA campaign and opposed abortion and marital rape laws. 

She was supported by Rev. Greg Dixon, a fundamentalist Baptist 

who had founded Citizens for a Clean Community, warning that 

"the river of smut that is flowing down our cities is ... one of the 

greatest indications of a totally decadent society .... we have lost 

our moral moorings . . . [and become] hedonistic, humanistic, 

materialistic, nihilistic . . . ." City Prosecutor Steven Goldsmith and 

Mayor William Hudnut, who had built their political careers on 

efforts to close adult bookstores, theaters, and massage parlors, 

ignored the city attorney's opinion that the Minneapolis ordinance 

was unconstitutional. 

This time MacKinnon kept a low profile, managing to convince 

some ordinance backers that she, too, was conservative, and Dworkin 

never visited the city. Conservatives dominated the hearings, to 

the exclusion of feminists. Police officers claimed that rapists and 

sexual abusers often were arrested in possession of pornography, 

which the city prosecutor connected to a recent sensational murder. 

Edward Donnerstein, the leading social scientific investigator of 

pornography's effects, was questioned by MacKinnon so skillfully 

that some city councillors concluded, erroneously, that he asserted a


causal nexus to violence. Activists from the Baptist Temple and 

Citizens for Decency through Law packed the audience, booing and 

hissing the ineffectual opposition by the Indiana Civil Liberties 

Union, the Urban League president, and a feminist former city 

attorney. 

The ordinance passed 24-5, although most proponents had not 

read it and some thought it unconstitutional. Black Democratic 

Councillor Rozelle Boyd then moved to limit city spending on legal 

defence to $200,000 but was defeated 19-7. As soon as the mayor 

signed the law the American Booksellers Association and the ACLU 

sought a federal injunction, supported by an amicus brief from the 

Feminist Anti-Censorship Taskforce, signed by Betty Friedan, Kate 

Millett, and Adrienne Rich, among other notables. 11 Judge Sarah 

Evans Barker, a Reagan appointee sworn in just a month before, 

granted the injunction. The Seventh Circuit affirmed in an opinion 

by Frank Easterbrook, another Reagan appointee, who criticised the 

ordinance as "thought control" for establishing "an 'approved' view 

of women, of how they may react to sexual encounters, of how the 

sexes may relate to each other." By the time the Supreme Court 

denied the appeal the city's legal expenses exceeded $300,000. 

Almost a decade after the Minneapolis ordinance was drafted, 

variants are still being debated in the Massachusetts legislature and 

the U.S. Congress. Women have written dozens of letters to the 

Senate Judiciary Committee urging their passage as an apology for 

the Clarence Thomas confirmation and the William Kennedy Smith 

rape acquittal. 12 

//. Racial Hatred 

My next story concerns racial hatred. In 1950 Joseph Beauharnais 

distributed leaflets for the White Circle League in the form of a 

petition to the Chicago city council and mayor 

to halt the further encroachment, harassment, and invasion of 

white people, their property, neighborhoods and persons, by the 

Negro .... If persuasion and the need to prevent the white race 

from becoming mongrelized by the negro will not unite us, then 

the aggressions . . . rapes, robberies, knives, guns and marijuana 

of the negro surely will. 

He was convicted under the state group libel law, which the U.S. 

8

Racial Hatred 

Supreme Court upheld. 13 Twelve years later, the Chicago branch of 

the American Nazi Party, led by Malcolm Lambert, passed out flyers 

in front of a Chicago theatre showing a movie featuring Sammy 

Davis, Jr. 

Niggers! You Too Can Be a Jew. . .. It's Easy; It's Fun . . . Sammythe-Kosher-Coon 

Shows You How . . . In Ten Easy Lessons . . .Be 

One of The Chosen People . . . Here's some of the Things You 

Learn: Jewish customs and traditions such as how to force your 

way into social groups . . . How to make millions cheating 

widows and orphans. . . How to Hate-Hitler and get believing he 

killed six million of us even though we are all over here living it up 

on the dumb Christians. 

When 40-60 members of an angry crowd of 200 threatened to 

attack Lambert, who refused to leave, police arrested him. He was 

convicted of defamatory leafleting and criminal libel. 14 

In the early 1970s Frank Collin and the dozen members of his 

National Socialist Party of America applied to several North Shore 

suburbs for permission to demonstrate, after being rebuffed by the 

Chicago Park District. He saturated the region with tens of thousands 

of leaflets featuring a swastika with hands reaching out to choke a 

stereotyped Jew and the caption "We Are Coming!" A Chicago Sun- 

Times story quoted Collin at length. 

I hope they're terrified. I hope they're shocked. Because we're 

coming to get them again. I don't care if someone's mother or 

father or brother died in the gas chambers. The unfortunate thing 

is not that there were six million Jews who died. The unfortunate 

thing is that there were so many survivors. 

When only Skokie replied, demanding a $350,000 bond, Collin 

targeted trie village, unaware that nearly half the residents were 

Jewish and 800-1200 Holocaust survivors. (Collin's own father was 

not only Jewish but a Dachau survivor!) "Lieutenant" Roger Tedor 

explained the Party's motivation: "We had a picket in Berwyn and 

got into a brawl with the JDL. Later, we went to the same place on the 

pretext of picketing for free speech. We got a lot of publicity." After 

trying the same tactic in Skokie in April 1977 and being stopped by 

the police, they hurried to their headquarters to watch themselves on 

the evening news and pose in uniform for cameramen. 

When the village passed an ordinance requiring a $350,000 bond


for demonstrations and prohibiting racial hatred and military 

uniforms, the ACLU sued to enjoin enforcement. Its Public Relations 

Director said that "those who preach changes in constitutional law 

are the enemy, possessed of sinister motive and intent. . .."He and 

his family received death threats. A Holocaust survivor called ACLU 

lawyer David Goldberger "A rotten person and an opportunist. . . . 

during the Nazi era ... we had people like that. They were 

collaborators." Goldberger's own rabbi denounced him during 

services. Skokie Holocaust survivors, a close and somewhat isolated 

community, rejected the B'nai B'rith Anti-Defamation League policy 

of ignoring the Nazis. One explained: "The minute somebody 

comes and tries to attack my home, I have to defend myself." When 

Collin threatened to march without a permit, Jewish Defense League 

leader Meir Kahane told the press: "the streets of Skokie will run with 

Nazi blood." Collin was delighted with the response: "I used [the 

First Amendment] at Skokie. I planned the reaction of the Jews. They 

are hysterical." When a state appellate court permitted him to march 

but not display swastikas, he was defiant: "This is my party identification, 

that is my symbol, and we will not be parted from it." Finally 

allowed by the state supreme court to flaunt the swastika, Collin 

threatened to march on Hitler's birthday. More then a hundred 

organisations of Blacks, Latinos, and Ukrainians joined Jews in 

promising to mobilise 50,000 people for a counter-demonstration; 

the JDL, Jewish War Veterans, and Coalition Against Violence(!) 

threatened to attack the NSPA. Israeli Prime Minister Menachem 

Begin visited the village and gave Mayor Smith an expense-paid trip 

to Israel, where he was presented with the keys to Jerusalem. 

Fearing the counterdemonstration might overwhelm his own and 

endanger him physically, Collin was persuaded by the U.S. Justice 

Department's Community Relations Service to march at the Federal 

Plaza courthouse in downtown Chicago. Over the shouts of more 

than 6000 anti-Nazis, few could hear Collin's cry that "the creatures 

should be gassed." Yet he claimed ultimate victory. 

10 

We faced the alternatives of either dying or coming up with 

something so dramatic that we could get it up in the world's 

headlines. In the courts I was a mouse in a maze, so this was an 

end-run .... Skokie was traumatic. We lost many members. 

Many older people left us because the Jews were on television and 

said they'd kill us. Even hard core people left us. There's a parallel 

to Hitler. He had many people until the Putsch. Then he found

Racial Hatred 

himself with no movement. But when we started making publicity, 

we gained numbers all over the country. 

The ACLU also suffered, losing a third of its income in Illinois and 15 

per cent of its national membership. 

The incident's aftermath exhibited several striking ironies. The 

village hired a public relations firm, which launched a "Skokie 

Spirit" campaign to erase its image as a stronghold of militant Jews— 

earning the council a charge of anti-Semitism. The NSPA informed 

the police that Collin was sexually molesting young boys, leading to 

his arrest and imprisonment. And surveys found that substantial 

majorities of Skokie residents and Illinois citizens disagreed with the 

courts that the Constitution protected Nazi speech. Skokie Holocaust 

survivors put it more vividly. One called Nazi speech "obscene," 

while another said: "It's impossible to think that the people 

who wrote the Constitution, that they would say that a murderer has 

the right to come and express his opinion and to say that we are 

going to murder a certain segment of people." 15 

///. The Satanic Verses 

Because readers will be familiar with the events of my third story, 

about The Satanic Verses, I will concentrate on the participants' 

language. Three months before its September 1988 publication, Dr. 

Zahid Hussain, the Peterborough City Council race relations officer, 

told Viking that he and the eight other referees read the book as 

history rather than fiction and feared it would cause great offence. 16 

Penguin Group chairman Peter Mayer decided not to publish the 

book in India when his local adviser, journalist Khushwant Singh, 

warned that it would "cause a lot of trouble." 17 Interviewed by the 

Indian press, however, Salman Rushdie insisted that he had sought 

to "distance events from historical events" by changing the names of 

people and places. "My theme is fanaticism." "There are no subjects 

which are off limits and that includes God, includes 

prophets." 18 

Syed Shahabuddin, an ambitious Muslim MP in the Janata party, 

saw in these interviews an opportunity to embarrass the ruling 

Congress (I) Party, which was losing popularity and facing a general 

election within a year. Shahabuddin was already a leading actor in 

Muslim opposition to Hindu attempts to build a temple on the site of 

an ancient mosque in Ayodhya. 19 When the Finance Ministry 

11


banned the book, Shahabuddin wrote triumphantly to The Times of 

India, denouncing Rushdie as an "overrated Eurasian writer," the 

product of a "fatigued culture," spokesman for a West "which has 

not yet laid the ghost of the crusades to rest. . . ." He reserved his 

worst insults for the "Anglicised elite," the "pukka Sahibs," the 

"entire 'liberal establishment,' " while welcoming the slurs of Rushdie 

and his supporters: "Call us primitive, call us fundamentalists, 

call us superstititious barbarians." He refused to read the book: "I do 

not have to wade through a filthy drain to know what filth is." 20 

Rushdie responded in an open letter to Prime Minister Rajiv 

Gandhi, stressing that the book was fiction, not history, and invoking 

the support of Indian newspapers, publishers, and booksellers, 

international organisations opposed to censorship, and "such eminent 

writers" as Kingsley Amis, Harold Pinter, Stephen Spender, and 

Tom Stoppard. 21 He followed this with an article in The Illustrated 

Weekly of India, accusing Gandhi of playing communalist politics. 

Perhaps you feel that by banning my fourth novel you are taking a 

long-overdue revenge for the treatment of your mother in my 

second; but can you be sure that Indira Gandhi's reputation will 

endure better and longer than Midnight's Children? Are you 

certain that the cultural history of India will deal kindly with the 

enemies of The Satanic Verses? You own the present, Mr. Gandhi; 

but the centuries belong to art. 22 

Nevertheless, most countries with substantial Muslim populations 

followed India in banning the book. 

British Muslims quickly took charge of the attack. In a book 

entitled Be Careful with Muhammad!, Shabbir Akhtar compared 

Rushdie's "calculated attempt to vilify and slander the Prophet of 

Islam" with the abortive 1970s plot by Jewish extremists to blow up 

Al-Aqsa mosque in Jerusalem. Rushdie was a "literary terrorist," 

who called the Prophet by the derogatory name Mahound, suggested 

that the Qu'ran was not divine revelation, applied the adjectives 

bum, scum, black monster and bastard to historical 

personalities, and had prostitutes take the names of Mohammed's 

twelve wives. "[A]ny Muslim who fails to be offended by Rushdie's 

book ceases, on account of that fact, to be a Muslim." Christianity 

had exposed its weakness in failing to respond to "continual blasphemies." 

"Any faith which compromises its internal temper of 

militant wrath is destined for the dustbin of history .... God does 

not guide a people who sell his signs for a paltry price." Raising the 

12

The Satanic Verses 

spectre of a "Western conspiracy" against Islam, he issued a much 

quoted warning: "the next time there are gas chambers in Europe, 

there is no doubt concerning who'll be inside." 23 Qureshi and Khan, 

who subtitled their own book on the controversy "Unmasking 

Western Attitudes," located it within a larger war. 

[The Satanic Verses] inflamed the feelings of nearly 1 billion 

followers of Islam. . . . Attacking the Muslim community became 

legitimate and fashionable for anyone for a variety of reasons. 

Racists found a new cause in protesting against the protests of the 

Muslim minority; the secularists found their cause in hatred of all 

religion; others in anti-lslamism, if not anti-semitism, and the 

assimilationists against muiti-culturalists. 24 

Tariq Modood dismissed the book as "no more a contribution to 

literary discourse than pissing upon the Bible is a theological argument." 

25 Dr. Saki Badawi, liberal head of the Muslim College in 

Ealing, protested that Rushdie had hurt Muslims worse than if he had 

raped their daughters. 26 AN Mazrui, an American professor of 

political science, reported that Pakistani friends told him: "It's as if 

Rushdie had composed a brilliant poem about the private parts of his 

parents, and then gone to the market place to recite that poem to the 

applause of strangers . . . and he's taking money for doing it." 

Mazrui himself proclaimed that " 'The Satanic Verses' could be one 

of the most divisive books in world politics since Hitler's 'Mein 

Kampf.' " 27 Hesham el Essawy, chairman of the Islamic Society for 

the Promotion of Religious Tolerance in the U.K., urged Penguin to 

withdraw the book; otherwise "we might as well knight muggers and 

give mass murderers the Nobel prize." M.H. Faruqi, editor of Impact 

International, described Rushdie as "a self-hating Indo-Anglian, 

totally alienated from his culture, who has also learnt that it is 

possible to make money by selling self-hate." Determined to "show 

them all," he had engaged in "a continuous striptease, from soft to 

hard and even harder porn." 28 

Muslim outrage elicited unprecedented ecumenical solidarity. 

The Archbishop of York asked why "the freedom of writers to write 

what they like" was superior to all other claims of "sacredness." 29 

The Archbishop of Canterbury declared that "offence to the religious 

beliefs of the followers of Islam or any other faith is quite as wrong as 

is an offence to the religious beliefs of Christians." 30 The Chief Rabbi 

deprecated "not only the falsification of established historical 

records but [also] the offence caused to the religious convictions and 

13


susceptibilities of countless citizens" and called for legislation prohibiting 

"socially intolerable conduct calculated or likely to incite 

revulsion or violence by holding up religious beliefs to scurrilous 

contempt." 31 The Vatican newspaper L'Osservatore Romano 

expressed respect for the "offended sensibilities and religious consciences 

[of millions of believers] .... [l]t is not the first time that, 

by invoking artistic motives or the principle of free expression, 

people have sought to justify the improper use of sacred texts . . . 

," 32 Yet Islam was not monolithic. Fadia Faquir recounted the 

history of Islamic censorship, which she also had suffered. 33 And 

Southall Black Sisters joined the Southall women's section of the 

Labour Party in proclaiming: "We have struggled for many years in 

this country and across the world to express ourselves as we choose 

within and outside our communities. We will not be dictated to by 

fundamentalists." 34 

Rebuffed by both publisher and government, British Muslims 

resorted to direct action. When their first public meeting was ignored 

by the media they decided to burn the book in front of Bradford 

police headquarters. Sayyid Abdul Quddus of the Council of 

Mosques notified the press. More than a thousand Muslims participated, 

holding placards reading "Rushdie Eat Your Words" and 

"Rushdie Stinks." Liaqat Hussein of the Jamiaat Tabligh ul Islam 

expressed both jubilation and outrage: "All the newspapers commented. 

Times, Daily Telegraph, Guardian, Yorkshire Post. They 

compared us to Hitler!" 35 Rushdie broke a silence of more than four 

months to denounce the "contemporary Thought Police" and 

observe how life was imitating art. 

"Battle lines are being drawn up in India today," one of my 

characters remarks. "Secular versus religious, the light versus the 

dark. Better you choose which side you are on." Now that the 

battle has spread to Britain, I can only hope it will not be lost by 

default. It is time for us to choose. 

When Mohammed seized power in Mecca he executed two writers 

and two actresses for performing satirical texts. 

14 

Now there you have an image that I thought was worth exploring: 

at the very beginning of Islam you find a conflict between the 

sacred text and the profane text, between revealed literature and 

imagined literature. ... It seems to me completely legitimate that 

there should be dissent from orthodoxy, not just about Islam, but


about anything .... Doubt, it seems to me, is the central 

condition of a human being in the twentieth century. 36 

Now the initiative shifted a third time. Thousands of Pakistanis 

tried to storm the U.S. Information Center in Islamabad in February 

1989, screaming "American dogs" and "God is great," and thousands 

more demonstrated in Karachi the next day. In controlling the 

crowds, police killed six and injured dozens. Not to be upstaged, 

Ayatollah Khomeini issued his notorious fatwa: "I call on all zealous 

Muslims to execute [Rushdie and his publishers] wherever they find 

them, so that no one will dare to insult the Islamic sanctions. 

Whoever is killed on this path will be regarded as a martyr, God 

willing." He denounced Rushie as an apostate, "an agent of corruption 

on earth," who had "declared war on Allah." 37 To encourage 

those insufficiently motivated by religious zeal, the director of the 

Fifth of Khordad Foundation put a price on Rushdie's head: $3 

million for Iranian assassins, $1 million for foreigners. 38 

Having been led to expect a pardon, Rushdie and Viking immediately 

apologised. Instead, Iran banned all Viking publications, and 

President Ali Khameini joined the chorus of vilification: "As the 

enemy's attack on our frontiers brings us into action, the enemy's 

attack on our cultural frontiers should evoke a response from us at 

least to the same degree, if not more." Rushdie tried again: "I 

profoundly regret the distress that publication has occasioned to the 

sincere followers of Islam. Living as we do in a world of many faiths 

this experience has served to remind us that we must all be conscious 

of the sensibilities of others." But Khomeini was implacable: 

"Even if Salman Rushdie repents and becomes the most pious man 

of time, it is incumbent on every Muslim to employ everything he 

has got, his life and his wealth, to send him to hell." 39 To which 

Rushdie replied: "SV is a clash of faiths ... or more precisely it's a 

clash of languages .... It's his word [Khomeini's] against mine." 40 

These threats produced the predictable reaction in Britain. The 

Observer editorialised: "neither Britain nor the author has anything 

to apologise for." The Sunday Sport hypocritically assumed a high 

moral tone and offered £1 m to anyone bringing Khomeini to trial in 

England. Not to be outdone, Robert Maxwell promised $10m to 

anyone getting Khomeini to recite the ten commandments (although 

Maxwell's own knowledge was rather shaky). The Independent 

regretted that Britain had been "too tolerant for too long." The Daily 

Mirror put that into tabloidese, denouncing both the "Mad Mullah" 

15


and British Muslims who followed their imams "with sheeplike 

docility and wolf-like aggression." And The Star fulminated: 

Isn't the world getting sick of the ranting that pours from the 

disgusting foam-flecked lips of the Ayatollah Khomeini? Clearly 

the Muslim cleric is stark raving mad. . . . Surely the tragedy is 

that millions of his misguided and equally potty followers believe 

every word of hatred he hisses through those yellow stained 

teeth. 41 

Athough such language might be expected from the media, many 

intellectuals were equally intemperate. Joseph Brodsky expressed 

surprise that nobody had put a price on Khomeini's head, adding 

"mind you, it shouldn't be too big." Peter Jenkins maintained that 

"the offence done to our principles" by the burning of The Satanic 

Verses in Bradford was "at least as great as any offence caused to 

those who burned the book." He denounced the "obscurantist 

Muslim fundamentalism" and "medieval intolerance" of the "geriatric 

prophet in Qom." Anthony Burgess called the fatwa a jihad. "It 

is a declaration of war on citizens of a free country .... It has to be 

countered by an equally forthright, if less murderous, declaration of 

defiance." Christopher Hitchins applied Shelley's anathema of King 

George to Khomeini: "an old, mad, blind, despised and dying 

king," adding: "Is it not time, as a minimal gesture of solidarity, for 

all of us to don the Yellow Star . . . ?" Fay Weldon wallowed in 

religious chauvinism: "The Koran is food for no-thought. . . . You 

can build a decent society around the Bible . . . but the Koran? No." 

Conor Cruise O'Brien unconsciously inverted Shabbir Akhtar's call 

to arms: "A Westerner who claims to admire Muslim society, while 

still adhering to Western values, is either a hypocrite or an ignoramus 

or a bit of both." He reviled the Muslim family as "an abominable 

institution" and Muslim society as "repulsive" and "sick." 

Norman Mailer, always spoiling for a fight, sounded like a New 

Statesman competitor imitating Hemingway: 

16 

[N]ow the Ayatollah Khomeini has offered us an opportunity to 

regain our frail religion which happens to be faith in the power of 

words and our willingness to suffer for them. He awakens us to the 

great rage we feel when our liberty to say what we wish, wise or 

foolish, kind or cruel, well-advised or ill-advised, is endangered. 

We discover that, yes, maybe we are willing to suffer for our idea. 

Maybe we are even willing, ultimately, to die for the idea that


serious literature, in a world of dwindling certainties and chokedup 

ecologies, is the absolute we must defend. 42 

British politicians also felt compelled to intervene. When Sayyid 

Abdul Quddus, secretary of the Council of Mosques, boasted that 

"members of our religion throughout the country have sworn to 

carry out the Ayatollah's wishes should the opportunity arise," 

Conservative MP Terry Dicks demanded his deportation (although 

Quddus was a citizen). Roy Jenkins regretted that the government 

had not "been more cautious about allowing ... in the 1950s, 

substantial Muslim communities [to come] here." The Home Secretary 

told Birmingham Muslims: "no ethnic or religious minority is 

likely to thrive in this country if it seeks to isolate itself from the 

mainstream of British life," which a tabloid headline promptly 

translated into the command: "Behave like British, or don't live 

here." John Townsend, Conservative MP for Bridlington, concurred: 

"when Muslims say they cannot live in a country where Salman 

Rushdie is free to express his views, they should be told they have the 

answer in their own hands—go back from whence you came." 

Home Office Minister of State John Patten wrote an open letter 

reminding Muslim leaders of their obligation to live harmoniously in 

a multi-cultural Britain. 43 

Divisions deepened within and between countries. Imam Bukhari 

of a Delhi mosque and the Mufti of the Al Aqsa mosque in Jerusalem 

endorsed the fatwa. Ahmed Jebril of the Popular Front for the 

Liberation of Palestine-General Command offered to execute it. But 

Dr. Tantawi, the Cairo mufti and grand sheikh, condemned Khomeini, 

and Egyptian Interior Minister General Zaki Badr raised the 

ante by calling the Ayatollah a dog and a pig. When a Saudi Arabian 

Imam showed lenience toward Rushdie on Belgian television, he 

and his Tunisian aide were assassinated. 44 

The struggle within Britain was replayed on the Continent, if at 

lower intensity. The twelve European Community foreign ministers 

denounced the fatwa and imposed diplomatic sanctions on Iran; the 

United States, Sweden, Canada, Australia, Norway and Brazil 

promptly followed suit. Iran recalled all its diplomats from Europe. A 

thousand Muslims demonstrated in Paris, prompting SOS Racisme to 

organise an equally large counterdemonstration against fundamentalist 

extremism. Paris Mayor Jacques Chirac denounced those 

threatening Rushdie and his publishers: "If they are French they 

need to be pursued; if they are foreigners, they should be expelled." 

Neo-fascist politician Jean-Marie Le Pen welcomed this fuel for racist 

17


fires: "What Khomeini has just done with revolting cynicism is 

exactly what 1 fear ... the invasion of Europe by a Muslim 

immigration." 45 

Muslim actions and threats seriously impeded distribution of the 

book (while simultaneously increasing sales). The British Library put 

it on "restricted" locked shelves. Arsonists firebombed Collets Penguin 

bookshop on Charing Cross Road, persuading the chain to 

remove the book, and damaged a Dillon's store. The fatwa scared 

large American chains like Barnes & Noble, B. Dalton, and Waldenbooks 

and many independents into withdrawing the book, but most 

resumed selling it. After the bombing of a small newspaper that had 

defended Rushdie, Senator Daniel Moynihan denounced "intellectual 

terrorism" and sponsored a resolution: "Let it be understood in 

the parts of the world from whence such threats emanate: We are not 

intimidated and the resources of civilization against its enemies are 

not exhausted." Rushdie's French and German publishers dropped 

the book, citing threats, but announced that consortia would bring 

out translations. In Italy Muslims severely wounded his translator, 

burned a bookshop, and threatened to blow up the Ravenna monument 

to Dante, who had consigned Mohammed to the ninth pit of 

hell 700 years earlier. The Japanese translator was stabbed to death. 

A year after publication, when a paperback version normally would 

have been in press, a memo from the board of directors of Viking 

Penguin's parent corporation urged delay: "Some principles have to 

be fought to the death, but I am quite clear this isn't one of them." Six 

months later, however, Rushdie protested that failure to issue the 

paperback would mean that he and the publisher "in some sense 

have been defeated by the campaign against the book." 46 

Britain was profoundly polarised. The Bradford Council of 

Mosques, unscathed during the previous decade, was attacked four 

times, while its president was threatened and his home vandalised. 

Rushdie's name became a taunt, used by white children against 

Blacks and white sports fans against Bradford City supporters. 

Warders forced Muslim prisoners to listen to passages from The 

Satanic Verses. Walls in Muslim areas were defaced with graffiti 

reading: "Rushdie rules," "Kill a Muslim for Christmas," and even 

"Gas the Muslims." 47 These attacks helped to unify the fragmented 

Muslim community and inspire cultural pride, intensifying demands 

for halal food in schools and single-sex education. 48 On May 27, 

30,000 Muslims marched from Hyde Park to Parliament Square 

carrying banners reading: 

18


Freedom of speach, yes! Freedom to insult, no! 

Penguin will pay for its crims! 

Rousseau greatest champion of human liberty and equality deeply 

inspired by the Prophet Muhammad 

"Islam is the only suitable creed for Europe," George Bernard 

Shaw 

Dr John W. Baker: "Islam the greatest blessing for mankind" 

Rushdie is a devil! 

Rushdie is a son of Satan! 

Kill the bastard! 

Jihad on agnostics! 

One poster displayed Rushdie on the gallows, his head sprouting 

horns, wearing a Star of David, and attached to a pig's body — 

imagery that could have come from the novel, except for the anti- 

Semitism. Women Against Fundamentalism, who staged a counterdemonstration, 

were attacked by both Muslim men and white 

racists. 49 

After almost two years in hiding Rushdie sought reconciliation 

with the community of British Asians, especially Indian Muslims, by 

undergoing a conversion, while reiterating his criticisms of the 

sexism and homophobia of Islamic priests. He agreed: 

1. To witness that there is no God but Allah and that Muhammad is 

His last prophet. 

2. To declare that I do not agree with any statement in my novel 

The Satanic Verses uttered by any of the characters who insult the 

Prophet Muhammad or who cast aspersions upon Islam or upon 

the authenticity of the Holy Quran, or who reject the divinity of 

Allah. 

3. I undertake not to publish the paperback edition of The Satanic 

Verses or to permit any further agreements for translation into 

other languages, while any risk of further offence exists. 

4. I will continue to work for a better understanding of Islam in the 

world, as I have always attempted to do in the past. 

He offered further justification in The Times: "The Satanic Verses 

was never intended as an insult. . . it is a source of happiness to say 

that I am now inside, and a part of, the community whose values 

have always been closest to my heart." The six Islamic scholars who 

accepted this apology agreed he had no evil intent, and the Cairo 

Grand Shaikh formally forgave and blessed him. But this merely 

19


heightened the hostility of Iran, which reiterated the fatwa in March 

1991 and doubled the price on Rushdie's head. 50 

Both sides expressed frustration at the stalemate. The International 

Committee for the Defence of Salman Rushdie denounced the 

British government for capitulating to Iran. But when prominent 

intellectuals, artists, and media figures planned a 24-hour vigil in 

London, New York, and Los Angeles to commemorate the author's 

thousand days in hiding, the Foreign Office pressured Rushdie to 

cancel the rally for fear of delaying the return of western hostages. At 

the same time, Iqbal Sacranic, Joint Convenor of the U.K. Action 

Committee on Islamic Affairs, wrote to The Guardian. 

What bewilders is that nothing is being done or said to stop the 

circulation of the book which continues to cause unspeakable 

distress and anguish to more than one billion Muslims all over the 

world. . . . [We] have consistently demanded its withdrawal and 

appropriate public apology and redress by the publishers. 51 

Rushdie now reversed his strategy. Appearing in public for the first 

time in nearly three years, at a Columbia University tribute to the 

First Amendment and retired Supreme Court Justice William Brennan, 

he compared his plight to drifting in a balloon incapable of 

carrying him to safety while gradually losing air. 

20 

[H]as it really been so long since religions persecuted people, 

burning them as heretics, drowning them as witches, that you 

can't recognize religious persecution when you see it? ... 

[In the] upside-down logic of the post-fatwa world ... [a] novelist 

can be accused of having savaged or "mugged" a whole community, 

becoming its tormentor (instead of its ... victim) and the 

scapegoat for... its discontents. . . . 

I've been put through a degree course in worthlessness .... My 

first teachers were the mobs marching down distant boulevards, 

baying for my blood and finding, soon enough, their echoes on 

English streets. ... as I watched the marchers, I felt them trampling 

on my heart. . . . 

Sometimes I think that one day, Muslims . . . [will] agree, too, 

that the row over The Satanic Verses was at bottom an argument 

about who should have power over the grand narrative, the Story 

of Islam, and that that power must belong equally to everyone. 

I faced my deepest grief, my ... sorrow at having been torn away


from . . . the cultures and societies from which I'd always drawn 

my ... inspiration .... I determined to make my peace with 

Islam, even at the cost of my pride. . . . 

I had always argued that it was necessary to develop the nascent 

concept of the "secular Muslim," who, like the secular Jew, 

affirmed his membership of the culture while being separate from 

the theology. . . . But my fantasy of joining the fight for the 

modernization of Muslim thought . . . was stillborn. ... I have 

never disowned The Satanic Verses, nor regretted writing it. ... 

[Within days [after my meeting with the six Islamic scholars] all 

but one of them had broken their promises, and recommenced to 

vilify me and my work, as if we had not shaken hands. I felt (most 

probably I had been) a great fool. The suspension of the paperback 

began at once to look like a surrender. . . . The Satanic Verses 

must be freely available and easily affordable, if only because if it 

is not read and studied, then these years will have no meaning. 

... I have learned the hard way that when you permit anyone 

else's description of reality to supplant your own . . . then you 

might as well be dead. ... I must cling with all my might to ... 

my own soul .... 

"Free speech is a non-starter," says one of my Islamic extremist 

opponents. No, sir, it is not. Free speech is the whole thing, the 

whole ball game. Free speech is life itself.... 

You must decide what you think a writer is worth, what value you 

place on a maker of stories, and an arguer with the world. 52 

This launched another cycle of recriminations. A Muslim wrote to 

the New York Times: 

Salman Rushdie's greatest flaw is his lack of shame. . . . Instead of 

repenting, Mr. Rushdie is "sorrowful;" instead of admitting guilt, 

he becomes the grand preacher of a new order in Islam. . . . Mr. 

Rushdie's preaching for a "carefree" Islam will further alienate 

him from the Islamic fold. 

Paul Theroux, the cosmopolitan author and traveller, leapt to Rushdie's 

defense. 

I have made a point of asking all the Muslims I meet their views on 

Mr. Rushdie and his book. ... It ought to happen everywhere: 

first the question—What about Rushdie?—and if the answer is 

21


hostile, set them straight. ... I have no doubt that eventually the 

message will get through, and he will be free. 53 

More than three years after the fatwa an anonymous consortium 

published an American paperback. Rushdie withdrew his acceptance 

of Islam. "After three years of having my life smashed about by 

religion, I don't feel like associating myself with it. I'm fighting for 

my life against it." 54 Contemporaneously Iranian leaders reiterated 

the death sentence, under the headline: "A Divine Command to 

Stone the Devil." Rushdie was rebuffed when he visited Washington 

to seek American support. White House Press Secretary Marlin 

Fitzwater declared: "There's no reason for any special relationship 

with Rushdie. I mean, he's an author. He's here. He's doing 

interviews and book tours and things authors do.. . . We have often 

said that we want better relations with Iran." Rushdie disavowed 

pecuniary motives: "The purpose of the paperback is to make a 

point about First Amendment rights . . . ." Shortly thereafter an 

Indian historian's call to lift the ban on The Satanic Verses led to 

student protests, which closed his university, the country's leading 

Muslim institution. 55 

IV. Negotiating Respect 

These stories about pornography, racial hatred, and The Satanic 

Verses share a common core. They concern values that inspire deep 

emotions: fury at the sexual objectification of women versus conviction 

that sex is irreducibly ambiguous; racism versus equality; the 

truth of Islam versus religious scepticism. Each confrontation implicates 

more fundamental controversies: group and individual, particular 

and universal, tradition and innovation, authority and 

freedom—antinomies that have haunted humankind for millenia. 

Each side views its values as absolute while vilifying its opponent's 

as an antithesis for which no synthesis is possible. This Manichaean 

struggle allows no compromise; anything less than total victory is 

ignominious defeat. 

If values constitute the manifest content of these stories, however, 

respect is their subtext. Women are demanding respect from producers 

and consumers of pornography, who make them instruments 

of voyeuristic pleasure. Racial and religious minorities are asserting 

equality against racists and anti-Semites who defend their own 

superiority. Muslims are asserting equality with Christians, immi- 

22

Negotiating Respect 

grants with natives, traditionalists with modernists, locals with 

cosmopolitans, while religious sceptics and creative artists challenge 

orthodox hegemony. Disembodied values are not colliding in 

vacuo. Every assertion of value is an act of symbolic politics, a 

competition for status. In championing values, speakers simultaneously 

claim moral superiority for their groups. This is most visible 

in the controversy provoked by The Satanic Verses. Muslims feel the 

honour of Islam is at stake, while westerners maintain the superiority 

of their intellectual, artistic, and political traditions. Shabbir Akhtar's 

warning to "Be Careful with Muhammad!" elicited Norman Mailer's 

"great rage" "when our liberty to say what we wish ... is endangered." 

The eternal verities of religion encountered the "absolute" 

of "serious literature." Islam invoked its billion adherents and 

centuries of tradition while Rushdie paraded his support by "eminent" 

English writers and claimed that "the centuries belong to art." 

"[T]he row over The Satanic Verses," he said, "was at bottom an 

argument about who should have power over the grand narrative 

. . . ." Status is equally visible in the other controversies. NSPA 

leader Frank Collin sought to humiliate Jews: "I hope they're terrified. 

I hope they're shocked. Because we're coming to get them 

again." JDL leader Meir Kahane replied: "the streets of Skokie will 

run with Nazi blood." "I am not predicting violence—I am promising 

violence." Women demand passage of anti-pornography legislation 

to redress the humiliations of Clarence Thomas's confirmation 

and the William Kennedy Smith's acquittal. 

That struggles over collective status should continue to preoccupy 

society violates the modernist credo, now a century old, which 

characterises history as an inexorable movement from status to 

contract, particularism to universalism, gemeinschaft to gesellschaft. 

Marx saw status as a feudal relic largely eradicated by the 

bourgeoisie and irrelevant to the proletariat— a theorisation that 

blinded generations of marxist scholars to the importance of race 

and gender. Instead of disappearing, however, status groupings 

embody an irrepressible nostalgia for community, an imperative to 

preserve, recreate and strengthen collective identity. Regional political 

and economic integration not only co-exists with a resurgent 

nationalism but actually accelerates the very international migration 

and communication that invigorates status competition. 

Language (and other symbolic communication) is the principal 

medium of collective status competition. 56 Although wealth and 

power can confer status or derive from it, the three attributes are 

relatively independent. A dominant group whose wealth or power is 

23


declining often clings desperately to its residual tokens of respect, 

while a subordinate group frustrated in its aspirations to wealth or 

power may still assert its dignity. Because status, unlike wealth, is an 

indivisible good whose meaning is relational, competition is a zerosum 

game. Even if a subordinate group asks only a minimum of 

respect, the dominant group rightly perceives this as challenging its 

superiority. 57 

Collective status competition pervades daily life. It motivates 

controversies over legislation ostensibly directed toward practical 

ends: homosexuality in the military, AIDS, abortion, animal rights, 

tobacco, gun control, crime and social disorder, welfare and immigration. 

The campaign against sexual harassment significantly redefines 

the relative status of men and women. Status is implicated 

whenever the state engages religion (as in the battle over Ayodhya in 

India). It resonates in the curriculum wars: multiculturalism in 

schools, the revision of the literary and historical canon in universities. 

Intrareligious conflicts over the ordination of women or the 

celebration of homosexual marriages affect status. Public events and 

exhibits define and modify status: the exclusion of gays and lesbians 

from the St. Patrick's Day parades in New York and Boston, or 

commemoration of the Columbus Quincentenary. The treatment of 

ancestral bones arouses collective passions—the recently discovered 

black graveyard from colonial New York or the display of Indian 

skeletons in museums—as does the appropriation of Indian names 

and mascots by sports teams. The media have become increasingly 

sensitive to such issues, as shown by the furor over the portrayal of 

gays and lesbians in the film "Basic Instinct"; so have public 

officials, as illustrated by the response to Bill Clinton's remark that 

Mario Cuomo acts like a Mafioso. The legal system receives intense 

scrutiny because of its visible power and explicit commitment to 

equality; the initial acquittal of the four Los Angeles police who beat 

Rodney King provoked the largest uprising in twentieth-century 

American history. Nations compete for status (often when they are 

declining along other parameters): Japan-bashing in the United 

States, for instance, or European Community conflicts over the 

languages of diplomacy. Aggressor nations like Germany and Japan 

must be particularly sensitive to their former victims, as shown by 

the uproar over Korean "comfort women" or the Emperor's visit to 

China, Germany's hospitality to Kurt Waldheim or its handling of 

neo-Nazi violence against foreigners. 

Re-reading my three stories as status competition illuminates their 

many common features. Each borrows buzz words from the others. 

24


Gloria Steinem likened Mein Kampf to Playboy, while Ali Mazrui 

compared it to The Satanic Verses. Feminists called pornographers 

sexual fascists, while Rushdie supporters saw memories of Nuremberg 

in the flames of the Bradford book burning. A feminist identified 

women with Jews, while a writer urged colleagues to ally with the 

Muslim apostate by donning yellow stars. Shabbir Akhtar warned 

that "the next time there are gas chambers in Europe, there is no 

doubt concerning who'll be inside them," while racists defaced 

Midlands walls with graffiti screaming "Gas the Muslims." After 

Holocaust survivors denounced American Nazis as obscene, Catherine 

MacKinnon reversed the metaphor by calling pornography a 

Skokie-type injury, while the Minnesota Civil Liberties Union condemned 

MacKinnon's ordinance as an obscenity. Muslims equated 

The Satanic Verses with strip-tease, raping one's daughter, pissing on 

the Bible, and describing a parent's genitals in public. 

In each story, some actors portrayed ultimate values as mere 

instruments of status conflict. Nazi "Lieutenant" Roger Tedor admitted 

that their anti-Semitic demonstrations used "the pretext of 

picketing for free speech" by carrying placards reading "Free 

Speech for White America," while Frank Collin gloated: "I used [the 

First Amendment] at Skokie." Andrea Dworkin dismissed the First 

Amendment as "an instrument of the ruling class," and Catherine 

MacKinnon called civil libertarians the "pornographers' mouthpiece." 

Muslims ridiculed Rushdie's claims to "free" speech by 

pointing to his large advance for the book and the £100,000 that The 

Independent on Sunday allegedly paid for his article "In Good 

Faith." Some politicians cynically manipulated values and status 

aspirations: the Indianapolis mayor and city prosecutor in local 

American politics, Syed Shahabuddin in Indian communalist politics, 

and Ayatollah Khomeini in Muslim world politics. 

Status competition is conducted through language whose ambiguity 

can vary. Neo-Nazi racial hatred is wholly evil, although it can 

be disguised as science, history, or politics. Like all literature, The 

Satanic Verses was capable of numerous interpretations. Even if read 

as an attack on Islam, it could invoke the license of liberalism to 

criticise ideas. The eternal arguments about human sexuality have 

grown more complex and intense over the last century. 

Given the ambiguity of speech, context is vitally important in the 

attribution of meaning: who is addressing whom, before what 

audience, in light of what history. Decades of English racism, 

especially the experience of Muslim pupils in Midlands schools, 

heightened the anger of Bradford's Muslims at The Satanic Verses. 

25


Jewish memories of the Holocaust, which a thousand Skokie residents 

had suffered first-hand, strongly contributed to the village's 

ban of the Nazi march. Women respond to pornography in light of 

their daily experience of sexual harassment and objectification. The 

speaker's identity may be critical: it was worse for a Jewish ACLU 

lawyer to represent the Nazis, a Muslim to criticise Islam, a lesbian 

to endorse sado-masochistic pornography. Style tends to overshadow 

content. Islam has suffered worse attacks than The Satanic 

Verses, but they were couched in less emotive language. 58 Art and 

erotica shade imperceptibly into pornography. The Nazis might 

have demonstrated without incident (but also without an audience) 

had they abandoned their uniforms and swastika. But of course 

provocation often is the purpose: Rushdie's use of historical figures, 

Khomeini's fatwa, Bradford's book burning, Nazi taunts of Jews, the 

Lesbian Sex Mafia's choice of a name. The speaker's motive is 

central but often opaque. Did Rushdie intend to liberate Islam from 

patriarchy and authoritarianism, ridicule Mohammed, titillate 

readers, win fame, sell books—or all of these? Do pornographers 

seek to explore sexual frontiers, objectify and degrade women, 

make money—or all three? 

Rejecting the nursery rhyme's false reassurance that "names can 

never hurt me," critics of degrading speech hold it responsible for 

"sticks and stones" and "broken bones." Pornography is the theory, 

say feminists, rape the practice. Hate speech causes racist attacks. 

Violence clearly does follow some speech: police killed protesters in 

Pakistan, Muslims were assassinated in Belgium, Rushdie's Japanese 

translator was murdered and his Italian translator assaulted, English 

bookstores were bombed. But consequentialist arguments run the 

risk of empirical falsification and distract attention from the real 

harm—the reproduction of status inequalities by the very act of 

speaking. 

Alternatively, speech victims conflate representation with reality, 

reduce art to mimesis, deny the very possibility of imagination. 

Muslims insisted on reading The Satanic Verses as history rather than 

fiction. MacKinnon asserted that "a woman had to be tied or cut or 

burned or gagged or whipped or chained" to produce pornographic 

films. Dworkin denounced Minneapolis for permitting "the binding 

and torture of real women." Skokie Holocaust suvivors equated neo- 

Nazis who applauded murder with actual Nazi murderers. Critics of 

The Satanic Verses called Rushdie a "literary terrorist," attributing to 

him every word, opinion, and action of his characters. 

Status competition through speech tends to escalate and ramify. 

26


Fearing that the Nazis were trying to attack their homes, Holocaust 

victims threatened to "tear these people up." A Minneapolis woman 

attempted suicide because "sexism has shattered my life." Muslims 

heard echoes of the Crusades in western applause for The Satanic 

Verses; westerners condemned the fatwa as a jihad. Each aggressor 

presented itself as victim. A billion Muslims claimed to be threatened 

by a single dissident under sentence of death, proving once 

again the paradoxical superiority of pen to sword. White heterosexual 

males who dominate the polity, economy, and culture decried 

the oppression of "politically correctness" whenever women, racial 

minorities, and homosexuals sought equality. Hyperbole flourished 

on every side. Both pornography and The Satanic Verses were 

equated to rape and murder. Rushdie's literary honours were 

maligned as "knight[ing] muggers" and "giv[ing] mass murderers 

the Nobel Prize." Muslims who called Rushdie a literary terrorist 

were denounced in turn for intellectual terrorism. British intellectuals 

and politicians drew false parallels between book burning in 

Bradford and Nuremberg. Insult provoked insult, and violence bred 

violence. If Rushdie called Mohammed "Mahound," Muslims responded 

by giving the author a devil's horns, a pig's body, and a Star 

of David. Nazis traded threats with the JDL. When Iran put a price on 

Rushdie's head, English newspapers offered three times as much for 

Khomeini's humiliation. 

Status competition makes even stranger bedfellows than other 

forms of politics. Jewish leaders expressed sympathy for fundamentalist 

Muslims. Rushdie was championed by such improbable allies 

as the neo-fascist Jean-Marie Le Pen and the Sunday Sport, whose 

audience probably had never heard of the author and certainly had 

not read him. The campaign against pornography united born-again 

Christians with radical feminists, while civil rights leaders distanced 

themselves from both. White racists helped Muslim men assault 

Muslim feminists. Ukrainian-Americans, whose homeland had 

committed some of the worst nineteenth-century pogroms and 

condoned Nazi atrocities, supported the Jews against the NSPA. 

Inspired by principle or realpolitik, such alliances expanded the 

conflict: Israel applauded Skokie's resistance to the Nazis; the 

Islamic world confronted a West united against the fatwa. Neutrality 

became impossible. Just as AIDS activists declare that "Silence Is 

Death," so inaction became complicity. Holocaust survivors 

demanded: "How dare the government sanctify this thing by permitting 

[it] to take place on public property?" According to Dworkin, 

Minneapolis had only two choices: help women or pornographers. 

27


Shabbir Akhtar declared that "any Muslim who fails to be offended 

by Rushdie's book ceases, on account of that fact, to be a Muslim." 

Conor Cruise O'Brien responded: "A Westerner who claims to 

admire Muslim society, while still adhering to Western values, is 

either a hypocrite or an ignoramus, or a bit of both." Principled civil 

libertarians in the ACLU were reviled as the hired guns of pornographers 

or Nazis. At the same time, each collectivity displayed major 

fissures: feminists over pornography, Muslims over the fatwa, Jews 

over civil liberties, British intellectuals and politicians over Rushdie. 

Because status competition is a zero-sum game conducted 

through the medium of values, compromise is extremely difficult. 

Civil libertarians quickly become moralistic absolutists. The Executive 

Director of the Minnesota Civil Liberties Union declared: 

"Bookstores cannot be censored. That's all there is to it." The 

Chicago ACLU public relations director characterised those who 

sought to stop the Nazi march as "the enemy, possessed of sinister 

motive and intent" and declared that "the Village of Skokie shredded 

the First Amendment." Francois Mitterand declaimed: "All dogmatism 

which through violence undermines freedom of thought and the 

right to free expression is, in my view, absolute evil." Rushdie 

concluded that "free speech is life itself." On the other side, 

MacKinnon demanded zero tolerance for "the sexually explicit 

subordination of women," many Jews would deny Nazis any right to 

speak, and many Muslims would accept nothing less than suppression 

of The Satanic Verses and execution of its author. 

Once offensive speech had impaired its victims' status, they 

demanded a remedy that would correct the inequality. Apology is 

just such a degradation ceremony. Rushdie offered an apology after 

the fatwa, acknowledging and regretting the hurt his words had 

caused, but Khomeini refused to forgive. Almost two years later 

Rushdie made another obeisance, embracing Islam, repudiating his 

characters' words, and postponing translations and a paperback. 

The rejection of this self-abasement, which crowned a "degree 

course in worthlessness," convinced Rushdie that "there is nothing I 

can do to break this impasse." Further apologies threatened annihilation: 

he "might as well be dead." To restore his self-respect and 

reputation, he denied that he had ever "disowned" The Satanic 

Verses or regretted writing it. Describing suspension of the paperback 

as a "surrender," he secured its publication within months. 

And he re-asserted his worth as a "writer," a "maker of stories," an 

"arguer with the world." 

These narratives pose an intractable problem. Speech is essential 

28


to self-realisation, social life, politics, economic activity, art, and 

knowledge. But speech can also inflict serious harm. In particular, it 

can reproduce and exaggerate status inequalities. How should we 

deal with this tension? The remaining lectures consider three alternatives. 

The next explores the civil libertarian position, some of whose 

deficiencies have already emerged. Private action can constrain 

speech as seriously as the state: feminists picketing pornography, the 

JDL threatening the NSPA, the Bradford book burning and Khomeini's 

fatwa, Penguin's publication decisions. Tolerance can be selfdestructive: 

both the ACLU and the First Amendment lost support in 

the wake of Skokie. My third lecture discusses the other obvious 

alternative of state regulation. Again, these stories have revealed a 

central drawback—efforts to suppress a message may merely 

amplify it: banning a movie enlarges its audience, the Nazis 

received much more publicity from Skokie's opposition than the 

pitiful band ever could have gotten from walking down the street— 

swastikas and all; and Muslim fundamentalists greatly increased 

Salman Rushdie's name recognition and sales (if not his readership). 

In the final lecture 1 suggest that we may avoid some of these pitfalls 

if communities encourage speech victims to seek apologies through 

informal processes. 

Notes 

1 

For a sociological analysis of anti-pornography campaigns, see Zurcher & 

Kirkpatrick(1976). 

2 

Quoted in Lederer (1980d). 

3 

Russell &Lederer (1980: 28). 

4 

"Against Our Will," quoted in Russell & Lederer (1980: 32). 

5 

Quoted in Lederer (1980d: 127-28). 

6 

Rubin (1984: 298). 

7 

Alderfer (1982); Perry (1992). 

8 

Ferguson (1984); 9(1) Feminist Studies 180-82 (Spring 1983); see also 

Linden etal. (1982); Gubar & Hoff (1989). For British debates, see Barrett 

(1982); Bower (1986); Chester & Dickey (1988); Assiter (1989); Marxism 

Today 22 (July 1990). 

9 

Dworkin (1989); MacKinnon (1987: 15). 

10 

This account is taken from Downs (1989: 61-89) and Brest & Vandenberg 

(1987). 

11 

Hunter & Law (1987/88). 

12 

Downs (1989: 85-139); Brest & Vandenberg (1987: 656-57); Duggan et 

al. (1985: 130); New York Times A15 (January 17, 1992); New York 

Times Book Review 1 (March 29, 1992). The Senate bill (S.I521) has 

29


been nicknamed "the Bundy bill" after the serial killer who claimed to 

have been incited by pornography. Hearings on the Massachusetts bill 

repeated the earlier consequentialist claims. Pat Haas testified that her 

boyfriend forced her to act out what he had seen in porn flicks. "He did 

what was in the movies. If he had seen a snuff film, I wouldn't be here." 

Time 52 (March 30, 1992). 

13 

Beauharnaisv. Illinois, 353 U.S. 250 (1952). 

14 

Chicago v. Lambert, 47 III. App. 2d 151 (1964). For a history of the pre- 

Skokie cases, see Arkes (1975). 

15 

Downs (1985); Barnum (1982) (survey research). 

16 

Independent (March 8, 1989), cited in Qureshi & Khan (1989: 30). 

l7 

Ruthven(1990: 85). 

18 

India Today (September 15,1988) and Sunday (September 18-24,1988), 

quoted in Appignanesi & Maitland (1989: 38-41). 

19 

Ruthven(1990:85). 

20 

The Times of India (October 13, 1988), quoted in Appignanesi & 

Maitland (1989: 45-59). 

21 

Appignanesi & Maitland (1989: 42-44). 

22 Ruthven(1990:90). 

23 Shabbir Akhtar, "The case for religious fundamentalism," Guardian 

(February 27, 1989), reproduced in Appignanesi & Maitland (1989: 

238-41); Akhtar (1989: 1, 6, 11-12, 25, 35, 102); Qureshi & Khan 

(1990: 1). 

24 Qureshi & Khan (1990: i). 

25 Modood(1990: 154). 

26 Ruthven (1990: 29); Qureshi & Khan (1990: 10). 

27 Appignanesi & Maitland (1989: 220-28); Ruthven (1990: 29). Elsewhere 

Mazrui asserted: "The Satanic Verses is like a rotten pig placed at the door 

of Dares Islam, the home of Islam." (1990: 36). 

Rustom Bharucha declared that Rushdie "has made himself the enemy 

of his people." (1990: 62). Feroza Jussawalla (1989), who argued that 

Rushdie should be "accountable" for his distortions and misrepresentations, 

found his own critique censored before it could be published in 

India. Quotations from The Satanic Verses were replaced by page references—to 

a book that was itself banned! 

28 Ruthven (1990: 84, 86, 91-94, 96). 

29 The Times (March 1, 1989), in Akhtar (1989: 61). 

30 Qureshi & Khan (1990: 25). 

31 The Times (March 4, 1989), in Akhtar (1989: 122); Appignanesi & 

Maitland (1989: 215-16). 

32 Qureshi & Khan (1990: 26). 

33 Times Literary Supplement (June 1, 1989), in Appignanesi & Maitland 

(1989:236-38). 

34 Appignanesi & Maitland (1989: 241-42). For a thoughtful, sympathetic 

discussion by two British Asian academics of the book and the response it 

provoked, see Marxism Today 24 (June 1989) (Bhikhu Parekh and Homi 

30

Notes 

Bhabha). For a study of the "cultural politics" of the response, focusing 

on the worlds of India and Islam, see Spivak (1989; 1990). 

35 Ruthven(1990: 103). 

36 Appignanesi & Maitland (1989: 27-29, 74-75). 

37 Akhtar (1989: 83); Qureshi & Khan (1990: 41). No one seems to have 

mentioned the book's devastating portrait of Khomeini as the Imam 

determined to end history, who sacrifices millions of his followers in the 

pursuit of power. Although he could not have read it, his advisers must 

have conveyed the gist. Rushdie (1988: 205-16, 234) 

38 Appignanesi & Maitland (1989: 25, 64-65, 92-95, 103); Akhtar (1989: 

80, 93). 

39 Ruthven (1990: 113), Appignanesi & Maitland (1989: 4, 81, 84-85, 87, 

106-07, 120, 122); Webster (1990: 52). 

40 The Times of India (January 27, 1989), quoted in Nair & Battacharya 

(1990:21). 

41 Appignanesi & Maitland (1989: 123-24, 126-27); Ruthven (1990: 

119-21). 

42 Appignanesi & Maitland (1989: 102, 127, 171, 174); Qureshi & Khan 

(1990: 39); Jenkins (1989); Webster (1990: 43). 

43 Appignanesi & Maitland (1989: 65,101,134,140-41); Akhtar (1989: 26) 

Qureshi & Khan (1990: 5, 19); Ruthven (1990: 118). 

44 Appignanesi & Maitland (1989: 132, 142, 145, 154, 191-93); Ruthven 

(1990: 114-17). 

Egyptian Nobel laureate Naguib Mahfouz initially supported Rushdie, 

accusing Khomeini of "intellectual terrorism." Three years later, however, 

he called the two of them "equally dangerous." An author "must be 

ready to pay the price for his outspokenness." Although he had not read 

The Satanic Verses because of bad eyesight, it had been explained to him; 

parts were unacceptable. Rushdie did not "have the right to insult 

anything, especially a prophet or anything considered holy." Mahfouz's 

own novel The Children of Gebelawi was still banned in Egypt for 

encouraging readers to repudiate Islam, but the author protested that 

critics had misunderstood the allegory! New York Times B3 (August 5, 

1992). 

45 Appignanesi & Maitland (1989: 183-84, 186). 

46 Appignanesi & Maitland (1989: 143, 154-56, 159, 164-65, 180-81, 

185-87); Mother Jones (April 1990); Los Angeles Times A16 (March 14, 

1990). 

47 Ruthven (1990: 81); Webster (1990:107-09,132); Modood (1990:143). 

48 Appignanesi & Maitland (1989: 128-29); Qureshi & Khan (1990: 12-13) 

49 Ruthven (1990: 1,4-5); Rutherford (1990a: 25). 

50 The Times (December 28,1990); 20(2) Index on Censorship 34 (February 

1991); Rushdie (1991), reprinted in Rushdie (1992: 430). 

51 Article 19 Bulletin 12 (July 1991); Independent on Sunday 1 (November 3, 

1991); Guardian 9 (November 7, 1991), 20 (November 14, 1991). 

31


52 

New York Times A1, B8 (December 12, 1991), reprinted in Rushdie 

(1992:430). 

53 

New York Times 8 (December 28, 1991), A19 (February 13, 1992). 

54 

Los Angeles Times A1 (March 25, 1992). 

55 

New York Times B2 (January 29, 1992), B2 (February 20, 1992), B1 

(February 14, 1992), 12 (March 14, 1992), A18 (March 26, 1992), A6 

(March 1, 1992); Los Angeles Times A16 (March 26,1992). In May 1992 

a group of Iranian intellectuals and artists issued a public statement in 

defence of Rushdie. New York Review of Books 31 (May 14, 1992). 

When Rushdie expressed hope at the beginning of June about political 

changes in Iran the regime reiterated the $2 million reward for his death. 

New York Times A4 (June 18, 1992). In July Britain expelled three 

Iranians for death threats against Rushdie; one of them had gotten close 

enough to be spotted by Rushdie's guards. New York Times 1 (July 25, 

1992). 

56 

Murray Edelman laid the foundation of this approach (1964: 1971). For 

case studies, see, e.g. Cusfield (1963) (Prohibition); Dienes (1972) (birth 

control). Sennett & Cobb (1972) explored the status elements of class 

relations; Ehrenreich extended this analysis from workers to the middle 

class (1989). Goode (1978) generalised about "prestige." More recently, 

Hunter (1991) sought to explain all contemporary American conflict in 

these terms. 

57 

On positional scaracity, see Hirsch (1976). 

58 

Brennan(1989: 142). 

32

2. The Poverty of Civil Libertarianism 

In my first lecture I told stories about pornography, hate speech, and 

The Satanic Verses. Responses to such events oscillate between the 

poles of civil libertarianism and state regulation. In this lecture I will 

articulate the libertarian position and advance four criticisms: the 

costs of speech, the imperative of state regulation, the impossibility 

of state neutrality, and the illusion of private freedom. 

/. Civil Libertarian Theory 

The most uncompromising civil libertarianism prohibits state interference 

with private speech (which it views as inherently free) and 

mandates neutrality when the state speaks, directly or through 

others. A foundation of this position is scepticism about the possibility 

of resolving conflicts of value. Daily contact among the diverse 

cultures of the global village—not just through the media but 

increasingly as citizens of the same neighbourhood, workplace, and 

school—has reinforced ethical relativism. The accelerating pace of 

change during recent centuries vividly exemplifies the contingency 

of values. This perspective reflects not only experience but also the 

epistemological position that values cannot be proven. Belief 

expresses individual subjective preference; consensus is accidental 

and ephemeral. Empirical knowledge, by contrast, emerges from 

efforts at disproof, as the triumph of modern science dramatically 

demonstrates. For both reasons, political authority presupposes 

vigorous debate, which alone can generate consent and legitimacy. 

And because civil libertarianism holds the ontological view of 

humans as expressive and communicative, free speech also is 

essential to the full realisation of personhood. 1 

To support this position, civil libertarians can adduce endless 

33

The Poverty of Civil Libertarianism 

examples of oppression in the name of absolute values. The history 

of religion is a narrative of parochial intolerance justified by appeals 

to the transcendent: the persecution of early Christians, the Crusades, 

the Inquisition, medieval religious wars, anti-Semitism, missionary 

zeal, communist attempts to extirpate religion, Muslim 

fundamentalism, Catholic orthodoxy, the religious right. Communist, 

fascist, and anti-communist repression in the present century 

are merely the latest manifestations of millenia of state efforts to 

silence dissent. Campaigns for cultural hegemony are a source of 

unrelieved embarrassment: patriarchy, racism, agitprop, Nazi fulminations 

against "degenerate art," and sexual repression running 

from the Puritans through Victorian prudery to Mary Whitehouse 

and Jesse Helms. 

Yet civil libertarianism raises more questions than it answers. Is 

our ethical relativism really absolute? Haven't the horrors of recent 

centuries forged a consensus about the evils of slavery, colonialism, 

racism, anti-Semitism? Even patriarchy hides behind "family 

values," and homophobia barely dares to speak its name. Do the 

advantages of free speech always outweigh its costs—which we are 

learning from the previously silenced voices of women, people of 

colour, and homosexuals? Does the state refrain from regulation? 

Can it maintain neutrality? Is speech truly free in the absence of state 

intervention? 

//. The Costs of Speech 

Most discussion of free speech emphasises the costs of prohibition— 

the subject of my third lecture. Recently, however, racial and 

religious minorities, women, and gays and lesbians have born 

witness to the pain inflicted by slurs, graffiti, threats, and stereotypes. 

2 Let me begin with some examples. 

In 1990 Russ and Laura Jones and their five children fled the drugs 

and crime of downtown St. Paul, Minnesota to become the only 

black family in Mounds Park, a working-class neighbourhood. 

Within two weeks their tyres were slashed. Soon thereafter they were 

awoken at midnight by a cross burning in their small fenced-in front 

garden. Mrs. Jones described her terror: "If you're black and you see 

a cross burning, you know it's a threat, and you imagine all the 

church bombings and lynchings and rapes that have gone before, 

not so long ago. A cross burning is a way of saying 'We're going to 

get you.' " Reported hate crimes had increased 21 per cent in 

34

The Costs of Speech 

Minnesota over the previous year. Like cities in almost every American 

state, St. Paul had a hate crime ordinance, passed in 1982, to 

which it had recently added cross burning and swastikas and sexual 

bias. Arthur Miller 3d, an 18-year-old who lived across the street, 

pleaded guilty and served 30 days in jail. He testified in the trial of 

Robert A. Viktora, a 17-year-old high school dropout, that they and 

four friends were drinking that night and talking about getting into 

some "skinhead trouble" and "burning some niggers." Viktora 

appealed his conviction to the U.S. Supreme Court, supported by 

the ACLU and the conservative Center for Individual Rights, while 

amicus briefs were filed on behalf of the state by the NAACP, the 

Asian-American Legal Defense and Education Fund, and the liberal 

People for the American Way. In the course of oral argument Justice 

Scalia rejected the prosecutor's contention that speech and conduct 

motivated by racial bias aggravated the injury. "That's a political 

judgment." Some people might be more offended by a provocative 

speech about economics "or even philosophy." A protest against the 

placement of a home for the mentally ill would not violate the 

ordinance because "it's the wrong kind of bias. Why is that? It seems 

to me the rankest kind of subject-matter discrimination." Writing for 

four colleagues (and supported by the votes of four others, who 

concurred in the result), Scalia held that the ordinance unconstitutionally 

prohibited speech "solely on the basis of the subjects the 

speech addresses." The city could not "license one side of a debate 

to fight freestyle, while requiring the other to follow the Marquis of 

Queensbury Rules. . . . Selectivity of this sort creates the possibility 

that the city is seeking to handicap the expression of particular 

ideas." On hearing the decision, Mrs. Jones objected that her 

children, ranging in age from 2 to 11, were too young to deal with 

these injuries. "It makes me angry that they have to be aware of 

racism around them, that they notice it more and more." 3 

Attempts by American universities to protect subordinated groups 

from hurtful speech have been similarly frustrated. When white 

fraternity members staged an "ugly woman" contest in the student 

refectory by painting their faces black, donning fright wigs, and 

using pillows to exaggerate breasts and buttocks, George Mason 

University suspended them from social activities and sports for two 

years. Although the ACLU conceded that the contestwas "inappropriate 

and offensive," it represented the fraternity because the 

penalty was "grossly inappropriate." The federal court agreed 

because the skit "contained more than a kernel of expression." At 

the University of Wisconsin the UMW Post and several students 

35


challenged the hate speech code adopted in 1989 as part of a Design 

for Diversity and in response to several racist incidents, including a 

fraternity "slave auction." A federal court also invalidated this, 

declaring: "The problems of bigotry and discrimination sought to be 

addressed here are real and truly corrosive of the educational 

environment. But freedom of speech is almost absolute in our 

land." 4 After restricting the rule to face-to-face confrontations, the 

university repealed it following the Supreme Court's decision in the 

St. Paul case. 5 

Black popular music combines legitimate anger at racial oppression 

with misogyny, homophobia, and anti-Semitism. 2 Live Crew 

gained notoriety for its album "As Nasty As They Wanna Be," which 

contains a track called "The Buck." [See Appendix. Readers are 

warned they may find the lyrics extremely offensive.] 2 Live Crew 

were acquitted of obscenity in a trial at which Harvard English 

Professor Henry Louis Gates, Jr., himself African American, called 

the group brilliant artists who exploded racist stereotypes about 

black sexuality by presenting them in a comically extreme form. 6 An 

English court dismissed an obscenity charge against the LA rap group 

Niggaz With Attitude for its record "Efil4zaggin," which described 

oral sex and violence. Band member Eazy-E declared: "We are 

underground reporters." Geoffrey Robertson QC agreed: "It is often 

very bitterly sarcastic and rude and will appear to our ears rude and 

crude, but there it is, all part of the experience. It tells it like it is." 7 

The rap group Public Enemy appeared at its 1987 launch surrounded 

by bodyguards armed with fake Uzis. Its members praised 

Louis Farrakhan, the openly anti-Semitic leader of the Nation of 

Islam. Their song "Fight the Power" became the theme of Spike 

Lee's enormously successful movie "Do the Right Thing." In May 

1989 "Minister of Information" Proffessor {sic) Griff (Richard Griffin) 

told an interviewer from the right-wing Washington Times that Jews 

were the cause of "the majority of the wickedness" in the world. The 

group fired him but soon thereafter issued "Welcome to the Terrordome," 

whose lyrics included: "Told a rab get off the rag," "Cruxifixion 

ain't no fiction/So-called chosen frozen/Apology made to who 

ever pleases/Still they got me like Jesus." That album, "Fear of Black 

Planet," which sold a million copies in its first week, also contained 

"Meet the G That Killed Me," with the homophobic lyrics: "Man to 

man/l don't know if they can/From what I know/The parts don't fit." 8 

The feminist argument that pornography reproduces the subordination 

of women receives striking support from the actresses who 

make it. Indian movie stars charge fees proportioned to how much 

36

The Costs of Speech 

skin they expose. As American actresses gain popularity they can, 

indeed must, refuse to perform nude. Michelle Pfeiffer, Kim Basinger, 

Ceena Davis, Ellen Barkin, and Mariel Hemingway all 

rejected the lead in "Basic Instinct," largely because it required too 

much nudity and sexual simulation. When rising stars accept such 

parts they (or the studio) may insist on a "body double." Although 

Virginia Madsen had appeared nude in previous films, she 

demanded a double for the love scene with Don Johnson in "The 

Hot Spot," perhaps to assert her status aspirations. Julie Strain, 

double-in-waiting in "Thelma and Louise" for Geena Davis (who 

decided to do the motel sex scene herself), described the selection 

process. 

They brought a bunch of girls out to the director's trailer one by 

one, and we had to strip down and spin in a circle. If you had kept 

your underwear on, I'm sure he wouldn't have said anything. But 

it's just easier to show the whole thing, because if they're going to 

shoot a love scene they need to see there are no scars or marks. 

Shelley Michele, who doubled Julia Roberts in "Pretty Woman" and 

was 33 seconds of Kim Basinger's arms and legs pulling on hosiery in 

zero gravity in "My Stepmother Is an Alien," also doubled for 

Catherine Oxenberg, daughter of Princess Elizabeth of Yugoslavia, 

in "Overexposed." "She's royalty," Michele explained. "It's not 

really moral for her to be doing nudity." Although union rules 

guarantee doubles up to $2000 a day, they naturally must remain 

anonymous. 9 

Advertising inflicts different kinds of costs. The tobacco industry's 

century-old disinformation campaign has been alarmingly successful. 

Although a panel of a hundred health experts rated smoking the 

single greatest hazard among 24 alternatives, 1200 randomly chosen 

adults rated it only tenth, below such risks as homes without 

smoke detectors. 10 Children are particularly suggestible. Glasgow 

11-14-year-olds could recognise an average of five brands; 83 per 

cent could recall one cigarette ad and half remembered two. Those 

most aware of ads were more likely to become smokers; a quarter of 

fifth-formers already smoked. Camels' "Old Joe" campaign, which 

cost $100 million in 1990, expanded its market share from one per 

cent to 25-33 per cent of smokers under 18. Thirty per cent of threeyear-olds 

could identify the cartoon character and connect him to 

the cigarette; 90 per cent of six-year-olds could do so—more than 

37


recognised Mickey Mouse! 11 Research also connects alcohol advertising 

to drinking and death. Urging a ban on advertisements suggesting 

that you can raise your athletic, social or professional status 

by your choice of drink, the Washington State Medical Association 

noted that 32 per cent of fatal car accidents among 16-20-year-olds 

involved a driver whose blood alcohol exceeded 0.1 per cent. When 

the ex-director of the New York State Division of Alcoholism and 

Alcohol Abuse criticised Anheuser Busch for telling youth that its 

beer was served at 87 per cent of "the parties your parents would 

never attend," the company responded: "No one has ever been able 

to establish a clear link between alcohol abuse and advertising." The 

company undercut this disclaimer, however, by boasting to shareholders 

that its market share had increased during a period when 

beer consumption declined significantly. 12 

///. The Imperative of State Regulation 

Many governments own or control the media and use their pervasive 

economic and political power to suppress dissent. Liberal democracies 

declare their respect for freedom of speech but still regulate it in 

myriad ways. Since respected judges, lawyers, and legal scholars, 

have given an absolutist interpretation to the First Amendment's 

cryptic declaration that "Congress shall make no law . . . abridging 

the freedom of speech" I will stress American examples in arguing 

that state regulation is inescapable. The question is not whether to 

regulate but what and when. 

The civil libertarian position has to account for many disconcerting 

exceptions. Although defamation is only supposed to punish 

after the fact, Peter Matthiessen's book In the Spirit of Crazy Horse 

was forced out of print when his publisher was sued by those he 

accused of framing American Indian Movement leader Leonard 

Peltier in the 1975 killing of two FBI agents. 13 Robert Maxwell was 

notorious for suing anyone who mentioned him—even for drawing 

parallels between his physiognomy or headgear and that of real or 

fictitious criminals; his death terminated a hundred libel actions. 

Unable to suppress a 1988 biography, he frightened many booksellers 

out of stocking it. 14 American courts have prohibited release 

of the tapes of the Challenger disaster out of respect for the privacy of 

the astronauts' families. States forbid the identification of rape 

victims and juvenile accused, and judges close trials to press and 

public. 15 Victims of hurtful words can sue for intentional infliction of 

38

The Imperative of State Regulation 

emotional distress. Courts and administrative agencies extensively 

regulate commercial speech under such rubrics as misrepresentation 

and professional advertising and solicitation. 16 They limit the promotion 

of dangerous products like alcohol and tobacco and require 

extensive disclosure about others. 17 California taxes tobacco sales to 

fund anti-smoking messages and education. After Secretary of 

Health Dr. Louis W. Sullivan, an African American, attacked R.J. 

Reynolds's "slick and sinister advertising campaign" for its new 

"Uptown" cigarette targeted at black smokers, the company withdrew 

the brand. He also denounced the Virginia Slims women's 

tennis tournament and other sports events for accepting "blood 

money" from tobacco manufacturers. Surgeon General Antonia 

Novello, a Latina, condemned industry efforts to increase tobacco 

sales in Latin America and declared: "In years past, R.J. Reynolds 

would have us walk a mile for a Camel. Today, it's time that we 

invite Old Joe Camel himself to take a hike." 18 Contract law endows 

speech with fateful consequences, while restrictive practices law 

prohibits the formation of certain contracts. The criminal law of 

conspiracy and attempt punishes language. And obscenity and 

pornography are proscribed, if their boundaries have shrunk. The 

Police Chief of Guilderland, New York, threatened local record 

stores with prosecution for selling 20 "obscene" tapes; although he 

retracted the warning, the casettes remained unavailable. Despite 

the unconstitutionality of hate speech ordinances, the New York City 

Metropolitan Transportation Authority abridged artistic freedom by 

removing a photographic exhibit from an underground station when 

the largely black ridership complained that it depicted Greek rather 

than African Americans. 

All governments invoke raison d'etat to suppress speech. During 

the Persian Gulf War, 79 per cent of Americans approved of military 

censorship and 57 per cent thought it should be intensified. In 

response to the patriotic frenzy of those who waved the flag or 

wrapped themselves in it, newspapers reprinted a federal statute 

prohibiting use of the flag in wearing apparel, bedding or drapery or 

for advertising purposes, even though the Supreme Court had protected 

flag burning. 20 The California Department of Motor Vehicles 

recalled the vanity license plate "4 Jihad" until Kareem Jaffer, who 

owned the car, produced a birth certificate showing that his son's 

name was Jihad. 21 Desperate about the unfavourable opinion polls 

two weeks before the November 1992 election, President Bush 

condemned Governor Clinton for having demonstrated against the 

Vietnam War while a Rhodes scholar. "Maybe I'm old fashioned, but 

39


to go to a foreign country and demonstrate against your own country 

when your sons and daughters are dying halfway around the world, I 

am sorry but I think that is wrong." 22 

Secrecy may be the British disease, but the United States also has a 

pretty bad case. The CIA is only now thinking about opening 

classified files more than 30 years old concerning the 1954 Guatemala 

coup, the 1961 Bay of Pigs invasion, and the 1963 Kennedy 

assassination. 23 Nations regulate speech by excluding or expelling 

speakers. For almost 40 years the McCarren Walter Immigration Act 

denied admission to such notables as Graham Greene and Gabriel 

Garcia Marquez. Even after repealing that ideological litmus test, the 

United States sought to deport Khader Hamide, a Palestinian who 

entered the country legally but incurred disfavour for distributing 

PLO literature. Britain deported Fred Leuchter, a self-proclaimed 

American "expert" on prison execution, who denies that the Nazis 

used cyanide in their gas chambers. The French government 

expelled Abdelmoumen Diouri after 17 years of legal residence for 

publishing Who Owns Morocco?, an expose of the personal fortune 

of King Hassan, France's close ally. 24 

Because blatant state regulation of speech often provokes resistance, 

which sometimes secures judicial protection, more subtle 

interference may actually be more intrusive. The freedom of government 

employees varies inversely with their visibility. Assistant Secretary 

for Health Dr. James O. Mason told the Seventh World 

Conference on Tobacco and Health that it was "unconscionable for 

the mighty transnational tobacco companies—and three of them are 

in the United States—to be peddling their poison abroad, particularly 

because their main targets are less-developed countries." 

Although he had cleared the speech with the White House and the 

Secretary of Health, he was forbidden to testify on the effects of 

American tobacco exports before the House Subcommittee on 

Health and the Environment. A Department of Health and Human 

Services spokesperson said that the opening of new cigarette markets 

was not a health issue but exclusively "a trade issue." It certainly 

was a trade issue—cigarettes earned a $4.2 billion surplus in 

1989. 25 The Census Bureau fired Beth Osbome Daponte for estimating 

that 13,000 Iraqi civilians died in the Gulf war, more than twice 

the official figure. Although it charged her with insubordination, she 

had consulted three levels of bureaucracy and released the data only 

when the Bureau refused to do so. Under threat of litigation the 

Bureau reinstated her and retracted its calumny that the number was 

"a deliberate falsification." 26 

40


In its role as publisher, government also controls private speakers. 

Taking Care of Your Child: A Parent's Guide to Medical Care, which 

had sold a million copies, was distributed free to 275,000 federal 

employees but only after the deletion of six pages about contraception 

and adolescent sexuality, including such "controversial" passages 

as this: 

While a variety of techniques prevent pregnancy, the growing list 

and seriousness of sexual diseases serves as a reminder that other 

than abstinence only condoms used in combination with a spermicide 

can prevent infection. Your adolescent should discuss with 

his or her doctor the full range of contraceptive/disease prevention 

options. 

Curt Smith, director of the Retirement and Insurance Group of the 

Office of Personnel Management, justified the cuts: "I wasn't going 

to allow a book like this to go to homes where some people would be 

offended. You know, these are issues that alarm people [like Catholics] 

very quickly. I felt silence would be best." 27 

During J. Edgar Hoover's long directorship, the F.B.I, often sought 

to limit the circulation and impact of critical books by discouraging 

bookstores from stocking them and planting unattributed derogatory 

reviews. Recently the Bureau sought to persuade judges to accept 

DNA "fingerprinting." When a British scientist testified as an expert 

witness for the defence, he was interrogated about his visa status, 

charged with fraudulent billing practices, and ordered to produce all 

his scientific papers—successfully deterring further courtroom 

appearances. A prosecutor warned a sceptical University of California 

professor to get a driver's license because the Oakland jail was 

not a good place to spend the night. After the prestigious journal 

Science accepted an article criticising DNA identification the editor 

forced the authors to soften their conclusions and took the highly 

unusual step of delaying publication until a rebuttal was prepared. 

While the manuscript was being considered, an official in the 

Department of Justice Criminal Division Strike Force asked the 

authors to withdraw it. One of their strongest critics received a 

$200,000 grant from the Justice Department to study DNA investigation 

and licensed his method to prosecutors. A government panel 

subsequently acknowledged concerns about the procedure. 28 Soon 

after the Gulf war Dr. Theodore A. Postal, professor of national 

security policy at MIT and former Pentagon science adviser, published 

a 52-page article in International Security, a Harvard peer- 

41


reviewed journal, asserting that the Patriot missile had been "almost 

a total failure." He was promptly investigated by Pentagon officials 

for revealing secret information. After refusing to meet with them 

Postol said he was told: "I could not speak about any part of my 

article in public without being in violation of my secrecy agreement." 

Although Raytheon, the missile manufacturer, had claimed 

100 per cent success, the Army eventually conceded that Patriots 

had shot down only 70 per cent of Scuds in Saudi Arabia and 40 per 

cent in Israel. 29 Following the bitterly contested Clarence Thomas 

confirmation hearings, the special counsel of the Senate Rules 

Committee subpoenaed the telephone records of /Vewsda/s 

Timothy Phelps and National Public Radio's Nina Totenberg, suspected 

of leaking Anita Hill's accusations. Although the Senate 

withdrew the subpoenas under public pressure, the Reporters Committee 

for Freedom of the Press reported 100 similar threats in 

1991. 30 

Governments retaliate against speech they view as lese majeste. In 

his film "Grand Canyon," director Lawrence Kasden depicted the 

city of Inglewood as a high-crime area, commenting at its release: 

[CJities are supposed to be the hubs of civilization, not war zones. 

In Los Angeles, we had the fantasy that we could run to our 

neighborhoods and hide, but that illusion has been dispelled. One 

wrong turn plants you in enemy territory. There is no safe place 

any more, no sense of security. "Grand Canyon" is about the fact 

that we're all interconnected. If people on the bottom suffer, we 

all do. The world becomes an unlivable place. 

In an open letter to Hollywood trade publications and the media the 

city expressed strong displeasure, threatening to ban all filming until 

the producers apologised and deleted all references to Inglewood, 

and to require future directors to agree not to disparage the community. 

The Inglewood Public Relations Director sought to soften the 

message: "We're not talking censorship. There's no book burning or 

movie burning going on. We're educating Hollywood about how 

movies affect people." Several years earlier New Jersey Supreme 

Court Chief Justice Robert N. Wilentz, offended by a scene in "The 

Bonfire of the Vanities" depicting riotous blacks chasing judges 

down hallways, had prohibited Warner Brothers from shooting it 

inside the Essex County courthouse. The federal courts rejected the 

county's challenge for lack of standing. 31 

Although schools may be constitutionally obligated to tolerate 

42


some contumely in student newspapers, they still regulate much of 

what pupils may say. 32 The Oakland, California school board 

unanimously banned clothing and jewellery denoting gang identification, 

expensive jogging suits, hats, clothing designating membership 

of non-school organisations, and t-shirt slogans using profanity, 

approving drug use or violence, or denigrating people because of 

race, ethnicity, religion, sex, or sexual preference. For otherwise 

inarticulate youth obsessed with consumption and immersed in their 

peer culture, dress may be the most important mode of self-expression. 

Government denies schoolsas a venue for meetings expressing 

unpopular viewpoints. A New York City school board withdrew 

permission to the "Lost-Found Nation of Islam" to host a speech 

entitled "Are Jews Hiding the Truth?" Minister Abu Koss disavowed 

anti-Semitism: "You mean to ask a question is inflammatory?" 

School board spokesperson James S. Flasto responded to that false 

naivete with equal hypocrisy, claiming that the group had misrepresented 

the meeting as a "self-help" gathering: "They did not tell the 

truth. And that is grounds for denying a permit." But he also 

acknowledged the real reason: "We cannot have hate or propaganda 

of any kind emanating from our schools." 33 

Government wields its enormous economic leverage to discourage 

speech. The Supreme Court has upheld the gag law forbidding 

federal grantees from counselling women about abortion. Although 

the Bush Administration purported to relax this in March 1992 by 

allowing doctors to give "complete medical information," it knew 

that few patients see doctors, who still could not refer them to 

abortion clinics. 34 Government also enforces contracts in which 

private parties buy silence. Defendants often settle tort claims with 

payments binding plantiffs to secrecy. The risks associated with 

silicon gel breast implants, for instance, were documented in a 1984 

lawsuit whose record was sealed. Hundreds of thousands of women 

suffered disastrous consequences for another eight years before the 

Food and Drug Administration took action. Heart valve implant 

recipients who sued the manufacturer were prevented from disclosing 

information about defects. Private employees, like their public 

counterparts, may be sworn to secrecy. Management in Arista and 

BMG record companies could not reveal that Robert Pilatus and Fab 

Morvan lip-synched "Girl You Know It's True" on the 1988 album 

that sold millions and won them a Grammy. Other contracts can 

constrain speech. Paul Yule's "Damned in the USA," a British 

television programme about American cultural censorship, was 

banned in USA for months because a fundamentalist minister 

43


claimed that his participation had been conditioned on a promise 

that it not be rebroadcast. 35 Even divorce can seal lips. As part of her 

$22 million settlement with Donald Trump, Ivana agreed never to 

talk about the marriage. When the New York courts upheld this 

clause, Donald's lawyer explained: "The judges are saying that this 

is not a freedom of speech case. Mrs. Trump, for a price, waived her 

right of free speech when she voluntarily accepted money in consideration 

for surrendering that right." Donald planned to sue Ivana for 

breaking this contract by publishing her novel For Love Alone, 

which features a Czechoslovak professional skier like Ivana married 

to an American tycoon like Donald, whose affair with a younger 

actress leads to a messy divorce. 36 

That the United States, with its strong First Amendment tradition, 

constrains speech in so many ways does not prove the inevitability of 

regulation. But it certainly discourages hope in attaining the civil 

libertarian vision. 

IV. The Impossibility of State Neutrality 

Some civil libertarians argue that what the state may not do directly 

through regulation it should not do indirectly. When the state speaks 

or finances speech it must be strictly neutral, neither amplifying 

some voices nor silencing others. It is equally impossible to depoliticise 

this role, however. Government officials have little hesitation in 

discouraging or discrediting critics. During the Gulf War, British 

Foreign Secretary Douglas Hurd expressed "a good deal of concern" 

about reporting from Baghdad and voiced the "strong feeling in the 

country" that television favoured Iraq in describing the American 

bomb that killed 400 civilians in a shelter. House of Commons 

Leader John MacGregor said the government had made representations 

to the networks. American officials are no more reticent. 

When Business Roundtable chief executives discussed proposed 

civil rights legislation with minority groups, they were told to break 

off negotiations by White House Chief of Staff John Sununu and 

White House Counsel C. Boyden Gray. White House Press Secretary 

Marlin Fitzwater equivocated. This was just "part of the kind of 

backstage wrangling that goes along with legislation. Anybody can 

talk to anybody." But the government, of course, is not just anybody, 

and it was telling people not to talk. 37 

The government's burgeoning role in financing speech is equally 

partisan and even more controversial. Public schools and libraries 

44

The Impossibility of State Neutrality 

constantly make decisions about using and lending books, under 

pressure from fiercely opinionated constituencies. 38 The Duval 

County, Florida schools banned or restricted 60 books, including 

Snow White, Shel Silverstein's humour, and Nikki Giovanni's 

poetry. The Traditional Values Coalition forced California to delete 

from science textbooks passages asserting: "There is no scientific 

dispute that evolution has occurred and continues to occur; this is 

why evolution is regarded as a scientific fact." "These sequences 

show that life has continually diversified through time, as older 

species have been replaced by newer ones." After the Sandinistas 

were voted out of power, the new American-backed Nicaraguan 

government planned to destroy four million schoolbooks donated by 

Norway because of their allegedly leftist views. Mexico's first 

revision of its history textbook in 20 years eliminated laudatory 

descriptions of Emiliano Zapata, Fidel Castro, and Salvador Allende 

while rehabilitating Porfirio Diaz, whose 30-year dictatorship seems 

to be a model for President Salinas de Gortari. 39 

The State inevitably favours some voices over others in the 

allocation of radio and television frequencies to private companies, 

programming by public stations, museum exhibits, celebrations and 

ceremonies, and of course the appointment of officials—most visibly 

judges. Legal aid schemes constrain lawyers' clients, substantive 

areas, and strategies. American legal services lawyers cannot represent 

tort victims, draft resisters, women seeking abortions, voter 

registration or desegregation campaigns, or the "voluntary" poor. 40 

The charitable deduction in tax codes directs money to some 

speakers and away from others. The notorious Clause 28 of the Local 

Government Act 1988 prohibited local authorities from "promoting" 

homosexuality, publishing such promotion, or promoting "the 

teaching ... of the acceptability of homosexuality as a pretended 

family relationship." 41 

As science has become heavily dependent on government support, 

politics increasingly shapes the research agenda. The National 

Institute of Child Health and Human Development withdrew approval 

of a study of sexual behaviour by Edward Laumann, dean of 

social science at the University of Chicago, because it would be 

"political suicide." The Senate transferred $10 million from the first 

comprehensive surveys of adolescent and adult sexual behaviour to 

the Adolescent Family Life Program, which sponsor Senator Jesse 

Helms (R-NC) described as "the only federally funded sex-education 

program that counsels our children to abstain from having sexual 

relations until they are married." He denounced as prurient the 

45


defunded study's questions about homosexual behaviour. Their real 

purpose was "not to stop the spread of AIDS . . . [but] to compile 

supposedly scientific and Government-sanctioned statistics supporting 

ultra-liberal arguments that homosexuality is normal behavior." 

The National Institutes of Health cancelled a conference on "Genetic 

Factors in Crime" after objections by the Congressional Black 

Caucus. 42 

Because artistic taste is strongly associated with status groups, 

government support is a hotly contested terrain. Shortly after its 

launch in the 1960s, the National Endowment for the Arts became 

embroiled in a three-week furor because it had funded an improvisation 

for Baltimore schoolchildren, which used the word "bullshit." 

43 Two decades later, perhaps hoping that a lawyer would 

avoid such flaps, George Bush appointed John E. Frohnmayer to 

head the N EA. One of his first acts was to suspend a $10,000 grant to 

"Witnesses: Against Our Vanishing," a New York exhibition about 

AIDS, because the catalogue contained an essay by AIDS-victim 

David Wojnarowicz criticising Rep. William E. Dannemeyer (R- 

Calif) and Sen. Jesse Helms, among others. Frohnmayer's justification 

revealed the incoherence of any aspiration to neutrality. 

I think it's essential that we remove politics from grants and must 

do so if the endowment is to remain credible to the American 

people and to Congress. Obviously, there are lots of great works of 

art that are political. Picasso's Guernica and the plays of Bertholt 

Brecht are strongly political. But the question is, Should the 

endowment be funding art whose primary intent is political? . . . 

The catalogue to this show is a very angry protest against the 

specific events and individuals involved over the last eight months 

in the most recent arts legislation in Congress [which prohibited 

the Endowment from funding "materials considered obscene, 

including sadomasochism, homoeroticism, the sexual exploitation 

of children, or individuals engaged in sex acts"]. It's very 

inflammatory. 

Helms, who had sponsored the restrictive legislation, "was much 

more pleased by this than he was by the N.E.A.'s reaction under the 

former acting chairman to the Mapplethorpe exhibition." Dannemeyer, 

who contended that homosexuality was curable acquired 

behaviour, commended Frohnmayer "for doing what I think Congress 

told him to do." Within three years, however, Bush fired 

Frohnmayer, fearing that Republican presidential candidate Patrick 

46

The Impossibility of State Neutrality 

Buchanan was gaining too much political advantage by criticising 

the NEA. Frohnmayer's valedictory compared this "Frankenstein 

monster's" "shameless" attacks to the Nazi exhibit of "Entartete 

Kunst" (Degenerate Art): "A sign on the wall of that show said: 'Your 

tax money goes to support this filth.' That could come from the 

Congressional Record, my friends." 44 

Politics infects other government-supported expression. 45 Lynne 

Cheney, the conservative chair of the National Endowment for the 

Humanities, overruled several grant recommendations at each quarterly 

meeting of her national advisory council. To avoid this embarrassment, 

President Bush sought to pack the council with 

conservatives, such as University of Pennsylvania history professor 

Alan C. Kors, who compared his institution to Beijing University and 

urged fellow members of the conservative National Association of 

Scholars to transform universities into "the monasteries of the Dark 

Ages, preserving what is worth preserving amid the barbaric ravages 

in the countrysides and towns of academe." 46 Several senators 

sought to block funding for the Corporation for Public Broadcasting. 

Conrad Burns (R-Mont) was angry at "The Range Wars" for criticising 

grazing on public lands: "my constituency, which is a lot of 

cattlemen and sheepmen, absolutely went through the roof." John 

McCain (R-Az) attacked "Maria's Story" for "glorifying the life of a 

F.M.L.N. guerrilla in El Salvador." Jesse Helms lambasted "Tongues 

Untied" for portraying "homosexual men dancing around naked" 

and "blatantly promot[ing] homosexuality as an acceptable life 

style." Minority leader Robert Dole (R-Kan) summarised their fury: 

"I have never been more turned off and more fed up with the 

increasing lack of balance and unrelenting liberal cheerleading I see 

and hear on the public airwaves." 47 

Neutrality is unattainable. Indeed, no one wants it. All speakers, 

whether employed or supported by government, are expressing their 

partisan positions. Balance is a chimera; every mixture of views 

favours some over others. 

V. The Illusion of Private Freedom 

Civil libertarians oppose state regulation and partisanship because 

they see it as the primary source of constraint. Once that is removed, 

private expression will again become a realm of authentic freedom. 

The implicit image of free speech is the colonial New England town 

meeting or Hyde Park's speakers' corner. In these mythic or marginal 

47


environments everyone has equal opportunity to speak, and each 

voice carries equal weight with the attentive unbiased audience. 

This section questions those assumptions, arguing that state action 

constructs the value of speech, state withdrawal exposes speech to 

powerful market forces, and private action is the greatest constraint 

on speech. 

A. The State Valorises Speech 

The "marketplace of ideas" in which Oliver Wendell Holmes urged 

that a proposition's truth be tested is no more free than any other 

"free market." 48 Politics constructs all markets; the state defines 

every right to property, including intellectual property. In an era of 

mass consumption, such rights can be incredibly valuable. During a 

recent two-year period, the pop group New Kids earned $115 

million from their music. In 1992 Madonna signed a seven-year deal 

with Time Warner worth $60 million, similar to the one Michael 

Jackson had concluded with Sony a year earlier; Barbra Streisand 

had to make do with $40 million. Time Warner was not giving 

anything away; during the previous decade Madonna had generated 

gross revenues of $1.2 billion. Prince sought to top both rivals by 

valuing his contract with Warner Bros. Records at $100 million. But 

all this was petty cash to the software industry, where Apple Computer 

Inc. is suing Microsoft Corp. for $5.5 billion, alleging copyright 

infringement. 49 

Because habituation leads us to see property as a natural attribute 

rather than a political artefact, some marginal examples may usefully 

highlight its contingency. McDonald's Dutch subsidiary settled 

a $2.7 million claim by Paul Bocuse for an advertisement picturing 

the chef preparing chicken, on which was superimposed a bubble 

showing him thinking "Big Mac." 50 McDonald's is no less possessive 

of its carefully cultivated image. Claiming to have created a 

"McLanguage" by naming more than 75 products, it has sued La 

Capoterie for selling McCondoms, using a stylised yellow M as the 

logo. 51 Several American universities have commenced legal action 

against entrepreneurs selling notes taken without the lecturer's 

permission. 52 In order to promote its paper nappies and soap 

powder, Proctor & Gamble leased the panda logo from the World 

Wide Fund for Nature for £300,000 and the image of a mother 

cradling an infant from The National Childbirth Trust for 

£250,000." 

The state defines the rights of creative and performing artists. 

When Jeff Koons sculpted a "String of Puppies" to parody Art 

48

The Illusion of Private Freedom 

Rogers's famous kitsch postcard of a couple with eight German 

shepherds, the judge found copyright infringement, angrily dismissing 

Koons's boast that "it was only a postcard photo and I gave it 

spirituality, animation and took it to another vocabulary." 54 Art 

Buchwald's successful suit against Eddie Murphy and Paramount 

Pictures for stealing the concept for "Coming to America" was only 

the latest in a series of Hollywood tiffs stretching back at least to 

Orson Welles's "Citizen Kane." 55 Courts are beginning to protect 

more subtle forms of creativity. Six years after the Beatles won a $10 

million judgment against Beatlemania Inc. for a stage show and 

movie featuring four impersonators, Bette Midler won $400,000 

against Young & Rubicam for hiring her former backup singer to 

imitate her style in a television commercial for Lincoln-Mercury 

cars. 56 Because rap music incorporates sound-bytes from other 

recordings, copyright owners have begun to sue for infringement. 57 

Discovery as well as creation can confer rights: the full text of the 

Dead Sea Scrolls was withheld from the public for 45 years. 58 British 

libraries pay authors each time their books are borrowed; California 

artists earn royalties whenever their work is resold. Some cineastes 

argued that directors should be able to veto "colourisation" of their 

black-and-white films. Technological advances constantly compel 

the state to redefine property rights: photography, lithography, 

computer software, genetically engineered plants and animals, 

records, analog and now digital casettes, compact disks, and video 

recorders. 59 State action can deny speakers the right to market their 

words. The "Son of Sam" law (named after a New York mass 

murderer), which prohibits criminals from selling their stories, has 

been applied to such famous convicts as Jean Harris (who murdered 

Dr. Herman Tarnower, author of the Scarsdale diet), Sidney Biddle 

Barrows (the "Mayflower Madam"), and Jack Henry Adam (the 

recidivist murderer and Norman Mailer protege). After the law was 

invalidated in a case brought by Henry Hill, a mafioso who earned 

$96,000 for the story Nicholas Pileggi turned into "Wiseguy," New 

York Governor Mario Cuomo backed an amended version he hoped 

would withstand constitutional scrutiny. 60 

My purpose is not to criticise these rules but merely to demonstrate 

that the state inevitably encourages and discourages expression 

by conferring or withholding property rights. 

B. Has the Fall of Communism "Freed" Speech? 

If the state is inherently oppressive and civil society the domain of 

freedom, as liberal theory posits, the demise of communism should 

49


have liberated speech in the former eastern bloc. In fact, however, 

the transition toward capitalism is replacing "Big Brother" with 

market forces whose burden may be less visible but remains onerous. 

Pravda, which boasted that it had been closed fourteen times— 

nine by the Czar, four by the Provisional Government, and most 

recently in August 1991 for supporting the coup—suspended publication 

in March 1992 because circulation had fallen 99 per cent 

from 1987, newsprint prices had increased twenty-fold, and annual 

subscription fees defrayed the costs of only the first 20 issues. 

Izvestia survived by carrying more advertising, renting or selling its 

extensive real estate, and launching We-My, a Russian-English 

paper published jointly with the virulently anti-communist Hearst 

Corporation. 61 The 10,000 members of the Soviet Writers Union, 

who had lived well under communism, now scrape by on state 

pensions of 600 rubles a month and risible royalties of 400 rubles per 

24 pages. Although private publishers pay more, they want only 

detective stories, science fiction, and sex manuals. Even under 

Gorbachev's glasnost the pornography market had grown to an 

estimated 15 billion rubles by early 1991 (before the ruble collapsed). 

The writers' group Aprel complained: "The market threatens 

to become the grave of culture. Privatization of culture is above 

all privatization of the soul." The most unlikely authors suddenly 

earned big bucks. Col. Anatoly P. Privalov, vice-chairman of the 

Foreign Intelligence Veterans Association and former KGB operative 

in Turkey and Algeria, was negotiating with Hollywood to spill his 

members' secrets. 62 

C. The Ambiguous Value of Commodified Speech 

If laissez-faire capitalism maximised freedom, then speech that bore 

the largest price tag would command most respect. Instead we find 

deep ambivalence toward commodified speech. 63 The claim to 

truth can be fatally compromised by the acceptance of money. 

Laypeople everywhere distrust and despise lawyers as hired guns, 

mouthpieces for sale to the highest bidder. 64 Governments require 

lobbyists to register and elected officials to declare their interests. 

Eyebrows were raised when 47 MPs with investments in brewing 

persuaded Lord Young, the Trade Secretary, to reverse his approval 

of the Monopolies Commission recommendation that breweries sell 

their pubs. That year the Brewers' Society contributed nearly 

£250,000 to the Conservative Party. Large donations from business 

sources can embarrass political parties, as the Tories discovered 

during the run-up to the last general election when newspapers 

50


disclosed contributions of £2.5 million from a Greek shipping 

magnate, £100,000 from a Hong Kong entrepreneur interested in 

developing the new airport, £1 m from a golf partner of Sir Denis 

Thatcher, and £1.5m from the founder of financially troubled Polly 

Peck. 65 In California, slate mailers that guide voters in casting their 

long complicated ballots sell their endorsements, earning Voter 

Guide $3.6 million in 1990. The Republican Vote by Mail Project 

accepted $20,000 to support the Democratic candidate for Attorney 

General, who blithely brushed off criticism: "It's known as a free 

press." 66 Of course, it was just the opposite. 

Because science enjoys a far higher reputation for candour than 

does politics, the taint of money is even more damaging. The 

Princeton Dental Resource Center (no relation to the university) 

distributes a free newsletter to hundreds of dentists without mentioning 

that 90 percent of its costs are paid by a $1 million annual 

subsidy from M&M/Mars. The candy manufacturer was not named, 

said the editors, for fear of discouraging other donors. A recent issue 

cited scientific evidence that chocolate is as good for teeth as apples, 

concluding: "So the next time you snack on your favorite chocolate 

bar or bowl of peanuts, remember—if enjoyed in moderation they 

can be good-tasting and might even inhibit cavities." UCLA 

researcher Dr. Lawrence Wolinsky complained that the article 

grossly misrepresented his findings. Even Dr. Shelby Kashket, whose 

research was supported by Mars, objected when the editors interpreted 

him as suggesting that "sticky" snacks like chocolate and 

caramel dissolve out of the mouth faster than starchy foods like 

crackers and crisps. 67 The Tobacco Institute may have significantly 

tarnished scientists' claims to impartiality by paying them to keep 

denying any link between cigarettes and illness. 68 Lawyers delight in 

discrediting expert witnesses by asking how much they are paid and 

how often they testify for the opposing side. Those of us who consult 

reviews in choosing movies will be dismayed to learn that the 

reviewer may have rewritten the screenplay, advised the studio on 

marketing, have his own "treatment" sitting on the desk of the 

producer whose movie is under review, or produce a favourable 

blurb in order to be quoted in an advertisement, like the following 

rave a studio solicited for "Joseph Andrews": "Painted as a china 

figurine, glazed as a cherry donut, Ann-Margret as the aptly named 

Lady Booby adds a new dimension to an overcrowded gallery of 

well-etched portraits." 69 Payment does not free speech; it turns 

speakers into whores. 70 

51


D. The Unfree Market 

If Milton Friedman is right that there is no free lunch, there can be no 

free speech either. As societies are massified and audiences expand, 

the cost of speech inevitably increases and intermediaries proliferate 

between speaker and audience, each with distinctive incentives and 

powers to shape what is said and heard. 

Book publishers decide which manuscripts to accept; form contracts 

dictate terms to all but best-selling authors; editors "suggest" 

changes; and marketing departments decide price, distribution, and 

promotion. 71 Sometimes publishers go further. When Penguin 

issued a translation of Massacre by Sine, a well-known French 

cartoonist, English booksellers complained about its irreverence to 

Allen Lane, who had recently resigned as Penguin's director. That 

night he drove to the Harmondsworth warehouse with four accomplices, 

filled a trailer with the remaining stock, and burnt it. The next 

day Penguin reported the book out of print. 72 The Japanese publisher 

Hayakawa withdrew a translation of The Engima of Japanese Power 

because the Dutch author had written that the Burakumin Liberation 

League "has developed a method of self-assertion through 'denunciation' 

sessions with people and organizations it decides are guilty 

of discrimination." 73 Anticipating feminist criticism, Simon & 

Schuster cancelled publication of Bret Easton Ellis's American Psycho 

a month before it was to appear. When Random House brought 

out the book, the Los Angeles branch of the National Organization 

of Women urged a boycott, describing it as "a how-to novel on the 

torture and dismemberment of women" and offering a telephone 

reading of a passage about a woman raped and tortured with an 

automatic nailgun. 

Although booksellers' preoccupation with maximising profit has 

intensified as massive chains have displaced independents, ideology 

also affects decisions about inventory and display. 75 The London 

bookstore Gays the Word refused to carry the Marquis de Sade's 

Juliette or Bret Ellis's American Psycho. Some feminist bookstores 

bar men from displays of lesbian erotica. Many mainstream bookstores 

reverse these biases, excluding gay and lesbian literature. 

Waterstone's, Britain's second largest chain, also declined to stock 

Jeremy Pascall's God: The Ultimate Autobiography. 76 Prizes and 

reviews catapult a handful of books to instant fame while consigning 

most to obscurity. The Caldecott Medal (for American children's 

literature) virtually assures 100,000 sales in the first year and strong 

backlist performance. The National Book Award, the Pulitzer Prize, 

and the Booker Prize increase sales two or threefold. Some prizes 

52


simply amplify market forces. In 1991 the American Booksellers 

created a Book of the Year award for the volume they most enjoyed 

selling. The first "Abby" went to The Education of Little Tree, the 

purported memoir of an Indian orphan, which remained a best-seller 

even after its author was unmasked as a white racist. 77 

The production and dissemination of scholarship is supposed to 

be insulated from commercial or ideological considerations. After 

more than 20 years of writing for leading scientific journals Forrest 

M. Mims 3d applied to write the "Amateur Scientist" column of 

Scientific American, submitting good trial columns and impressive 

proposals for future projects. At the interview, however, Mims 

revealed that he was a creationist and opposed abortion. Armand 

Schwab, who soon thereafter retired as managing editor, attributed 

Mims's rejection to the fear that "Scientific American might inadvertently 

put an imprimatur on 'creation science,'" jeopardising the 

journals credibility with biologists. Associate editor Tim Appenzeller 

conceded that Mims would have been hired had his religious 

beliefs not emerged. Mims was understandably aggrieved: "I have 

never, ever written about creationism ... I'm willing to dialogue. 

But I'm not going to deny my faith. ... I even told them I could be 

their token Christian, but they didn't smile at that." 78 After three 

years as general editor of the Dead Sea Scrolls, Harvard Divinity 

School Professor John Strugnell was removed "for ill health" when 

the Israeli newspaper Haaretz quoted him as saying that Judaism was 

"originally racist" and "not a higher religion." Israel was "founded 

on a lie, or at least on a premise that cannot be sustained." Judaism 

was "a horrible religion. It's a Christian heresy .... You are a 

phenomenon that we haven't managed to convert—and we should 

have managed." 79 Money buys scholars the means and time to 

research and write (and sometimes subsidises publication). In 1991 

the conservative John M. Olin Foundation gave $12 million to 

support law and economics, the American Enterprise Institute, rightwing 

authors like Dinesh D'Souza, Harold Bloom, Linda Chavez, 

and Carol lannone, and ex-politicians like William J. Bennett. 80 

A fundamental argument against state regulation of speech is the 

indispensability of an informed electorate to a democratic polity. But 

the market guarantees neither quantity nor quality in news reporting. 

Between 1975 and 1986 American network newscasts devoted 37 

per cent less time to domestic policy issues and 50 per cent more to 

human interest stories. Most stations cut their news budgets 20-25 

per cent between 1988 and 1990. The networks allocated only four 

hours to the four-day 1992 Democratic National Convention. Some 

53


stations even refuse political advertisements. KFI-AM, the fifth largest 

radio station in Southern California, has done so because the 

FCC requires broadcasters to charge their lowest rate. All-news 

station KNX-AM, the third largest in the region, has rejected commercials 

for state legislators and judges, who cannot otherwise reach 

their local constituencies. 81 

Although the American media, unlike the British, simulates neutrality, 

greed quickly strips away this mask. The Gulf war coincided 

with the ratings sweeps, whose audience estimates determine future 

advertising revenue. After viewers wrote and telephoned KABC-TV 

in Los Angeles to denounce its coverage of anti-war protests the 

station adopted a policy of ignoring the demonstrations. Universities 

use their subsidy of student newspapers to control tone and content. 

82 The media decide how much attention to devote to candidates. 

83 Just as Pravda compared market forces to Czarist repression, 

so Jerry Brown Americanised the metaphor when his 1992 campaign 

for the Democratic presidential nomination foundered: "We 

actually have a media and a party hierarchy that wants to shut down 

democratic debate. It reminds me of the Bolsheviks in Russia .... 

[They] would like to have one name on the ballot." 

Even if the media impartially reported news and accepted political 

advertising, electoral competition would reflect differences in market 

power. Just as lawyers' clients get as much justice as they can 

afford, so politicians get only that much publicity. Unable to pay 

network prices, Jerry Brown had to make do with $200 an hour 

public-access cable television. Another outsider, Ross Perot, could 

threaten to spend "whatever it takes" to win—although his business 

instincts convinced him to turn off the spigot in July at $10 million. 84 

Three weeks before the November 1990 election Congressional 

incumbents had outspent challengers $214.8 million to $60 million 

and had twenty times as much left for the campaign's crucial last 

days. 96 per cent of House incumbents were re-elected (having 

outspent challengers 9:1) as were all incumbent Senators but one 

(having outspent challengers 3:1). California initiative battles displayed 

similar disparities that year: industry spent nearly five-times 

as much as public interest groups. The liquor lobby alone threw $28 

million into a battle against a tax that would finance health research 

and education. Two years earlier the insurance industry had lavished 

$75 million on resisting premium reductions. 85 

As audiences for mass entertainment grow, entrepreneurial efforts 

to anticipate and shape consumer preferences increasingly override 

creative independence. Film studios decide which treatments to turn 

54


into screenplays, who will write, direct, and act, and how much to 

spend on production and promotion. The lessons of commercial 

failure are illustrated by "Radio Flyer," a 1992 flop costing $40-45 

million. A despondent executive kvetched: 

Even if this film worked, how do you get an audience? Ifyoutellan 

audience it's about child abuse, they won't come. So you tell 

them it's about childhood. So an audience shows up and sees the 

movie, and they say, "Hey, wait a minute. This is not what we 

paid seven bucks for. A kid is being beat." They walk out. They 

feel betrayed. They hate you! 

It is not surprising that Hollywood, which invests an average of $38 

million per film, tests audience reaction before releasing at least 75 

per cent of the top 200 movies each year. According to the Columbia 

Pictures marketing president: "It's the same thing you do with a 

product. You sample it: Is it too sweet? Is it too hot?" Ron Howard, 

who directed the highly successful films "Parenthood" and 

"Cocoon," starts with a 3—4 hour rough cut and chops it in half on 

the basis of audience reaction to as many as 16 test screenings. The 

ending of "Fatal Attraction"—perhaps the most profitable movie 

ever made—was changed after negative test screenings. 86 

Non-economic considerations also shape film content. Tristar and 

Columbia Pictures were collaborating on "Hell Camp," a movie 

about sumo wrestlers, which Milos Forman had agreed to direct. 

After Sony bought Columbia it cancelled the project, claiming it 

could not get the Sumo Association to cooperate. When Matsushita 

bought Universal Pictures it had the studio substantially rewrite the 

script for "Mr. Baseball," about a boorish American joining a 

Japanese team, to make it more sympathetic to Japan. 87 The industry 

collectively shapes content through its rating system. Fearing that a 

ban on children under 17 would exclude "Basic Instinct" from some 

theatres, the producers wanted to cut the objectionable scenes. 

Director Paul Verhoeven and actor Michael Douglas resisted, convinced 

that the sex and violence would attract publicity and thus 

viewers. The studio won, although Verhoeven maintained he had 

only "replaced things from different angles, made it a little more 

elliptical, a bit less direct." At the same time, he dismissed protests 

by gays and lesbians about the bisexual murder suspect, who 

seduces women and men, keeps ice picks around the house, and 

writes books about fictional murders resembling the movie's 

events. 88 

55


Advertising strongly influences all media that sell it. 89 American 

tobacco companies spent $585 million on advertising in 1990, 

mostly in magazines and newspapers (because they are barred from 

television). American magazines were 40 per cent more likely to 

publish news articles about the dangers of smoking if they refused 

cigarette ads; women's magazines were twice as likely; indeed, six 

women's magazines that took tobacco money published no feature 

articles about smoking and health between 1982 and 1986. 90 

Financial World, a journal with half a million subscribers, hired UC 

Berkeley Professor Graef S. Crystal in 1991 to write a column on 

executive remuneration. When advertising pages dropped 30 per 

cent in the next four months it quickly fired him. Editor Geoffrey N. 

Smith explained: 

1 have tremendous respect for [Crystal] as an academician, He's 

the foremost authority in that field, but you know it's just pretty 

incendiary stuff. . . . [l]f you're a C.E.O. and it's your picture 

featured in that column . . . you don't always like it. Some of them 

have spoken to their lawyers. It's just been quite controversial. 

Crystal noted that he had written a similar column for Fortune 

magazine until forced to retract his criticism that executives at Time 

Warner Inc, Fortune's parent, were overpaid. He concluded bitterly: 

"I can't find a niche in any American magazine that has advertising 

//91 

Because television requires large audiences to generate the advertising 

revenue necessary to defray its high production costs, 

networks are wary of offending viewers. Each maintains a standards 

division, whose 60 employees examine every script and video. 92 

After "LA. Law" introduced a lesbian character who kissed another 

woman the producers quickly transformed her into a less threatening 

bisexual. A "Quantum Leap" script about a gay teenage naval cadet 

who committed suicide after being beaten by student vigilantes was 

rewritten to make the character older and have him saved from the 

beating and suicide. Even so, sponsor withdrawals cost the network 

$150,000. ABC earlier had lost $1.5 million when advertisers 

backed away from a "thirtysomething" episode showing two gay 

men in bed, and NBC had suffered pullouts from its movie about the 

Supreme Court's abortion decision. Although Dan Quayle has 

sought political capital by maligning the eponymous hero of "Murphy 

Brown" for choosing to have a baby alone, executive producer 

Diane English saw that as the less controversial decision. Had 

56


Murphy had an abortion "it would have been lights out." A Saatchi 

& Saatchi executive was unashamed about advertiser influence: 

"When we use TV, we're not using it to support First Amendment 

rights or artistic freedoms, we're using it because it's a good business 

decision for our client. . . ," 93 

Advertiser anxiety can affect the marketability (and thus the 

commercial speech) of celebrities. After Earvin "Magic" Johnson 

disclosed he had AIDS, Pepsi, Nestle, Spalding, and Kentucky Fried 

Chicken shunned him like the plague. A spokesperson for Target 

Stores squirmed: "It's a real predicament; because of his situation 

are we obliged to work with him forever?" (an unfortunate phrasing 

given his dramatically shortened life expectancy). Pepsi equivocated: 

"As a major advertiser, we need to rethink how to position 

Magic in a way that's right for him and right for us." A New York 

expert on celebrity advertising was more candid: "I don't think 

[Magic] has a future in advertising new products. Advertisers don't 

want to be associated with negatives. And this is a very solemn 

negative. He might die." Nine months later, however, when Johnson 

signed a $14.6 million contract with the Lakers for 1994/95—the 

largest single season deal in team sports—Pepsi revived its "We 

Believe in Magic" campaign, and athletic shoe manufacturers plotted 

to lure him away from Converse. The publisher of Sporting 

Goods Intelligence opined: "Reebok is the best bet. They're into all 

that stuff like social responsibility and Amnesty International. They 

could really get behind this AIDS thing and run with it." 94 

Some audiences confront speakers without waiting for intermediaries 

to interpret their views. We have seen feminists denounce 

pornography, Jews and anti-racists oppose neo-Nazis, and Muslims 

seek to silence Rushdie. The Province of St. Joseph of the Capuchin 

Order in Milwaukee bought stock in media and tobacco companies 

in order to attack cigarette advertising at shareholder meetings. It 

forced Philip Morris to extend the mandatory American warnings to 

cigarettes sold abroad. Gannett, which owns the largest American 

billboard company and earned 15 per cent of its annual $1.5 billion 

revenues from tobacco, insisted that cigarettes were "integral to the 

success of outdoor advertising companies" and that "the company is 

acting in a socially responsible manner . . . ." 95 Angered by a 

Cuban-American television commentator who blamed Puerto Rican 

poverty on the "thousands of single mothers, very young, who try to 

escape . . . through welfare or through new partners who then 

leave, and leave behind other children to worsen the problem," 

Puerto Rican groups in New Jersey persuaded advertisers to boycott 

57


the station, which quickly terminated the talk-show. 96 Furious that 

The Miami Herald was "soft" on Castro, the Cuban American 

National Foundation attacked it in bus and billboard ads and 

Spanish-language radio spots. The paper's executives received contemporaneous 

death threats, the newspaper suffered a bomb scare 

and veiled boycott warnings, and vending boxes were vandalised 

with paint, glue, and faeces. 97 Hostile audiences can even put 

words in a recalcitrant speaker's mouth. When every house on his 

Culver City (Los Angeles) block sported yellow ribbons to support 

American troops in the Persian Gulf, Steve Raikin defiantly displayed 

a peace sign. In the nights that followed two ribbons were tied on his 

tree, one was painted on, and his car was spattered with yellow 

paint. When he called the police, they asked why he did not simply 

conform. 98 

I am neither endorsing nor condoning the myriad ways in which 

private actions regulate speech but merely seeking to demonstrate 

that such interference is pervasive and profound. Audiences 

influence what speakers say, speakers limit what audiences hear, 

and intermediaries do both in pursuit of their own ends. A civil 

libertarian Utopia without state regulation would be a world of 

constraint, not freedom. Each instance of private power must be 

evaluated by criteria that are substantive, not formal. 99 

VI. The Burden of Choice 

By obsessing about the power of state officials to constrain speech, 

civil libertarian theory paralyses them. By disregarding the power of 

private actors, civil libertarian theory fails to hold them accountable. 

This vision of state abstention and neutrality joined to private 

irresponsibility is fatally impoverished. 1 Just as public actors cannot 

avoid regulation and partisanship, so private actors cannot avoid 

power. Both must shoulder the burden of choice. 

Notes 

1 Holmes (1897; 1918); Popper (1969); Meiklejohn (1948; 1965); Emerson 

(1970); Unger (1975); Schauer (1982); Ingber (1984); Baker (1989; n.d.); 

Garry (1990); Smolla (1992). For an English debate, including the absolutist 

position, see Commission for Racial Equality (1988). For a comparison 

of approaches in Canada and the United States, see Borovoy et al. (1988/ 

89). For a comprehensive world-wide survey, see Coliver (1992). 

58

Notes 

2 Matsuda (1989); Bell (1987); Lawrence (1990); Delgado (1982); Williams 

(1991). Simon Lee acknowledges this inspiration in his recent book 

(1990). 

3 In re the Welfare ofR.A.V., 464 N.W.2d 507 (Minn. 1991), rev'd sub 

nom. R.A.V. v. St. Paul, 120 L.Ed. 2d 305 (1992); New York Times s.1 

p.1 (December 1, 1991), B19 (December 5, 1991), A1, A10 (June 23, 

1992). The Fairfax County (Virginia) School Board defied the Court by 

adding sexual orientation to its decade-old prohibition of hate speech in 

schools based on gender, race and ethnicity. The executive director of the 

National School Boards Association declared: "I don't think a judge in his 

right mind would find this unconstitutional. It is to prevent people from 

hurting others emotionally, and that is it." New York Times A7 (July 27, 

1992). 

4 lota Xi Chapter of Sigma Chi Fraternity v. George Mason University (E. D. 

Va. 91-785-A); The UMW Post, Inc. et al. v. Board of Regents of the 

University of Wisconsin System (E.D. Wis. 90-C-328); New York Times 

A12 (August 29, 1991); Chronicle of Higher Education A1 (October 23, 

1991). 

5 New York Times A10 (September 14, 1992). 

6 A jury acquitted them for their live performance; a federal appeals court 

reversed the conviction based on the recording, finding it not without 

serious artistic value. A record store was appealing a $1000 fine for 

selling the album. Los Angeles Times A28 (May 8, 1992). 

Although UCLA Law Professor Kimberle Crenshaw (1991), also African 

American, criticised the racism of a legal system that tolerated similar 

language by whites like television "humourist" Andrew Dice Clay, she 

condemned the lyrics as misogynist. Whether the song was intended, or 

heard by some, as humourous, it remained profoundly sexist. 

7 Guardian 2 (November 8, 1991). 

8 New York Times s.2 p.25 (April 22,1990), 6 (January 11,1992). In "Black 

Korea," rapper Ice Cube sang: "Oriental one-penny countin' motherfuckers. 

. ./So pay respect to the black fist/Or we'll burn down your stores 

right to a crisp." This was his response to a March 1991 incident in which 

Soon Ja Du shot to death Latasha Harlins, a 15-year-old black girl she 

accused of stealing a $1.79 bottle of orange juice. In "Death Certificate" 

Ice Cube "commanded" N.W.A. (with which he had previously sung) to 

kill their Jewish manager: "Get rid of that devil, real simple/Put a bullet in 

his temple/'Cause you can't be a nigger for life crew/With a white Jew 

tellin' you what to do." Csathy (1992). 

The furor over "Cop Killer" (described in chapter three) has sensitised 

record companies, several of which have established informal "lyric 

review committees." Two days after rapper Ice-T withdrew that record, 

Tommy Boy Records (owned by Time Warner, which produced "Cop 

Killer") ended their contract with rappers Almighty RSO after police 

organisations criticised the group's "One in the Chamber," and Time 

59


Warner reexamined plans to release new albums by Ice-T, Juvenile 

Committee, and Apache. 

At the same time, MCA Music Entertainment Group withdrew FU2's 

"No Head, No Backstage Pass," about a sexual assault on a young female 

fan. Two months earlier women employees had refused to work on the 

project. A month after that men joined the revolt when marketing 

executives would only agree to delete the corporate name from the 

record. MCA Records president Richard Palmese allowed the men to 

withdraw as well but refused to pull the record, deferring to MCA Records 

Black Music president Ernie Singleton, who said: "I can see why women 

are upset. I wouldn't play this single for my wife or my kids, but I firmly 

believe in our Constitution and I think a black artist has a First Amendment 

right to express his own experience." The women persisted, sending the 

lyrics anonymously to chairman Lew Wasserman and president Sidney 

Sheinberg. They included: 

. . .I'll drink champagne, she'll drink Ripple 

Scream when I put the safety pins through her nipples 

I know it sounds harsh, but the bitch is gonna love it 

Hurt me, hurt me, push it harder, shove it. ... 

Sheinberg immediately had the record pulled. It was later issued by JDK 

Records, whose president said: "The lyric was written tongue in cheek. 

Yeah, it's a little risque. Yeah, it's a little controversial. Because hey, we 

realize that in this business, controversy sells. But it wasn't meant to 

offend anyone the least bit." Los Angeles Times F1 (August 20, 1992). 

Although David Geffen has issued the homophobic, racist misogynist 

Andrew Dice Clay, he declined Getto Boys' "Mind of a Lunatic." "I've 

always felt that in issues of language, sex, etc. that everything is O.K. But 

when it got down to murder it was too much for me." New York Times s.2 

p.20 (September 6, 1992). 

9 Independent 13 (November 8, 1991); New York Times s.2 p. 13 (January 

19, 1992), s.2 p. 17 (March 15, 1992). Pornographic performance generally 

disqualifies an actor or model from other work. Stoller (1991). Even 

Playboy had its standards. "They were very picky about what flesh they 

exposed. They would never take any women who had already been in a 

porn movie—especially a hard-core porn movie." Lederer (1980c: 65). 

Fashion models have expressed fury when they are photographed 

topless backstage and the pictures published. Roshumba,who modelled 

for Calvin Klein, Michael Kors, and Donna Karan, complained: "The 

minute we start changing, the photographers immediately run over. We 

hate it, all of us. They are disgusting." New York Times B4 (May 4,1992). 

10 Los Angeles Times A27 (January 30, 1992). 

11 Guardian 9 (November 7, 1991); New York Times A12 (February 21, 

1990), D22 (December 11, 1991), D1 (December 12, 1991), A5 (March 

13,1992). Camel's market share climbed 0.4 per cent in May 1992 to 4.5 

per cent at a time when almost all other full-price brands were losing 

ground to discount cigarettes. The company was expanding its Camel 

60

Notes 

Cash programme by offering a new catalogue of "gifts." New York Times 

C16 (July 29, 1992). A Harvard literature professor offered a persuasive 

reading of Joe Camel as a phallic symbol. New York Times A21 (March 

20, 1992) (oped). 

Advertising can mislead doctors as well as children. A review by 150 

doctors and clinical pharmacists of 109 full-page pharmaceutical advertisements 

in ten leading medical journals in 1990 found that 44 per cent 

contained information that could induce doctors to prescribe durgs 

inappropriately. The acting director of the Food and Drug Administration's 

Division of Drug Marketing, Advertising and Communications 

found that about half violated FDA guidelines and 57 per cent had little or 

no educational value. Drug companies spent $351 million on advertising 

in medical journals in 1991. Wilkes (1992); New York Times A1 (June 1, 

1992); Los Angeles Times A3 (July 31, 1992) (re-analysis by Public 

Citizen Health Research Group). 

12 New York Times 7 (December 31, 1990). 

13 Matthiessen (1983). The book was reissued nine years later with an 

afterword describing the litigation. Matthiessen (1991). 

14 Guardian 23 (November 7, 1991); New York Times Book Review 10 

(April 12, 1992). See generally Gillmor (1992). 

15 So far the Supreme Court has struck down state laws protecting the 

privacy of rape victims. The Florida Starv. B.J.F., 491 U.S. 524 (1989). 

16 The distinction between commercial and non-commercial speech, central 

to contemporary First Amendment jurisprudence, is hopelessly 

vague. "Informercials" are now invading television—half-hour long talk 

shows featuring celebrities like Cher, Dione Warwick, and Ali MacGraw 

pushing products like Aquasentials, Psychic Friends Network, and 

Beauty Breakthroughs and generating $750 million in sales in 1991. 

Informercials were made possible when the Reagan Administration abolished 

the limit of 12 commercial minutes per hour, which the FCC had 

established in the 1950s. The business now has its own Informercial 

Marketing Association (to avoid federal regulation) and an annual ceremony 

to bestow PLAY awards (Program-Length Advertisment of the Year). 

New York Times B2 (October 5, 1992). The American Society of Magazine 

Editors has adopted guidelines urging the industry to distinguish 

clearly between advertising and editorial content, expanding those issued 

in 1982 to govern "advertorials" (special advertising sections). New York 

Times C17 (October 20, 1992). 

17 Federal courts have upheld laws prohibiting begging in subways and 

transportation terminals. A court recently invalidated New York's ban on 

street beggers, but the case is on appeal. New York Times A14 (October 

2, 1992). 

Even non-commercial enterprises can be compelled to speak. Under 

the 1972 Drug Abatement Act a court ordered a man found with less than 

an ounce of marijuana to post a sign that his house was under court order 

61


and could not be used for the sale of illegal drugs. Los Angeles Times A3 

(July 24, 1992). 

18 New York Times A] (January 19, 1990), A1 (January 20, 1990), s.1 p.4 

(February 18, 1990), s.1 p. 11 (March 18, 1990), A1 (March 10, 1992); 

Los Angeles Times A23 (February 24, 1990), A4 (March 13, 1992). In 

Boston and San Francisco, public transportation bans ads for tobacco and 

liquor; New York just banned tobacco ads. New York Times 16 (June 27, 

1992). The Minnesota Department of Public Health has launched a 

$321,000 campaign to discourage women from smoking. A television 

commercial shows two male ad executives admiring a billboard depicting 

a young leotard-clad woman smoking. When one exclaims "Women 

will love it," the billboard model comes alive and stubs out her cigarette 

on his head. A radio spot has a female voice thank cigarette makers for 

"your portrayal of us as shallow and superficial. . .for making our hair 

smell like an ashtray. . .for staining our teeth and increasing our drycleaning 

bills. . .for the 52,000 cases of lung cancer you cause in women 

each year. We only hope we can return the favor some day." New York 

Times s.1 p.7 (September 6, 1992). 

The U.S. Treasury Department persuaded Black Death vodka (targeted 

at young rock fans) to change its name to Black Hat, and Crazy Horse malt 

liquor to alter its label so that it did not resemble malt whiskey. In the 

summer of 1991 Heileman's introduced Power Master malt, targeted at 

black men, but quickly withdrew it because of objections that the name 

emphasised its high alcohol content (5.9 per cent). A year later it 

introduced Colt 45 Premium in a can with the same design and an alcohol 

content between 5.9 per cent and Colt 45's 4.5 per cent (regular beers are 

3.5 per cent). When Dr. Novello condemned all three, the maker of 

Crazy Horse replied: "A free society requires freedom of choice in many 

areas, not the least of which is the consumer's right to select products they 

find attractive or distasteful. They vote with their pocketbooks." New 

York Times C1 (May 12,1992); Los Angeles Times A16 (May 20, 1992). 

19 NewVo/* 777nesA32 (December 13,1991), B2 (December 16, 1991), B3 

(December 19, 1991), A16 (January 17, 1992), s.4 p.4 (January 19, 

1992), A4 (February 14, 1992), C1 (February 18, 1992), A11 (April 16, 

1992). Prosecutors in Nebraska have won convictions against record 

stores for selling 2 Live Crew's "As Nasty as They Wanna Be" to minors. 

Los Angeles Times F1 (April 23, 1992). Washington State bars sales to 

minors of records that a judge finds appeal to prurient interests and offend 

community standards. New York Times 7 (June 13, 1992). 

Nassau County (Long Island) has banned sales of trading cards depicting 

"heinous crimes and criminals" to those under 17. The publisher of 

the "True Crime" series—110 cards of law officers, gangsters, serial 

killers, and mass murderers—said she sold 8 million in the first week 

($1.25 for a package of 12). "They are the biggest selling cards we have 

ever had. Every state where there has been an attempt to ban them, 

62

Notes 

people have begun calling and asking to open up accounts." New 

Times B16 (June 16, 1992). 

York 

20 

Texas v. Johnson, 109 S.Ct. 2533 (1989). On superpatriotism, see Abel 

(1991). The first Bush ad in the 1992 campaign had to be withdrawn 

because it used the presidential seal in violation of federal law. Los 

Angeles Times A16 (August 11, 1992). After Rep. Cass Ballenger (R-NC) 

accused Bill Clinton of lying about the draft and involvement in protests 

agains the Vietnam war, the Speaker of the House of Representatives 

extended to presidential and vice-presidential candidates the rule of 

courtesy that forbids "derogatory, demeaning or insulting" references to 

the President, Vice President, or Members of Congress. New York 

s.1 p. 18 (September 27, 1992). 

Times 

21 

Los Angeles Times A]] (January 31, 1991), A9 (February 15, 1991), A3 

(February 20, 1991). The California Department of Motor Vehicles 

screens vanity plate applications for offensive language, but multilingual 

punsters sometimes fool them. 

22 

New York Times A1 (October 9, 1992). Criticised for this dramatic 

contraction of the First Amendment, Bush lashed back: "You let the 

liberal elite do their number today, trying to call me Joe McCarthy. I'm 

standing with American principle. It is wrong to demonstrate against your 

country when your country's at war." Los Angeles 

1992). 

Times A1 (October 10, 

23 

Los Angeles Times A1 (February 22, 1992). A University of California 

history professor has just won a protracted battle to obtain the 69-page 

FBI file on John Lennon, which Nixon ordered begun in 1971 in an effort 

to get him deported. Los Angeles Times A3 (June 23, 1992). 

24 

Mail on Sunday 3 (November 17, 1991); New York Times A7 (November 

27, 1990), s.1 p.34 (December 8, 1991), s.1 p.9 (March 22, 1992); New 

York Times Book Review 1 (March 29, 1992). Although South Africa has 

no shortage of native hate mongers, even it expels foreigners, like the 

English revisionist David Irving. Weekly Mail 15 (June 12, 1992). Israel 

threatened to apply its ban on talking to the PLO to the Palestinian 

representatives to the current Mid-East peace conference! Los 

Times A4 (June 20, 1992). 

Angeles 

25 

New York Times AU (January 26, 1990), A1 (May 18, 1990). When the 

Government cannot silence the speaker it withholds information. After 

Rep. Henry Gonzalez (D-Tex) began investigating the CIA, all executive 

branches stopped providing him with any information, on instructions 

from Attorney General William P. Barr. Los Angeles 

1992). 

Times A23 (August 1, 

26 

New York Times 5 (March 7, 1992), 1 (March 28, 1992), A14 (April 13, 

1992). 

In 1992 the Census Bureau's Assistant Director for Communications (a 

political appointee) was put on the pre-publication list for all reports. "I 

don't edit reports," he said "I do ask a lot of questions about press 

releases." In April a department director told subordinates they could not 

63


"give out simple numbers, such as the number of housing units in the 

U.S." without clearing this with the public information office. Although 

the Bureau's Director denied this was official policy, she circulated an old 

Commerce Department memorandum making it more difficult for 

reporters to gain access to experts. In the run up to the 1992 American 

election the Census Bureau delayed for months issuing a report showing 

that the proportion of full-time workers earning less than $12,195 (in 

constant dollars) declined in the 1960s, remained constant in the 1970s, 

and then grew from 12.1 per cent to 18 per cent during the 1980s. The 

head of the Division of Housing and Household Statistics caled this 

"unusual—indeed, unprecedented." When the report finally appeared, 

the press release downplayed its significance. New York Times A7 (May 

12, 1992), 6 (May 23, 1992). 

Two lawyers at the Resolution Trust Corporation (charged with selling 

insolvent savings and loan associations) were demoted when they criticised 

the RTC for failing to recover money. New York Times C1 (August 

13, 1992). 

FBI agent Jon Lipsky has been forbidden to tell a Congressional 

committee why no individuals were prosecuted and so few crimes 

charged for the mammoth environmental pollution at Rockwell International's 

Rocky Flats nuclear weapons plant in Colorado. New York Times 

s.1 p. 15 (September 27, 1992). 

27 New York Times A6 (April 11, 1992). In July 1991 the Army Times 

Publishing Co., which produces Army Times, Navy Times and Air Force 

Times with a combined circulation of more than 200,000, refused an 

advertisement praising gay soldiers in the Gulf War, insisting there had 

been none! New York Times A15 (August 20, 1992). 

28 Robbins (1992); New York Times A20 (December 20, 1991), A1 (April 

14, 1992), A1 (April 15, 1992). 

As Franklin Roosevelt ran for an unprecedented fourth term in 1944 his 

doctor declared that he was "in splendid shape." When his feeble 

appearance prompted rumours of high blood pressure his press secretary 

got the FBI to investigate the doctor suspected of telling the truth. The 

story was killed and Roosevelt re-elected. He died after three months in 

office. New York Times A19 (April 23, 1992). 

Blacklisted by the FBI for refusing to testify before the House Committee 

on Un-American Activities, Howard Fast was unable to find a 

publisher for his books. He wrote 20 under pseudonyms, several of which 

became best sellers and were made into movies. New York Times B2 

(September 23, 1992). 

In 1988 the FBI public affairs officer wrote Priority, the Los Angeles 

company that produced NWA's album "Straight Outta Compton," to 

complain that the song "Fuck Tha Police" encouraged violence against 

law enforcement personnel. Los Angeles Times A7 (May 2, 1992). 

29 New York Times A8 (January 9,1992), A10 (March 19,1992), A9 (April 8, 

64

Notes 

1992). On government manipulation of news during the war, see 

MacArthur (1992); Miller (1992). 

This must have semed like deja vu to Postol, who had been an expert 

witness for The Progressive magazine in 1979, when the government was 

trying to stop it from printing an article demonstrating that the untrained 

layperson could assemble virtually all the information about how to make 

a hydrogen bomb. Postol testified that the article "contains no information 

or ideas that are not already common knowledge among scientists, 

including those who do not have access to classified information." Hans 

Bethe, one of the many scientists supporting the government, himself had 

been prevented from publishing an article on thermonuclear weapons in 

Scientific American in 1950. Although the Atomic Energy Commission 

conceded that the article contained no secret information, it forced the 

magazine to capitulate and then supervised the destruction of the entire 

print run (not yet distributed) and the melting down of the type. Smolla 

(1992: 266-67). 

Four days before the 1988 election federal prisioner Brett Kimberlin 

scheduled a press conference to disclose that he had sold marijuana to 

Dan Quayle. The next day he was put in solitary confinement. He was 

removed the following night when Nina Totenberg threatened to report 

the incident on National Public Radio, and a telephone news conference 

was re-scheduled for the day before the election. But moments before it 

was to begin he was returned to solitary until after the election. He is the 

only inmate ever known to have been placed in solitary by order of the 

Bureau of Prisons Director. A report of the Senate's Governmental Affairs 

Subcommittee confirmed this account; the Inspector General is investigating. 

New York Times s.1 p. 15 (May 3, 1992), A23 (June 25, 1992), 1 

(October 3, 1992); Los Angeles Times A17 (October 3, 1992); Singer 

(1992). 

30 New York Times A1 (February 14, 1992), A9 (March 18, 1992); Los 

Angeles Times A16 (March 17, 1992), A23 (March 26, 1992). 

31 Los Angeles Times B1 (February 14, 1992); New York Times 34 (January 

1, 1992). The Secretary of State for Washington State, running for reelection, 

sought to prevent the producers of "Body of Evidence" from 

filming in the State Capitol Building: "the plot is that the character played 

by Madonna seduces a man to death. . . .the movie is filled with sex and 

violence. Why should we condone or cater to anything of this kind?" Los 

Angeles Times F1 (April 23, 1992). 

32 Compare Bright v. Los Angeles Unified School District, 18 Cal.3d 450 

(1977) (protecting student speech under state consitution) with Hazelwood 

School District v. Kuhlmeier, 484 U.S. 260 (1988) (rejecting 

protection under federal constitution). 

The Orange County (California) High School for the Arts covered up a 

painting at an exhibition because it portrayed two nude women embracing, 

with an explanatory statement by the artist, a Catholic senior: "I 

don't want to go to hell because of loving another woman." After protests 

65


from gay and lesbian groups both were replaced. Los Angeles Times A3 

(May 22, 1992), A28 (May 23, 1992). 

33 New York Times B2 (December 16, 1991), B3 (December 19,1991), A13 

(January 22, 1992). 

34 New York Times A17 (December 9, 1991); Los Angeles Times A1 (March 

21, 1992). 

After a campaign of criticism in which the Metropolitan News-Enterprise 

called Los Angeles Superior Court Presiding Judge Ricardo A. Torres 

a "despotic twit," a "petty and spiteful autocrat," and "the Queeg of Hill 

Street," Torres ordered his subordinates to limit county-paid subscriptions 

to one legal newspaper. 332 of them dropped the MNE, whose circulation 

had been only 2000. The publisher then wrote a mock memo from 

Torres to all Superior Court judges condemning the MNE for demeaning 

the "august status" of a judicial officer and declaring that "possession of 

that publication. . .shall not be tolerated." Three MNE employees were 

found distributing the memo in the courthouse and forcibly brought 

before the judge, who allegedly held them in contempt and refused to let 

them see a lawyer. Later that day there was a further hearing in which 

Torres disqualified himself in the contempt proceeding and offered to 

drop it if the paper apologised. The paper and the three employees are 

now suing Torres for $285,000 for false imprisonment and violation of 

civil rights. Los Angeles Times B3 (October 3, 1992). 

35 A federal court finally lifted the injunction, but Rev. Wildman still is 

seeking contract damages. New York Times A12 (September 10, 1992), 

A14 (September 23, 1992). 

After Edward J. Rollins quit as Ross Perot's campaign manager and 

ridiculed the candidate, Perot required deputy manager Charlie Leonard 

to sign a contract agreeing to "refrain from making any disparaging 

remarks or negative comments, either publicly or privately, directly or 

indirectly, regarding Ross Perot" and then fired him. New York Times 

A19 (October 2, 1992). 

36 Trump (1992); New York Times A14 (February 18, 1992), 10 (March 21, 

1992), 13 (April 18,1992), A12 (September 10,1992); Los Angeles Times 

F1 (November 16, 1990), F1 (January 2, 191). 

37 New York Times s.1 p. 12 (April 14, 1991), s.1 p. 15 (November 24, 

1991), A8 (March 10,1992); Los Angeles Times A15 (April 17, 1991), A7 

(February 16, 1992). 

38 Ravitch (1974); Arons (1983); Kirp (1991); DelFattore (1992). For Canadian 

examples see 9(1-2) Fuse 7-8 (Summer 1985). 

When the New York City School Board adopted a first-grade curriculum 

urging teachers to "include references to lesbians/gay people" "as 

real people to be respected and appreciated," a district in Queens voted 

unanimously to resist because it undercut their moral code. New York 

Times B3 (April 24, 1992). The Chancellor of the New York City school 

system, Mayor, and Borough Presidents of Manhattan and the Bronx 

denounced the decision by the city-wide board to recall a video and 

66

Notes 

pamphlet about AIDS because neither sufficiently emphasised abstinence. 

New York Times B1 (May 28, 1992), B3 (May 29, 1992). The 

curriculum was revised to emphasise sexual abstinence, delete references 

to contraceptive creams and anal intercourse, and omit information on 

cleaning needles. New York Times B12 (June 24, 1992). 40 out of 200 

AIDS education groups refused to stress abstinence, supported by the 

Mayor and City Health Commissioner. New York Times A16 (August 28, 

1992). 

When the California health curriculum for public schools acknowledged 

the existence of "families headed by grandparents, siblings, 

relatives, friends, foster parents and parents of the same sex" the Western 

Center for Law and Religious Freedom objected to "treat[ing] the traditional 

family as the equal of these other kinds of families." the Traditional 

Values Coalition decried "attempts to advocate and promote homosexuality 

as an acceptable and healthy life-style. . . .this is recruitment par 

excellence. It is saying, hey, guys, same sex is viable, same sex is 

meaningful." The State Board of Education referred the issue back to the 

Curriculum Commission. Los Angeles Times A3 (July 28, 1992). 

39 

New York Times M (November 10, 1989), s.1 p. 11 (October 14, 1990), 

s.1 p. 10 (March 22, 1992), A3 (September 21, 1992) (Mexico); Los 

Angeles Times H3 (September 22, 1992) (Mexico). Jean Mayer, a leading 

Mexican historian, protested that his chapter was rewritten without his 

consent to praise Salinas's achievements. His co-author Hector Aguilar 

Camin, who as one of two principal editors presumably did the rewriting, 

dismissed the dispute as "a trivial issue." Camin's foundation received a 

government grant to write the book. 

40 

Abel (1985a). 

41 

Marxism Today 2 (February 1988), 22 (June 1988); Kaufmann & Lincoln 

(1991). 

Oregon voted in November 1992 on a state consitutional amendment 

prohibiting the use of public money to "promote, encourage, or facilitate" 

homosexual behaviour and requiring state and local government to 

"assist in setting a standard for Oregon's youth that recognizes homosexuality, 

pedophilia, sadism and masochism as abnormal, wrong, unnatural, 

and perverse and that these behaviors are to be discouraged and 

avoided." New York Times s.1 p.1 (August 16, 1992). 

42 

Chronicle of Higher Education A1 (October 2, 1991); 11(6) COSSA 

Washington Update 1 (April 6, 1992), New York Times 1 (September 5, 

1992), B5 (September 5, 1992), B5 (September 15, 1992) (NIH conference). 

Sen. Robert Byrd (D-W.Va.) criticised NSF funding for 31 studies, 

including sexual agression in fish in Nicaragua and the personal identity 

of law school professors. President Bush has continued to veto support 

for research using fetal tissue, and Congress has been unable to override. 

11(10) COSSA Washington Update 1-2 (June 1, 1992). 

43 

Chronicle of Higher Education A12 (March 11, 1992). For a history of 

these controversies, see Mulcahy & Swaim (1982); Pindell (1990). 

67


44 New York Times B3 (November 10, 1989), B1 (March 24, 1992). The 

description of Helms's response is a quotation from his official spokesperson. 

See generally Bolton (1992). 

Frohnmayer's successor, Anne-lmelda Radice, promptly vetoed two 

grants recommended by her 26-member advisory panel (one unanimously, 

one 11-1-1). The first, "My Wishes," contained one penis 

among more than 100 tiny photographs of faces, lips, and hair. The 

second, "Genital Wallpaper," was not "sexually explicit." Radice 

denied she had received instructions from the White House: "it wouldn't 

be necessary because those people know me and my work." Los Angeles 

Times F1 (May 4, 1992); New York Times B1 (May 13, 1992). The seven 

members of the sculpture panel responded by suspending consideration 

of applications. New York Times 12 (May 16, 1992). When a federal 

judge struck down the prohibition against funding "obscene" material, 

Rep. Ralph Regula (R-Ohio), who had drafted it, was confident that 

"under the rubric of artistic excellence [Radice] will continue to apply 

that subjective judgment call." New York Times A1 (June 10, 1992). She 

planned to by-pass her obstreparous advisory panel in allocating 

$750,000 in fellowships. New York Times 13 (August 1, 1992). 

45 Problems of Communism, launched by the United States Information 

Agency in 1952, claimed complete independence from the government. 

But in its early years the USIA refused to allow any mention of Marx, 

Engels, Lenin, or Stalin! It ceased publication after 40 years when there 

were no more problems with communism. New York Times s.1 p.26 

(May 31, 1992). 

The USIA withdrew a $35,000 grant to an exhibit on "La Reconquista: 

A Post-Columbian New World" by the Centra Cultural de la Raza at the 

Istanbul Biennial, whose theme was the "Production of Cultural Difference." 

The USIA and the U.S. Embassy in Turkey objected to an essay 

criticising the "violent history of conquest and domination." Los Angeles 

Times F1 (September 19, 1992). 

46 Chronicle of Higher Education A21 (February 19, 1992), A25 (April 8, 

1992); New York Times B1 (February 24, 1992). 

47 Los Angeles Times F1 (February 21, 1992), F1 (February 28, 1992); New 

York Times A8 (March 4, 1992), A8 (March 5, 1992). 

When the Public Broadcasting System hired British filmmakers to 

produce "The Lost Language of Cranes" it required them to make a 

different American version in which the nude men wore boxer shorts. 

When "Masterpiece Theatre" screened the BBC's "Portrait of a Marriage," 

it cut 34 minutes, including girlhood scenes in which Violet 

Trefusis, dressed as a man, climbed into bed with a fully-clothed Vita 

Sackville-West. In introducing the American version, Alistair Cooke 

characterised the lesbian relationship as a dangerous interlude threatening 

Vita's marriage with Harold Nicholson, rather than as the grand 

passion of her life. Jac Venza, PBS director of performance programmes, 

explained: "there are two things program managers have a hard time 

68

Notes 

with: language and nudity. If I left it in, it would not be able to be seen in 

cities where I most want it to be seen." Los Angeles Times F1 (June 24, 

1992). 

4a Abramsv. United States, 250 U.S. 616, 630(1919). 

49 Independent 1 (September 16, 1991) (New Kids); New York Times B1 

(April 20, 1991) (Madonna), C3 (March 20, 1992) (Apple); Los Angeles 

Times F1 (September 5, 1992) (Prince); Los Angeles Times F1 (May 11, 

1992) (Streisand). Aerosmith got $35 million for four albums with Columbia, 

Motley Crue $35 million for five with Elecktra, and the Rolling Stones 

$42 million for three with Virgin. Los Angeles Times F1 (September 5, 

1992). Television talk shows generate extraordinary profits. Although 

they cost only $10-20 million a year to produce, Oprah Winfrey grossed 

$157 million in 1991, Phil Donahue $90 million, and Sally Jessy Raphael 

$60 million. New York Times C1 (June 22, 1992). Even authors command 

staggering sums. Barbara Taylor Bradford signed a contract with 

HarperCollins for more than $20 million for three novels; she retained 

foreign language and film rights. New York Times B3 (May 6, 1992). 

50 New York Times C1 (February 18, 1992). 

51 Los Angeles Times D1 (March 15, 1992). With the collapse of communism 

the Moscow branch of the Smimov family has sued Pierre Smirnov 

Company of Hartford, Connecticut, claiming that the emigre from whom 

it derived the name (and secret recipe) in 1939 was a gambler who had 

ceded his share to his brothers in 1905. The American firm had sales of 

$550 million in 117 countries in 1991. The 150 million Russians, 

however, drink 100 million bottles of vodka a day! Los Angeles Times A5 

(August 14, 1992). 

52 Chronicle of Higher Education A35 (April 8, 1992). Editor and author 

Gordon Lish has sued Harper's magazine for publishing a marketing letter 

he sent to prospective students in his writing seminar. Courts have 

protected J.D. Salinger's letters and Gerald Ford's unpublished biography. 

New York Times B1 (September 22, 1992). 

53 International Guardian 3, 9 (September 14, 1991). 

54 New York Times B10 (April 3, 1992). The Supreme Court dismised 

Koons's appeal without comment. New York Times A9 (October 14, 

1992). 

55 New York Times s.2 p.1 (March 15, 1992). RKO paid a Hearst biographer 

$15,000 to settle the claim after the trial ended in a hung jury. 

Edgar Rice Burroughs Inc. has sued Vogue over a 14-page fashion 

feature called "Tarzan, Meet Jane," in the April 1992 issue. The company 

alleged that the sexually suggestive poses "are inconsistent with the good, 

wholesome and attractive images of Tarzan and Jane, which have been 

cultivated. . .over the course of 70 years." They claimed proprietary 

rights not just in the names but also in any "character in a loincloth with a 

knife in a jungle seting." A decade earlier they won a court order that the 

1981 movie "Tarzan the Apeman" be edited to eliminate sex scenes with 

Bo Derek. New York Times B1 (April 28, 1992). 

69


56 Los Angeles Times F1 (March 24, 1992). Twenty years earlier Nancy 

Sinatra lost a lawsuit against Goodyear for dressing up a blonde in a 

miniskirt and go go boots in a commercial for a tyre called the Boot. Since 

the Midler victory Tom Waits won $2.5 million against Frito Lay and its 

advertising agency for imitating his voice in a jingle for Doritos. Infinity 

settled with Chris Isaak for using a guitar riff almost identical to his hit 

song "Wicked Game." New York Times s.2 p.23 (July 5, 1992). Did 

"Honeymoon in Vegas" pay the King's estate for permission to film the 

finale in which the Jumping Elvises sky-dive into the city? 

57 New York Times B1 (April 21, 1922). 

58 New York Times s. 1 p. 12 (April 19,1992). Litigation is pending between 

the editor of the two-volume, 1750-plate "Facsimile Edition of the Dead 

Sea Scrolls" and the Israeli editor who claims a copyright on the 2000year 

old manuscript. Los Angeles Times B4 (October 3, 1992). 

59 New York Times s.2 p.26 (April 12, 1992). The North American software 

industry estimated that $2.4 billion was illegally copied in 1990, compared 

to sales of $5.7 billion. Codes that prevented copying were 

eliminated because they interefered with loading programmes on hard 

disks. New York Times A1 (July 27, 1992). 

In 1991 the National Institutes of Health sought patents on thousands of 

gene fragments, even though their functions were unknown. The Office of 

Patents and Trade Marks rejected the application, and the Department of 

Health and Human Services was considering resubmitting. Now both its 

General Counsel and numerous scientists (including Nobel laureate 

James Watson) have advised against this for fear of slowing the human 

genome project. New York Times A16 (October 8, 1992). 

60 New York Times A1 (December 11,1991) (making it easier for victims to 

sue criminals for their profits). When KLM Productions paid high school 

student Amy Fisher $60,000 for the story of her shooting of Mary Jo 

Buttafuoco, with whose 39-year-old husband Amy claimed to have a 

year-long affair, Ms Buttafuoco sought to seize the money before Ms. 

Fisher could use it for bail. New York 777nesA16(August7, 1992). A New 

Jersey judge has imposed a lien on any money paid for the story of the 

convicted kidnap-killer of the Exxon International president. New York 

Times A13 (October 7, 1992). 

The market naturally resists such regulation. Networks base 35-40 per 

cent of the movies they produce on real events, paying informants as 

much as $125,000. NBC's senior vice president for movies received 

seven pitches in a single day for the Amy Fisher story. "One agency called 

and simply said they were offering the L.A. riots. I said, what exactly are 

you representing?" HBO Pictures bought the story of a Texas mother who 

hired a hit man to kill her daughter's rival on the high school cheerleading 

team; an executive said "we're going to do it as a dark comedy." New 

York Times C1 (June 15, 1992). 

Richard Nixon is still suing the government for payment for some of the 

70

Notes 

42 million documents and 4000 hours of tapes seized when he was forced 

to resign in 1974. New York Times A9 (September 15, 1992). 

61 Los Angeles Times A4 (February 22, 1992); New York Times 1 (March 14, 

1992), A4 (April 7, 1992). In August a Greek capitalist bought the paper, 

which resumed publishing three times a week. Los Angeles Times A6 

(August 12, 1992). Other previously subsidised journals saw subscriptions 

fall as prices soared: Novy Mrdropped from 2.5 million to 250,000, 

Znamya from 1 million to 250,000, Druzhba Narocfovfrom 1.2 million to 

90,000. Remnick (1992). The cost of newsprint rose from a heavily 

subsidised 300 rubles per ton to 29,000 in July 1992. When Komsomolskaya 

Pravada sought resubscriptions at a more realistic price, only a few 

hundred thousand of its 13 million former readers signed up. Gambrell 

(1992). Noting that it had published Doctor Zhivago, The Gulag Archipelago, 

and 1984, Novy Mir appealed to the West to contribute $190,000 a 

year because its costs were twice its subscription income. New York 

Review of Books 61 (October 22, 1992). 

Moscow sought to rent Red Square to advertisers for the spring festival 

that has replaced May Day, asking $1 million for bilboards on three sides 

and two dirigibles stationed above. Even this new-found passion for profit 

had its limits: nothing was to deface St. Basil's Cathedral or Lenin's tomb. 

New York Times A7 (April 24, 1992). But there were no takers. 

62 New York Times s.1 p.6 (March 22, 1992); Los Angeles Times A11 (April 

13, 1991), F1 (March 26, 1992). For $3180 Russia is now offering 

photographs of strategic American sites taken from a spy satellite with a 

resolution of less than 2 meters. New York Times s.1 p.8 (October 4, 

1992). 

In Poland, railway station bookstores sell horoscopes, parapsychology 

and soft-porn like Fanny Hill and Emmanuelle; translations of Canadian 

Harlequin romances sell 1.5 million copies a month. Among novels, the 

sequel to Gone With The Wind topped the best-seller list, followed by 

Judith Krantz and Jackie Collins. The first translation of Mein Kampf sold 

out 20,000 copies days after a court refused to block publication; copies 

were quickly resold for three times the cover price. New York Times Book 

Kewew14(July 12, 1992). 

Democratic capitalism may have similar consequences in the third 

world. The opposition press in Zimbabwe has introduced a "Page 3 Girl," 

one of whom recently posed topless in black transparent pantyhose, a 

string of beads, and a headscarf, with a caption saying "she is a traditionalist 

and would like other girls to feel the same way." Harare feminist 

groups were furious. Weekly Mail 15 (April 24, 1992). 

63 Whittle Communications distributes Channel One to 7.1 million students 

in 11,000 government schools in 45 states (and to private schools in three 

others). It provides the video equipment free on condition that schools 

require students to watch the daily 12-minute news programme. Whittle 

earns $630,000 a day for four 30-second commercials. The California 

Superintendent of Education, California Congress of Parents, Teachers 

71


and Students, and two teachers sued to prevent its distribution in the state. 

One of the latter said: "I didn't become a teacher to sell Nikes, Colgate 

toothpaste and Pringles." New York Times A8 (June 4, 1992). An evaluation 

found that students retained detailed memories of the commercial but 

knew no more about current events than the control group. 

The U.S. Department of Health and Human Services has investigated 

payments by doctors to hospitals for patient referrals. One group of 

radiologists had to pay half their gross receipts; another paid 25 per cent 

of their profits over $120,000. One hospital required pathologists to buy 

its billing services; another terminated radiologists who refused to pay 

$181,000 for "marketing." New York Times A1 (September 28, 1992). 

54 Wasserstrom (1975); Simon (1978); Luban (1984; 1988); Abel (1989a; 

1989b); Curran (1977); Mindes & Acock (1982). 

55 Guardian 6 (September 27, 1991), 1 (September 19,1991), 4 (September 

29, 1991), 2 (October 7, 1991); Observer 9 (September 29, 1991). 

In October 1990 the Congressional Human Rights Caucus held hearings 

on the Iraqi invasion of Kuwait. The star witness was a Kuwaiti girl, who 

described Iraqi soldiers removing 15 premature infants from incubators at 

Al-Adan Hospital and leaving them to die on the floor. Representatives Tom 

Lantos (D-Calif.) and John Edward Porter (R-lll.) concealed the facts that 

she was the daughter of the Kuwaiti ambassador to the United States and 

her participation had been organised by a public relations firm representing 

the Kuwaiti government. New York Times A15 (January 6, 1991). 

66 Los Angeles Times A1 (November 3, 1990). 

When the socialist Upton Sinclair won the 1934 Democratic nomination 

for Governor of California, MCM head Louis B. Mayer withheld a 

day's pay from each of his employees and committed it to supporting the 

Republican incumbent Frank Merriam. Dirctor Irving Thalberg formed a 

special unit at the studio to produce three shorts entitled "California 

Election News," which omitted the MCM logo in order to appear noncommercial. 

The first interviewed "average citizens": respectablydressed 

actors impersonating Merriam supporters and derelicts representing 

Sinclair backers. The second indulged in shameless red-baiting. And 

the third depicted bums moving into California and camping in a hobo 

jungle in anticipation of the good times they expected under Sinclair. 

Merriam came from behind to win. When criticised, Thalberg asserted: 

'Nothing is unfair in politics." New York Times s.2 p. 15 (April 19, 1992); 

Mitchell (1992). 

57 New York Times A1 (April 15, 1992). Some people still are scandalised 

when academics are exposed as government spies. Diamond (1992). 

68 New York Times C1 (December 6, 1993) A14 (3. 15.94). 

69 New York Times B4 (March 9, 1992), B1 (March 11, 1992). The 1950s 

"payola" scandal revealed that companies paid disk jockeys to play their 

records. 

Stars and studios control publicity in other ways. Some insist on 

choosing which writer will conduct the interview. Tom Cruise's public 

72

Notes 

relations agent required journalists invited to a press junket for "Far and 

Away" to agree in writing to publish interviews only in connection with 

the initial theatrical release and not sell them to tabloids. Even without 

explicit constraints, the need for access limits candour. The editor of 

Premiere conceded: "It's easy to be blackballed in that world as a writer. 

It's very hard to shake a reputation as a killer if you've done one tough 

piece." After the journal published a strong article about "Aliens 3," 20th 

Century Fox pulled its ads for the movie. Warner Brothers barred the Los 

Angeles Magazine critic from future screenings after he wrote a critical 

piece about "Batman Returns." Paramount withdrew all ads indefinitely 

from Variety following a critical review of "Patriot Games." Its vicepresident 

for communications said: "the trade [papers] are there to assess 

the commercial viability of a film and give exhibitors and industry people 

an enlightened interpretation of what the film can do. It's not like a review 

for The New York Times. . .that would be assessing the merits of the 

film." Variety's small circulation (well under 20,000) made it highly 

dependent on advertising. Its editor apologised and promised that the 

reviewer (who had almost 20 years experience) would never again be 

assigned a Paramount film and might be fired. He warned the reviewer 

that he objected "when [your] political opinions. . .(a) color the review 

emotionally, and (b) negatively critique the work done by artisans such as 

the composer, cinematographer, etc. . . these views are not subject for 

intellectual discourse; they are policy." New York Times D1 (June 1, 

1992), B3 (June 10, 1992). A group of Indian film stars retaliated against 

six movie gossip magazines by refusing them any further interviews. New 

York Times s.1 p.5 (September 6, 1992). 

When the editor of Automobile attacked General Motors at the annual 

Automotive Press Association dinner for closing 21 plants and eliminating 

74,000 jobs, calling GM management "piano players in the whorehouse," 

the carmaker withdrew Oldsmobile and Buick ads for three 

months. The editor said that GM's 50-60 pages of advertisments a year 

(out of 900) could make the difference between profit and loss. The GM 

vice president for marketing and public affairs responded that "all G.M. 

vehicle divisions make their own decisions about how to spend advertising 

dollars." Toyota pulled its ads from Road and Track when it failed to 

make the 1991 "10 Best List." GM did the same when Car and Driver 

photographed an Opel Kadett in a junkyard and called it "the worst car in 

the world." New York Times C9 (June 26, 1992). 

70 

Kennedy (1971). "A good lawyer is like a good prostitute . . . If the price is 

right, you warm up your client." Tybor (1978: 18), quoted in Galanter 

(1983: 159). 

71 

Before Duckworth published D.H. Lawrence's Sons and Lovers, Edward 

Garnett cut 10 per cent of the text without consulting the author, partly 

because it was sexually too explicit. The complete version is being 

published by Cambridge University Press. New York Times B3 (May 6, 

1992). 

73


Although book publishing is generally less market-driven than other 

media, there are exceptions. When Ross Perot announced his candidacy, 

four biographies rapidly climbed to the top of the best-seller list, and 

several others were scheduled for release. When he withdrew, the books 

disappeared. Tony Chiu's Ross Perot: In His Own Words was the most 

successful: 19 days from concept to bookstore, a first printing of 300,000, 

sales of 500,000. The publisher gloated: "We didn't pay a lot of money 

up front and we got out there when the time was right. Listen, it's the 

occupational hazard of doing instant books. They have a shorter shelf life 

than lettuce." New York Times B5 (July 22, 1992). 

72 

Webster (1990: 26-27). 

73 

New York Times s.1 p.4 (October 14, 1990). Frank Upham has told me 

that his highly acclaimed book (1987) will not be translated into Japanese 

because it also discusses the Burakumin. 

74 

New York Times B2 (December 6, 1990). 

75 

HarperCollins organised a book signing at Rizzoli's bookstore in New 

York's World Financial Center for Bryan Burrough's (1992) expose of the 

American Express smear campaign against banker Edmond Safra. The 

event flopped because Amexco, which is headquartered in the same 

building, pressured Rizzoli not to publicise it. An Amexco spokesperson 

denied this but complained that Rizzoli had not been "neighborly." Safra 

earlier had won a judgement ordering Amexco to apologise publicly and 

pay $8 million to Safra and charities he selected. Harry Freeman, a 

former Amexco executive, is now suing Burrough and Dow Jones for $50 

million, claiming that Burrough recklessly distorted the truth in a Wall 

Street Journal article that secured him a $1 million advance for the book. 

New York Times C8 (May 4, 1992); Los Angeles Times D1 (May 11, 

1992). 

76 

Edwards (1991); Webster (1990: 26-27); GLC Gay Working Party (1985: 

13-14,23). 

Earvin "Magic" Johnson wrote What You Can Do to Avoid AIDS, 

donating ail profits from the $3.99 book to his AIDS foundation. Nearly 

500,000 copies were in print, and it was being translated into 12 

languages. The American Medical Association declared: "Everbody— 

especially teenagers and parents—needs to read this book. This book 

could help save lives." But Wal-Mart's 1747 stores refused to stock it 

because "we found some of the material inappropriate." "The language 

was not in keeping with what our customers tell us they would want to 

read." Kmart also concluded that the book "doesn't fit the family orientation 

of a Kmart shopper," although it displayed Jackie Colins's Hollywood 

Wives and a Cosmopolitan issue on the etiquette of oral sex. New 

York Times A15 (August 3, 1992) (op ed). 

77 

New York Times C8 (March 16,1992). Less than two weeks after the 1992 

Tony awards (for best play) the League of American Theatres and Producers 

dismissed 9 of the 12 panel members, claiming it wanted more 

working professionals and fewer academics. Panel members, who had 

74

Notes 

honoured two plays that had closed by the time of the award, said they 

had been afraid of displeasing the League. New York Times 12 (June 13, 

1992). 

78 New York Times A14 (October 24, 1990). 

79 New York Times M (December 12, 1990). 

Harvard law professor Randlall Kennedy invited Indiana University law 

professor Craig Bradley to contribute to a symposium on Clarence 

Thomas in Kennedy's Reconstruction magazine, whose goal is to foster 

"robust, wide-open debate." After telling Bradley that the article had 

been accepted, Kennedy rejected it "because of your references to the 

infamous Coke can [on which Thomas claimed to have found a pubic hair 

at the EEOC] and the matter involving pornography [testimony by a black 

woman law school classmate that Thomas had described x-rated films to 

her several times]." Kennedy explained: "I press for candor, but I also 

press for a certain degree of intellectual discipline. I thought there was a 

hint of smarminess in his piece. . . ." New York Times B12 (September 

11, 1992). 

80 Chronicle of Higher Education A31 (lanuary 22, 1992). Donors to 

universities can earmark funds for particular subjects and even choose 

the occupants of endowed chairs. LeeM. Bass (Yale'79 and member ofa 

billionaire family) gave Yale $20 million for a new elective course of 

studies in Western Civilisation, "a field that for more than a decade has 

been under attack while many colleges and universities increased their 

emphasis on the study of people and cultures outside the Western 

tradition." Although Yale already offered a survey and three specialised 

courses on the subject, Stephen H Balch, president of the conservative 

National Association of Scholars, applauded the gift as "a very important 

gesture and message being sent to the rest of the academic community 

about what has been neglected for a long time and now should be 

addressed." New York Times A10 (April 18, 1991). 

81 New York Times A15 (November 5, 1990); Los Angeles Times A3 (March 

16,1992), A14 (April 21,1992). In response to a finding by the Center for 

Media and Public Affairs that the average soundbite in the 1988 election 

was only 7.3 seconds CBS adopted a policy of not reporting as news any 

candidate statement less than 30 seconds long! New York Times A8 (July 

3, 1992). 

Stations are not required to accept issue-oriented ads. The CBS affiliate 

in Buffalo (WIVB) rejected a National Abortion Rights Action League ad 

showing the Statue of Liberty and flag as a narrator read a plea to make 

"abortion less necessary" by encouraging sex education and birth control. 

A WIVB spokesman explained: "Even if Operation Rescue had not 

been in town, I'd question the ad. It's a sensitive issue, and we elected not 

to get involved." Stations differ in the degree of documentation they 

require for factual statements. During the 1990 North Carolina senatorial 

race between Republican incumbent Jesse Helms and black pro-choice 

challenger Harvy Gantt, the state Republican party warned stations 

75


planning to broadcast NARAL spots that they would be closely monitored. 

New York Times A12 (June 11,1992). 

82 Los Angeles Times A11 (February 26, 1991); Chronicle of Higher Education 

A35 (March 4, 1992). 

Church-affiliated universities are even more intrusive. Georgetown 

University, a Jesuit institution, withdrew the $150/year subsidy and 

meeting space allocated to G.U. Choice for violating an agreement not to 

participate in "advocacy or action on behalf of abortion." The group is 

forbidden to demonstrate or distribute information on campus. New York 

Times 9 (April 25, 1992). 

83 Entman(1989). 

84 New York Times A13 (March 26, 1992). 

If poverty silences, those with resources may be compelled to speak. At 

an April 1992 fund-raiser for President Bush, donors were invited to buy 

tables for 10 for $15-20,000. One table got you a member of the House 

of Representatives; a second got you a Senator; $92,000 got you a photo 

opportunity with the President; and top contributors got to sit at his table. 

(Michael Kojima, who bought a seat at the President's table for $500,000, 

was simultaneously being sought by former wives and business associates 

for large unpaid debts; he has since been jailed and forced to pay 

$120,000.) James R. Elliott, president of Cherry Payment Systems of 

Illinois, was under investigation by the FDIC and had already served a 

prison term for bank fraud. He denied telling subordinates that their 

contributions might secure him a Presidential pardon. But a letter from his 

regional marketing director to Midwest offices described the dinner as 

a great opportunity. . .to rub elbows with the most powerful people in 

this country. . . 

So what I suggest is that you do some soul searching and decide 

whether you're going to go the distance. What I need is a phone call 

from those of you that plan to participate in this event. There are other 

perks that will go along with this. ... If you're asking yourself, can I 

afford to make this trip, then ask yourself, ifyou can afford nottoo! [sic] 

We will truely [sic] see what kind of cloth your [sic] cut from when I 

hear from those of you that plan to participate. 

The company said the letter was unauthorised and its sender had been 

reprimanded. It also insisted that an employee was dismissed for not 

meeting sales performance targets rather than for refusing to contribute. 

The dinner raised $9 million. New York Times A20 (April 24, 1992); Los 

Angeles Times M (May 8, 1992), B1 October 16, 1992). 

85 Los Angeles Times A26 (November 3, 1990), A25 (November 8, 1990); 

New York Times A15 (November 5, 1990). 

86 New York Times B1 (March 9, 1992), s.2 p. 11 (April 19, 1992). Art 

Linson, producer of such commercial successes as "Singles," "Melvin 

and Howard," "Car Wash," and "Fast Times at Ridgemont High," hates 

the review process. 

You're doomed the minute you start cutting your film because 100 kids 

76

Notes 

say they liked this but didn't like that. I can't tell you how many movies 

would have been ruined by preview cards because the natural impulse 

of an audience is to want a happy ending, to reach for what's familiar, 

not to be challenged. You really have to lead an audience, not follow 

them. 

New York Times B1 (September 28, 1992). 

87 New York Times B1 (February 5, 1992). When the film appeared, the 

American had been chastened and civilised by falling in love with his 

Japanese coach's daughter. One reviewer observed: 

[T]he finished version shows no signs of ever having been a hard-hitting 

satire.. . .The ending certainly smacks of compromise, since this is not 

a film willing to think seriously about Japanese attitudes toward an 

interracial romance. . . .Some of the film's crass American characters. 

. .are allowed to become caricatures. And there is a trace of 

hostility in the way one of Jack's teammates refers to him as "white 

trash." The film also makes room for the occasional lecture, as when 

Jack complains about what he calls "the Japanese way—shut up and 

take it." In response, he is told, "Sometimes acceptance and cooperation 

are strengths also." 

New York Timex B6 (October 2, 1992); see also Los Angeles Times F12 

(October 2, 1992). 

88 New York Times B1 (January 30, 1992), s.2 p.17 (March 15, 1992). An 

NC-17 rating may discourage movie chains from showing the film, 

media from accepting advertising for it, and video stores from stocking it. 

Stephen Chao's meteoric rise to the presidency of Fox Television 

Stations was followed by his equally precipitate fall. At a panel on "The 

Threat to Democratic Capitalism Posed by Modern Culture" he discussed 

the constant pressures on television, illustrating his talk by having a male 

model strip before an audience that included NEH chair Lynne Cheney 

(and her husband, Defense Secretary Dick Cheney). Rupert Murdoch 

fired Chao on the spot, commenting "It was a tragedy to see a great career 

self-destruct." Chao explained: "I was questioning the conventions 

which govern TV in America, which are confused and hypocritical—such 

things as the difference between nakedness and lewdness or the predominance 

of violence in fictional programming." Murdoch needed no lessons 

in hypocrisy. Chao had played a major role in developing such hits 

as "America's Most Wanted," "Cops," and "Studs." The last, Fox's main 

money-maker, features three young women in tiny mini-skirts and two 

hunks engaging in half an hour of suggestive conversation whose prize is 

a "dream date." The programe cost $50,000 a week to produce while 

earning Fox $20 million in 1991/92 and an anticipated $60 million in 

1992/93. Los Angeles Times D1 (June 22, 1992), A1 (June 23, 1992); 

New York Times C6 (June 29, 1992). 

89 Bagdikian (1987); Baker (1992). The November Company, a firm of 

advertising executives handling the Bush-Quayle campaign, told 

networks its decision about where to buy commercial time would be 

77


influenced by the "good taste" and "moral values" of their regular 

programmes. New York Times C2 (July 14, 1992). 

90 Los Angeles Times A27 (January 30, 1992); Warner et al. (1992). 

91 New York Times C1 (February 25, 1992). Some executive compensation 

consulting firms refuse to talk to reporters. Business Roundtable members 

who are clients of Towers Perrin persuaded the firm to stop helping the 

Wall Street Journal prepare its annual executive pay survey. Half a dozen 

angry clients phoned Michael J. Halloran of Wyatt Company after he 

helped Fortune with its 1991 pay survey, which included stock options for 

the first time. Another firm assured clients that it had refused to cooperate 

with Fortune. New York Times C1 (August 25, 1992). 

92 They also examine advertisements for taste, fairness, and documentation. 

The vice president for comercial standards at ABC said that only 125-150 

of the 46,000 commercials are challenged each year; about half are 

modified or withdrawn. A "What is Sexy" commercial for Jovan Musk 

exposed an inch of skin around a woman's navel, which the network 

inisted be covered. Jovan tried to circumvent such prudery by showing a 

man and woman undressing while an actor portraying the network censor 

explained what was acceptable. Censors would not allow Vitabath bath 

oil to show a woman in a bathtub using her toe to plug an annoyingly 

dripping faucet, which they felt was too suggestive of intercourse. Companies 

also seek civil damages when competitors malign them. New York 

Times s.3 p. 10 (September 27, 1992). The New Yorker cancelled a twopage 

Benneton ad worth $73,000—a photo of an albino Zulu woman 

apparently being shunned by others—because it was inconsistent with 

the feature story about Malcolm X. Previous New Yorker editors had 

sometimes objected to ads. New York Times C13 (October 2, 1992). 

93 New York TimesCI5 (November 14,1989), s.2 p.1 (December 8,1991), 

13 (February 1, 1992); Los Angeles Times F1 (January 17, 1992). Advertisers 

pulled $500,000 out of a "Law and Order" episode about the 

bombing of an abortion clinic and $350,000 from one about the assisted 

suicide of an AIDS victim. In the first half of 1990/91 it had more pullouts 

than any other network show, but the next year it was nominated for six 

Emmys and won the National Board of Review's DW Griffith Award and 

the ABA's Silver Gavel award. Now shows can be cancelled after three 

episodes. "Quantum Leap" offered advertisers a plot synopsis beforehand 

and their money back if they were uncomfortable with it. Los 

Angeles Times F1 (September 1, 1992). 

In 1973, when CBS reran an episode about the first abortion by a 

leading television character (Beatrice Arthur as Maude), not a single 

national sponsor bought ad time, and 39 affiliates refused the show. 

Meredith Berlin, editor-at-large of Soap Opera Digest, said: "Writers will 

fall all over themselves to avoid an abortion. Miscarriage is a convenient 

out. So is falling down stairs or off a horse. Or a hysterical pregnancy." 

Ashley Abbott, the good girl in "The Young and the Reckless," had 

perhaps the last abortion on a soap; she was punished by suffering a 

78

Notes 

breakdown and being sent to an insane asylum. Linda Bloodworth- 

Thomason, creator of "Designing Women," feared that "abortion is 

coming to such a head that we may have to do it. But it's tough when 

you're doing a comedy and people see that favorite character week after 

week and remember what happened to her." New York Times s.2 p.1 

(May 31, 1992). 

94 Los Angeles Times D1 (December 28, 1991), C1 (October 2, 1992); New 

York Times C13 (October 2, 1992). 

95 New York Times C6 (April 6, 1992). 


The Media Image Coalition of Minorities and Women (including the 

American Jewish Congress, Los Angeles Black Media Coalition, Nosotros 

Inc., LA GLAAD, and the Association of Asian Pacific American Artists) 

urged advertisers to boycott "Driving Miss Daisy," a 1992/93 CBS 

television series spawned by the successful play and movie. The Coalition 

objected to the stereotypfication of Hoke Colburn, who spoke in southern 

Black dialect. Los Angeles Times F1 (August 18, 1992). Robert Guillaume, 

who played the African American chauffeur in all three media, 

said: "It's one of the few times I've been able to watch my work without 

ducking or putting my hands over my eyes." But the Coalition spokesperson 

derided the series as "a situation comedy about a situation that isn't 

funny, just like the Holocaust is not inherently funny." When a women 

friend called FDR a nigger lover in the pilot, Miss Daisy ordered her out 

the house but Hoke said nothing. "Hoke is powerless to react or respond. 

He hides his anger and holds it back." Guillaume replied: "if you're a 65year-old 

man in that time and you are called a nigger, is it historically true 

that he could have said 'I'm out of here?' We know that is not something 

that happened a lot." Los Angeles Times F1 (August 20, 1992). 

Some viewers are more equal than others. When Catholics were 

outraged that singer Sinead O'Connor tore up the Pope's picture on 

NBC's "Saturday Night Live," shouting "Fight the real enemy," the 

manager of the Notre Dame student union implicitly threatened to pull 

Notre Dame football games off the network. NBC vice president Curtis 

Block quickly declared: "It goes without saying the NBC does not 

condone something like that. ... I was offended, the executive producer. 

. . . likewise was offended and surprised." Los Angeles Times F1 

(October 6, 1992). 

97 New York Times A8 (March 19, 1992), A12 (August 19, 1992) (Americas 

Watch "Dangerous Dialogue" report on repression of dissent by Miami 

Cuban-American community). The Cuban American National Foundation 

threatened to sue the Public Broadcasting System for its documentary 

"Campaign for Cuba," which accurately stated that the Foundation had 

accepted $780,000 from the National Endownment for Democracy and 

contributed over $500,000 to the Free Cuba PAC Inc. New York Times A9 

(October 13, 1992). 

In South Africa, the ANC launched a boycott of the Eastern Province 

79


Herald and Evening Post by burning old copies. ANC spokesman Phila 

Nkayi said the papers were waging "malicious" attacks on the organisation. 

"The media is at liberty to criticise the ANC-led alliance, but we 

could not take the vilification and bossy stance that appears to have been 

adopted.. . ." Editor Derek Smith said the Herald would "not become an 

ANC paper" or be dictated to. But on the first full day of the boycott the 

newspapers' management approached the ANC for talks, and the South 

African Union of Journalists branch also sought to negotiate. Weekly Mail 

4 (July 31, 1992). 

A week after the opening of "Minbo noOnna" (Woman Mob Fighter), a 

film about yakuza (gangsters), director Juzo Itami was attacked by three 

men in front of his house, who slashed him in the face, neck and hand. 

New York Times A1 (June 15, 1992). One reporter for the Asahi newspaper 

was murdered in 1987 and another seriously wounded. The Tokyo 

Broadcasting System received 140,000 protests after it criticised the 

Unification Church. The office of a magazine that criticised Kofuku no 

Kagaku (Institute for Research in Human Happiness) was attacked. Los 

Angeles Times H2 (October 13, 1992). 

98 

Los Angeles Times J1 (March 14, 1991). 

At the 1992 Republican National Convention the leader of the Virginia 

delegation organised a group of hecklers to follow NPR reporter Nina 

Totenberg around the floor, interrupting her interviews by yelling "Nina, 

Nina. Have you had an affair?" This was retaliation for another woman 

reporter who had asked Bush about an affair. When Democratic Party 

Chairman Ron Brown and other officials tried to hold a news conference 

inside a Houston restaurant, 100 members of the Republican Youth 

Coalition dirsupted it. The co-chairwoman of the Republican National 

Committee congratulated them: "I want to tell you all that you have really 

done wonderfully. You have really kept us in the news this week. I saw 

you take on the other side's rally the other day and that was great." The 

field director of the College Republican National Committee explained: 

"If the Dems are going to come to the Republic National Committee [sic] 

and try to steal media attention, they should expect a little confrontation." 

New York Times A12 (August 21, 1992). 

99 

Jansen(1991). 

1 

Cr". Wolff (1968). 

80

3. The Excesses of State Regulation 

If civil libertarianism can neither avoid politics nor maximise freedom, 

the conventional alternative of state regulation inevitably 

invites authoritarian excess. The history of laws against blasphemy, 

defamation, pornography, obscenity, and hate speech hardly 

inspires enthusiasm or encourages emulation. Law dichotomises 

reality, rupturing continua and magnifying the importance of arbitrary 

boundaries. Its pigeonholes strip events of the context and 

history that give them meaning. Law cannot deal with the irreducible 

ambiguity of symbolic expression. Art accentuates ambiguity; 

indeed, unambiguous literature, drama, dance, painting, or sculpture 

is not art but agit-prop. Yet the qualities that justify art's 

immunity from state intrusion are extraordinarily elusive. Law has 

great difficulty attending to the speaker's identity and motive, 

audience perception, and the capricious cultural environment—all 

of which can transform the harm and moral quality of speech. The 

liberal state can exercise power only through formal law, but 

formality inflicts heavy costs on partipants and the state, slows the 

response, and fosters procedural fetishism. The severity of state 

sanctions can be justified only by consequentialist reasoning— 

speech is punished not for what it is but for the actions it provokes. 

Consequentialism is empirically problematic, however, whether 

pornography is blamed for rape or hate speech for racial attacks. 

And if consequences are the rationale for state regulation, why focus 

on aberrant extremes rather than the manifold harms of daily life? 

Legal regulation of speech often encourages evasion; even when 

effective it constructs deviance, valorises evil, attracts attention, and 

confers martyrdom. I will address these arguments in turn. 

81

The Excesses of State Regulation 

I. The Unhappy History of Regulation 

The British government's response to hate speech is deeply discouraging. 

Although Britain has a long history of prejudice against 

Catholics (especially Irish), Jews, and now people of colour, state 

remedies were infrequent and ineffective prior to the 1965 Race 

Relations Act. 1 Imperial Fascist League leader Arnold Leese, who 

applauded the rise of Hitler and insinuated that British Jews were 

responsible for unsolved child murders, was acquitted of seditious 

libel but convicted of public mischief. Yet he was not prosecuted for 

repeating the statements after his release from prison. In 1947 James 

Caunt wrote in a paper he edited: 

[T]here is very little about which to rejoice greatly except the 

pleasant fact that only a handful of Jews bespoil the population of 

the Borough! ... If British Jewry is suffering today from the 

righteous wrath of British citizens, then they have only themselves 

to blame for their passive inactivity. Violence may be the only way 

to bring them to the sense of their responsibility to the country in 

which they live. 

A jury took just 13 minutes to acquit him of seditious libel. Yet 

National Socialist Movement leader Colin Jordan was convicted 

under the 1936 Public Order Act for declaring at a Trafalgar Square 

meeting: "Hitler was right . . . our real enemies, the people we 

should have fought, were not Hitler and the National Socialists of 

Germany but world Jewry and its associates in this country." 

Opening debate of what became the 1965 Act, the (Labour) Home 

Secretary, Frank Soskice, revealed his government's ambivalence 

toward regulating hate speech—sounding very much like German 

Social Democrats equivocating about asylum today. 

82 

[C]riticism should be allowed, however jaundiced and one-sided 

it may be. ... Nobody can be prevented from arguing, for 

example, that particular groups should be returned to their 

country of origin because their presence in this country causes an 

excessive strain on our social services. What is prohibited ... is 

the intentional fomentation of hatred of that group . . . because of 

the origin of its members!,] by public abuse, however camouflaged 

as motivated by a sincere intention!,] dishonestly simulated, 

to promote discussion of the public interest. 2

The Unhappy History of Regulation 

After its passage, Soskice cautioned that the Act was "designed to 

deal with the more dangerous, persistent and insidious forms of 

propaganda campaigns . . . which, over a period of time, engender 

the hate which begets violence." Fascists immediately exploited a 

loophole by establishing the Viking Book Club "for the study of 

literature dealing with the Jewish Question and other racial problems 

which it is not permissible to sell to the general public . . . ." 

The first prosecution was directed at a 17-year-old white labourer 

who stuck a Greater Britain Movement leaflet entitled "Blacks not 

wanted here" on the door of MP Sid Bidwell and threw another 

through his window, wrapped in a beer bottle—neither of which, 

the court held, was "publication or distribution." A jury convicted 

Colin Jordan, rejecting his claim that a pamphlet about "The Coloured 

Invasion" was only trying to inform the public about a grave 

national problem. But there were almost as many successful prosecutions 

of black power advocates, while sophisticated racists 

evaded punishment. 3 During debate over the Commonwealth Immigrants 

Act 1968, which denied entry to East African Asians holding 

UK passports, the Racial Preservation Society journal Southern 

News denounced the "dangers of race mixing," speculated about 

genetic differences, and urged repatriation as a "humane solution." 

It celebrated its acquittal by reprinting a "Souvenir Edition" defiantly 

captioned "The Paper the Government Tried to Suppress." 

One of the most troubling trials involved British National Party 

chairman John Kingsley Read, who harangued 300 people: 

Fellow racialists, fellow Britons, and fellow Whites, I have been 

told I cannot refer to coloured immigrants. So you can forgive me 

if I refer to niggers, wogs and coons. [Commenting on the murder 

of Gurdip Singh Chagger, he added:] Last week in Southall, one 

nigger stabbed another nigger. Very unfortunate. One down and a 

million to go. 

The first jury hung after two hours. On retrial, Read insisted his 

epithets were a "jocular aside" and the numbers referred to immigration, 

not murder. Instructing the jury, Judge McKinon mentioned 

that his own public school nickname had been "nigger" and told a 

story about another old boy, a Maharajah, who had greeted him by 

that endearment years later during a chance encounter in Picadilly. 

The law, he said, 

does not contemplate reasoned argument directed to stemming 

83


the flow of immigration, or even advocating the repatriation of 

people who have come here from abroad .... It is claimed that 

jobs will be lost, that, goodness knows, we have a million and a 

half or more unemployed already and that all the immigrants are 

going to do is to occupy the jobs that are needed by our local 

population. These are matters upon which people are entitled to 

hold and to declare strong views expressed in moderate terms. . . 

. Were [the words "One down and a million to go"] threatening? 

abusive? insulting? It is said that he insulted the dead. There is no 

charge known to the law of insulting the dead .... [l]s there 

anything that is pointed to that indicates that he was urging action 

activated by hatred? ... He is obviously a man who has had the 

guts to come forward in the past and stand up in public for the 

things that he believes in. 

The obedient jury acquitted in ten minutes. Discharging Read, 

McKinon added: "You have been rightly acquitted but in these days 

and in these times it would be well if you were careful to use 

moderate language. By all means propagate the views you may have 

but try to avoid involving the sort of action which has been taken 

against you. I wish you well." 

Summing up the first decade under the Act, the Home Office 

conceded that racists had learned to evade it; propaganda "tends to 

be less blatantly bigoted, to disclaim any intention of stirring up 

racial hatred, and to purport to make contribution to public education 

and debate." 4 The government responded by amending the law 

to obviate the requirement of intent. The next prosecution should 

have been an easy victory even under the old law. Two British 

Movement members had ranted in the Warwick marketplace about 

"wogs, coons, niggers, black bastards." "It was shocking that white 

nurses should have to shave the lice ridden hair of these people." 

"[A] nurse wiping froth off a coon's mouth and, as a result, dying of 

rabies. That is what these black bastards are doing to us." The 

defence chose the novel tactic of arguing that these views were so 

extreme that "what was stirred up more than anything was sympathy 

for the coloured people . . . ." An all-white jury acquitted under the 

Act, though it convicted one speaker of words likely to cause a 

breach of the peace. Suspending a six-month sentence, the judge 

cautioned: "You have got to learn to curb what you say. It is not a 

question of preventing people from expressing their proper opinions 

but there is a way in which it can be properly expressed." 5 

Although juries convicted 15 of the 21 tried during the first four 

84

The Unhappy History of Regulation 

years of the amended law, penalties remained small fines and short 

prison terms, usually suspended. Attorney General Samuel Silkin 

QC, whose consent was required, declined to prosecute when 

"enforcement will lead inevitably to law breaking on a scale out of 

all proportion to that which is being penalised or to consequences so 

unfair or so harmful as heavily to outweigh the harm done by the 

breach itself." 6 He struck the balance against prosecution when the 

British Resistance Movement published a leaflet entitled "Jews 

Bomb Themselves," mocking the 1980 terrorist bombing of a Paris 

synagogue: "It is an old trick of the Jews to blow up their own 

synagogue, machine gun their school buildings and desecrate their 

cemeteries and daub them with swastikas . . . ." Nor was he moved 

when a National Front member published a book of photographs 

with captions like: "Asian thugs," "Black Savages," "Ape-Rape— 

the wrong one is behind bars," "I'm a death camp survivor. I was 

nearly exterminated 5, no six million times, in my life." If the victims 

of hate speech were its only audience the Attorney General would 

not act, even when the language clearly met the statutory requirements: 

"The Jew is an arch parasite .... Blacks, that only a few 

months ago were Banana eating savages." 

When the CRE urged that the law forbid "words which, having 

regard to all circumstances, expose any racial group in Great Britain 

to hatred, ridicule or contempt," the Home Affairs Committee 

demurred, fearing that "an increase in the rate of successful prosecutions 

. . . might create the impression among the public that the 

sensibilities of ethnic minorities were being protected in a manner 

not extended to other groups in society." 7 The contemporaneous 

Government Green Paper on Public Order agreed that punishing 

opinions "would be totally inconsistent with a democratic society in 

which—provided the manner of expression, and the circumstances, 

do not provoke unacceptable consequences—political proposals, 

however odious and undesirable, can be freely advocated." 8 

This dismal record illustrates many of the problems inherent in 

state regulation of speech. It focused on extremes, implicitly condoning 

the myriad ways in which mundane discourse reproduces 

status inequality. Style was more important than content to both 

legislators and judges. Legal formalism equated black resistance 

with white racism. The law misconstrued the relevance of the 

audience by exculpating hatred directed at its targets or sympathetic 

listeners. The ambiguity of speech facilitated evasion—some of the 

most outrageous abuse was dismissed as self-defeating. 9 The boundary 

between legitimate political debate and proscribed vituperation 

85


was arbitrary. Although motive is central, difficulties of proof led the 

government to dispense with intent. Juries shared the government's 

belief that penalties were excessive. Prosecution further disseminated 

hate speech, generated sympathy for the accused and resentment 

against their victims, and left racists unrepentent. 

//. Dichotomising Continua, Denying Ambiguity 

The formal legal system dichotomises reality into what it expressly 

condemns and what its tolerance implicitly approves. It does this in 

part because criminal and civil sanctions are so harsh and legal 

procedures so onerous that only clear moral judgments can justify 

them. Tort liability, for instance, turns on whether or not the 

defendant caused the plaintiff's injury, although science describes 

causation in terms of continuously varying probabilities of populations 

of events. Causal actors have a duty to refrain from inflicting 

particular emotional injuries—being forced to witness the death of a 

spouse but not the death of a lover or being told of a spouse's 

death—although the actual damage varies continuously. Law's arbitrary 

rupture of the continuities of experience becomes even more 

troubling when the behaviour being regulated is speech. Just as 

liberal abstention sends the unfortunate message that the state 

condones the harms of speech, so criminalisation punishes behaviour 

that is unobjectionable or even praiseworthy while exonerating 

greater evils. Enforcement of American pornography laws 

illustrates both pitfalls. The federal government entrapped an elderly 

Nebraska farmer into buying a single copy of Boys Who Love Boys, 

convicting him of a felony and costing him a job as a school bus 

driver and the friendship of neighbours. At least four of the nearly 

150 men convicted in this sting operation committed suicide. 10 By 

contrast, New York State, with a population of nearly 20 million, 

made only 23 felony arrests during a recent six-year period. Two of 

the even rarer convictions involved a Rochester man who gave 

neighourhood children photographs of himself having sex with a 

dog. 11 

Every attempt to dichotomise speech is fundamentally flawed. 12 

Gloria Steinem, who once equated Playboy with Mein Kampf, 

sought to evoke the shade of Oliver Wendell Holmes by insisting on 

the "clear and present difference" between pornography and 

erotica. 

86

Dichotomising Continua, Denying Ambiguity 

Look at any photo or film of people making love; really making 

love. The images may be diverse, but there is usually a sensuality 

and touch and warmth, an acceptance of bodies and nerve 

endings. There is always a spontaneous sense of people who are 

there because they want to be, out of shared pleasure. Now look 

at any depiction of sex in which there is clear force, or an unequal 

power that spells coercion. It may be very blatant, with weapons 

of torture or bondage, wounds and bruises, some clear humiliation, 

or an adult's sexual power being used over a child. It may be 

much more subtle: a physical attitude of conquerer and victim, 

the use of race or class to imply the same thing, perhaps a very 

unequal nudity, with one person exposed and vulnerable while 

the other is clothed. In either case, there is no sense of equal 

choice or equal power. 13 

How would she categorise Bernini's sculpture of "Apollo and 

Daphne," or Shakespeare's "The Taming of the Shrew," or Manet's 

"Dejeuner sur I'herbe"? Her definition would condemn any art, 

literature, dance or drama realistically portraying our pervasive 

sexualised inequality. Catherine MacKinnon would prohibit expression 

depicting the sexually explicit subordination of women. Like 

most such proposals, however, this disregards both author intent and 

audience response. Would it not proscribe works in which the 

creator deliberately evokes moral condemnation, such as Bizet's 

"Carmen," Tolstoi's "Anna Karenina," Hardy's "Tess of the d'Urbervilles," 

or Bergman's "The Virgin Spring"? The British Advertising 

Standards Authority makes equally arbitrary judgments in purporting 

to distinguish the erotic from the sexually explicit. It censured 

Goodmans Industries for posters promoting car audio systems by 

posing amorous couples in the front seats of cars with the caption 

"Britain's second favourite in-car entertainment." But when the 

public complained about a Sun newspaper poster showing a woman 

on a beach looking at a man in swimming trunks and saying "Is that a 

Sun tucked up your shorts, or are you just pleased to see me?" the 

Authority dismissed this as "representative of the editorial content of 

The Sun." 

Mari Matsuda would punish a speaker who directs a persecutorial, 

hateful and degrading message of racial inferiority against a 

historically oppressed group. 15 But she then carves out loopholes 

that virtually give away the game. The exception for scientific 

arguments would condone the racism of H.J. Eysenck, A.R. Jensen, 

Richard Herrnstein, and William B. Shockley. 16 Her tolerance of 

87


satire could protect Andrew Dice Clay. 17 Her exemption of 

museums might permit a neo-Nazi display of Hitler memorabilia. 18 

As we will see below, Holocaust revisionists and black anti-Semites 

have sought refuge in the "neutral reportage" she would immunise. 

And the literary realism she would protect did not satisfy black critics 

of William Styron's The Confessions of Nat Turner or feminists 

incensed by Bret Easton Ellis's American Psycho. 

Speakers often don the raiment of Art when threatened by state 

regulation. A publisher justified disseminating the Marquis de Sade's 

Juliette by claiming that "his works are considered by many academics 

and students of history, literature and philosophy to address 

serious issues of personal liberty and freedom of expression." 19 That 

not only is tautological—every defiance of state regulation raises 

"serious issues of... freedom of expression"—but also offers carte 

blanche to dress pornography in the trappings of art by hiring 

reputable scriptwriters and directors, adding plot and character, 

attending to "production values," and seeking historical 

verisimilitude. 20 

In any case, aesthetic judgements do not close the enquiry. Some 

artists assault their audience in an effort to demonstrate originality, 

attract attention, and intensify response. The novelist and critic John 

Gardner nicely captured this impulse. 

The man who blows up grand pianos is howled at from every side, 

"Fraud! Not art!" but what counts is that the crowd is there to 

howl, though it may not be there next time. Something happens to 

them as they watch the instrument blown up—some will even 

admit it. They experience a shock of terrible metaphor—"Grand 

pianos are in my way, the whole tradition is in my way, and you 

are in my way: I can say nothing, do nothing, affirm nothing 

because of the piano's intolerable high-tone creamy plinking, 

which you fools adore; I will therefore destroy them, I will destroy 

you all! 21 

Our century has had no shortage of those who aim to shock, from 

Dada through performance art. In 1971 a British court found the 

"Oz" School Kids Issue obscene because it showed a naked Rupert 

Bear having sex with a gigantic Gypsy Granny. 22 At the Newcastle 

festival twenty years later Karen Finley invited viewers to drink red 

wine and spit on the American and British flags. Annie Sprinkle, 

former prostitute and porn queen, performed "Sluts and Goddesses" 

by stripping, douching, dancing, displaying her vagina, and gagging 

88


realistically after simulating oral sex on a row of rubber phaliuses. 23 

That some art shocks does not elevate everything shocking into art. 24 

The invocation of art to justify the harms of speech merely shifts 

debate from an arbitrary boundary to an ineffable essence. We 

certainly can have no confidence in the judgements of contemporaries. 

When Eduard Manet's "Olympia" was first exhibited Theophile 

Gautier sneered: "[l]tcan be understood from no point of view, even 

if you take it for what it is, a puny model stretched out on a sheet. . . 

. Here there is nothing, we are sorry to say, but the desire to attract 

attention at any price." The Salon jury rejected Manet's "Dejeuner 

sur I'herbe," refusing to reconsider at the request of Napoleon III. 25 

The Nazis equated expressionist portraiture with the physiognomy 

of deformed mental patients, labelled Jewish art degenerate to justify 

banning it, and launched a House of German Art and an annual 

Great Exhibition. 26 Most of what the Soviet Union lauded as socialist 

realism remains of interest only to historians. These controversies 

continue unabated. In 1977 a state legislator condemned the California 

Arts Council for supporting a musician who performed underwater 

to entertain migrating whales and composed a piece to 

accompany kangeroo rats dancing in Death Valley. 27 In 1992 

Catalonia's greatest artist, Antoni Tapies, sculpted a 60-foot sock 

with a hole in the heel as the centerpiece of the new National 

Museum of Catalan Art. Although the government was furious, Oriol 

Bohigas, a well-known architect, insisted: "It is Tapies's most important 

work." 28 

Artists resist state regulation not only to preserve their autonomy 

but also because of art's irreducible ambiguity. Leonard Freed 

declared: "The more ambiguous the photograph is, the better it is. 

Otherwise it would be propaganda." 29 John Gardner agreed: "Morality 

is infinitely complex, too complex to be knowable, and far too 

complex to be reduced to any code, which is why it is suitable matter 

for fiction, which deals in understanding, not knowledge." 30 Meaning 

depends on context, yet law decontextualises the determination 

of guilt and liability. 31 Although memory can aggravate or ameliorate 

the hurtfulness of speech, law takes a shallow view of history. It is 

uninterested in the characteristics of the parties, their relationship, or 

the environment within which they interact. It imposes an artificial 

symmetry on the real asymmetries of social life. The film "White 

Men Can't Jump," which unfavourably compared the character and 

athletic prowess of a white basketball hustler with his black counterpart, 

was a commercial and artistic success, but it would no longer 

be acceptable to make a movie entitled "Women Can't Add." 32 

89


How would the law handle a sexual harassment complaint brought 

by Rudolphe against Emma Bovary or by Mildred Rodgers against 

Phillip Carey for his obsessive pursuit in "Of Human Bondage"? 33 

Motive defines the moral content of speech but remains opaque to 

outsiders—and sometimes to the speaker as well. 34 Law's contortions 

in attributing motive produce some of its least satisfactory 

performances: degrees of homicide, actual malice in tort, contractual 

meeting of the minds, undue influence on a testator, landlord or 

employer discrimination, even legislative intent. The historical shift 

from subjective to objective standards is an admission of failure. 

Psychiatric resistance to forcing the nuances of medical diagnosis 

into the legal dichotomy sane-insane should caution us against 

obliterating the subtleties of literary and artistic production and 

criticism by labelling a text pornography or hate speech. Whereas 

mens rea usually aggravates or mitigates heinousness along a continuum 

of culpability, the speaker's motive can render the contemptible 

praiseworthy. Canadian authorities disregarded or 

misunderstood motive when they banned the feminist documentary 

"Not a Love Story" for presenting pornography in order to criticise 

it. 35 "Paris Is Burning" walked a fine line between sympathetic 

portrayal of New York's transvestites and transsexuals and homophobic 

voyeurism. In order to mobilise their co-religionists, British 

Muslims reproduced, translated, and read aloud the most offensive 

passages in The Satanic Verses. Most viewers who condemned the 

racist speech of the Ku Klux Klan and the White Aryan Resistance 

applauded the public television programme in which a panel of 

academics analysed the prosecution of a white racist for killing an 

Ethiopian immigrant in Portland, Oregon. But motives always are 

mixed. On his talk show Geraldo Rivera not only paired the White 

Aryan Resistance with CORE'S Roy Innis but also encouraged Innis 

to assault the racist by shouting "Go ahead, Roy!," then made 

further shows about the fistfight, and allegedly taped yet another 

about Innis and the KKK to augment his audience during the 

television rating sweeps. 36 I cannot vouch for the purity of my own 

motives in choosing a sensational topic for these lectures and spicing 

it with racy examples. 

Were legal regulation to take account of motive, even the 

speaker's stated intent would be inconclusive. American Jews 

accuse Philip Roth of fueling anti-Semitism by disseminating stereotypes; 

feminists identify John Updike, Saul Bellow, and Arthur Miller 

with their chauvinistic protagonists; Muslims heard Rushdie's voice 

in every one of the fantastic creatures who populate the 547 pages of 

90


The Satanic Verses. 37 Each author might have echoed Bret Ellis's 

defence of American Psycho. 

I would think most Americans learn in junior high to differentiate 

between the writer and the character he is writing about. . . . 

Bateman is the monster. I am not on the side of that creep. . . .the 

murder sequences are so over the top, so baroque in their violence, 

it seems hard to take them in a literal context. And there are 

dozens more hints that direct the reader toward the realization that 

for all the book's surface reality, it is still satirical, semi-comic 

and—dare I say it?—playful in a way. 

This did nothing to placate his critics, who despatched 13 death 

threats, containing photographs with his eyes poked out and an axe 

through his head. Los Angeles National Organization of Women 

president Tammy Bruce reiterated her commitment to a boycott. 

"This is not art. Mr. Ellis is a confused, sick young man with a deep 

hatred of women who will do anything for a fast buck." 38 The 

viewers who charged Spike Lee with anti-Semitism in the portrayal 

of two Jewish nightclub owners in "Mo' Better Blues" were equally 

dissatisfied with his retort: "Why is it that there can be no negative 

Jewish characters in films . . . [yet] we have black pimps and black 

drug dealers?" 39 Such philistinism may explain Antoni Tapies's 

refusal to "explain" his 60-foot sock: "I have always felt that works 

of art are like delicate flowers: the more you handle them, the more 

they are harmed. ... I have made 7,000 works of art. I wonder how 

far I would have gone if I had submitted each one to a 

referendum." 40 

Authorship can profoundly shape reader response. When Doris 

Lessing submitted a book manuscript under the pseudonym Jane 

Somers her two regular British publishers rejected it. After Michael 

Joseph published the book, no Lessing authority would read it and 

no serious journal reviewed it. 41 Salvador Dali and Andy Warhol 

represent the opposite extreme, casually valorising the worthless by 

appending their signatures. 42 The speaker's identity similarly affects 

the harmfulness of words. Subordinated peoples neutralise slurs 

through banter within the contemned group, as when African Americans 

"play the dozens." They deflate insults by appropriating them 

as titles, as in the black rap group Niggaz With Attitude or the gay 

activists in Queer Nation, who plastered Greenwich Village with 

posters crying "Queers Be Ready" to protest the homicide prosecution 

of a gay man. Images that would be pornographic become 

91


feminist erotica when crafted by women, as when Judy Chicago's 

"Dinner Party" honoured 39 great women by decorating dinner 

plates with vaginas. 43 A Connecticut casino dressed cocktail waitresses 

as Pocahantas, with feathers in their hair and beaded miniskirts 

slit to the thigh. Imagine the outcy had it been owned by 

Anglos ratherthan Pequot Indians. 44 The difference between thegolliwogon 

the Robertson'sjam jar and a "Black Is Beautiful" doll depends 

not just on the images but also on who produces them for whom. 

Audiences can disagree utterly and unpredictably about the 

meaning of a message. Sexual texts may be particularly open to 

conflicting interpretations, exemplified by the feminist split over 

lesbian sado-masochistic pornography, but political statements also 

permit diametrically opposed readings. Anselm Kiefer, one of the 

first post-war German artists to risk using Nazi symbols, published 

photos of himself giving the Sieg Heil salute in a variety of Roman 

amphitheatres, in a volume ambiguously entitled "Besetzungen" 

(occupations). Germans initially saw him as a Nazi sympathiser and 

have remained wary. But Americans, especially Jews, embraced 

him as an anti-Nazi German, elevating him above Marc Chagall as 

their favourite purveyor of Jewish themes. 45 When the fall of the 

Berlin Wall exposed Hitler's bunker the city's chief archaeologist 

wanted to incorporate it into the new German Parliament being built 

above the site: "It's an important and provocative memory, especially 

for people who will be working in the new ministry buildings. 

It would remind them every day of how evil governments can 

become." But at a public hearing one Berliner said: "This is a 

continuity of history that I don't want. I'm all for honoring the victims 

of Nazism, but this plan sounds like a way of honoring the 

perpetrators." 46 

The relationship between speaker and audience can colour the 

message. The Congregation for the Causes of Saints is said to be 

considering canonising its first African American—a Haitian who 

accompanied his impoverished master to New York after the late 

eighteenth-century slave revolt, cared for and supported him even 

though emancipated, and turned to good works after his master's 

death, tending cholera victims, building an orphanage, and helping 

the poor. Rev. Lawrence E. Lucas of the Resurrection Catholic 

Church in Harlem was contemptuous: "The man was a perfect 

creature of his times. He was a good boy, a namby-pamby, who kept 

the place assigned to him." Princeton religion professor Albert 

Raboteau was equally dismissive: "It calls out the sarcastic, 'Gee, 

thanks for finding us a hero' response." 47 A change in both speaker 

92


and audience can render an otherwise offensive message merely 

silly. Each year thousands of Germans dress up as Indians, Huns, 

Vikings, and Africans for the Cologne pre-Lenten Karneval. Some 

groups call themselves man-eaters, jungle brothers, and cannibals 

and wear blackface. With typical Teutonic thoroughness one man 

visits American Indian reservations every other year to buy artifacts 

and learn more about the culture. "Indians ... say 'You're European. 

Go be Vikings.' They think we're crazy. . . . Hey, I can't help 

it. I just don't dream about being a Bavarian." 48 

Law is the construction of boundaries, which always are over- and 

under-inclusive. But when the state regulates speech, every categorisation 

is a hard case, not just those at the edge. Bans against 

pornography, hate speech, or blasphemy are forced to admit exceptions 

for politics, art, literature, and scholarship that are capable of 

engulfing the rule. Aesthetic criteria are inescapably political. All 

symbols are irreducibly ambiguous. Context, history, identity, 

audience, relationship, and motive can invert the moral quality of 

speech. But law decontextualises, aspires to universalism, and finds 

motive hopelessly elusive. 

///. Confused Consequentialism 

Because utilitarianism is the dominant contemporary justification for 

criminal justice—indeed, the foundation of the modern state—the 

regulation of speech requires consequentialist arguments. 49 Robin 

Morgan gave the feminist campaign against pornography a central 

slogan: "pornography is the theory, and rape the practice." 50 The 

first newsletter of Women Against Violence in Pornography and 

Media cited convicted rapists' recollections of being aroused by 

pornography to argue that "even the most banal pornography 

objectifies women's bodies. An essential ingredient of much rape 

and other forms of violence to women is the 'objectification' of the 

woman." 51 Judith Bat-Ada contended: "Saturation with straightforward 

female sexual stimulus leads slowly but inevitably to the 

need for, and the acceptance of, such things as child molestation, 

incest, and sexual violence." 52 All the empirical research actually 

finds, however, is that exposure to violent images elicits aggresive 

feelings, not acts; and sexualising violence has no independent 

effect. 53 Supporting bills pending in Massachusetts and the U.S. 

Congress (despite the unconstitutionality of the Indianapolis ordinance), 

Catherine MacKinnon argued: 

93


It's for the woman whose husband comes home with a video, ties 

her to the bed, makes her watch, and then forces her to do what 

they did in the video. It's a civil rights law. It's not censorship. It 

just makes pornographers responsible for the injuries they cause. 

Leanne Katz, executive director of the National Coalition against 

Censorship, disagreed: "It negates all that we know about the . . . 

ambiguity of the human animal, and all that we love about the 

complexity of visual images and the written word." 54 Some antiporn 

campaigners buttress fears of rape with solicitude for pornographic 

actors, repeating atrocity stories about women actually 

killed in snuff films. There is no evidence, however, that the 

pornographic film industry is any riskier than mainstream studios 

making horror movies, westerns, war stories, action films, or murder 

mysteries. 55 Furthermore, society glamorises many more dangerous 

occupations, such as ballet dancer, athlete, and police or fire 

officer. 56 Nor does pornography necessarily degrade: some actors 

are exhibitionists who enjoy performing sex in public to excite 

others. 57 

Taking consequentialism seriously would require us to trace the 

harmful effects back to the totality of causes, rather than contenting 

ourselves with those that appear more susceptible to regulation but 

may be less powerful. Because legal proscriptions can entail serious 

penalties they must be framed narrowly, focusing on the aberrant 

extreme: hard core pornography, neo-Nazi hate speech. Indeed, the 

entire regulatory apparatus of the modern state is predicated on the 

dubious strategy of seeking to compensate through intensity of 

punishment for the impossibility of correcting more than a tiny 

fraction of all deviance. But if the evils of pornography are objectification 

and violence, surely the beauty industry is a far greater villain. 

On a randomly chosen day the Los Angeles Times contained nine 

advertisements for weight loss, filling more than three pages with 

photos of women in sexually provocative poses and captions like: 

"Lose Up to 3 Dress Sizes in 10 Weeks," "Body of the '90's," "Now 

I can wear the clothes my skinny sister wears." 58 A study of white 

high school girls found only 22 per cent satisfied with their physical 

appearance—not surprising, given that fashion models are 16-23 

per cent thinner than the average woman. College students are avid 

readers of women's magazines, of which Cosmopolitan has been the 

most popular for 14 of the last 15 years. Almost half said the 

magazines made them less confident, more than two-thirds felt 

worse about their looks, and three-fifths said the magazines hurt 

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Confused Consequentialism 

women. Although all were normal weight, four-fifths had dieted, 

and 10 percent had had eating disorders. Half of all American 

women say they would consider cosmetic surgery. There were 

643,910 such operations in 1990, including 89,402 breast augmentations 

and 109,080 liposuctions. Even (perhaps especially) women 

whose bodies are envied or desired by millions—Cher, Mariel 

Hemingway, and Jane Fonda—have had breast augmentations. As a 

result, the American cosmetic surgery industry earns $300 million a 

year, the cosmetics industry $20 billion, and the diet industry $33 

billion. 59 Advertising also reproduces racial subordination. African 

American women use skin lighteners, which may be linked to 

cancer. These have become popular in Africa, where they contain 

much higher concentrations of the active ingredient, greatly increasing 

the risks. One of the many illustrations of the impaired racial selfimage 

is the preference by darker adoptive parents for lighter 

adopted children—a finding reported in Ebony magazine opposite 

an ad for Vantex Skin Bleaching Creme. 60 

The consequentialist case against speech dates to the early postwar 

decades, when critics blamed rising crime rates on television. 61 

But just as the critique of pornography implicates all advertising, so 

the attack on media violence incriminates movies, comic books, 

and much of literature, including the Bible, Shakespeare's histories 

and tragedies, and Tolstoi's War and Peace. This debate has 

acquired racial overtones as commentators have attributed the 

violent response of some audiences to the content of films by African 

American directors about inner-city life: Ernest Dickerson's "Juice," 

Mario Van Peebles's "New Jack City," and John Singleton's "Boyz N 

the Hood." 62 "New Jack City" star Wesley Snipes regretted the 

violence but disavowed responsibility: "This film is anti-drug, antiviolence 

and anti-fratricide right across the board. If it was the film, 

then why don't we have a melee at each of the 800 plus theaters 

where it's showing?" 63 The producers maintained: 

Some of the films we have made attract black youths. What 

happens when they get together is not the films' fault. They take 

their beefs with them. 

The media has begun a pre-release witch hunt with black films. 

You see cameras setting up outside theaters waiting for violence to 

happen. Sometimes, it's a self-fulfilling [prophecy]. 64 

Just as African Americans have complained that black rappers are 

95


accused of obscenity for saying no more than white performers, so 

they can point to far more violent movies by Bruce Willis, Arnold 

Schwarzenegger or Clint Eastwood. 65 But some black filmmakers 

may be guilty of false naivete. The poster advertising "Juice" 

depicted four young black men with the caption: "Juice. Power. 

Respect. How far will you go to get it?" 66 An independent producer 

who worked on marketing the film commented: "The vocabulary of 

film and television entertainment is dominated by sex and violence. 

To address real social issues in a marketable way, it is hard to avoid 

the reality of that vocabulary." 67 The writer and director of "Boyz N 

the Hood" insisted that the trailer focus on violence: "I wanted that 

action crowd." Had he promoted the film as a story about relationships, 

no one would have seen it. 68 The stakes are high: African 

Americans are twice as large a proportion of movie-goers as they are 

of the population. 69 

Scepticism about sweeping generalisations blaming violence on 

the media does not preclude causation in specific instances. Using 

stringent standards of causality the criminal law of conspiracy holds 

speakers responsible for their words. Parents have sued when their 

9-year-old daughter was raped with a soda bottle a few days after 

television portrayed a rape with a plumber's helper, and when their 

adolescent sons attempted or committed suicide after listening to 

heavy metal recordings by Judas Priest and Ozzy Osbourne. 70 The 

Southern Poverty Law Center won a $7 million judgement against 

the Alabama Ku Klux Klan on behalf of a black woman whose son 

was lynched, and a $12.5 million award against Tom Metzger and 

the White Aryan Resistance for the murder of an Ethiopian immigrant 

by Portland, Oregon skinheads. 71 The sons of a contract murder 

victim won a $4.4 million judgement against Soldier of Fortune 

magazine, through whose advertisement the killer had been hired. 72 

Yet the relationship between life and art usually is too complex to 

reduce to unidirectional causality. At John Gotti's recent trial a taped 

telephone conversation recorded the mobster saying: "He didn't rob 

nothin'. You know why he is dying? He's gonna die because he 

refused to come when I called." One prosecutor said Gotti was 

copying Al Capone in "The Untouchables." A scriptwriter for 

"Married to the Mob" based the protagonist, Tony (the Tiger) Russo, 

partly on Gotti's performance at his 1986 racketeering trial. Dean 

Stockwell, who played Russo, stayed in character off the set: "I 

would get the most extraordinary reactions. Waiters, cabbies, they 

would do anything for me; I was like a king." Salvatore Locascio, the 

son of a Gotti co-defendant in the 1992 sequel, expressed outrage 

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Confused Consequentialism 

when Judge I. Leo Glasser disqualified one of his father's lawyers: 

"This is America; haven't they ever heard of the Bill of Rights? We 

have a Bill of Rights in this country. It's right over there, on the wall. 

Tell them to go over there and read it." One reporter was struck by 

the resemblance to Rod Steiger playing Al Capone in the 1959 

movie: "We have a constitution in this country. The Constitution— 

ever heard of it? I suggest that when you go to your office you read 

it." Joseph Colombo Sr., the capo di tutti capi, agreed to help film 

"The Godfather" if some of his people were hired as extras and the 

words "Cosa Nostra" never were mentioned. James Caan, who 

played Sonny Corleone in the film, spent so much time hanging out 

with Carmine (the Snake) Persico that undercover agents once 

mistook him for the mobster. Henry Hill, a real gangster, whose 

biography was the basis for Martin Scorsese's "Goodfellas," said 

"the dress, the manner, the cockiness—a lot of it comes from the 

movies." When he was growing up, the older neighbourhood 

"wiseguys" "walked round like actors—it was like being a movie 

star." He described the first time he had seen Gotti, 30 years earlier. 

"John was at the card table" and suddenly started beating up a man. 

"I mean there was blood splashing over the walls." Asked if he was 

not confusing memory with a scene in "Goodfellas," Hill replied no, 

it was much closer to "The Untouchables." 73 

Although there may be rare instances in which we can confidently 

locate the genesis of action in expression, the relationship usually is 

far more complex. An image may be stimulus, but it may also evoke 

revulsion, represent fantasy, or offer catharsis. The attribution of 

causality tends to disregard the speaker's moral tone. Life may 

imitate art as often as art imitates life, but each is an improvisation, a 

variation on the other. Were we to take consequentialism seriously, 

we would have to accuse mainstream culture rather than scapegoating 

vulnerable targets on its fringe. 

IV. Perverse Penalties 

Many of the legal system's generic problems are exacerbated when it 

regulates speech. Because formal procedures are costly—to the state 

as well as the parties—law is mobilised only against egregious 

offences. 74 The British Attorney General refuses to prosecute most 

complaints about race hatred, such as the Holocaust revisionist 

pamphlet "Did Six Million Really Die?" or Wing Commander 

Young's fulminations in "Deadlier than the H. Bomb": "Millions of 

97


Negroes and Asiatics have been brought into Britain to pollute and 

destroy our Celtic-Anglo-Saxon race by mongrelisation." 75 The 

severity of sanctions diverts attention away from the heinousness of 

the crime and toward procedural niceties. American death penalty 

litigation offers an extreme example; the electric chair, to paraphrase 

Samuel Johnson, concentrates the mind wonderfully, but on the 

wrong issues. Like prosecutors, juries find legal penalties disproportionate 

to the wrong and rarely convict. 76 Because 1500 reports of 

racial hatred in Austria between 1984 and 1992 produced only 21 

convictions, the government has drastically reduced the minimum 

sentence. 77 Law's glacial pace distorts and diminishes the remedies 

eventually awarded. Nearly five years after a professor allegedly 

began to sexually harass a student the University of Washington 

finally settled a complaint that had consumed hundreds of hours of 

hearings in four separate proceedings. 78 

All regulation encourages evasion, but the very ambiguity of 

speech that makes law such a crude response further facilitates 

evasion. A gamut of poetic techniques is readily available to disguise 

and multiply meanings: simile, metaphor, conceit, personification, 

hyperbole, litotes, synecdoche, metonymy, paradox, and irony. 

Effective advertising cleverly manipulates ambiguity to suggest what 

it cannot or will not declare. A romantically out-of-focus photograph 

of a couple embracing by a fountain iscaptioned: "The Art of French 

Kissing. Pour two glasses of Martell Cognac: one for you and one for 

someone you love. Then proceed to kiss in whatever manner pleases 

you." 79 Similar devices can convey proscribed political messages. 

When General Jaruzelski banned Solidarity, slogans appeared on 

walls, pamphlets, and banners throughout Poland in the distinctive 

script of Solidarnosc. Sympathisers of the PLO, ANC, IRA and other 

outlawed groups express defiance by displaying the colours of their 

organisations. Forbidden songs are given new words or the tunes 

simply hummed. Chinese youths revive memories of Tiananmen 

Square by wearing t-shirts bearing slogans like: "I'm bored" or "I'm 

the emperor." One simply displayed a black cat, elliptically referring 

to an epigram by the discredited 1960s reformer Deng Xiaopeng: 

"It doesn't matter if a cat is black or white. As long as it catches 

mice, it's a good cat." 80 

Commercial speech uses similar strategies to stymie regulation. 

When Quebec outlawed any language but French on outdoor signs a 

billboard advertising a self-storage operation in English sought protection 

as political speech by adding: "Before Bill 101, This Sign 

98

Perverse Penalties 

Was Legal. Vote to Make This Legal Again." 81 In autumn 1991 a fullpage 

advertisement ran in major British newspapers: 

This commercial has been banned from British television. As 

usual, it all comes down to a question of taste. Voice over: "For 

years we had a love affair. We thought it was over. But now 

passions are soaring once again since we discovered the taste of 

... 'I Can't Believe It's Not Butter!'. . . the new spread flavoured 

with buttermilk for that fresh, butter-like taste. High in polyunsaturates, 

low in saturates . . . with virtually no cholesterol." Looks 

innocent enough, doesn't it? Well, believe it or not, our commercial's 

got some people—including a certain food lobby—very hot 

under the collar. 

The next day's variation partly obscured the still-legible word "butter," 

noted that the product could be promoted in the United States, 

and commented: "Now America is the land of free speech. If you 

want to say 'I can't believe it's not butter!' you can come right out 

and say so. ... But not in Britain." 82 

When American television banned all tobacco advertising in 

1971, Philip Morris initiated the Virginia Slims women's tennis 

tournament and R.J. Reynolds launched the Winston Cup auto race. 

They soon had many imitators: Vantage's Golf Scoreboard, Salem's 

Pro-Sail races, Lucky Strike bowling competitions, Winston's rodeo, 

Benson & Hedges ice skating, and Marlboro horse races. In 1988/ 

89, 22 of the 24 major league baseball stadiums displayed cigarette 

advertisements in locations likely to be televised during games. By 

sponsoring the 1986 World Cup in Mexico City, R.J. Reynolds was 

able to erect four 20-foot signs next to the playing field, which were 

seen by the 650 million television viewers. 83 Philip Morris regained 

access to television for the first time in nearly two decades by 

subsidising the National Archives' bicentenary celebration of the Bill 

of Rights. Seeking to identify the right to smoke and to advertise 

cigarettes with civil rights, feminism, and artistic expression, it also 

bought advertisements occupying two-thirds of a page in leading 

American newspapers featuring the head and shoulders of Judith 

Jamison, the black director of the Alvin Ailey American Dance 

Theatre, accompanied by a quote skillfully chosen to imply an 

analogy to smoking: 

If anyone loses even a single right, we risk losing them all. . . . We 

cannot assume that the individual rights spelled out so succinctly 

99


in the Bill of Rights will always be ours to enjoy. We must keep a 

watchful eye, a sharp mind, and most of all, a willingness to 

ensure that everyone is afforded the same freedom. 84 

The producers of blasphemy, pornography, and hate speech are no 

less inventive. Salman Rushdie's parody was sufficiently subtle to 

escape most early reviewers; had he not named the protagonists after 

historical characters his critique of Islam might have passed 

unnoticed and certainly would have gained less notoriety. Pomographers 

portray sex as mutual and call it erotica. Novel technologies 

offer new means of dissemination. When the French government 

launched its electronic conferencing system on Minitel, more than 

20 per cent of the messages were sexually charged. America Online 

invites computer users to meet electronically in a series of public 

rooms—"Naughty Girls," "Romance Connection," "Gay Room"— 

and then adjourn to private rooms for confidential conversations; 

participants can use faxes to transmit sexually explicit photographs. 

Sierra On-Line offers an interactive version of the best-selling aduit 

software program, Leisure Suit Larry, in which participants can 

configure the appearance of their characters and engage in sexual 

adventures with each other. 85 Madonna clothed (or rather exposed) 

her brand of striptease in the mantle of patriotism and civic duty by 

giving rap performances urging young people to register and vote. 

Wearing red panties, bra and combat boots and literally wrapping 

herself in the flag, she incanted: 

Dr. King, Malcolm X 

Freedom of speech is as good as sex. 

We need beauty, we need art 

We need government with a heart. 

Don't give up your freedom of speech. 

Power to the people is in our reach. 

Backed by two flag-waving male dancers in tight shorts and army 

boots, who were paddling her, she warned: "If you don't vote, 

you're going to get a spankie." Although a VFW spokesman 

denounced this as "bordering] on desecration," Madonna's publicist 

boasted that more than 10,000 college students had registered as 

a result. 86 

Racists translate hate into pseudo-science, substituting regression 

analyses for vulgarities. The Nation of Islam has published The 

100


Secret Relationship Between Blacks and Jews, which claims to 

document Jewish responsibility for slavery in 1275 footnotes. 87 

Holocaust revisionists mimic the apparatus and objectivity of scholarship. 

Their deceptively misnamed Historical Review extols the 

academic travesties of fellow travellers: "a truly comprehensive and 

scholarly compendium of primary research that challenges all the 

major orthodox 'Holocaust' claims," "hundreds of critical commentaries 

on the Nuremberg Trials by leading western military men," 

"personal systematic research that culminated in his well-documented 

refutation of the entire Holocaust story." 88 Emulating David 

Duke's sanitised racism, Colorado KKK head Shawn Slater ran for 

city council in a Denver suburb on the slogan: "Equal rights for all; 

special privileges for nobody." "I'm not a white supremacist," he 

claimed, forbidding his followers to use racial epithets or wear Nazi 

insignia. National leader Thomas Robb insisted that the Kian does 

not hate blacks, it just loves whites. 89 In a pamphlet misleadingly 

titled "Jewish Tributes to Our Child Martyrs," Lady Jane Birdwood 

used such "conciliatory tones" to repeat the blood libel that "Christian 

children . . . were crucified, tortured and bled to death all over 

Europe in mediaeval times to satisfy Jewish religious rituals" that the 

Attorney General refused to prosecute. Condemning the Talmud for 

"incitements to hatred of gentiles in general and Christian people in 

particular," which "are still a part of the catechism of Jewish belief 

propounded in Rabbinical colleges the world over," Lady Birdwood 

asked rhetorically: "Could these awful texts have prompted the child 

murders?" She commended Jews for seeking Christian "forgiveness 

and trust" and hoped that "the commemoration was but a first step 

by decent Jews to eradicate the mephitic odours of anti-Christian 

hatred which waft through the writings of their ancestral 'learned 

sages' . ..." A reader of this pamphlet would be surprised to 

discover that the events she described as "an unprecedented display 

of Jewish contrition and humility" for a "mass suicide of Jews" 

actually were an apology by Christians for the massacre of hundreds 

of Jews 800 years ago. 

Commercial speakers have perfected the strategy of hiding their 

profit motive behind a hypocritical attachment to principle. The 

tobacco industry is notorious for pretending to defend freedom 

rather than sell poison. In October 1991 it placed daily full-page 

advertisements in many British papers, beginning with a quotation 

attributed to St. Augustine: "Hear the Other Side." 

When fundamental freedoms are at stake it's particularly vital to 

101


hear the other side. ... In a judgement delivered at the end of 

July, a Canadian court ruled that there was no proven connection 

between tobacco advertising and overall tobacco consumption. 

And no proof that banning advertising reduces consumption. In 

fact, the Court struck down Canada's tobacco advertising ban as 

"a form of censorship and social engineering which is incompatible 

with the very essence of a free and democratic society." 

The ad neglected to mention that the judgement is on appeal. A 

week later the industry raised the spectre of Puritan intolerance, 

quoting Cromwell: "Not what they want but what is good for them" 

and adding: "there's something inherently anti-democratic in 

imposing upon people your view of what's best for them." A third ad 

invoked Juvenal: "Let my will replace reasoned judgement" and 

sought to inflame British resentment against Eurocrats: "That's not 

fair or democratic. But that seems to be Brussels' view when it comes 

to tobacco advertising." 91 

With considerably less sophistication, racists have presented 

themselves as champions of free speech victimised by state oppression. 

We saw earlier how the National Socialist Party of America 

shifted public debate from the hatefulness of its message to its 

constitutional right to march in Skokie. Tom Metzger of the White 

Aryan Resistance insists: "I believe everything I publish is protected 

by the First Amendment." 92 Justifying the invitation of Holocaust 

revisionists to a conference, the head of a black Los Angeles group, 

declared: "It's time we hear all sides of this thing of holocausts. And 

that is what the 1 st Amendment is all about. . . ." 93 The revisionist 

California Institute for Historical Review bought advertisements in a 

number of university student newspapers under the heading "Committee 

for Open Debate on the Holocaust." 94 Electoral politics also 

offers a protected arena. IRA members otherwise silenced by British 

television can speak as political candidates. 95 Well before George 

Bush's 1988 campaign ad featured a rape by a black prisoner on 

weekend leave, the British National Party used elections to propagate 

racism. A candidate for the Loughton, Essex local council 

pictured a 75-year-old white woman "savagely beaten by two young 

black thugs who raided her flat in Brixton." The Tower Hamlets 

branch condemned "Asian racial violence directed at the white 

community" and warned: "The Moslems are taking over our East 

End." 96 

If state regulation of speech were merely ineffective it might be a 

harmless diversion. But punishment can be positively perverse. Civil 

102


litigation over defamation or invasion of privacy typically pits celebrities 

against the tabloid press in a battle each side both wins 

(publicity and circulation) and loses (reputation, emotional distress, 

and money). 97 Just as women are raped twice—the second time by 

defence counsel—so speech victims may suffer more from the 

repetition, elaboration, proof, rebuttal, and publicity of the trial. 

Indeed, only the legal regulation of speech reenacts the crime 

verbatim, usually before a much larger audience. Bill Roache, who 

played Ken Barlow on "Coronation Street" for 31 years, sued The 

Sun for a centre-page article entitled "Boring Ken was girl-crazy 

stud," which portrayed him as smug, boastful, wooden, lucky not to 

have been fired, a joke to scriptwriters, and universally hated by the 

cast. Roache testified: "I felt humiliated and so embarrassed that I 

didn't want to see people or talk about it"—but of course he did both 

in the courtroom. Although he had disregarded certain accusations 

to spare his wife, newspapers covering the trial reported in salacious 

detail his alleged one-night stand with the iate Pat Phoenix and his 

"seduction" of Jennifer Moss on the floor of his house after a party. 

Full of emotion, Roache reproached The Sun's counsel "for behaving 

like The Sun. I didn't bring this [up] . . . and I don't see why I 

should have to go through it." Awarded £50,000 and costs estimated 

at £200,000, Roache complained "We've been through hell 

and back." The Sun's legal officer was unrepentant: "We offered Bill 

Roache £50,000 about a month ago. He could have had an apology 

and could have had his costs paid. I think he has been through this 

last week's ordeal ... for little or no reason." 98 

Even when legal regulation does not court evasion or aggravate 

harm it constructs and encourages deviance. Ever since the Edenic 

myth we have known that prohibition arouses desire. 99 Iran has 

banned all videotapes except children's cartoons, and the Force to 

Combat the Corruption of Society confiscated more than 20,000 

unlawful tapes in Teheran in a seven-month period, but Iranians still 

can buy anything, including hard-core porn. 1 Regulation confers 

moral salience. Skinheads flaunt swastikas; German youth sing 

"Deutschland iiber Alles," wear Nazi insignias, and give the Sieg 

Heil salute; the KKK dresses in white hoods and burns crosses—all 

because the state response evidences public outrage. The editor of 

the National Front Bulldog challenged the government to prosecute 

him, warning that otherwise "we will print a special victory issue 

. . . with even more racialist articles." True ideologues welcome 

punishment as martyrdom, which can only enlarge their entourage. 

After losing his house to satisfy a $12.5 million damage award for 

103


inciting skinheads to murder a black immigrant, White Aryan Resistance 

leader Tom Metzger vowed to continue his racist 

propaganda. 3 

Punishment confers visibility. 4 Frank Collin and his pitiful band of 

neo-Nazis would have languished in obscurity had Skokie not tried 

to stop them from "marching." When the KKK demonstrated at the 

Colorado statehouse to vilify Martin Luther King's birthday as a "Day 

of Infamy for America," 400 police had to protect the hundred 

Klansmen from a thousand opponents, who fought the cops and 

trashed nearby stores, producing extensive media coverage. The 

state Klan leader welcomed the incident as "a million dollars worth 

of publicity." Each weekend, when Klansmen drop The White 

Patriot and other racist literature on residential doorsteps, "somebody 

usually gets mad and makes a few calls. And bingo! We're 

back on television." 5 Sentenced to six months imprisonment for 18 

counts of racist slander on the Stockholm Community radio 

network, Ahmed Rami emulated Hitler's Mein Kampf by writing a 

500-page book about his persecution, entitled "Jewish Witch-Trial 

in Sweden." 6 Jean-Marie Le Pen and the National Front gained 

publicity and even sympathy during regional French elections when 

demonstrators prevented their plane from landing, mayors banned 

their gatherings, and police disrupted marches. 7 

Black rappers have capitalised on the repression of their outrageous 

lyrics. When 2 Live Crew were prosecuted for obscenity after 

performing at a Florida nightclub, group leader Luther Campbell 

used the trial to promote their next video, soon to be premiered on 

MTV: "It's about how 2 Live Crew gets punished and sent to Cuba 

and Castro is waiting for them." Sales of the album on which their 

nightclub act was based had peaked at 1.2 million until bom-again 

Miami lawyer Jack Thompson began a campaign against it, sending 

copies of the lyrics to Florida Governor Bob Martinez and the sheriffs 

of 65 counties. Sales promptly jumped to 2 million. Broward County 

Sheriff Nick Navarro—nicknamed "Prime Time" for his frequent 

media appearances—put undercover deputies on the case. The 

rapper and the sheriff appeared on Geraldo Rivera's television talk 

show, while Phil Donahue paired the rapper with the Christian 

lawyer. 2 Live Crew responded with a new album, "Banned in the 

USA," described as "a rap ode to the First Amendment." 8 The lyrics 

of Ice-T's "Cop Killer," recorded a year before the Rodney King 

beating trial, seemed to foreshadow the Los Angeles riots: "I got my 

12-gauge sawed off/I got my headlights turned off/I'm 'bout to bust 

some shots off/I'm 'bout to dust some cops off." After the worst civil 

104


disturbance in twentieth-century American history the Combined 

Law Enforcement Association of Texas, the Los Angeles Police 

Protective League, and the Fraternal Order of Police declared a 

boycott of the record. A Latina Los Angeles city councillor running 

for Congress urged Time Warner to withdraw it and local radio 

stations to stop playing it. The California Attorney General wrote to 

the executives of 18 record chains. The Houston city council 

denounced the lyrics. Three record store chains with more than a 

thousand outlets pulled the song. Ice-T bristled: "What they're really 

trying to do is shut down my platform. They do not want to let me be 

able to speak to the masses. ... I'm going to talk about this record 

on the next record." Predictably, the campaign had the opposite 

effect. Sales jumped 60 per cent in Los Angeles, 100 per cent in 

Austin, San Antonio and Dallas, and 370 per cent in Houston; the 

album climbed from 62nd to 49th on the charts, selling 330,000 

copies in 17 weeks. Ice-T sold out a live performance in Los Angeles. 

When he unexpectedly withdrew the song six weeks after the 

controversy began, to prove he was not motivated by profits, there 

was a run on the 150,000 unsold records. He continued to maintain 

that "Cop Killer" "is not a call to murder police. This song is about 

anger and the community and how people get that way." 

V. Conclusion 

Governmental bans on speech suffer the problems common to all 

state regulation and some that are unique. Law dichotomises experience, 

rupturing its inherent continuities. Boundaries are arbitrary 

and therefore indeterminate. It is impossible to distinguish unlawful 

speech from the routine opportunism of politicians pandering to 

popular prejudice: an Enoch Powell, Jean-Marie Le Pen, Patrick 

Buchanan, David Duke, Dan Quayle, or George Bush emphasising 

the "costs" of immigration, calling for "law and order," depicting 

AIDS as divine retribution, attacking racial quotas, or extolling 

family values. Legal distinctions elevate form over substance: sceptics 

may attack religious belief as long as they do not mock the 

believer; filmmakers may exploit sex if they portray the behaviour as 

mutual or add an artistic veneer; racists and anti-Semites can indulge 

their hatred in the language of pseudo-science or history. 

Legal efforts to regulate speech founder on the ineradicable 

ambiguity of meaning. The significance and moral valence of symbols 

vary radically with speaker and audience and can reverse 

105


rapidly, even instantaneously, like the optical illusion that flips 

between a vase and two profiled faces. Whereas circumstances only 

aggravate or mitigate the heinousness of other crimes, they can 

transform speech from abhorrent to commendable and vice versa. 

Subordinated groups play with their stigmata in order to neutralise 

them; lesbians enjoy erotica that would be pornography if produced 

or consumed by men. Legal formalism aspires to a universalism that 

must willfully ignore context, as illustrated by the prosecution of 

British black power advocates under the 1965 Race Relations Act. 

Yet law's attempt to frame exceptions encounters great difficulty in 

dealing with black anti-Semitism, minority homophobia and misogyny, 

and female racism. Although the moral quality and hurtfulness 

of symbols depend on the creator's motive, this is singularly 

difficult to discern. Author or critic may insist that extreme misogyny 

turns into parody, as Bret Ellis protested about his novel American 

Psycho and Henry Louis Gates Jr. said of 2 Live Crew. And even the 

best intentions may only mitigate, not excuse. The equally pivotal 

audience response is unpredictable, divided, and fickle. The history 

of art, literature, politics, religion, morality, and even science 

should inspire healthy scepticism about the durability of contemporary 

judgements. 

The severity of legal remedies can be justified only by exaggerating 

the consequences of speech, but consequentialist reasoning is 

fatally flawed. Causation is complex and the responsibility of speech 

unsubstantiated. All audiences actively engage in interpretation and 

criticism—even young children seemingly mesmerised by television 

cartoons. Preoccupation with the extremes—which alone provoke 

sufficient outrage to mobilise the political support necessary for 

prohibition—diverts attention from the quotidian—which inflicts far 

greater harm. Hard-core porn and neo-Nazi ranting contribute 

much less to reproducing attitudes toward race, ethnicity, gender, 

and sexual orientation than do the mass media, advertising, popular 

culture, political rhetoric, childrearing practice, education, and 

religion. But legislators and judges openly refuse to confront modal 

behaviour. 

If the consequences of speech are too indeterminate to justify 

punishment, the effects of punishment are positively perverse. The 

severity of legal punishment, combined with uncertainty and disagreement 

about the moral quality of speech, make prosecutors 

reluctant to charge, juries unwilling to convict, and judges hesitant 

to punish. Formal law diverts attention from the content of speech to 

the procedures used to suppress it, delaying the outcome and 

106

Conclusion 

thereby distorting and diminishing the impact of legal remedies. The 

ambiguity of symbols facilitates evasion, allowing speakers to cloak 

their motives in the garb of art, science, or politics—forms that law's 

literalism cannot penetrate. Regulation may fail most when it 

appears to succeed. Because speech is the offence, a repeat performance 

at trial aggravates the injury. The greatest perversion, however, 

is that law, far from silencing harmful speech, rather encourages, 

valorises, and publicises it, transforming offender into victim and 

offence into romantic defiance. 

Notes 

1 Except where otherwise noted, my source is Cordon (1982: 1-22). For 

documentation of racial hatred, abuse, and violence, see Lawrence 

(1987); Waller (1981/82); Hytner (1981); Gordon (1990a); Klug (1982; 

1988); Hiro (1971); Tompson (1988); Bethnal Green (1978); Gilroy 

(1987); Macdonald et al. (1989); Gifford et al. (1989); Brown (1984); Hall 

(1985); CRE (1984; 1987; 1988a); GLC (1984a; 1984b; 1984c; 1984d; 

1984e); Layton-Henry (1984); Pulle (1973). Scotland Yard recorded 3373 

incidents of racial assault or abuse in London in 1991, 16 per cent above 

the previous year. Civil rights groups reported 6459 in England and Wales 

in 1990, up a third since 1988. New York Times (August 20, 1992). On 

racial attacks throughout Europe, see European Parliament (1985); 

Searchlight. 

2 House of Commons Debates, vol. 711, col. 940 (May 3,1965), quoted in 

Dickey (1968: 490). 

3 The Times (December 22, 1966), rev'd, (1967) Q.B. 51 (GBM leaflet); 

The Times (January 26, 1967) (Colin Jordan). 

4 Home Office (1975). 

5 Daily Telegraph (July 25, 1978). 

6 Daily Telegraph (October 31, 1978). 

7 Home Affairs Committee (1980). 

8 Green Paper (1980). 

9 We saw in the second chapter that Henry Louis Gates Jr. defended 2 Live 

Crew as self-parody. Fiske (1989) has offered a similar reading of Madonna's 

sexual stereotypes. 

w Jacobsonv. U.S., 118 L.Ed.2d 174 (1992); New York TimessA p.8 (April 

19, 1992). 

11 New York Times s.4 p.4 (January 19, 1992). 

12 On the history of blasphemy, see Jones (1980); Webster (1990). 

13 Steinem (1980: 37); see also Longino (1980). On the difficulty of 

bounding pornography, see Barthes (1976); Sontag (1982). For the 

dismal history of the American attempt, see deGrazia (1992); on Britain, 

see Barker (1984). Responding to criticism of rap lyrics, 67 record 

companies took a full page ad citing examples of earlier bans: Cole 

107


Porter's "Love for Sale" (1940), The Doors' "Unknown Soldier" (1968), 

Neil Young (criticised by Vice President Spiro Agnew 1970), Bob Dylan 

(banned 1971). Los Angeles Times F? (July 17, 1992). Sholem Asch's play 

"God of Vengeance" was banned in New York in 1923. New York Times 

s.2 p.6 (October 18, 1992). A Japanese court banned Nagisa Oshima's 

"In the Realm of the Senses," although it could not define obscenity. 

Oshima (1992); New York Review of Books 40 (October 8, 1992). 


15 Matsuda (1989: 2357, 2367). How would she deal with a Hebrew 

translation of Mein Kampft Shocken Books refused the project: "we 

suffered too much as a result of this man and this book, and should not 

perpetuate his ideas." So did Yad Vashem (the memorial to Holocaust 

victims) because "it still is emotionally difficult." The translator, an 

Austrian Jew who fled the Nazis and whose parents were killed in the 

camps, persisted despite a dozen rejections. "It's a sad episode but a 

historical fact, and the younger generations must know what really 

happened and why. You have to know who your enemy is and what he 

is." Akadamon ultimately printed 400 copies of an annotated version of 

one-fifth of the original book, in plain black and white covers without 

illustrations. New York Times B2 (August 5, 1992). 

16 Eysenck (1971); Jensen (1969); Herrnstein (1971); U.S. News & World 

Report (1965). For a critique of racist biology, see Gould (1981). Shockley 

was a physicist who donated his sperm to a Nobel-prize winner sperm 

bank and won a $1 damage award for defamation when his racist theories 

were challenged. National Law Journal 6 (September 24, 1884), 8 

(October 1, 1984). 

At City University of New York, philosophy professor Michael Levin 

has written articles for academic journals contending that "there is now 

quite solid evidence that . . . the average black is significantly less 

intelligent than the average white." Levin v. Harleston et al., SDNY 90 

Civ 6123 (KC) (September 4, 1991); Rohde (1991). On the other side, 

Black Studies chair Dr. Leonard Jeffries Jr. has called Europeans "ice 

people"—materialistic and intent on domination—in contrast with the 

humanistic "sun people" of African descent. He claims that extra melanin 

gives blacks intellectual and physical advantages. Chronicle of 

Higher Education A4-5 (September 25, 1991), A19 (November 6,1991), 

A19 (February 5, 1992); New York Times A13 (April 20, 1990), A18 

(March 27, 1992). Within the "Afrocentric" movement Michael Bradley's 

The Iceman Inheritance: Prehistoric Sources of Western Man's 

Racism, Sexism, and Aggression argues that whites are so vicious 

because they are descended from brutish Neanderthals, of whom Jews 

are the "purest" example. It was recently reissued with endorsements 

from two members of the City University Africana Studies Department. 

New York Times A13 (July 20, 1992) (op ed). Bradley purported to rely on 

Carleton Coon, whose The Origin of Races (1962) has been exposed as 

108

Notes 

unscientific and wrong. New York Times 14 (August 29, 1992) (letter to 

the Editor from Ashley Montagu, August 15). 

How would Matsuda distinguish between The Satanic Verses and the 

long tradition of debunking religious belief, e.g., Fox (1992); Wilson 

(1992). 

17 

The Harvard Lampoon produced a parody of the May 1992 issue of the 

conservative Dartmouth Review, substituting it for the real thing at 

campus distribution points. A fictitious editorial writer apologised for the 

Review's gaffe of quoting from Mein Kampf'm a 1991 issue while hailing 

the Fuhrer's "rhetorical flair unsurpassed in German literature since 

Nietzsche." A "Spring Fashion" section showed Hitler posing in the 

woods in preppy attire. The Dartmouth administration refused the 

Review's request to condemn the Harvard prank. New York Times B8 

(May 13, 1992). 

18 

The Ku Klux Klan used to march openly on Long Island in the 1920s, 

winning popularity contests at county fairs. The trophies it awarded 

volunteer fire departments remained on display in the fire houses for 70 

years. They disappeared only when black community groups sought to 

integrate the departments in 1992. White firefighters were surprised at the 

outrage their retention provoked. New York Times A13 (August 11, 

1992). 

19 

Quoted in Edwards (1991). The language is strikingly similar to Rushdie's 

open letter to Rajiv Gandhi, quoted in Chapter One. 

2O 

Kappeler(1986:83). 

21 

Gardner (1978: 170). 

22 

Guardian 27 (November 9,1991) (the verdict was overturned because the 

judge overreached in summing up). 

23 

Guardian 33 (October 10, 1991). 

24 

Pop star Marky Mark dedicated his recent book to his penis and opened 

with a frontispiece picturing him holding it. New York Times B2 (September 

28, 1992). Madonna's MTV teaser for her single "Erotica" and 

$49.95 picture book Sex showed her with eyes masked, dressed in 

leather, being ridden like a horse; pulling the reins of bondage boys; and 

in a lesbian love scene and a menage a trois—all shot in grainy black-andwhite 

reminiscent of snuff films. The "Erotica" album comes in a "adult" 

version with a parental advisory sticker. The track "Where Life Begins" 

celebrates her pleasure in being orally gratified. Los Angeles Times F4 

(October 5, 1992); New York Times s.2 p.28 (October 18, 1992). 

25 

Friedrich(1992). 

26 

Paintings bore titles like "Insults to German Womanhood" and "Nature 

as Seen by Sick Minds." Opening the 1937 exhibition in Munich, Hitler 

called for the imprisonment or sterilisation of artists who continued the 

"practice of prehistoric art stutterings." New York Times B3 (March 5, 

1992); The New Yorker 32 (October 5, 1992). See also Peter Cohen's 

documentary movie "The Architecture of Doom" reviewed in Los 

Angeles Times F14 (March 27, 1992). 

109


27 Svenson(1982: 207). 

28 New York Times B1 (March 24, 1992). 

29 Fried (1991); Guardian 25 (November 21, 1991). Sally Mann's photographs 

of her children (7, 10, and 12 years old) are a perfect example 

(1992). They appear nude, poor, and abused but insist they enjoy posing 

for her. A psychologist found them "well adjusted and self-assured," Ms. 

Mann gave them a veto, which they exercised against some pictures: 

"They don't want to be geeks or dweebs," she said, but "nudity doesn't 

bother them." Some of the most troubling pictures—"The Wet Bed," 

"Jessie Bites"—are posed reconstructions. Mann says she would stop if 

she thought she were harming them. "I don't think of my children, and I 

don't think anyone else should think of them, with any sexual thoughts. I 

think childhood sexuality is an oxymoron." A Cardozo Law School 

professor maintained: "There isn't the slightest question that what she's 

doing is art ..." But religious conservatives have sought to close her 

shows, and a federal prosecutor warned her against exhibiting some 

photos and urged her to look out for strangers who see them and 

ingratiate themselves with the family. New York Times Magazine 29 


30 Gardner (1978: 135). A Stasi officer once shouted at the East German 

writer Lutz Rathenow: "I forbid you to write poems with double meanings! 

Also poems with triple meanings! We have experts who can 

decipher everything!" Kinzer (1992: 50). 

Should the ambiguity of art protect Andres Serrano's "Piss Christ" (a 

crucifix submerged in the artist's urine), "Stigmata" (a nude female with 

white leather cuffs and bloodied hands), "Cabeza de Vaca" (a calf's head 

on a pedestal but also the name of a 15th century Conquistador), 

"Heaven and Hell" (a cardinal turned away from a bloody nude woman 

whose hands are bound and head is flung back), "Ejaculate in Trajectory" 

(self-explanatory), and the "Red River" series (close-ups of sanitary 

pads)? Serrano "explains": "I've always had trouble seeing things as 

black or white. I've always accepted that duality in myself. My work is a 

reflection of it." Lippard (1990). 

31 Abel (1973). 

32 An American Indian recently entitled an article "White Men Can't 

Drum," complaining (humourously) about the appropriation of his people's 

culture and symbols by the fringe of the men's movement that seeks 

to recapture manhood in the wilderness. New York Times Magazine 30 

(October 4, 1992). 

33 Perhaps with humour. A cartoon in the inaugural issue of The New Yorker 

under the editorship of Tina Brown (formerly of The Tatler and Vanity Fair) 

shows a man walking by a construction site, from which four women 

workers taking a coffee break give wolf whistles and yell catcalls like "Yo! 

Nice Butt!" "I think I'm in love!" and "Looking for me, Sweetie?" The 

New Yorker 114 (October 5, 1992). 

34 Ellen Burstyn and the entire cast of "Shimada" protested that the critics 

110

Notes 

saw only the surface, literal aspects of the play. We were shocked and 

stunned that they had missed what the play was about, that it was 

designed to stimulate questions, not give easy answers, to encourage 

people to look at their own prejudice, the old wounds on both sides. 

. . . please do not impugn our honor by calling us prejudiced when we 

employ our God-given gifts to tell our deepest truths about the moral 

failure of prejudice. 

New York Times A18 (May 8, 1992) (letter to The Editor, April 26). 

35 Lacombe (1988); King (1985); Callwood (1985). 

36 Los Angeles Times F1 (February 5, 1992). In August, Rivera taped a Klan 

rally in Wisconsin. When Klansmen started calling him spic and dirty Jew 

and throwing things he fought back and was arrested but secured his 

release from jail in time to film the cross burning. Los Angeles Times A12 

(August 17, 1992). 

What was the motive of Bill Buford (expatriate American author and 

Cranta editor) in hanging out with British neo-Nazis and writing "objectively" 

about their thuggery? Buford (1992a; 1992b). Or the Weekly Mail, 

South Africa's prize-winning progressive paper, in publishing an article 

entitled "Too Many Tits, Not Enough Text" illustrated with four pictures of 

topless women, ostensibly to criticise the government's hypocrisy in 

banning the local porn magazine Scope while admitting its American 

competitor Penthouse. Weekly Mail 6 (September 4, 1992). 

37 "How can one possibly accept that a writer could distance himself from 

the words his characters speak? Indeed, how can he not be responsible for 

his entire representation?" Bharucha (1990: 64). This commentator is an 

Indian drama critic. 

38 New York Times B1 (March 6, 1991); Edwards (1991). 

39 Los Angeles Times F6 (February 26, 1992). 

40 New York Times B1 (March 24, 1992). 

41 Lessing(1984: vii-xii); Kappeler (1986: 125-26). 

42 80 years ago Marcel Duchamp "found" art, transforming ordinary objects 

into "ready-mades" by appending his signature. In the overheated art 

market of the 1980s, identity was the philosopher's stone. Salvador Dali's 

lobster-claw telephone sold for $110,000 in 1988; one of Joseph Beuys's 

100 identical felt suits for $75,360 in 1989; and in November 1991 Dan 

Flavin's diagonal fluorescent light commanded $148,500 and Jeff Koons's 

vacuum cleaners in plastic boxes $198,000. In February 1992 auctioneers 

expected to get $50-60,000 for Willem de Kooning's five-hole privy 

seat and $80-120,000 for Robert Gober's pair of urinals. New York Times 

s.2 p.37 (February 23, 1992). 

43 Kappeler (1986): 39) citing English (1980). See also Kensington Ladies' 

Erotica Society (1984); Barbach (1984; 1986); Chester (1988); Scholder 

& Silverberg (1991); Grace (1991); Kiss & Tell (1991); Shepherd (1992); 

Gordon (1984). 

In-group membership does not guarantee immunity from criticism. 

When the Israeli rock group Duralex Sedlex accepted an invitation to 

111


Poland, hoping to play the song "Zyklon B" at Auschwitz to symbolise 

Jewish survival, many Israelis protested. One Auschwitz survivor found 

this "a desecration of the memory of the victims." New York Times B2 

(August 5, 1992). 

44 

New York Times A8 (January 29,1992), s. 1 p. 15 (February 16,1992); Los 

Angeles Times El (February 21, 1992). 

45 

Flam (1992). The prestigious Documenta IX exhibit in Kassel removed 

four of the five paintings by Filipino-American artist Manuel Ocampo 

because they contained swastikas, although he denied advocating fascism 

and claimed they were an ancient mystic symbol. Los Angeles 

Times F8 (June 15,1992). Soon thereafter the Galerfa Otra Vez at a Latino 

art centre in Los Angeles removed Ocampo's "Vade Retro"—a cartoonish 

black man with gigantic genitals urinating on the cross—from its 

"Monster! Monster?" exhibit for the Columbus quincentennial. The 

gallery refused Ocampo's offer to post a statement explaining his intentions. 

Los Angeles Times F1 (October 10, 1992). 

Two Columbia College seniors argued strongly that "Batman Returns" 

was anti-Semitic. New York Times A17 (July 2, 1992) (op ed). 

46 

New York Times A5 (February 29, 1992); Los Angeles Times A3 (July 25, 

1992). 

47 

New York Times s.1 p.1 (February 23, 1992). 

48 

Los Angeles Times E1 (January 28, 1992). 

49 

For consequentialist justifications for regulating hate speech, see Riesman 

(1942); Delgado (1982); Matsuda (1989: 2327). When Goethe published 

The Sorrows of Young Werther in 1774, a fictionalised account of his own 

love triangle, some communities banned it, blaming it for several suicides 

that followed. New York Times B1 (August 7, 1992). 

Roger Coggan, director of Los Angeles Gay and Lesbian Community 

Services, deplored the threefold increase in attacks on gays and lesbians 

between 1989 and 1991 and blamed California Governor Pete Wilson's 

veto of AB101, which would have outlawed employment discrimination 

against gays and lesbians. "The veto . . . sends a message that gays and 

lesbians are not entitled to basic government protection. It's a message 

that fans the flames of gay-bashing and bigotry." Los Angeles Times B1 

(January 23, 1992). 

During his first bout as presidential candidate, Ross Perot followed the 

dubious lead of Dan Quayle by attacking a "Doogie Hawser" episode in 

which the eponymous character and his girlfriend, both 18, lost their 

virginity. "Some 15-year-old girl that's been thinking about it hadn't done 

it yet. 'Hell, Doogie's girl did it. It must be all right.' " New York Times A9 

(June 8, 1992). 

50 

Morgan (1977: 169). 

51 

Russell and Lederer (1980: 24-26). 

52 

Lederer(1980d: 122). 

53 

Childress (1991). It is more plausible that tolerating pornography increases 

its prevalence. Porn stars are appearing in mainstream films (Traci 

112

Notes 

Lords in "Crybaby") and as fashion models (Jeff Stryker for Thierry 

Mugler). Madonna has persuaded model Naomi Campbell and rap star 

Vanilla Ice to pose for Sex, her erotic coffee table book. Comedian 

Sandra Bernhard posed for Playboy. Vanessa Williams, the black 1984 

Miss America who was forced to resign when nude photos were published, 

made the cover of McCall's magazine. Even the notorious Koo 

Stark appeared at Leo Castelli's table at the 35th anniversary party for his 

trendy art gallery at Industria. New York Times B4 (May 11, 1992). The 

success of "Basic Instinct" has produced a rash of imitative erotic 

thrillers: "Caged Fear," "Sunset Heat," "Fatal Instinct," "Animal 

Instincts," and "Red Shoe Diaries." New York Times B5 (October 8, 

1992). But when hard-core porn star Amber Lynn participated in the 

Youth AIDS Foundation of Los Angeles fund raiser, advisory board 

members Tori Spelling ("Beverly Hills, 90210") and Corin Nemec 

("Parker Lewis Can't Lose") discovered they had other engagements. 

New York Times B2 (August 31, 1992). 

Violent behaviour among children is correlated with the number of 

hours they watch television but not with programme content, suggesting 

that the causal link may be deprivation of play or failure of parental 

discipline. Winn (1985); New York Times s.4 p. 16 (August 9, 1992) 

(letter to The Editor by Winn, July 31). 

54 New York Times s.1 p. 10 (March 15, 1992). 

55 The deaths in the filming of "The Twilight Zone" did not shut down 

television, or even end that show. 

56 Burstyn (1985b); Gordon (1983); New York Times A18 (August 12, 1992) 

(letters to The Editor from two women doctors about the effect of 

gymnastics on women: delay or suspension of menses, early osteoporosis, 

stress fractures, and chronic pain). 

57 Stoller (1991); L. Williams (1989); Delacoste & Alexander (1987). In both 

D.H. Lawrence's Sons and Lovers and Philip Roth's Goodbye Columbus 

lovemaking couples court discovery to heighten erotic pleasure. Clive 

Seeker, 27, and Amanda Broomfield, 25, stripped naked and had sexual 

intercourse in daylight on a roundabout in Frame, Somerset. Both said 

they had dared the other. Seeker is the son of the former mayor of Frame. 

Guardian 2 (November 22, 1991). 

What should one make of San Francisco's "modern primitives," who 

engage in "body modification" or "body play," subjecting themselves to 

enormous pain for their own pleasure? Nikki Chandle explains: "Every 

tattoo and every piercing signifies some pain I have experienced in my 

life. Piercing is just like life. It hurts. It heals. And then you live with it. 

Forever." Christine S. adds: "I'm a masochist, so I'm really into the pain of 

it. With piercing, when the needle is going through, it's agonizing. You 

get an incredible rush ofendorphins. You feel like God's daughter." At the 

DNA lounge on lower Haight, "Fakir Musafar" (formerly Roland Loomis 

of Aberdeen, South Dakota) hangs from hooks inserted in holes through 

his nipples. Marchand (1992). Such activities are going mainstream. 

113


Universal Studios in Florida is considering showcasing the Jim Rose 

Circus sideshow at Halloween. Rose swallows razor blades, lies on a bed 

of nails, and hammers spikes into his nose. Mr. Lifto hangs heavy objects 

from his pierced nipples, while the Torture King puts pins through his; an 

ageing dwarf feeds live slugs to the Sword Swallower, while Matt (The 

Tube) Crowley drinks several quarts of beer, chocolate sauce and ketchup 

through a tube in his nose and then regurgitates the mixture. Fans queue 

for front-row seats to see the tears in Mr. Lifto's eyes. New York Times B4 

(June 15, 1992); Los Angeles Times E1 (September 1, 1992); cf. Bogdan 

(1988). 

58 Los Angeles Times Kb, A8, A10, A12, A14, A17, A18, A19, A22 (March 

25, 1991). 

59 Implants enhance the attractiveness of breasts to men while eliminating 

them as a site of female pleasure. Wolf (1991); Faludi (1991); New York 

Times A1 (February 6, 1992); Los Angeles Times E1 (August 18, 1992); 

254(5) The Nation 155 (February 10, 1992). To reduce sexual harassment, 

women in the U.S. Navy have adopted the opposite strategy, 

gaining weight, eschewing makeup, and wearing uniforms several sizes 

too large to make themselves unattractive. Los Angeles Times A1 (February 

10, 1992). On the role of advertisements in constructing gender 

images, see Goffman (1976); Steele (1985: 65-67); Goldman (1992). 

Male bodies are being similarly fetishised. A Los Angeles bookstore 

reported a 25-30 per cent increase in sales of health and fitness books to 

men in 1991. Male celebrities in People magazine have waists under 30 

inches. The head of the men's division at LA Models explained: "Ultimately, 

we're selling sex, and women like to see men with nice bodies, 

broad shoulders, and the V-shape." The proportion of cosmetic surgeries 

performed on men has increased from 5 per cent a decade ago to 20 per 

cent today. They include hair, calf, and pectoral implants, chest-hair 

dying, and face patterning. Men's cosmetic sales now total $2.5 billion. 

More male anorexics and bulemics are seeking treatment. Glassner 

(1993); Los Angeles Times E1 (August 7, 1992). 

60 New York Times B7 (February 26, 1992); Los Angeles Times E1 (April 17, 

1992). 

61 Critics who should know better repeat the calumny of the religious right 

and politicians like Dan Quayle—that the media are to blame for most 

contemporary social ills. Medved (1992). An article in the prestigious 

Journal of the American Medical Association just reiterated the claim that 

television causes violence, based on correlations between the white 

homicide rate and the introduction of television in the United States, 

Canada, and South Africa! Centerall (1992); New York Times A12 (July 

27, 1992) (editorial). South Africa seems to take such nonsense seriously. 

The SABC is cutting scenes from children's shows like "The Real Ghostbusters," 

"Bionic Six" and "Robotech" because they contain occult, 

satanic, and other "dubious signs and symbols." Examples include the 

peace sign (broken cross or crow's foot), the Taoist yin-yang symbol, the 

114

Notes 

Egyptian symbol of life (Ankh), and the pentagram. The stimulus was a 

recent tragedy: "a four-year-old boy in a Superman outfit shot his father 

dead with a .38 revolver, shouting: 'Dad, I'm Robocop. You are under 

arrest.' After the incident, he declared: 'Batman shot Daddy dead.' " 

Weekly Mail 5 (September 18-24, 1992). 

62 

Los Angeles Times B6 (March 9, 1991); New York Times A10 (March 13, 

1991). 

Police attacked rapper Ice-T's "Cop Killer" (discussed below) as a 

threat to their safety. That campaign was intensified when rapper Tupac 

Amaru Shakur's "2Pacalypse Now" was found in the tape deck of a car 

stolen by Ronald Ray Howard, a black 19-year-old Texan charged with 

murdering Bill Davidson, a white state trooper who had pulled him over 

after a high-speed chase. Howard had two prior convictions for car theft. 

Shakur appeared in "Juice" and will appear in John Singleton's "Poetic 

Justice." His mother was a member of the Black Panther Party and his 

godfather is former Panther leader Elmer "Geronimo" Pratt. Shakur had 

recently sued the City of Oakland after two policemen allegedly beat him 

while arresting him for jaywalking. Shakur's record had sold 400,000 

copies. Half a dozen of its songs described killing police—for instance, 

"Soulja's Story": 

Cops on my tail, so I bail till I dodge them, 

They finally pull me over and I laugh, 

Remember Rodney King 

And I blast this punk ass 

Now I got a murder case . . . 

What the fuck would you do? 

Drop them or let them drop you? 

I choose droppin' the cop! 

The president of the Combined Law Enforcement Association of Texas 

declared: "If it's illegal to produce physical pollution, it ought to be illegal 

to produce mental pollution." Davidson's widow Linda has sued Shakur 

and Interscope Records (a Time Warner subsidiary), declaring: "There 

isn't a doubt in my mind that my husband would be alive if Tupac hadn't 

written those violent, anti-police songs and the companies involved 

hadn't published and put them out on the street." Her lawyer said "our 

goal is to punish Time Warner and wake up the executives who run the 

music business." Col. Oliver North promised the help of his Freedom 

Alliance: "This case provides us with a painfully vivid example of why 

this kind of music is so dangerous." Dan Quayle chimed in with a call to 

withdraw the record. Howard's lawyer also plans to use the record in the 

penalty phase to argue for life imprisonment instead of death. But the 

president of the Recording Industry Association of America warned that 

any damage award "would not only restrict free speech in the future, it 

would turn the concept of what we consider to be artistic freedom 

completely on its head." Los Angeles Times A1 (September 17, 1992), 

A12 (September 23, 1992), F1 (October 13, 1992). 

115


63 

New York Times 7 (April 13, 1991). 

64 

Los Angeles Times F1 (February 22, 1991). 

65 

New York Times A14 (February 4, 1992). "Lethal Weapon 3" earned 

$140.9 million in the summer of 1992, the second highest gross, and 

"Terminator 2" was the highest grossing film the previous summer, 

earning $183.1 million; both far outdistanced black films. Los Angeles 

Times F1 (September 1, 1992). 

66 

New York Times B1 (January 22, 1992). 

67 

New York Times A14 (February 21,1992) (letter to The Editor). 

68 

Los Angeles Times F1 (February 22, 1991). 

59 

24 versus 12 per cent. New York Times A14 (February 21, 1992). 

70 

Olivia N. v. National Broadcasting Co., 126 Cal.App.3d 488, 178 

Cal.Rptr. 888 (1981), cert, denied, 458 U.S. 1108 (1982) (rape; liability 

rejected on First Amendment grounds); Waller v. Osbourne, 763 F. 

Supp. 1144 (M.D. Ga. 1991); McCollum v. CBS, Inc, 202 Cal.App.3d 

989, 249 Cal.Rptr. 187 (1988); New York Times B4 (August 3, 1992) 

(suicide; case pending); B1 (September 23, 1992) (all three cases against 

Ozzy Osbourne dismissed). After Denise Barnes was assaulted she sued 

members of the rap group Niggaz With Attitude for $22.75 million for 

giving interviews to Rolling Stone and The Source in which they said: 

"[t]he bitch deserved it" and we "hope ... it happens again." National 

Law Journal 3 (January 27, 1992) (suit dismissed). The family of an 

adolescent who died of autoerotic asphyxiation sued Hustler for an 

article entitled "Orgasm of Death," which was found at his feet. Herceg 

v. Hustler Magazine Inc., 814 F.2d 1017 (5th Cir. 1987), cert, denied, 

485 U.S. 959 (1988). The family of a youth who committed suicide sued 

the publisher and manufacturer of the game Dungeons & Dragons. 

Watters v. TSR, Inc., 715 F.Supp 819 (W.D. Ky. 1989), aff'd, 904 F.2d 

378 (6th Cir. 1990) (dismissed). Parents sued when their son was killed 

by another youth who had just seen "The Warriors," a film about gangs. 

Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 536 N.E.2d 

1067 (1989) (dismissed). Parents sued when their son accidentally 

hanged himself after watching a professional stuntman perform a similar 

trick on "The Tonight Show." DeFilippo v. NBC, 446 A.2d 1036 (R.I. 

1982) (dismissed). 

71 

New York Times s.1 p. 10 (February 23, 1992); 190 Searchlight 18 (April 

1991). 

72 

New York Times A12 (August 19, 1992). The jury originally awarded 

$12.4 million. Another case against the magazine was settled out of 

court, and a third was dismissed because the judge found the advertisement's 

language, "high risk assignments," too ambiguous. Ellmann v. 

Soldier of Fortune Magazine, Inc., 680 F.Supp. 863 (S.D. Tex. 1988). 

California courts have held a radio station liable for encouraging teenagers 

to race around the San Fernando Valley in pursuit of a prize, in the 

course of which another driver was killed. Weirumv. RKOGen. Inc., 15 

Cal.3d40, 123 Cal. Rptr. 468 (1975). 

116

Notes 

In an ironic footnote to the Skokie case, a California court upheld an 

information charging a Jewish Defense League member with solicitation 

to murder by addressing a Los Angeles press conference five weeks 

before the planned march and offering $500 to anyone "who kills, 

maims, or seriously injures a member of the American Nazi Party." 

People v. Rubin, 96 Cal. App. 3d 968, 158 Cal.Rptr. 488 (1979), cert, 

denied, 449 U.S. 821 (1980). 

73 New York Times B1 (February 21, 1992); Pileggi (1986). James Caan 

appeared at the 1985 trial of Carmine Persico and publicly kissed him on 

the cheek. "I would never deny that my friend is my friend. Where's the 

morality in that?" In 1992 Caan pledged his house as collateral for the 

release of Ronald A. Lorenzo, charged with cocaine trafficking, robberies, 

and kidnappings. He had met Lorenzo 15 years earlier during the 

filming of "Chapter Two" and now calls him his "best friend." Los 

Angeles Times F1 (September 30, 1992). After Lorenzo was convicted, a 

juror commented that it was "a little ironic, this guy in the 'Godfather' 

movie testifying here." Los Angeles Times B1 (October 16, 1992). Caan 

received favourable reviews for his latest role as the big-time gambler 

who loses the girl in "Honeymoon in Vegas." 

There are endless examples of post-modernist confusion between 

image and "reality," including Quayle's attack on "Murphy Brown" and 

Perot's on "Doogie Hawser." The cast of "L.A. Law" are invited to 

address lawyers on the fine points of advocacy and legal secretaries on 

sexual harassment in the office. Dana Carvey's impersonation of Bush on 

"Saturday Night Live" led to an invitation to the White House and a 

request by the President's speechwriter for hints about Bush's mannerisms. 

New York Times s.2 p.20 (August 16, 1992). Seeking to publicise a 

movie in the 1930s, a producer hired a $5 a day extra, dressed her in 

black, and sent her to the statue of Rudolph Valentino in Hollywood, 

telling the press she mourned his death every year. Enjoying the attention, 

she returned the following year, only to encounter a rival. Now, almost 

60 years later, several women still appear annually, each accusing the 

others of seeking publicity; they sometimes fight, grabbing each other's 

veils and bouquets. Los Angeles Times B1 (August 17, 1992). Ozzy 

Osboume maintained: "All the stuff on stage, the craziness, it's all just a 

role that I play, my work. The closest I ever came to witchcraft is a Ouija 

board. And believe it or not, I can't even watch slash films." New York 

Times B1 (September 23, 1992). 

Viewers might have been forgiven some scepticism when Woody Allen 

denied any similarities between his personal life and "Husbands and 

Wives": "Movies are fiction. The plots of my movies don't have any 

relationship to my life." Defending his relationship to Mia Farrow's 

adopted daughter Soon-Yi Previn, Allen told Time: "The heart wants 

what it wants. There's no logic to those things." In the film he says about 

his relationship to Rain, a college student the same age as Soon-Yi, "my 

heart does not know from logic." Conflating man and auteur, audiences 

117


booed trailers for the movie in Los Angeles and New York. New York 

Times B1 (August 31,1992), s.2 p.6 (September 6,1992), B1 (September 

14,1992). Farrow then felt compelled to issue a press statement declaring 

that her relationship with Allen had not broken down before the movie 

was completed, she knew nothing of his romance with Soon-Yi, and she 

was not taking drugs during the shooting. "Her behavior on screen is all 

acting." Los Angeles Times F2 (September 22, 1992). On television 

viewers' confusion of character and actor, see Gitlin (1986); New York 

Times B1 (September 25, 1992). 

74 

On the pervasiveness of racial slurs in ordinary speech, see Davies 

(1982); van Dijk(1987); Essed (1991). 

75 

102 Searchlight 3 (August 1990); Gordon (1990a: 34-35). 

76 

GLC(1984d:21). 

77 

New York Times A3 (January 24, 1992). 

78 

Chronicle of Higher Education A1 (October 31, 1991). 

79 

"Home Design," New York Times Magazine pt.2 p. 7 (April 5, 1992); see 

also Lee (1990: 61) (use of colour purple to evoke packaging of Silk Cut 

cigarettes). 

Appealing to a different audience, Van Halen's recent album was titled 

"For Unlawful Carnal Knowledge." 

Seeking verisimilitude, the serious play "Melody Jones," set in a 1970s 

New Jersey strip club, hired a real stripper. Stephanie Blake is proud of her 

body—she works out every day—and her skill. 

Nowadays, strippers come out and dance one song, take off a piece of 

clothing. The art is gone. So we're trying to bring that back—the teasing 

part. . . . I'm known for being kind of an acrobat. It's good to have a 

gimmick. I used to do one number where I took a bath in a big glass of 

champagne. 

Los Angeles Times F2 (August 29, 1992). 

80 

New Statesman and Society 17 (October 4, 1991). 

American family planning clinics responded to the Bush Administration's 

gag rule prohibiting them from using federal money to discuss 

abortion by dividing the time of advisers between federal and state 

support; if a woman tested pregnant when the counsellor was being paid 

by the federal government, she was advised to return when the state was 

paying salaries. Los Angeles Times A1 (October 2, 1992). 

Ambiguity also can be used to repress. In South African treason trials 

the state constantly tried to show similarities between innocuous behaviour 

and the political line of the banned ANC and SACP. Bruce Herschensohn, 

far-right California Republican candidate for the U.S. Senate, 

reproduced in his autumn 1990 newsletter a picture of the recently 

released Nelson Mandela raising his clenched fist at the London rock 

concert in his honour and called it "the communist salute." Los Angeles 

Times A3 (October 12, 1992). This news report was accompanied by a 

photograph of Dan Quayle at a campaign appearance in Los Angeles in 

autumn 1992—making the same gesture! 

118

Notes 

81 Los Angeles Times A1 (January 21, 1992). When the Children's Television 

Act of 1990 required stations to increase the number of educational 

programmes, they simply characterised whatever they were showing as 

educational. WGNO (New Orleans) said of one cartoon: "Good doer 

Bucky fights off the evil toads from aboard his ship. Issues of social 

consciousness and responsibility are central themes of the program." A 

Durham (North Carolina) station said "Superboy" "presents GOOD as it 

triumphs over EVIL." WDIV in Detroit said that "Super Mario Brothers" 

taught self-confidence because "Yo Yogi" captures the thieving cockroaches, 

thereby demonstrating the value of "using his head rather than 

his muscles." The Bush Administration had opposed more precise language 

as infringing the First Amendment. New York Times A] (September 

30, 1992). 

82 Guardian 5 (October 29, 1991), 7 (October 30, 1991). 

Politicians are past masters at the insinuation that asserts by denying. 

Mary Matalin, a leading publicist in the Bush campaign, declared that 

Clinton was "evasive and slick. We've never said to the press that he's a 

philandering, pot-smoking draft dodger." "The way you just did?" the 

interviewer asked? "The way I just did," she conceded. New York Times 

A14 (August 5, 1992). The U.S. Treasurer accused Clinton of being a 

"skirt chaser" and then apologised. Bush campaign chair Robert Mosbacher 

said that marital fidelity "should be one of the yardsticks" by 

which candidates are measured" and then apologised. Both accusation 

and apology served to spread the dirt. New York Times A7 (August 20, 

1992). 

83 New York Times s.4 p.5 (March 4, 1990). The Marlboro logo is on 

television during half the Grand Prix race and has appeared some 6000 

times. New York Times A16 (August 25, 1992) (letter to The Editor, 

August 7, reproving Mayor Dinkins for signing a 10-year contract to host 

the Grand Prix after calling for removal of tobacco ads from sports 

complexes). 

84 Los Angeles Times A17 (May 8, 1990). 

In December 1989 Pepsi showed video clips of the Berlin Wall coming 

down, with its logo and the caption "Peace on Earth." Benneton has 

attained notoriety through its ambiguous advertisements featuring catastrophe 

and tragedy: a bombed-out car, Albanian refugees climbing an 

overcrowded ship, and an Indian couple wading through flooded streets, 

a young man dying of AIDS in his father's arms, a murdered Mafia victim 

in a pool of blood. New York Times s.2 p.33 (May 3, 1992). 

85 New York Times s.4 p.5 (March 22, 1992). 

86 New York Times 7 (October 20, 1992). MTV has used Aerosmith to 

similar effect as part of its $1 million "Choose or Lose" campaign. Lead 

guitarist Joe Perry shouts "Freedom is the right to use handcuffs for 

friendly purposes . . . freedom to wear whipped cream as clothing," 

while he licks whipped cream off the chest of a blonde woman. Two 

other women wearing American flag suits hold the rim of a gigantic 

119


condom while an off-camera voice intones: "Freedom to wear a rubber 

all day—if necessary." Lead singer Steven Tyler adds: "Hey! Protect your 

freedoms. Vote!" "Rock the Vote" during the New Hampshire primary 

registered 10,000 young adults. A free concert in Seattle by grunge-rock 

group Pearl Jam signed up 2400. New York Times Magazine 30 (October 

11, 1992). 

87 New York Times A13 (July 20, 1992). 

88 185 Searchlight 17-19 (November 1990). 

89 New York Times s.1 p. 10 (February 23, 1992). 

90 182 Searchlight 3 (August 1990); 183 Searchlight 5 (September 1990). 

91 Guardian 9 (October 14, 1991), 5 (October 23, 1991), 9 (October 28, 

1991). During the 1992 Democratic National Convention an anti-abortion 

activist stopped Clinton in the street and thrust a foetus in his face. If 

this "speech" should be protected, what about the British artist who 

made freeze-dried foetuses into earrings? The Young Unknowns Gallery 

in London was fined £350 for displaying them. /?v. Gibson and Another 

[1990] Criminal Law Review 738, [1991 ] Criminal Appeals Reports 341. 

An appeal is pending before the European Commission for Human 

Rights. 

92 Bill Moyers's PBS documentary "Hate on Trial" (February 5, 1992). 

93 Los Angeles Times B1 (January 31, 1992). 

94 New York Times A27 (December 11, 1991), A14 (December 30, 1991). 

95 Lee (1990: 120). 

96 179 Searchlight 7 (May 1990), 189 Searchlight 5 (March 1991). 

97 See, e.g. Ernst & Lindey (1936); Dean (1953); Lewis (1992). 

98 Guardian 1-2 (October 30, 1991), 2 (November 1, 1991), 1 (November 

5, 1991). 

99 Tobacco Institute campaigns ostensibly designed to discourage children 

from smoking do just the opposite. New York Times A13 (September 2, 

1992). 

1 New York Times 12 (March 28, 1992). 

2 GLC(1984d:21). 

3 Bill Moyers's PBS documentary "Hate on Trial" (February 5, 1992). 

4 The Brooklyn Museum opened an exhibit entitled "Too Shocking to 

Show," featuring artists censored by the NEA, including Holly Hughes 

(whose performance art depicts female sexuality), Tim Miller (on gay 

male sexuality), Scarlet O (whose masturbation caused the Franklin 

Furnace performance space to lose its 1992/93 grant), and Saphire 

(whose poem "Wild Thing," about race and sexuality, was called 

blasphemous by Rev. Donald Wildmon). The museum director commented: 

"We feel very strongly about freedom of artistic expression. The 

issue of censorship is not going to go away. . . . it's a matter of standing 

up and being counted." New York Times B8 (June 19, 1992). The exhibit 

catalogue was published with an explanatory essay. Freedberg (1992). 

Dan Quayle's attack on "Murphy Brown," already CBS's highest-rated 

entertainment series, allowed the network to raise its price 114 per cent 

120

Notes 

to an average of $310,000 for a 30-second spot, the most expensive on 

any regular network programme. Before the 1992/93 season began, 

commercial time was virtually sold out through December. When writer 

Diane English accepted her Emmy for the best comedy series she thanked 

"the sponsors for hanging in there when it was getting really dangerous." 

The admiration was mutual; the ad agency for her regular sponsor said: "I 

love being associated with 'Murphy Brown.' . . . the controversy has 

worked in a positive sense." New York Times C8 (September 17, 1992). 

The hour-long premiere showed Murphy Brown watching Quayle criticise 

her. 44 million people saw the episode—4 million more than 

watched the Republican convention. Quayle was among them, accompanied 

by several single mothers. Newspapers carried pictures of Quayle 

watching Murphy Brown watching Quayle talking about Murphy Brown. 

New York Times A17 (September 23, 1992). 

5 

Los Angeles Times A14 (January 21, 1992); New York Times s.1 p. 10 

(February 23, 1992). 

6 

186 Searchlight 10 (December 1990). 

7 

New York Times A8 (March 10, 1992). 

8 

New York Times A1 (October 17,1990); Los Angeles Times A20 (October 

20, 1990). When Custave Courbet's painting "Return From the Conference" 

was rejected by the Salon in 1863 he boasted: "I painted the 

picture so it would be refused. I have succeeded. That way it will bring me 

some money." Quoted in Barnes (1992: 3). When Howard Stern debuted 

as disk jockey on KLSX-FM in 1991, 50 advertisers withdrew because he 

attacked gays, women, blacks, Latinos, and the homeless and used 

scatological humour. The FCC cited him for indecent broadcasting. A 

year later he had become the most popular morning radio personality 

among male listeners in New York, Philadelphia, Washington, and 

Baltimore, and the advertisers had returned. Los Angeles Times F1 (July 

30, 1992). 

9 

Los Angeles Times F1 (June 13, 1992), F1 (June 16, 1992), F1 (June 18, 

1992), F1 (June 19, 1992), D1 (July 4, 1992), B3 (July 25, 1992), A1 (July 

29, 1992), D1 (July 30, 1992); New York Times B1 (July 8, 1992). Ice-T 

managed to keep the controversy alive. At a San Diego concert he read a 

letter from the 1900 member San Diego Police Officers Association 

denouncing him, stuffed it in his crotch, and sang the song defiantly while 

a mostly white crowd yelled "Die, pig, die." Los Angeles Times A3 

(October 1, 1992). 

Shortly thereafter the New York State Sheriff's Association, which had 

joined the campaign against "Cop Killer," sought to suppress a forthcoming 

album by San Francisco rapper Paris, whose cover showed a man 

with an automatic weapon about to ambush President Bush (the topic of 

one song). The track "Coffee and Doughnuts and Death" included these 

lyrics: 

As an example so all the blue coats know 

Ya get poached when ya fuck with black folk 

121


. . . Black folk can't be nonviolent now. 

I'd rather just lay ya down, spray ya down 

Till justice come around 

Cuz without it, there'll be no peace. 

White House Press Secretary Marlin Fitzwater asked "appropriate legal 

authorities to take a look at this case ..." Los Angeles Times A33 (July 3, 

1992). 

122

4. Taking Sides 

I began these lectures by analysing controversies over pornography, 

hate speech, and blasphemy as struggles for respect between status 

groups. Contemporary western societies respond by oscillating 

between the extremes of liberalism and authoritarianism, uncritical 

tolerance and perfectionist control, idolatry of the market and fealty 

to the state. Liberalism demands faith that truth and justice will 

triumph in the long run; but Keynes reminds us that in the long run 

we will all be dead. Politicians court fickle publics by promising the 

quick fix of more laws and heavier penalties. Both sides construct 

moral panics. Liberals warn that any restraint on speech is a step 

down the slippery slope toward fascist and communist totalitarianism; 

governmental partisanship revives memories of state religion 

and agitprop. Prohibitionists justify bans on pornography and hate 

speech by raising the spectre of physical attacks on women and 

racial, religious and sexual minorities. In the second and third 

lectures I criticised both extremes: civil libertarianism cannot inform 

a principled stance toward speech, yet state regulation inevitably 

invites excesses and errors. This final lecture attempts the formidable 

task of charting a path that reduces one harm of speech—the 

reproduction of status inequality—while minimising the harm to 

speech from state regulation. I begin by arguing the need to take 

sides, drawing lessons from other particularistic experiments. I 

briefly consider efforts to liberate and amplify silenced voices but 

focus on responses to harmful speech. Although I do not claim to 

have eliminated the inescapable tension between freedom and 

authority, I am hopeful that modest steps to redress status inequality 

will enlarge our vision of the just society and lead us toward it. 

123

Taking Sides 

I. The Evasions of Neutrality 

Liberal political theory is enthralled by the chimera of neutrality, 

hoping to avoid the responsibility of political choice by finding a 

principled basis for the exercise of power. But the search is doomed 

to fail and entails high costs. The "haves" come out ahead not only 

in the pursuit of justice, the contest for power, and the competition 

for wealth, but also in the struggle for respect. 1 Authority that is 

willfully blind to real inequality perpetuates and magnifies it. The 

explosive growth of homelessness has rendered Anatole France's 

century-old aphorism even more timely: "The law, in its majestic 

equality, forbids the rich as well as the poor to sleep under bridges, 

to beg in the streets, and to steal bread." 2 Defending the denial of 

political asylum against a charge of racism, British Home Secretary 

Kenneth Baker offered an unwitting paraphrase: "Our policy is 

colour blind. It applies to people wheresoever they come from, 

whether it is Africa, Asia, or Eastern Europe." 3 It clearly was 

irrelevant that North Americans and West Europeans were not 

clamouring at the gates. Baker's boss displayed greater candour. 

Opposing changes in the inheritance tax, John Major declared: "I 

want to see wealth cascading down the generations. We do not see 

each generation starting out anew, with the past cut off and the 

future ignored." For the same reason he supported educational 

inequality. 4 

Daily experience reveals the myriad ways in which formal equality 

creates substantive inequality. Gender-blind allocation of toilets 

in theatres produces much longer queues during the interval outside 

the women's than the men's. When the Law Lords invalidated the 

Fares Fair campaign and London Regional Transport terminated the 

"Just a Ticket" scheme women suffered more than men because they 

were more likely to travel by bus than underground and much less 

likely to drive. 5 Programmes intended to overcome class differences 

may inadvertently exaggerate race and gender. When medical 

condition is held constant among elderly Americans, whites receive 

4—7 times as many heart bypasses as blacks and black women 

almost 50 per cent more than black men. 6 Among poor Americans 

with kidney disease, whites are significantly more likely to obtain 

transplants. 7 

Liberal theory rationalises the persistence of inequality under 

conditions of political freedom as the outcome of individual 

"choice." 8 But the state is not the only constraint on freedom, or 

even the greatest, as the fall of communism vividly illustrates. In 

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The Evasions of Neutrality 

Poland, a British entrepreneur offering "free" sporting activities to 

pre-adolescent boys in exchange for participation in homosexual 

pornography and prostitution found plenty of takers. 9 Berlin's East 

European community allegedly kidnaps or buys babies and young 

children for adoption in the West, where fair-skinned merchandise 

can fetch up to £24,600. 10 Estonian prostitutes migrate to Finland 

and Yugoslav to the Netherlands, while Poles are lured into Swedish 

prostitution by fraudulent advertisements for marriage. 11 Moscow 

teenage girls' first choice of a career is "escorting" foreigners for 

hard currency, i.e. becoming high-class call girls. 12 Sasha Kazachkova, 

a Jewish emigre, exchanged her job as attendant in the men's 

room of Moscow's National Hotel for one as attendant in the men's 

room of New York's Laura Belle Supper Club. 13 Despite their facade 

of self-righteous prudery, the Reagan and Bush administrations' 

market fetishism also stimulated sexual exploitation. Between 1987 

and 1992 "quality" topless clubs multiplied from 800 to 1100, 

becoming a $3 billion a year industry. Tara Obenauer, who dances 

at the up-scale Stringfellows, postponed her entry to NYU Law 

School because "the money here is just so good." Performers earn 

up to $1000 a night in tips. 14 "Choice" is even more illusory in the 

third world. During 1991, 249 Nigerian "mules" were arrested at 

Kennedy Airport for smuggling heroin by swallowing small amounts 

wrapped in condoms, which they later excreted; those who escaped 

detection (and long prison terms) earned 16 times their annual 

incomes. 15 

Material need and greed do not exhaust the constraints of civil 

society. Cultural hegemony is at least as powerful. The television 

program "American Gladiators," featuring five men and five women 

who fight challengers, appears on 156 stations nationwide. 15,000 

people have auditioned for the chance to brawl in public. One 

woman watches it regularly with her 4-year-old daughter because 

she prefers its role models—"five women out there, kicking butt, just 

like the men"—to the cartoon stereotypes of stupid women obsequiously 

following dominant men. 16 The year after Princeton admitted 

women, male undergraduates began "streaking" through town 

to celebrate the first snowfall. A senior explained why she and other 

women joined the event 16 years later: "My first thought was, here's 

a male tradition. I not only wanted to be part of it, I wanted to try to 

take it over. Running in the Nude Olympics is not wise, but it's fun." 

The Women's Center and the Sexual Harassment and Assault Advising 

Resources and Education Office encouraged participation. But 

Sandra N. Silverman, assistant dean of students, was appalled: "I 

125

Taking Sides 

can't think of a more ultimate vulnerability for women. I'm somewhat 

surprised that women feel so strongly about participating in a 

men's event, rather than attempting to come up with an event that 

addresses women's needs." 17 

If neutrality is willful blindness and individual choice is always 

constrained, the responsibilities of power cannot be fulfilled by 

simple deference to the oppressed. Contrary to Arnold Toynbee's 

naive faith, they are not always morally superior. Quite the contrary, 

subordinate people typically express their powerlessness by directing 

resentment away from the dominant, who are too remote or 

frightening, to more vulnerable targets: rural Southern whites and 

urban ethnics at African Americans, African Americans at Jews and 

now Koreans, West European workers at immigrants, East Africans at 

East Indians, Southeast Asians at Chinese. Middle class women cope 

with the patriarchal division of labour by hiring working class 

women, often women of colour, as housekeepers, thereby reproducing 

class and racial inequality. Black men respond to racial 

subordination by oppressing black women in popular music, blaxploitation 

films, and of course sexual and domestic behaviour. Black 

women feel doubly degraded when black men enjoy white female 

pornography—or even form romantic relationships with white 

women. 18 And people of colour are not immune to homophobia. 

When the GLC "Positive Images" campaign sought to increase 

respect for gays and lesbians in schools in 1987, a spokesman for the 

Haringey Black Pressure Group on Education retorted that "homosexuality 

is something that has been introduced into our culture by 

Europeans; it is an unnatural set of acts that tend toward genocide." 

Some members joined with the neo-fascist New Patriotic Movement 

under the banner "Gays=Aids=Death." 19 

Some oppressed not only participate in the subordination of others 

but also are complicit in their own, internalising and legitimating the 

dominant rationalisations for privilege. If women did not support 

Phyllis Schlafly's patriarchy the feminist movement would have 

made greater progress. 20 Clarence Thomas's racial self-hatred and 

meritocratic apologetics echo those of other racial minorities who 

have made it. 21 Sometimes betrayal reflects overwhelming pressure. 

After joining the Derbyshire police at 19, Shaun hid his homosexuality 

for 17 years: "I called it the canteen culture. Heavy drinking, 

womanising and doing all the things that heterosexual males are 

expected to do." He married at 24, fathered two children, and 

maintained the family facade, although his wife knew he was gay. 

For seven years he was a vice squad detective, often entrapping 

126


gay men into soliciting sex. "I knew what to look for and what sort of 

places to investigate—that's possibly why I was so good." 22 For 

other collaborators, however, the goad is pure ambition. As a 

professor at San Francisco State University, S.I. Hayakawa helped 

form the Faculty Renaissance Committee to combat campus radicals. 

A grateful state chancellor recommended him as acting president 

to then Governor Reagan, who responded with typical tact: 

"Tell him if he takes the job, we'll forgive him Pearl Harbor." On his 

first day in office Hayakawa crushed the students' strike by jumping 

on their soundtruck and ripping out the loudspeaker wires. As 

senator for California he opposed bilingual education and ballots as 

"foolish and unnecessary" and sponsored a constitutional amendment 

to make English the official language. Spared wartime internment 

(as a Canadian citizen), he called it "perhaps the best thing that 

could have happened" to Japanese-Americans because it forced 

them to assimilate. "I am proud to be a Japanese-American, but 

when a small but vocal group demand a cash indemnity of $25,000 

for those who went to relocation camps, my flesh crawls with shame 

and embarrassment." 23 

Despite its professed loyalty to formal equality, collective neutrality, 

and value agnosticism, the liberal state cannot avoid choices. If 

one is free speech, another is abridging speech when the state feels 

threatened. In December 1991 the Islamic Front won 189 out of 430 

seats in the first free Algerian election in years and was expected to 

win enough runoffs to gain a majority. Fundamentalists in Lebanon, 

Sudan, Jordan and Yemen rejoiced. Demanding immediate segregation 

of the sexes in schools and workplaces and a ban on alcohol, 

Mohammed Said told a huge crowd it was time Algerian women 

went back to veils and stopped looking like "cheap merchandise 

that is bought and sold." The Front proclaimed its intent to introduce 

an Islamic state under the slogan: "No laws. No constitution. Only 

the laws of God and the Koran." When the Algerian military nullified 

the results and barred all demonstrations western nations breathed a 

sigh of relief; none criticised this blatant suppression of democracy. 

24 The day after a nearly successful coup in Venezuela an 

association of retired military officers took full-page advertisements 

in major newspapers, condemning the regime for corruption and 

poor administration. President Carlos Andres Perez immediately 

prohibited newspapers from publishing photographs of the plotters 

or articles or advertisements suggesting that they enjoyed popular 

support or military backing, and seized defiant papers. "We have 

said, don't exalt the man who attempted the military coup." 25 

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Taking Sides 

Poland banned "Party X" of Canadian emigre businessman Stanistaw 

Tyminski because its xenophobia and general lunacy were 

embarrassing the fledgling democracy. Although the excuse was 

10,000 forged signatures on electoral registration documents, 

Tyminski claimed that similar abuses by other parties were overlooked. 

Expelled from the country, his parting words were: "I don't 

want to be in a Poland transformed into a Jewish colony." Of course, 

almost all the Jews had been murdered half a century ago by the 

Nazis, with the complicity of many Poles. 26 Soon after succeeding 

Gorbachev, Yeltsin outlawed the Communist Party. Such responses 

are not limited to shaky third-world or ex-communist governments. 

The U.S. Supreme Court refused to intervene when the Republican 

Party prevented David Duke from running in its Florida and Georgia 

presidential primaries. 27 

Forced to express preferences about speech, the liberal state 

typically emphasises form over content. But the time, manner and 

place restrictions that even First Amendment devotees accept inevitably 

favour those who can comply and still be heard. As we have 

seen, regulation often targets extremes, hoping that stylistic excess 

will foment enough anger to generate a consensus for restraint. As 

religious fervour declined, blasphemy laws punished only the worst 

insults. As sexual taboos fell, only the portrayal of violent sex was 

proscribed. Racism, anti-Semitism and homophobia are so pervasive 

that only the most virulent forms are regulated. As I argued in the 

previous lecture, however, preoccupation with the extremes tolerates 

and appears to condone quotidian harms. In any case, outrage 

is not a neutral quality. It varies with the audience, as even the U.S. 

Supreme Court acknowledges in enforcing community standards of 

decency. 28 Furthermore, the very novelty that causes offence is an 

essential aesthetic ingredient. 29 In one of his most striking dances, 

Merce Cunningham jumped into a plastic sack and propelled himself 

across the stage like a fish on land. He no longer performed it, 

however, "because I was in it once." 

Every artist should ask, "What is the point of doing what you 

already know?" . . . Dance, like any work of art, is not interesting 

unless it provokes you—where you say, "I never thought of that," 

and have some new experience. When I see dances where I can 

perceive from the first five minutes what they're going to be, my 

interest drops 50 per cent. 30 

Artists delight in shocking the bourgeoisie: Salvador Dali paints a 

128


moustache on the Mona Lisa; Andres Serrano photographs a crucifix 

submerged in his urine; Robert Mapplethorpe poses a man with a 

broomstick up his anus; in a video shown after he had died of AIDS, 

Freddie Mercury dressed in the royal crown and cape for a rendition 

of "God Save the Queen." 31 Yet artistic pretensions do not necessarily 

justify the harms of expression. Helmut Newton photographs 

sexually provocative nudes, often in sadomasochistic positions. "I 

love vulgarity. I am very attracted by bad taste— it's a lot more 

exciting than supposed good taste, which is nothing more than a 

standardised way of looking at things." 32 In his autobiography, John 

Osborne boasted of his homophobic dislike of "poofs" and his 

chauvinistic contempt for pretentious French, short Italians, provincial 

Australians ("natives of a suspicious, benighted land"), and Jews 

and Irish ("cold-hearted" races, whose abundant "sentimentality 

... is the sugar-ornament of the hard of heart"). 33 

Just as those without a presidential podium, religious pulpit, 

media megaphone, or advertising budget must take to the streets and 

shout in order to be heard, so political dissidents may have to use 

guerrilla tactics to unsettle conventional beliefs or grab the attention 

of listeners suffering from information overload. Anti-war activists 

burn draft cards and flags, anti-abortion demonstrators display pickled 

fetuses, neo-Nazis flaunt swastikas, graffiti artists deface walls 

and advertisements. Hoping "to revive the 'zap action' tactics of the 

early women's liberation days," a group of performance artists got 

into Life magazine by appearing at a conference at New York's Plaza 

Hotel barefoot, chained together, wearing voluminous black maternity 

garments padded to make them look pregnant, and accompanied 

by others in black jumpsuits and shocking pink headbands 

carrying a huge pink banner reading "Forced childbearing is a form 

of slavery." 34 Overshadowed by hundreds protesting the first California 

execution in 25 years, two "good old boys" in a pickup truck 

demonstrated for the death penalty with a poster showing the 

condemned man and an "Alka-Cyanide" capsule being dropped 

into a glass of sulfuric acid, above the caption: "Plop Plop Fizz Fizz, 

Oh, What a relief it is!" 35 

There is no escape from politics. Some messages should be 

encouraged and others discouraged for what they say, not how they 

say it. The task is made acutely painful by millenia of religious 

intolerance, philistine censorship, and political and sexual repression. 

My goal is to reduce subordination based on gender, race, 

ethnicity, religion, and sexual orientation. But that amorphous ideal 

leaves difficult questions unanswered. If feminists campaign against 

129

Taking Sides 

pornography because it subordinates women, why should not the 

religious right attack sexual permissiveness as subordinating 

believers? How could we criticise Salman Rushdie while venerating 

such notorious blasphemers as Moses, Socrates, Jesus, Luther, Galileo, 

Darwin, and Freud? Or while tolerating protests against Sabbatarianism, 

religion in schools, or the sexism and homophobia of 

denominations that refuse to ordain women or celebrate the union of 

homosexuals? Cannot Catholics argue that advocacy of abortion, 

contraception, and divorce subordinates them? 36 When Sinead 

O'Connor appeared on "Saturday Night Live," shouted "Fight the 

real enemy," and tore up a photo of Pope John Paul II after singing 

Bob Marley's "War," the California Chapter of the Catholic League 

for Religious and Civil Rights declared: "Millions of Catholics in 

California are incensed at this blatant defamation of the leader of the 

Catholic Church . . . [and] this blatant hatred shown toward the 

Catholic religion." 37 Cannot Muslims say the same about critiques 

of polygyny or patriarchy? Is Dan Quayle right that "Murphy Brown" 

and the entire media elite diminish him by mocking his values? One 

answer would be that he does not belong to "a historically 

oppressed minority." 38 But oppression is contingent, mutable, and 

ambiguous. Could neo-Nazis argue that they have been oppressed 

for almost half a century? Jews are historically oppressed but now 

oppress Palestinians. Who is oppressing whom in Rwanda, Estonia, 

Yugoslavia, Armenia or Azerbaijan? As I noted above, "historically 

oppressed minorities" sometimes are complicit in their own oppression 

and collaborate in oppressing others. In the end we will have to 

justify difficult prudential choices with full awareness of context, 

history, identity, relationship, and motive. 

//. Experiments in Particularism 

Recognising that all forms of inequality—class, race, religion, 

gender, and sexual orientation—outlast conscious discrimination, 

liberals acknowledge an obligation to take remedial action favouring 

victimised categories. Reconstruction sought to redress centuries 

of American slavery. After World War II, West Germany paid 

reparations to Holocaust victims, Japan to the countries it invaded, 

and the United States to Japanese-American internees. The former 

communist regimes are besieged by claims from those they deprived 

of property or freedom. 39 

Yet liberal ideology has great difficulty reconciling solicitude for 

130

Experiments in Particularism 

victims with fidelity to universalism, as the British experience illustrates. 

In 1943, as Holocaust rumours were confirmed and local 

fascists parroted Nazi anti-Semitism, the government considered 

outlawing incitement to hatred against Jews (who were one percent 

of the population). Home Secretary Herbert Morrison (a socialist 

member of the coalition government) rejected the proposal because 

"it would be contrary to public policy to single out one section of the 

community for preferential treatment and protection ... we must 

maintain the principle that our law is no respecter of persons." 40 

Half a century later, some have grown more sensitive to past 

injustice. The Labour Party allows constituencies to exclude male 

candidates from short lists and has declared that women will be at 

least 40 percent of the national executive by the mid-1990s. 41 

Embarrassed that only 23 of its 12,000 drivers are women, British 

Rail advertises openings in women's magazines. 42 Sometimes the 

particularism is implicit. Among those charged with killing a spouse 

or lover between 1982 and 1989, women were nearly twice as likely 

as men to be charged with manslaughter rather than murder, four 

times as likely to be acquitted or found unfit to plead, only two-thirds 

as likely to be imprisoned, and sentenced to terms just over half as 

long. 43 

Yet preferential treatment elicits strong resentment. After the 

Metropolitan Police changed its height and weight requirements 

because of their discriminatory effects—only 1.6 percent of officers 

were black compared to 15 percent of London's population, and 

none was Chinese—a majority of officers protested that they were 

victims of race and sex prejudice. 44 When Cambridge announced 

an affirmative action plan affecting less than a dozen of its 10,000 

undergraduates, Harrow headmaster Ian Beer condemned the 

university for embarking "on a dangerous road of social engineering" 

and complained that "it is not the fault of Harrow boys that they 

are well taught." 45 The Bar Council narrowly voted to urge 

chambers to offer five per cent of their vacant seats to minorities; and 

Lord Mackay, noting that no High Court judges and only two circuit 

judges are black, began monitoring the ethnicity of applicants for 

silk. But the Master of the Rolls attacked a proposed judicial appointments 

commission. "Why," asked Lord Donaldson, "is there a right 

number of barrister or solicitor judges or men or women judges?" He 

simply recommended the best person for the job. 46 

The United States, which embraced affirmative action earlier, 

more explicitly, and with greater commitment, displays an equally 

incoherent mix of rhetorical posturing and political struggle. The 

131

Taking Sides 

Ninth Circuit rejected a constitutional challenge to reparations for 

Japanese Americans by a man interned with his German-born 

parents in Texas during World War II, noting that two-thirds of the 

120,000 Japanese Americans detained without trial were citizens, 

whereas virtually all the 14,426 German and Italian Americans 

detained were aliens, each received an individual hearing, and they 

constituted only about 10 percent of all European enemy aliens. 

Sometimes the equivalences are patently absurd. Representative Ray 

McGrath (R-LI) opposed participation by gay Irish-Americans in the 

St. Patrick's Day parade "for the same reason I wouldn't want the Ku 

Klux Klan in the Martin Luther King Day Parade." 48 

Affirmative action is most controversial in employment and education, 

with the races splitting along predictable lines. Black youths 

are almost 50 per cent more likely to believe that universities should 

give "special consideration to minority students for enrollment," 

while whites are two and a half times more likely to feel that they 

suffer discrimination in scholarships, jobs, and promotions. 49 When 

the Denver Police Department administered a preliminary examination 

to select 40 out of 892 applicants, the 86 per cent of whites and 

91 per cent of Hispanics who failed were furious that all the black 

examinees passed—clearly reflecting the fact that only 6 per cent of 

the officers were black. 50 The Bush Administration has outlawed the 

practice of ranking candidates taking federal civil service examinations 

within each ethnic group in order to equalise representation. 51 

It also banned race-exclusive university scholarships and then rescinded 

the ban under intense public pressure; but a constitutional 

challenge to the practice is pending. 52 A white high school student 

wrote to the U.S. Department of Education to denounce "the most 

overlooked travesty in our nation's colleges and universities: reverse 

racial discrimination" when Duke University rejected her and 

accepted a black classmate with what she claimed were lesser 

credentials. The black woman responded: "I am so mad right now, 

tears are streaming down my face. I'd like to think I was picked 

because I was qualified and because I had a little bit more I could 

offer to someone else." 53 Conservative faculty are even more vitriolic. 

At a University of Michigan conference on "Deconstructing the 

Left," David Horowitz pronounced that "affirmative action amounts 

to racism pure and simple. It's exactly what's being dismantled in 

South Africa." 54 When the Middle States Association of Colleges 

and Schools, one of six regional accrediting bodies, deferred 

approving Bernard M. Baruch College of CUNY for doing too little to 

hire minority faculty and administrators or retain minority students 

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and threatened to disapprove Westminster Theological Seminary 

unless it put women on its board of governors, the U.S. Secretary of 

Education forced it to back down by delaying its own reauthorisation. 

An adviser to the Secretary denounced the Middle States 

diversity standard as "taking a side" and "impos[ing] a moral or 

political litmus test." 55 

Subordinated peoples increasingly reject integration as a strategy 

of collective mobility in favour of protected spaces within which to 

develop their distinctive strengths. 56 Because this appears to reinforce 

or revive the very separation liberals have fought for more 

than a century through coeducation and desegregation it causes 

considerable unease. The British Muslim Education Co-ordinating 

Committee advocates "separate educational institutions for male 

and female pupils in accordance with the principles of Islam," 

although the government has refused to grant voluntary-aided status 

to the several dozen Muslim schools. 57 Such initiatives can attract 

embarrassing support from conservative groups like Parental 

Alliance for Choice in Education, the Social Affairs Unit, and the 

Adam Smith Institute and even the racist National Front. Some 

Muslims strongly disavow them. Southall Black Sisters denounced 

the Labour Party for "abandon[ing] the principle of equality where 

black women are concerned . . . [and] delivering] us into the hands 

of male, conservative and religious forces within our communities, 

who deny us the right to live as we please." 58 In the United States the 

ACLU vigorously challenged a Milwaukee plan to create elementary 

and middle schools exclusively for black boys. The New York Civil 

Liberties Union condemned a proposed New York high school, 

which, though nominally open to all, would emphasise the experience 

and culture of black and Hispanic men and be located in a 

largely minority neighbourhood. Dr. Kenneth B. Clark, the noted 

black psychologist who had testified for the plaintiffs in the 1954 

desegregation case, was appalled: 

It's isolating these youngsters and telling them "You're different. 

We're having this school because black males have more social 

and crime problems than others." . . . This is an approach that 

stigmatizes rather than educates. 59 

Feminists have defended girls' schools, pointing to the success of 

their graduates and the tendency of teachers in coeducational 

settings to favour boys and assign textbooks with sexual stereotypes. 

60 A British scientist noted for discovering that the hypothala- 

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mus of gay men is half as large as that of heterosexuals has 

established the West Hollywood Institute for Gay and Lesbian 

Education (Whigle). A local gay activist who initiated the proposal 

explained: "We need to unite and come together, developing our 

culture. Once we've done that, we can integrate and become full 

participants in a transformed society." 61 Defenders of separatism 

point to the vital role of homogeneous fraternities, sororities, and 

religious organisations in easing the entry of Jews and Catholics into 

American higher education a generation earlier. 62 Yet all antisubordination 

strategies must expect to be attacked as particularistic 

and resented by those whose privilege they threaten. 

///. Equalising Voices 

Respect is the latest prize in the unending struggle against subordination. 

The bourgeois revolution sought to free markets and equalise 

access to political power. Workers demanded control over the 

means of production but usually settled for token participation and a 

larger slice of the pie. Resistance to patriarchy, racism, and homophobia 

has had to repeat some of these contests, but it focuses on 

new spheres: families, education, and culture. We might see this as 

extending the social democratic project of material equality 

(employment, housing, and health) to reproduction, the principal 

battleground of post-industrial society. On this new field, antagonists 

in the cultural wars deploy proactive and reactive strategies, 

prescribing the future and judging the past. Texts and curricula, 

advertising, mass entertainment, news reporting, public rituals, 

religion and high culture all transmit collective messages about 

status; insults and sexual harassment are particular instances of 

status degradation. The former act extensively, the latter intensively; 

each reinforces the other. 

Because all cultural phenomena are associated with particular 

status groups, expression is inescapably partisan. The creators of 

symbolic goods may rationalise their behaviour as the response to 

hypostatised market forces; but some consumers always are more 

equal than others, and supply shapes consumer demand while 

purporting to satisfy it. Those who produce or sponsor records, 

concerts, plays, exhibitions, movies, television, radio, and printed 

matter also have a moral responsibility for their content, if not the 

same as the creative artist's. Audiences are accountable for what 

they patronise, which makes the boycott of creators, producers, and 

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Equalising Voices 

sponsors not just legitimate but obligatory. Invoking market failure, 

the state and private philanthropy subsidise cultural production. 

School teachers and university instructors consciously shape the 

minds of future generations. 

The belief that the existing distribution of cultural messages is 

apolitical—just the way things are, indeed, the only way they could 

be—epitomises Gramsci's notion of hegemony. A counter-hegemonic 

strategy must encourage new voices to speak and secure them 

a hearing. Its goal is to equalise cultural capital—access to and 

position within symbolic space—through affirmative action in the 

industries that produce and disseminate information and values. 63 

Some will condemn this as the dilution of standards, the contamination 

of art by politics. Yet the participation of silenced voices will 

transform judgements about quality; and all art is inescapably 

political. 

Examples of cultural affirmative action abound. 64 Schools encourage 

girls in science and maths and boys in cooking, postpone singlesex 

sports, and resist the sexual division of labour, both among their 

staff and in the career choices of their pupils. 65 Women, racial, 

ethnic and religious minorities, and gays and lesbians have sought 

inclusion in the collective tradition transmitted by literature and 

history courses in schools and universities, with mixed success. 66 

Media workers demand a hearing for excluded voices while fighting 

stereotypes. 67 When the "Committee for Open Debate on the 

Holocaust" sought to disseminate its revisionist lies, student newspapers 

at Harvard, Yale, Brown, Pennsylvania and USC refused to 

sell them space. Rutgers ran the ad as an opinion column with a note 

detailing its mendacity and offered to print other rebuttals. 68 The 

Arab-American Anti-Discrimination Committee persuaded a television 

station in Detroit, which houses the country's largest Arab- 

American community, not to rebroadcast "The Little Drummer 

Boy," a 1968 children's show that stereotyped Arabs. The programming 

director explained: "I think that this is a case where, in the 

years since this show was made, we have become more aware of 

some things we didn't see before." 69 Public authorities face similar 

choices. When the Labour-controlled Lancaster Council, which had 

staged the Miss Great Britain beauty contest for decades, decided to 

terminate it, the female chair of the arts and events committee 

explained: 

We were all so naive in our 20s and 30s, but when women started 

going on to platforms to protest, I started thinking. Those women 

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changed ideas. We woke up and asked ourselves what were we 

doing, spending time watching women being paraded like this? 

And then it seemed bygone, outdated and boring. It didn't take a 

revolution, it was dead and the audiences were gone. 70 

The success of publishing houses, magazines, and newspapers for 

subordinated groups encourages mainstream competitors to appeal 

to those audiences. 71 Public platforms welcome new speakers. The 

U.S. House of Representatives asked Imam Siraj Wahaj to give the 

invocation in 1991; the Senate heard Imam Wallace D. Mohammed 

do so the following year. 72 The Brooklyn Historical Society has 

organised exhibitions about black churches and black women, 

Hispanic culture, and the Italian festival in Williamsburg. 73 Entrepreneurs 

have redesigned prosaic artifacts that powerfully shape 

consciousness of relative worth. When Yla Eason's 3-year-old son 

cried because he could not grow up to be master of the universe 

since he was black, she began manufacturing dolls and action 

figures with ethnically authentic features: Imani (a high-fashion 

model) and Sun-Man (a Star Trek character). Although major toymakers 

initially rebuffed her approaches, they soon became interested 

in reaching the 34 per cent of children under 10 who are Black 

or Hispanic. 74 As these (and earlier) examples show, attacks on 

racial subordination may perpetuate or even intensify gender stereotypes. 

To counter these, Cathy Meredig designed an anatomically 

correct doll, with a shorter neck, higher waist, and larger feet than 

Barbie. Little girls did not notice the difference, but mothers 

exclaimed: "Wow! a doll with hips and a waist!" 75 

IV. Addressing the Harms of Speech 

At the same time that the hegemonic culture moulds what is said and 

heard, profoundly affecting collective reputation, particular 

exchanges enact status inequalities. In response, the struggle against 

subordination seeks to sensitise speakers to the harm they cause. 

Although civil libertarians may recoil from any interference with 

speech, it is always constrained, as I argued in my second lecture. 76 

Speakers could be "free" of their social environment only if the 

audience were absent or indifferent—which would render speech 

pointless. Speakers always engage in dialogue with their audiences, 

even when the latter are silent. In intimate settings, couples choose 

their words with care, thinking and feeling much they never ver- 

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Addressing the Harms of Speech 

balise; marriage counselling often focuses on problems of communication. 

78 Parents and teachers socialise children to address siblings 

and friends without inflicting unnecessary hurt. 79 Speech codes at 

American and British universities have been condemned by conservatives 

and invalidated by courts, but academic institutions could 

not function if their members "freely" hurled racist slurs, homophobic 

taunts, or sexist innuendoes at each other, or if pornography 

covered the walls of the senior common room or the co-ed toilets of 

residence halls. All performers—especially the most successful— 

cultivate their audience. While writing The Last Chronicle of Barset 

in the drawing room of Athenaeum, Anthony Trollope heard two 

clergymen disparaging his characters, with particular animus toward 

Mrs. Proudie. He declared "I will go home and kill her before the 

week is over" and promptly did so. 80 When 500 million people in 

27 countries saw the premiere of Michael Jackson's video "Black or 

White," many protested a scene showing him rubbing his pelvis and 

unzipping his fly and another in which he smashed up cars. 

Although he had already edited the tape for violence, Jackson 

immediately agreed to cuts. "I've always tried to be a good role 

model [a strange claim given his deliberately ambiguous sexual and 

racial identity] .... I deeply regret any pain or hurt that the final 

segments of Black or White has [sic] caused children, their parents 

or any other viewers." 81 When Americans and Japanese collaborated 

on a television programme about World War II, a scene of 

Chinese being shot in a ditch was narrated differently. The English 

text read: "Japan's claim it was liberating China was ludicrous to 

Americans, particularly when hundreds of thousands of Chinese 

men, women and babies were murdered in what was called the 

Rape of Nanking." The Japanese version did not mention Nanking, 

saying rather: "in a totalitarian attempt to grab land and wealth, the 

Japanese military had led the country into an eight-year war in 

Manchuria and China." 82 

A. Measuring the Injury 

Because the effect of speech on status is contextually specific, we 

need a framework for analysing its harms in order to calibrate the 

response. This section begins that task. 

/. Speaker Identity Public officials purport to speak for the collectivity, 

endowing their message with formal authority and apparent 

consensus. Although James Watt, Reagan's first Secretary of the 

Interior, could wreak havoc on the environment with impunity, he 

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was forced to resign after indelicately declaring that he had 

appointed a Jew, a Negro, and a cripple to a committee. Political 

candidates quickly learn that visibility brings responsibility. American 

Jews have never forgiven Jesse Jackson for calling New York 

"Hymietown" during his 1988 Presidential campaign; Italian-Americans 

were similarly incensed by Bill Clinton's suggestion to Cennifer 

Flowers that Mario Cuomo acted as though he had Mafia 

connections. 83 Celebrity gained through artistic, athletic, or entrepreneurial 

prowess also enhances a speaker's impact. J. Peter Grace, 

chairman and CEO of the chemicals conglomerate W.R. Grace & 

Co. and director of Reagan's Private Sector Survey on Cost Control, 

was forced to apologise when he praised Wisconsin's Republican 

Governor Tommy G. Thompson by saying: "He doesn't have much 

competition. Where I come from we have Cuomo the homo, and 

then in New York City, we have Dinkins the pinkins." 84 Recognising 

that the disciplinary powers of police, prison warders, and teachers 

add weight to their words, American courts uphold limits on their 

speech, despite the First Amendment. 85 Responsibility is diluted 

when the speakers are collective: committee reports, mass entertainment, 

demonstrations. Reputation also can undercut a message. 

When Patrick Buchanan sought to revive his failing Presidential 

campaign by maligning a public television programme about gay 

black men, the response was strangely muted. An ActUp spokesman 

explained: "Buchanan is just so vile it's almost redundant to say it." 

Another activist added: "Buchanan ... is not a new homophobe; 

he's an established homophobe." 86 

2. Motive. Although motive is elusive, unstable, and opaque, it 

has enormous influence on the effects of speech. Worse motives 

always aggravate harm, although good motives may not prevent it— 

as defamation law acknowledges. Students at Pierce College in Los 

Angeles complained about an AIDS awareness poster showing HIVpositive 

victims being bashed by bigots, losing weight, developing 

cancer, and dying—even though it declared: "no disrespect is 

intended by this depiction of human suffering." 87 Advocates of state 

regulation usually make exceptions for the good motives presumed 

in scholarly inquiry, news reporting, art, or political debate. Yet 

audience interpretation remains critical; because motive can be 

feigned, the speaker's avowal is never conclusive. Ambiguity increases 

the risk of discordant interpretations. 

Context can invert motive totally: compare the 1937 Nazi exhibition 

of "Entartete Kunst" (Degenerate Art) with its reconstruction half 

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a century later in Los Angeles and Berlin. 88 Blacks, especially 

women, were insulted when white fraternity members put on blackface, 

fright wigs, and padded breasts and buttocks for a skit in the 

George Mason University student refectory. Did women feel equally 

insulted when gay men calling themselves the West Hollywood 

Cheerleaders marched in the eighth annual AIDS Walk Los Angeles 

wearing mini-skirts, padded tops, and oversized wigs? 89 

3. Target. Abstract assaults on collectivities affect larger numbers, 

while concrete insults to individuals inflict more intense harm. 

Compare pornography with sexual harassment, blasphemy with 

desecration of religious sites or disruption of rites, mass media 

stereotyping with face-to-face taunts. The higher the target's status, 

the less likely it is to be impaired. If unredressed, the harms of speech 

cumulate, transforming tendentious allegation into unquestioned 

stereotype, alerting speaker and audience to the victim's vulnerability. 

Characteristics deemed volitional are more likely to seem fair 

game: sexual orientation rather than gender, religion rather than 

race. 

4. Relationship between Speaker and Target. Group members 

can use language that would be intolerable from outsiders. An image 

that is erotic if created by and for lesbians becomes pornographic if 

produced by or for men. Blacks distinguished sharply between Paul 

Robeson's portrayal of Othello and Laurence Olivier's. Consider the 

decision to cast Denzel Washington as Steve Biko and add Whoopi 

Goldberg to the film version of "Serafina." Lenny Bruce made a 

career out of telling anti-Semitic jokes to mostly Jewish audiences. 

Eddie Murphy satirised Jesse Jackson on "Saturday Night Live." 

Hanif Kureishi can make films about Pakistani immigrants and Spike 

Lee about African Americans, Maxine Hong Kingston can write 

about Chinese Americans and James Welsh about American Indians 

in ways that outsiders cannot. 90 Subordinated groups neutralise the 

sting of epithets by domesticating them: one woman calling another 

a "bitch," a black describing another as a "bad nigger," Larry 

Kramer titling a play "Faggots." A publisher explained why he had 

named his magazine NYQ: "The word queer started up as a way to 

say it's not derogatory to be a homosexual. It is also a way of defining 

yourself as a political person." 91 Yet community membership can 

intensify the sense betrayal when insiders address the outside world, 

as shown by the response of Muslims to Salman Rushdie, Jews to 

Philip Roth, and African American men to Alice Walker. The impact 

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Taking Sides 

of speech varies with the parties' relative status. Cheekiness in an 

inferior can be reproved or ignored; contempt from a superior 

reinforces subordination. 

The interplay between speaker, target, and audience greatly 

complicates meaning. David Hammons, a black artist, painted a 

14x16 foot portrait of a white-skinned, blond, blue-eyed Jesse 

Jackson, captioned "How Ya Like Me Now?" While white workers 

were installing it, two black men attacked the painting with hammers. 

The black curator defended the portrait as "an important 

image that had to be seen, concentrated upon, talked about. . . . 

contemporary art in general is not to be embraced or understood 

upon immediate perusal." Jackson had the last word: "I understand 

that it was an interpretation. I encourage artistic expression and full 

artistic freedom. Sometimes art provokes. Sometimes it angers, 

which is a measure of its success. Sometimes it inspires creativity. 

Maybe the sledgehammers should have been on display too." 

Contrast the Hammons incident with the response when a white 

student at the School of the Art Institute of Chicago painted the 

African American Mayor Harold Washington dressed in a frilly white 

bra, panties, garter, and stockings, and called it "Mirth and Girth." 

When it was displayed at a private show shortly after the mayor died 

of a heart attack, three black Aldermen stormed into the Institute and 

ordered the police to confiscate the painting, warning that it "increased 

tensions in the African-American community to the point 

where violence on the scale of the 1%0's West Side riots was 

imminent." 93 

The history of a relationship can influence the interpretation of 

new messages. Trust can increase tolerance, while prior injuries 

rankle. The Crusades, colonialism, and the rancorous Middle Eastern 

conflict coloured Muslim reaction to The Satanic Verses. Jewish 

memories of the Holocaust underlay fear of the threatened Nazi 

demonstration in Skokie as well as anger at Germany's failure to 

nominate "Europa, Europa" for an Academy Award and its hospitality 

to Austrian President Kurt Waldheim. 94 Absent any prior relationship, 

otherwise offensive speech may be risible. Anti-Semitism 

thrives in Japan without an ostensible target. Den Fujita, an enormously 

successful Osaka businessman whose books "The Jewish 

Way of Doing Business" and "How to Blow the Rich Man's Bugle 

Like the Jews Do" have sold millions of copies, claims to be a philo- 

Semite. "I'm trying to do something good for the Jewish people. 

Most Jewish people speak two or three different languages. They're 

good at mathematics. The Japanese should learn from that. . . . 

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Business people in and out of Japan call me a 'Ginza Jew.' I am 

satisfied with that." A board member of the Japanese-Israel Friendship 

Association commented cryptically: "In Japan, there is no anti- 

Semitism. But many Japanese accept this Nazi-style stereotype that 

Jews control the world." 95 

5. Style. Texts occupy a stylistic continuum from the clarity of 

propaganda through the double entendres of advertising to the 

irreducible ambiguity of art. Authors are not their protagonists nor 

actors their characters, even if audiences and critics constantly 

conflate the two. Echoing classical theories of the cathartic function 

of tragedy, Bruno Bettelheim has argued that fairy tales must elicit 

fear and anger if children are to work through those emotions. 96 

Messages vary from demotic to esoteric: compare tabloids with 

scholarly journals, soap opera with literary criticism, television 

commercials with modern poetry. The esoteric reaches fewer people 

but claims greater authority. 

6. Dissemination and Reception. Even if the medium is not the 

message it may be equally important. Writing is more permanent 

than speech but less immediate. With declining literacy, visual 

images become more powerful than words and appear more truthful. 

Still images can be consulted at will and displayed permanently, 

but moving images offer greater verisimilitude. Direct interaction 

increases emotional power, but reproduction allows the speaker to 

address a larger audience. Live performances are unique and transitory; 

recording allows repetition but may reduce impact. Cultures 

imbue media with different weight: peoples of the book revere 

writing; oral traditions respect rhetoric and story-telling. Environment 

may affect emotional tone: compare the intimacy of the 

bedroom with the impersonality of the street. Spontaneity may be 

excused, while deliberation aggravates: compare insults exchanged 

after a road accident with premeditated affronts. A message expressing 

the hegemonic culture has greater influence than a frontal attack 

on received wisdom. Group dynamics can reinforce or undermine 

the message. Audiences may be critical or credulous, attentive or 

distracted. We have developed a protective carapace against the 

media's massive assault; all writers know how little their readers 

absorb or retain. How much do you remember of the last five pages? 

B. Encouraging Complaints 

If speakers are to become more sensitive to the ways they reproduce 

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status inequality, somebody has to educate them. Those with the 

greatest incentive are their victims. Yet the weakest link in all 

regulatory processes is not detection, conviction, and sentencing (as 

the media and politicans insist) but the failure of victims to complain. 

Within any remedial system attrition is greatest at the early 

stages: naming an experience as harmful, blaming another, and 

claiming redress. 97 Because such decisions are private and invisible, 

inequality flourishes. 98 These problems are compounded when the 

injury is to dignity, not just property or person. Shame and guilt deter 

rape and incest victims from reporting. 99 A British study of sexual 

harassment at work found that only 25 percent of victims complained 

to a third party, and only 2 per cent took legal action. 1 

According to the National Cay and Lesbian Task Force, only one out 

of six hate crimes reported to victim assistance groups in six major 

American cities was communicated to the police. 2 An even smaller 

proportion of those targetted by racial hatred in Britain seek redress—probably 

less than 5 per cent. 3 

Consciousness is the first obstacle and possibly the greatest. 

Victims may have internalised the dominant culture so thoroughly 

that they cannot feel the hurt or blame themselves. Women accept 

male definitions of love, sex, and beauty. Gays and lesbians try to 

pass. Ethnoreligious minorities assimilate, changing their customs, 

language, accent, clothes, even skin, nose, eyes, and hair. The more 

pervasive the affront, the harder it is to challenge. We should not be 

surprised that dignitary harms go unrecognised when for decades 

workers endured serious physical disabilities, such as lung impairment 

from exposure to coal, cotton and asbestos. Even after victims 

have acknowledged their injuries and externalised responsibility, 

expressing anger can be a frightening admission of vulnerability and 

dependence. 4 Further publicity may aggravate dignitary wrongs: the 

repetition of defamation or invasion of privacy, the humiliation of 

rape and sexual harassment victims. William Kennedy Smith's lawyer 

cast aspersions on the complainant's motives; although Mike 

Tyson could have KO'd Desiree Washington with the back of his 

hand, he claimed to have been overwhelmed by her superior brains 

and education. 5 Anita Hill was maligned as a woman scorned, 

seeking revenge and celebrity. The separation of work and family, 

impersonality of most interaction, privatisation and commercialisation 

of leisure, declining social significance of residential neighbourhoods, 

and increasing geographic mobility all encourage victims to 

exit from conflict rather than voice grievances. 6 The American 

victims' rights movement has failed to involve complainants in 

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prosecuting offenders, despite the investment of considerable 

resources. Even New Yorkers, notorious for aggressive selfassertion, 

swallow most insults. 8 

Collective efforts are necessary to encourage subordinated peoples 

to complain about the harms of speech. Although such partisanship 

might seem to violate liberal theory, it is no different from state 

intervention to remedy market failure (restrictive practices and consumer 

protection laws), electoral failure (campaign financing rules), 

and juridical failure (legal aid). The state has already assisted vulnerable 

and reticent victims through institutions like the Freedmen's 

Bureau (during Reconstruction), protective services for women and 

children, and labour inspectorates. 9 The Law Society's Accident 

Legal Aid Scheme helps tort victims seek compensation, thereby 

reducing the underrepresentation of women and the unwaged. 10 

South Yorkshire police have provided mobile telephones so that 

racial and sexual harassment victims can summon assistance 

quickly. 11 The British Department of Education helpline for the 

120,000 boarding school pupils received 10,000 calls in its first nine 

months; over the next three months its successor received 2000 

complaints about bullying, three-fourths of them from girls. 12 Since 

the state is unlikely to be a vigorous ally of speech victims, they must 

seek support from other groups-the functional equivalent of trade 

unions or the ad hoc aggregations of victims of drunk driving 

accidents or mass torts. 13 Because hurtful speech often occurs in a 

private setting—home, residence hall, or office—the audience may 

be non-existent or unsupportive. Other members of the subordinated 

category—all of whom suffer status loss—represent the most 

promising allies, another reason to defend such groups against 

charges of separatism. Because most victimised groups are minorities, 

they must form coalitions with other principled opponents of 

subordination (political, religious, civil rights and civil liberties 

groups). 14 

Victims also need norms that confirm their sense of violation, 

enhance their feeling of empowerment, elicit audience sympathy, 

and help legitimate the complaint in the offender's eyes. Despite the 

complexity of the relationship between norm, morality, and action 

no one could deny that laws against discrimination on grounds of 

race, gender, age, and disability have had salutary consequences. 

Successful complaints can have a cumulative effect. Like any behaviour, 

complaining is learned; visible rewards encourage the victim 

to repeat and others to imitate. 15 When a Chicago woman went on 

television to describe the damages she won for being strip-searched 

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Taking Sides 

during a routine traffic citation—a humiliation long accepted as the 

cost of driving in that city—many women telephoned the station 

with similar stories. 16 When Anita Hill testified before hundreds of 

millions of viewers about her sexual harassment by Clarence Thomas, 

innumerable women felt their anger validated for the first time. 17 

In Hollywood, many who had accepted harassment as the occupational 

hazard of an industry that marketed sex have challenged it and 

sued perpetrators. 18 

Such insubordination is more likely to be punished than rewarded, 

however. The same factors that discourage complaints also 

render status victims particularly vulnerable to retaliation. 19 An 

English doctor who exploded at the male doctor with whom she 

shared a surgery, shouting "I'm fed up with you brushing against me 

and having my breasts touched and my bum touched as you go by," 

was ordered to pay £150,000 damages—the highest slander verdict 

ever recorded—and an estimated £100,000 costs. The judge had 

instructed the jury not to be miserly, referring to the just completed 

Clarence Thomas hearings. 20 When a black man was insulted and 

assaulted in Norwich by white racists, the judge sentenced him and 

his white rescuers to the same two-year prison sentence as the 

assailants, declaring: "I can see no basis for differentiating between 

you in the matter of penalty." 21 It is essential, therefore, to protect 

complainants against further victimisation. 

C. Processing Disputes Informally 

In what forum should speech victims complain, through what 

procedures, and toward what end? State regulation should be 

minimised for all the reasons I advanced earlier: procedural fetishism, 

severity, formalism, inaccessibility, and delay. Instead, the 

state should encourage the communities of civil society to redress 

speech harms. 22 What constitutes a self-regulating community will 

vary across time and place, but possible locales include schools and 

universities, 23 workplaces, 24 trade unions, 25 residential neighbourhoods, 

26 libraries, 27 shops, public transportation, voluntary associations, 

sports teams, political parties and movements, and religious 

congregations. Only communities whose diversity reflects that of the 

larger society can address the reproduction of status inequality. The 

community has several obvious merits as a locus of struggle. 

Because it constructs status, the community can alter it. Because 

members are joined by significant social bonds, they can influence 

each other through informal sanctions like gossip, cooperation and 

obstruction, deference and contempt, inclusion and ostracism. By 

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enhancing civility, the redress of speech harms strengthens community. 

The plurality of communities offers a safety valve for dissent; 

those who cannot or will not offer the respect demanded in one 

community can move to another. For the same reason, some social 

spaces should remain unregulated by any community—a speech 

frontier for the incurably disaffected. 

Communities should regulate speech informally. A decade ago I 

criticised informalism for simultaneously extending unwarranted 

power to the state and false hope to the powerless. 28 Informal 

community responses to speech harms do just the opposite, exercising 

influence in situations where power is inappropriate and indifference 

unacceptable. The ambiguity of symbols, nuances of meaning, 

opacity of motive, and complexity of history and context—all of 

which make the dichotomies of formal law an intolerably crude 

instrument for regulating speech—are the essential grist for informal 

processes, giving the parties space to negotiate. The process must be 

initiated and controlled by the victim—not lawyers, police or prosecutors—since 

a principal purpose is empowerment. Because victims 

belong to subordinated groups, they require support from 

former victims, group members, and others. For the same reason, 

any third party must also be partisan, openly acknowledging the 

social asymmetries that formality hypocritically obscures. The goal 

is substantive justice not procedural neutrality, status equality not 

conflict resolution. Indeed, the purpose is to give voice to grievances 

borne silently, hurts suffered mutely. For this reason the process 

must be accessible and speedy, since it lacks the in terrorem effect of 

loss of freedom or wealth. The process is the punishment. 29 The 

absence of coercive authority becomes an advantage, obviating the 

procedural fetishism that distracts from the real issues. Informal 

community responses are not limited to the lowest common denominator 

of societal consensus; enclaves can prefigure a more inclusive 

equality. Because the norms governing status relations are 

inchoate and mutable, informalism legislates while adjudicating—a 

conflation of roles that embarrassed legalists try to hide. The norms 

that emerge from the experience of processing complaints empower 

subsequent victims. 

What do status victims want? Individuals want offenders to 

acknowledge the harm and apologise. Groups want that personal 

response to elevate collective status. The remedy must be speech, 

not punishment or monetary compensation. 30 Just as insults are 

performative utterances, raising the speaker's status at the expense of 

the victim's, so the only corrective is more speech. Even the First 

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Amendment denies protection to "fighting words"; what it fails to 

recognise is that words do not just provoke fights, they are fights. 

This theorisation avoids some of consequentialism's uncertainties 

about the effects of speech and the efficacy of deterrence. 

The goal is an institutionalised but informal conversation between 

victim and offender. 31 First the offender must be allowed to offer an 

account, an alternative interpretation of ambiguous words and 

impenetrable motives. To the extent that the victim honours this 

account the wound may be salved. 32 But few accounts are entirely 

credible, and some are wholly implausible. Lingering resentment 

must be mollified and persistent status inequality corrected by an 

apology. 

Unlike accounts, which are limited only by the speaker's imagination, 

apologies are highly structured ceremonies. In these degradation 

rituals offenders must affirm the norm, acknowledge its 

violation, and accept responsibility. Such a social exchange of 

respect can neutralise the insult. 33 The offender owes, offers, or 

gives an apology, thereby acknowledging moral inferiority; the 

offended accepts it, thereby restoring the offender to a plane of 

moral equality, or rejects it, preserving the moral imbalance. Thus 

the victim not only initiates the remedial process but also controls its 

outcome, becoming the arbiter of the offender's rehabilitation. 

Police at a white suburban mall held two African American shoppers 

at gunpoint: Gerald Early, a professor at Washington University, and 

his wife Ida, vice-president of the St. Louis Junior League. When the 

officer and police chief refused to apologise, a letter-writing campaign 

and threatened commercial boycott prompted the mayor to 

say: "1 very much regret that Prof, and Mrs. Gerald Early felt 

uncomfortable and unwelcome ... ." The Urban League responded: 

"That's no apology. [The mayor] could have simply said, 

'We apologize to Professor Early and his family, not for their 

uneasiness but for their treatment.' " 34 Like this failure to affirm the 

norm and admit its violation, disavowal of responsibility can defeat 

the apology. In recognition of Black History month John Cardinal 

O'Connor declared in New York's St. Patrick's Cathedral: "If there is 

one place in the whole world in which [racism] should not exist, it is 

in the Holy Roman Catholic Church .... And yet we know in our 

hearts, we know in our shame, that it continues to exist." But he 

qualified this abasement by speaking of "bilateral racism" and 

placing on blacks the burden of making Catholicism one church. 35 

In order to redefine status relations, an apology often is witnessed by 

an audience, who independently judge its adequacy. The third party 

146


might play this role—a truth-telling function similar to that of an 

ombudsman. 36 At a minimum, the audience for the apology must be 

as large as that for the insult. To amplify its impact, French law 

compels those convicted of racial hatred to pay substantial sums to 

publish the retraction and apology repeatedly in several national 

newspapers. 37 

There is unavoidable tension in this process since accounts seek to 

disavow responsibility while apologies must embrace it. Unless they 

are separated, the former can undermine the latter. Nixon characteristically 

conflated the two in his resignation speech: "I regret deeply 

any injuries that may have been done in the course of events that led 

to this decision. I would say only that if some of my judgments were 

wrong, and some were wrong, they were made in what I believed at 

the time to be the best interest of the Nation." When it was disclosed 

in 1992 that Elisabeth Noelle-Neumann, a German political scientist 

visiting at the University of Chicago, had displayed anti-Semitism in 

her dissertation and newspaper articles in the 1930s, she mixed 

justification with apology: 

Anyone who has dealt with texts written under a dictatorship 

knows that certain phrases serve an alibi function and are a 

necessity if one is to be able to write what is in fact prohibited. I am 

terribly sorry if any hurt was caused by what I wrote 50 years ago. I 

certainly can say that when I wrote that passage at the time, I had 

no intention of doing any harm to the Jews. 

The department chair was not satisfied: "Knowing what we know 

about the Holocaust, there is no reason for her not to apologize. To 

ask somebody who played a contributing role in the greatest crime of 

the twentieth century to say 'I'm sorry' is not unreasonable." 38 

The realignment of status is highlighted when apologies are 

exchanged between groups. Signing the bill authorising reparations 

to Japanese Americans interned during World War II, President 

Reagan declared: "No payment can make up for those lost years. 

What is more important in this bill has less to do with property than 

with honor. For here we admit wrong." When three young Japanese 

radicals massacred Jews at Lod Airport in 1972 many ordinary 

citizens visited the Israeli embassy in Tokyo to offer apologies, while 

the Japanese ambassador said on Israeli television in halting 

Hebrew: "Dear citizens of Israel, it is my wish to express my sorrow 

and apologize for this terrible crime perpetrated by Japanese nationals" 

and then burst into tears. Sometimes no words may be 

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Taking Sides 

commensurate with the harm inflicted. In 1986 the moderator of the 

United Church of Canada told a gathering of native Canadian elders: 

We ask you to forgive us. In our zeal to tell you about Jesus Christ, 

we were blind to your spirituality. We imposed our civilization on 

you as a condition for accepting our gospel. As a result, we are 

both poorer. . . . These are not just words. It is one of the most 

important actions ever taken by the church. 

"[T]he happiness felt in the council teepee was almost unbelievable" 

according to the chairman of the church's National Native 

Council. When the church's biennial General Council reconvened 

in 1988, however, the All-Native Circle Conference acknowledged 

the apology but refused to accept it. 39 

In the conversations just summarised the offender listens to the 

victim's grievances, advances an account, and apologises. But what 

about those who refuse to participate, proffer flimsy excuses and 

hypocritical regrets, or repeat the offence? Some are emotionally or 

ideologically committed, others motivated by political ambition or 

greed. Communities can mobilise various forms of persuasion, 

including publicity, withdrawal of privileges and benefits, and 

ostracism. Universities have been particularly inventive. A male 

student who called a female residence hall supervisor a "cunt" for 

denying him entry without the requisite invitation was excluded 

from women's residence halls for the rest of the semester and 

ordered to perform 30 hours of community service. 40 UCLA students 

who sexually harassed women were required to establish programs 

to educate fraternities about sexual harassment. Two white Harvard 

Medical School students who aped Clarence Thomas and Anita Hill 

by attending a party in blackface had to prepare a course on 

medicine in a multi-ethnic society. 41 Ultimately, however, no community 

can survive without the ability to expel incorrigibles. 42 

Schools and universities, employers, trade unions, and housing 

estates all have done so. 

This approach to the harms of speech leaves two intractable 

problems: bad communities and extra-communal life. Many communities 

are indifferent to status inequalities, and some affirm them. 

Dominant religions oppose heterodoxy, religious conservatives condemn 

homosexuals, patriarchal communities repress women, and 

white communities assert racial superiority. Yet this fear may be 

exaggerated. The liberal consensus against discrimination has been 

growing, if its strength diminishes as we move from race through 

148


religion to gender and sexual orientation. Successful community 

efforts to redress the harms of speech will broaden and deepen that 

consensus, allowing the state to extend the expectation of equality, 

as it has been doing since the Enlightenment. The second problem— 

harmful speech that escapes communal regulation—seems less 

troubling. Each nation will have to decide whether to tolerate it on 

the margins—in Hyde Park, for instance, or the streets of Skokie. An 

essential virtue of pluralistic regulation by partial overlapping communities 

is that it allows everyone to hear many messages and speak 

in several fora; those discontent with one community can join 

another. As the regulatory jurisdiction expands, the consequences of 

silencing dissent become more momentous. The case for suppressing 

speech strengthens with its danger: where the harm to subordinated 

groups is greatest, the audience receptive and growing, the 

message least ambiguous, and the motive clearly evil. I support laws 

against such harmful speech, if mainly because their mere enactment 

elevates the status of those protected, but I would not expect 

the inevitably compromised enforcement to play a major role in 

redressing inequality. The real answer to both questions—bad communities 

and communal interstices—is that there is no safe place, no 

escape from politics to persuade communities of their error and 

prudence to guide communities and states in exercising power. 

There is no one best solution to the tension between freedom and 

authority. 

V. The Perils of Pluralistic Regulation 

If communal efforts to redress status inequality are limited by 

pluralism, their success also generates risks: backlash and trivialisation, 

the self-indulgence of identity politics, revolutionary excess, 

and damage to civil libertarian bulwarks. Conservatives denigrate 

the struggle for respect with the epithet "political correctness"—a 

redundant tautology, since politics are omnipresent and all actors 

believe theirs are correct. 43 Dominant groups confound challenges 

by concocting reverse atrocity stories that ridicule victims or transmute 

them into oppressors. California kooks are a favourite target. 

After Governor Wilson vetoed a bill outlawing employment discrimination 

on the basis of sexual orientation, the Santa Cruz Body 

Image Task Force proposed to prohibit discrimination based on 

height, weight, and appearance. Although respectable jurisdictions 

like Michigan and the District of Columbia had similar laws, the 

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Taking Sides 

media quickly fixated on Cooper Hazen, recently fired as a psychiatric 

aide for having a post in his pierced tongue, purple hair, five 

earrings, and a nose ring; a short Mexican American lesbian who 

complained of being "vertically challenged"; and Sara "Hell," who 

wore black leather and a dangling skeleton earring and had tatooed 

her shaven head to highlight a long lock of fuchsia hair. 44 Similarly, 

the Guardian had a field day when a Berkeley waitress refused to 

serve breakfast to a man reading Playboy, generating irate phone 

calls from male and female soft-porn fans, a boycott, and a "readin" 

at the diner, with free copies from the publisher. 45 

If the dominant trivialise the harm they inflict, the subordinate 

abuse their moral leverage by playing identity politics, claiming 

exclusive rights to speak for or about their group. Identity always has 

been salient in electoral politics, as evidenced by the ethnic 

machines of American cities, gerrymandering, and the gender gap. 

Women recently defeated liberal men for the Democratic nominations 

for both California Senate seats. Although Gray Davis urged 

voters not "to make their choice based ... on a chromosome 

count," the California vice-president of the National Women's 

Political Caucus promoted Diane Feinstein, asserting: "A man cannot 

speak for a woman in Congress." Barbara Boxer, the other victor, 

declared: "The U.S. Senate needs a dose of reality, and that dose 

comes in this package." 46 

Subordinated groups increasingly assert their claims to cultural 

territory. 47 Thirty years ago William Styron was condemned for 

daring to write The Confessions of Nat Turner and Laurence Olivier 

criticised for portraying Othello. 48 By the 1990s only an Asian could 

play the lead in "Miss Saigon." When Warner Brothers decided to 

produce a biography of Malcolm X it hired Norman Jewison, the 

white director of "A Soldier's Story," a highly acclaimed film about a 

Southern black regiment during World War Two. After being 

deluged with up to 100 protest letters a day the studio substituted 

Spike Lee. Although Lee denied orchestrating the campaign, he 

acknowledged: "I had problems with a white director directing this 

film. Unless you are black, you do not know what it means to be a 

black person in this country." Malcolm's former friends and associates 

would not have cooperated with a white director. "Most black 

people are suspicious of white people and their motives. That's just 

reality." 49 

Identity, however, is neither necessary nor sufficient for authenticity. 

When white jazz critic Leonard Feather bet that black trumpeter 

Roy Eldridge could not distinguish black and white musicians 

150

The Perils of Pluralistic Regulation 

on records, Eldridge did worse than chance. After Danny Santiago 

won an Academy of Arts and Letters award for his moving portrayal 

of Chicano life in the East Los Angeles barrio in his novel Famous All 

Over Town, he embarrassed many admirers by revealing that he was 

Daniel L. James, a 70-year-old jew educated at Andover and Yale. 50 

The Education of Little Tree, promoted as the true story of a 10-yearold 

orphan who learned Indian ways from his Cherokee grandparents, 

sold 600,000 copies, won the American Booksellers 

Association award for the title they most enjoyed selling, and was 

displayed on gift tables in Indian reservations and assigned as 

supplementary reading in Native American literature courses. Studios 

competed for the right to film it. Booklist praised its "natural 

approach to life." In Tennessee, where the story was situated, the 

Chattanooga Times called it "deeply felt." Declaring that it captured 

a unique vision of native American culture, an Abnaki poet lauded it 

as "one of the finest American autobiographies ever written" and 

compared it to "a Cherokee basket, woven out of the materials given 

by nature, simple and strong in its design, capable of carrying a great 

deal." The New Mexican reviewer raved: "I have come on something 

that is good, so good I want to shout 'Read this! It's beautiful. 

It's real.' " But it wasn't. The pseudonymous author Forrest Carter 

actually was the late Asa Earl Carter, "a Ku Klux Klan terrorist, rightwing 

radio announcer, home-grown American fascist and anti- 

Semite, rabble-rousing demagogue and secret author of the famous 

1963 speech" in which Alabama Governor George Wallace promised 

"Segregation now . . . Segregation tomorrow . . . Segregation 

forever." 51 If identity can be successfully feigned, biology does 

not guarantee acceptance. When Julius Lester criticised James 

Baldwin in 1988, 15 colleagues in the African American Studies 

Department forced the University of Massachusetts to reassign 

him to Judaic Studies. Many blacks repudiate conservatives like 

Clarence Thomas or Thomas Sowell; many women disavow Phyllis 

Schlafly. 52 

Like any political conflict, the struggle for equal status will foster 

excesses. Some feminist critics of pornography have entered unholy 

alliances with conservative moralists and religious prudes, threatening 

valuable art and literature as well as misogynist trash and 

inhibiting sexual expression by women as well as men, homosexuals 

as well as heterosexuals. 53 As long as gendered power inequalities 

persist, complaints against real sexual harassment may also inhibit 

love. The fatwa against Salman Rushdie is a grave injustice to him 

and a terrible blot on the reputation of Islam. Suspicion contami- 

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Taking Sides 

nates discourse across status boundaries. Fear of inflicting harm may 

discourage research on genetic and biological differences, or investigation 

of the darker history of subordinated groups. 54 Propaganda 

may displace art. The unity necessary to struggle for enhanced status 

may breed internal intolerance, painful separatism, and external 

distrust. 55 

Abandonment of an absolutist civil libertarianism may deprive 

citizens of weapons valuable in resisting state oppression. Yet efforts 

to evade political responsibility by seeking refuge in illusory principle 

violate intellectual integrity. And it is unclear that communal or 

even state regulation of speech that reproduces status inequality 

encourages the suppression of religious or political dissent, intellectual 

or artistic creativity. There is little evidence that either the public 

or their officials tolerate speech they abhor because speech they 

value is tolerated by those who abhor it. 56 

Let me conclude on a more positive note by stressing how far we 

have come, how many forms of status degradation once taken for 

granted have lost their legitimacy. Racist, anti-Semitic and sexist 

slurs that pervaded polite discourse have been banished to the 

margins of deviance. Crude media stereotypes now startle and shock 

by their rarity. Hegemonic religion is yielding to pluralistic tolerance. 

Public disapproval is curtailing sexual harassment. The differently 

abled, long forced to beg or display their differences as 

"freaks," have greater access to public life. Even homophobia is in 

retreat. Communal regulation of harmful speech builds on these 

small victories in the unending struggle for a more humane society. 

Notes 

1 Galanter(1974). 

2 France (1927: ch.7). 


4 Guardian 6 (October 12, 1991). 

5 GLC Women's Committee (nd: 5, 9). 

6 All are eligible for Medicare. New York Times A14 (March 18, 1992). 

7 All are eligible for Medicaid. Los Angeles Times A3 (January 31,1992). 

8 Soon after California gassed its first convicted criminal in 25 years the 

legislature authorised the lethal injection as an alternative. The news 

headline read: "California Inmates Get Choice in Executions." New York 

Times A7 (August 31, 1992). 

9 Guardian 8 (October 12, 1991). 

10 Independent 10 (October 15, 1991). 


152

Notes 

12 New York Times A19 (January 25, 1991). A Moscow brokerage house 

advertisement for women secretaries, 18-21 years old, told them to wear 

a mini-skirt to the interview. An advertising firm seeking a receptionist 

asked women to submit full-length photos, preferably in a bikini to 

display their "full super-attractiveness." New York Times 13 (September 

12, 1992) (oped). 

13 New York Times B12 (December 11, 1991). 

14 New York Times B1 (April 15, 1992). 

15 New York Times 1 (February 15, 1992). 

16 New York Times B1 (January 23, 1991). 

17 New York Times s. 1 p.69 (December 15, 1991). Dalma Heyn's The Erotic 

Silence of the American Wife (1992) was much ballyhooed as a call for 

eliminating the double standard by ending monogamous fidelity for 

women as well as men. 

It's about time women gave voice to all their dimensions, including the 

erotic, without shrinking in guilt. (Gail Sheehy) 

Dalma Heyn has shown us a new reality and a tantalizing hint of the 

future—and neither women nor marriage will ever be the same. (Gloria 

Steinem) 

Heyn reminds us ... that women are sexual beings and that, for 

women as well as men, sex is a fundamentally lawless creature, not 

easily confined to a cage. (Barbara Ehrenreich) 

Dalma Heyn exposes the lie that men, by nature, play around and 

women, by nature, are monogamous. (Louise Bemikow) 

New York Times B2 (June 17, 1992) (advertisement). 

Male actors, singers, and athletes have always been sex objects. 

Women law students comment on cute male professors in teaching 

evaluations and bathroom graffiti. Now other male performers are seeking 

to exploit their sexuality. EMI Classics promoted Tzimon Barto's "Chopin 

Preludes" with publicity photos showing him without a shirt. The female 

vice president of marketing explained: "What we are trying to do is 

represent the artist as a whole person. Not only does he play the piano 

beautifully, but he's also a body builder ..." Trying to make a Swiss 

harpist "a sex symbol of classical music," the company photographed 

him in bed with his harp. The performer conceded: "we try to use the fact 

that I'm young, that I do sports, I lift weights, whatever to catch the 

attention of the people to listen." New York Times B4 (September 14, 

1992). 

18 Walker (1980); Teish (1980); Crenshaw (1991). Consider the reaction of 

black men to Alice Walker's The Color Purple (both the novel and film), or 

of the black women in Spike Lee's "Jungle Fever" to the interracial love 

affair. See also Campbell (1992) and the reader response. New York 

Times Magazine 12-13 (September 13, 1992) (letters to The Editor). 

19 Mercer (1990: 45^9). 

20 Camille Paglia has cynically pursued an academic and media career by 

attacking feminism. She recently wrote that "every woman must take 

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Taking Sides 

personal responsibility for her sexuality" and must be "cautious about 

where she goes and with whom." If raped, she "must accept the consequences, 

and, through self-criticism, resolve never to make that mistake 

again." Rape "does not destroy you forever. . . . It's like getting beaten 

up. Men get beat [sic] up all the time." Anita Hill is not a "feminist 

heroine," and Clarence Thomas emerged from the hearings "with vastly 

increased stature." Paglia was "delighted that [William Kennedy] Smith 

was acquitted" of rape. (1992; see also 1990). 

21 

Stephen L. Carter (Yale Law School); Shelby Steele (San Jose State 

University English department); Linda Chavez (Equal Employment 

Opportunities Commission); Glenn C. Loury (Boston University economics 

department); Thomas Sowell (Hoover Institute, economics); 

Walter E. Williams (George Mason University economics department); 

Randall Kennedy (Harvard Law School). See, e.g. Carter (1991). 

22 


23 

Los Angeles Times A1 (February 28, 1992) (obituary). 

24 

New York Times sA p.3 (December 29, 1991), A4 (December 31, 1991), 

A3 (February 10, 1992). The government banned political activity in the 

mosques and closed three independent daily newspapers for "endangering 

the nation's interest." New York Times A16 (August 20, 1992). 

25 

New York Times A3 (February 10, 1992). 

26 

Guardian 6 (September 18, 1991), 6 (October 21, 1991), 26 (November 

22, 1991). 

27 

New York Times A10 (February 6, 1992), A7 (February 25, 1992). 

28 

Repohistory, a group of 65 artists, installed 39 signs in lower Manhattan 

with the approval of the Department of Transportation. The one on 

Maiden Lane showed a doll with an illustration of a hymen taken from a 

medical textbook, explaining that the street got its name from the young 

girls who did the laundry along a stream in the 17th century. A 40-year 

old woman said: "It's disgusting. Everyone's taste in art varies, but I just 

think this particular thing is offensive to women." New York Times A14 

(August 27, 1992). 

29 

Hughes (1980). 

30 

New York Times s.2 p. 10 (March 15, 1992). 

31 

If a charge of blasphemy against Islam has terrorised Salman Rushdie for 

nearly four years, Gore Vidal's publisher has exulted in similar accusations 

against his novel Live from Golgotha (1992), reproducing them in 

newspaper advertisements: 

It's too funny to be condemned simply as a blasphemous novel that 

should be added to the Vatican's Index of banned works and censored 

by the book police anywhere. Like it or not, its assault on the New 

Testament prophets or their modern successors and on religion in 

general is in a bawdy and anti-hypocritical tradition that goes back to 

Chaucer, Rabelais, Balzac and our own Sinclair Lewis. (Herbert Mitgang, 

New York Times) 

Bracingly blasphemous. Vidal still hasn't gone respectable: Christians 

154

Notes 

and Jews, p.c. gays and uptight straights will all find plenty to offend 

them. (Newsweek) 

Despite every Rushdie-like blasphemy he can think of ... what he 

achieves is a serious argument about the birth and meaning of Christianity. 

(Chicago Tribune) 

I will not read the book, and I will not spend money on it. (Dr. Michael 

Harty, Bishop of Killaloe) 

New York Times B3 (September 23, 1992), B2 (September 24, 1992), B2 

(October 2, 1992). 

At the end of a rave review of "Glengarry Glen Ross," Vincent Canby 

observed that the movie "which has been rated R ... is stuffed with 

language that is vile, obscene and gratuitously vulgar, which is its 

method." New York Times B1 (September 30, 1992). 

32 


33 

Osborne (1991), reviewed in Guardian 27 (October 31, 1991). 

34 

Harvey (1984). 

A Jersey City group (whose name the New York Times would not print 

because it contained an obscenity) made a statue of Jesse Helms filled 

with fertilizer (bullshit), gave it a mock trial for censorship, and smashed it 

on the Capitol steps during an anti-censorship rally. They disrupted rushhour 

traffic by chaining a 46-foot banner of headless suits across Wall 

Street to protest "the mindless omnipotence of corporate America." They 

hung sculptural corpses named for art movements to street lights near 

SoHo galleries to demonstrate that "art is dead." They changed smiles 

into grimaces and faces into skulls on 42 billboards before two members 

were arrested. The Gannett Corporation, which owned the billboards, 

dropped the charges and gave the group its own to produce a message for 

the Women's Health Action Mobilization on AIDS. Like Guerrilla Girls 

(feminist artists who wear gorilla costumes to gallery openings to protest 

male hegemony), they wear black clown outfits to accuse galleries of 

playing it safe. New York Times s.1 p.34 (April 26, 1992). 

Robbie Conal's posters display Chief Justice William Rehnquist over 

the caption "Gag Me With a Coat Hanger" and the six male justices likely 

to vote against abortion over the caption "Freedom of Choice" in which 

"of" has been crossed out and replaced by "from." Guerrilla Matrons 

mysteriously plaster them across Los Angeles, following a two-page guide 

to "Guerrilla Etiquette and Postering Technique." Los Angeles Times E1 

(June 9, 1992). 

35 

Los Angeles Times A10 (April 23, 1992). During the Sixties we shouted: 

"Hey, Hey, LBJ/How many kids did you kill today?" When Clarence 

Thomas wrote an opinion shortly after his confirmation holding that the 

repeated beating of a federal prisoner did not constitute cruel and unusual 

punishment, the political cartoonist Conrad pictured him (and Justice 

Scalia) beating a bound, gagged, and manacled black prisoner with their 

gavels. Los Angeles Times B7 (March 3, 1992). 

36 

Commenting on the proscription of swearing in British family and 

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Taking Sides 

children's television programmes, Ian Curteis said: "As a Christian, I find 

the casual expletive 'Jesus' or 'Christ' momentarily sickening .... To 

most ordinary people, sex remains a private, almost secret thing, verging 

on the miraculous. A sudden crude blow to such feelings can produce 

the same sort of shock as a religious based swear-word." Guardian 31 

(October 28, 1991). A survey by the Broadcasting Standards Council 

ranked swear words from the least objectionable (blast—49 per cent 

objected) to the most (piss—72 per cent objected). Guardian 2 (October 

25, 1991). 

When George Bernard Shaw presented The Adventures of the Black 

Girl in Her Search for God to Dame Laurentia McClachlan of Stanbrook 

Abbey she was so upset that she broke off a long and valued friendship, 

refusing to speak to him for a year, according to Hugh Whitemore's "The 

Best of Friends" (an adaptation of their letters for theatre and television). 

A.N. Wilson's Jesus (1992) seems to be provoking a similar storm more 

than half a century later. 

37 

Los Angeles Times F1 (October 6, 1992). What about Francis Bacon's 

portraits of Popes, some of them sitting on the toilet? 

38 

Matsuda (1989: 2357). 

39 

Hungary has declared its intent to compensate the victims of state 

oppression, from the first law against Jews passed on March 11, 1939 to 

the fall of communism on October 23, 1989. New York Times A4 (May 

14, 1992). The Jewish Restitution Organization (uniting eight groups) 

plans to claim payment for schools, hospitals, synagogues, art, and ritual 

objects seized by Nazis and communists, worth an estimated $10 

billion. Los Angeles Times A4 (August 4, 1992). Chief Moshood Kashimawo 

Abiola, a major Nigerian capitalist and close friend of the president, 

is seeking reparations to Africans from all the countries involved in 

the slave trade. New York Times A2 (August 10, 1992). 

40 

Morrison's permanent secretary, quoted in Lester (1987: 21). 

41 

New Statesman & Society 20 (October 4, 1991). 

42 


43 

Guardian 7 (November 11, 1991). The Minnesota Supreme Court has 

invalidated a criminal statute imposing heavier penalties for possession of 

crack than powdered cocaine because almost all of those caught with 

crack were black (96.6 percent), while most of those found with cocaine 

were white (79.6 per cent). The state had not shown that crack was more 

dangerous. New York Times 8 (December 14, 1991). 

44 

190 Searchlight! (April 1991); 187 Searchlights (January 1991) (sample 

of 3000). 

45 

New York Times A4 (March 4, 1991). 

46 

Guardian 2 (October 14, 1991) (Bar Council), 6 (September 19, 1991) 

(Lord Chancellor), 5 (October 12, 1991) (Master of the Rolls). 

47 

Los Angeles Times A29 (March 28, 1992). 

48 

New York Times s.4 p.16 (March 22, 1992). In South Africa, which 

certainly has as much experience as any country with de facto inequality, 

156

Notes 

a reviewer for the leading liberal weekly ridiculed the argument that 

pornography degrades women by arguing that "hideous stereotyping of 

nightclub owners, plumbers who leave their bodies lying out from under 

the sink and newspaper boys who knock on the door, also occurs." 

Stober(1992). 

49 New York Times A10 (March 17, 1992) (margin of error +/-4%). 

50 New York Times A8 (October 9, 1990). 


52 New York Times B16 (December 4, 1991), A7 (February 6, 1992); 

Podbereskyv. Kirwan, 956 F.2d 52 (4th Cir. 1992), Only about 1500 

minority students hold such scholarships, less than 0.03 per cent of the 

5,200,000 university students receiving financial aid. Los Angeles Times 

A5 (March 17, 1992). The Regents of the University of California recently 

accepted a $500,000 bequest for scholarships for "very poor American 

Caucasian" students, observing that the testator "was well-intentioned." 

New York Times A11 (September 22, 1992). There are now enough 

minority alumni at many universities to donate significant funds for 

minority scholarships—$1.4 million at Syracuse University in the last 

four years. New York Times A6 (August 31, 1992). 

53 Chronicle of Higher Education A38 (February 5, 1992). The U.S. Justice 

Department's Office of Civil Rights has just required the UC Berkeley law 

school to change its affirmative action admissions programme dramatically. 

Los Angeles Times A1 (September 29, 1992); New York Times A15 


India's half-century effort to alleviate religious, caste, and ethnic 

inequalities has stimulated even more violent responses. In 1990 six 

students in Haryana, Punjab and Andhra Pradesh committed suicide to 

protest affirmative action for the scheduled castes and indigenous peoples; 

there were three more attempts in New Delhi, and trains and cars 

were attacked in Allahabad. New York Times A4 (October 9, 1990). See 

generally Galanter (1984). 

54 Chronicle of Higher Education A15 (November 27, 1991). 

55 New York Times 1 (April 13, 1991); Chronicle of Higher Education A24 

(January 8, 1992), A24 (February 12, 1992). The panel member was an 

anti-feminist woman philosophy professor, Christina Hoff Sommers. 

56 University students with physical disabilities enthusiastically supported 

the creation of their own cultural centre. A counselor explained: "a 

cultural center is saying we have a culture we want to share. The culture 

is part of the disability that distinguishes us, the same as people of color 

organize around their culture." One of the organisers, who is blind, 

added: "For years we have been asked to live in this able-bodied world, 

trying to become able-bodied people. The idea here is, I'm proud of my 

disability and I don't need to be fixed." New York Times s.1 p.45 (April 

26, 1992). 

57 Guardian 29 (November 5,1991). Since 1988 the Dutch government has 

supported Islamic primary schools, with single-sex physical education 

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Taking Sides 

classes; Muslim leaders now have asked for separate secondary schools. 

Los Angeles Times A1 (February 8, 1992). African American converts to 

Islam increasingly are sending their children to private Muslim schools; 

there are eight in the New York area and more than 60 nationwide. New 

York Times A14 (October 6, 1992). 

58 183 Searchlight 7, 18 (September 1990), 182 Searchlight 4 (August 

1990); Weeks (1990: 93-94). 

59 New York Times M 7 (January 10, 1991), s.1 p.15 (January 13,1991). The 

very day the New York proposal was announced a front-page headline 

declared: "South Africa Desegrates Some White Public Schools." New 

York Times A1 (January 10, 1991). Detroit has established an all-male 

primary school; although formally nonracial, more than 90 per cent of 

Detroit schoolchildren are minority. New York Times A12 (March 1, 

1991). Most "historically black" public universities want to retain that 

identity. Hacker (1992: 154-58). Even in integrated institutions, some 

minority instructors admit only minority students to their classes. New 

York Times A20 (January 29, 1992) (Leonard Jeffries's African history 

course at CUNY's City College). Some whites have responded by establishing 

white student unions to defend their privileges and assert their 

cultural superiority. Chronicle of Higher Education A37 (September 11, 

1991). 

60 Independent on Sunday 8 (November 3, 1991) (70 per cent of a sample of 

successful women had attended girls' schools; but dubious methodology); 

Wellesley College Center for Research on Women (1992); New 

York Times M (February 12, 1992); Los Angeles Times A] (February 12, 

1992) (review of more than 1000 studies). A recent book, however, 

suggested that women teachers in girls' schools may encourage obedience, 

conformity, passivity, and niceness. Brown & Gilligan (1992). 

61 Los Angeles TimesQ] (February 28,1992). The Lesbian Herstory Archives 

in Brooklyn bars men from some files (in accordance with the donor's 

wishes) and encourages them to send female researchers. 3(1) Ms.59 

(July/August 1992). 

62 Chronicle of Higher Education B1 (September 25, 1991) (Prof. Troy 

Duster, an African American sociologist at UC Berkeley). 

63 Bourdieu (1991); Curran et al. (1986). Dutch and Danish experiments 

with schools and the mass media offer examples. 

64 The developer of Colonial Village, a 640-unit condominium in Arlington, 

Virginia, just outside the District of Columbia, has been fined $850,000 

for using only white models in its ads from 1981 to 1986, in violation of 

the 1968 Fair Housing Act. New York Times s. 1 p. 10 (May 17, 1992). At 

their annual conference, American Methodists adopted the first new 

"Book of Worship" in 25 years. An optional prayer described God as "our 

Mother and Father," "bakerwoman" leavening hopes, and giving "birth 

to our world." It included a Mexican Christmas eve service, many Native 

American prayers, and a Korean rite. New York Times s.1 p. 14 (May 17, 

1992). The co-chair of the Eleanor Roosevelt Monument Fund observed 

158

Notes 

that there are no statues of American women in New York City. A 3-foot 

high statue of Gertrude Stein in Bryant Park (behind the Public Library) 

will be the first; an 8-foot statue of Eleanor Roosevelt is planned for 

Riverside Park. New York Times 14 (August 29,1992) (letter to The Editor, 

August 14). The New York City Board of Education adopted the "Children 

of the Rainbow" curriculum guide for first grade, which urges teachers to 

be "aware of varied family structures, including . . . gay or lesbian 

parents ..." New York Times s.4 p. 16 (September 27, 1992) (editorial). 

Hurricanes, which used to be named exclusively after women, now 

alternate between men's and women's names. 

65 ILEA(1982). 

66 Reinhold (1991); Bromwich (1992); Berman (1992); Aufderheide(1992); 

Schlesinger (1992); Partisan Review (1991); New York Times s.1 p.65 

(December 15, 1991). 

67 Dickey and CPBF (1985) (Working Group against Daily Mail Racism; 

TUC; National Union of Journalists Code of Conduct; Association of 

Cinematograph, Television and Allied Technicians Code of Conduct); 

GLC Women's Committee (nda: 13) (London Transport Code of Conditions 

of Acceptance of Advertising). 

68 New York Times A27 (December 11, 1991), A14 (December 30, 1991). I 

question The Nation's judgement in accepting an advertisement from a 

Los Angeles group called Positive Realism. 

Gay to Straight. It Can Be Done? Sexuality derives from personality. Just 

as you make personal changes in your life, so heterosexuality can 

become a natural, self-fulfilling, joyous experience. How? You don't 

need to be converted or insulted. Instead, you can use a proven, well 

thought-out, positive and understanding approach. Any gay or bisexual 

man or woman can do it even if they've never experienced a heterosexual 

desire. Many already have. 

Although the editors timidly characterised these claims as "borderline 

offensive," knew they would anger staff and readers, and worried that 

"printing more ads with a similar message would change the nature of the 

magazine and undermine the broad cultural values our editorial policy 

seeks to advance," they concluded that the ad "does not seem fraudulent 

to us .... Bad politics and wrong ideas are best challenged by good 

politics and ideas, not censorship." 254(5) The Nation 148 (February 10, 

1992). But that is just the question. Sometimes it is better to expose 

homophobia, sometimes it is wiser to deny it further publicity. Calling the 

latter decision censorship does not advance the ethical inquiry. 

69 New York Times 47 (December 14, 1991). The Council of Islamic 

Education, founded to combat stereotypes, objected to the statement in a 

sixth-grade textbook that all Muslims are Bedouins who rub sand over 

their faces before kneeling to pray to Allah. A seventh-grade text attributes 

a white face to the angel Gabriel (respected as God's messenger by 

Muslims, Christians, and Jews). It uses a camel to symbolise Islam's 

"moment in time," comparable to Spanish cartographers, Samurai war- 

159

Taking Sides 

riors, Austrian crusaders, and English printers. Los Angeles Times B4 

(October 3, 1992). 


71 New York Times A1, C9 (March 2, 1992) (gay press); New York Times 

Magazine pt 2 p. 14 (April 5, 1992) (description of a lesbian couple who 

collect and sell antiques). Ralph Lauren, which for years identified itself 

with upper-class Edwardian Enlgand, now is following Benneton in using 

women, minorities, and inner city youths as models. New York Times B1 

(September 14, 1992). Even in South Africa, the growing purchasing 

power of the huge black majority is compelling producers to seek black 

advertising agencies, which can appeal to that market. Herdbuoys, the 

first such agency, had 12 million rand in billings within a year after its 

April 1991 launch. New York Times s.3 p.3 (May 24, 1992). 

But fewer than 10 per cent of American journalists are Black, Hispanic, 

or Asian American. New York Times s.1 p.16(June28, 1992). 

72 New York Times 9 (February 22, 1992). 

73 New York Times s. 1. p.44 (December 1, 1991). 

74 New York Times s.3 p. 12 (December 15, 1991). On the ways in which 

material culture expresses racism, see Dubin (1987). 

75 Quoted from the Washington Post in the (Johannesburg) Weekly Mail 12 

(August 16, 1991). But progress is fitful. The anti-feminist backlash is 

epitomised by Mattel's latest Barbie doll, whose recorded voice simpers: 

"Math is hard!" 

76 I am obviously seeing society as constructed of relationships among 

otherwise incomplete beings rather than rights between autonomous 

individuals. Cf. Gilligan (1982). 

Los Angeles's Cardinal Roger M. Mahony issued a report on the mass 

media in which he asserted: "Artistic freedom is essential to the creative 

process. But a moment's reflection will convince [writers] that the 

freedom they cherish cannot be separated from the moral order, the 

demands of truth, a concern for the common good or the well-being of 

other people." If characters are "saying something with their bodies they 

do not mean with their minds, hearts, and souls," he asked, "is the 

picture honest about the inauthenticity, the inadequacy, the terrible 

emptiness, the shallowness and the self-deception of such a one-dimensional 

approach to human sexuality?" Is violence "demanded by the 

story" and "presented as a desirable way to solve problems and resolve 

conflict?" Are women portrayed as "possessing the same intrinsic dignity 

as their male counterparts . . . ?" He was applauded by the president of 

the Writers Guild of America West, the senior vice president of Atlantic 

Records (who was also chair of the Southern California ACLU), the vice 

president of the Directors Guild of America, and the president of the 

Motion Picture Association of America. Los Angeles Times A1 (October 

1, 1992). 

77 In response to listener objections, NBC stopped using "darky" and other 

racially derogatory terms in the 1930s. As late as the 1950s, entertain- 

160

Notes 

ment programmes could not mention divorce. New York Times B4 (April 

27, 1992). 

A month after his first acquittal on charges of beating Rodney King, 

Stacey C. Koon "wrote" a book about the LAPD, generously seasoned 

with racial slurs. He referred to King as "Madingo" and George Holliday 

(who shot the incriminating video) as "George of the Jungle". Once when 

Koon repeatedly shot a black man his fellow officers joked that the man 

would survive because blacks "are too dumb to go into shock." Koon 

claimed he had become a "legend" for viciously kicking a Latino drug 

suspect in the testicles. The new LAPD chief (an African American from 

Philadelphia) quickly denounced the comments. When the book 

appeared five months later all this material had been cut. Koon said "that 

was part of the editing process. Those were just raw notes." Los Angeles 

Times B1 (May 16, 1992), B3 (May 21, 1992), B3 (October 15, 1992). 

Daryl F. Gates, the police chief who had just been forced into retirement, 

made his debut on KFI's radio call-in show the same day that federal 

prosecutors indicted the four LAPD officers for civil rights violations. 

Gates exulted: "Just think, I don't have the restraints that I had before, 

when I was Chief of Police. Now I can say almost anything I want to say." 

He had not been noticeably reticent before. New York Times A8 (August 

7, 1992). 

78 

Witness the extraordinary success of Deborah Tannen's books (1986; 

1990). 

79 

Paley(1992). 

80 

Hall (1991), reviewed in The Guardian 25 (November 21, 1991). 

81 

Observer 3 (November 17, 1991). 

82 

New York Times s. 1 p.26 (December 8, 1991). 

83 

New York Times A12 (January 29, 1992), A12 (January 30, 1992), A19 

(March 26, 1992), A14 (April 1, 1992), A17 (April 2, 1992), s.1 p. 14 

(April 5, 1992). Jackson addressed the Jewish World Congress in Brussels 

in July, urging the two groups to work together against "scapegoating, 

racism, anti-Semitism, polarization and violence." He repudiated Louis 

Farrakhan, retracted his earlier statement that Israel was "occupying the 

birthplace of Jesus Christ," and apologised for "Hymietown." The WJC 

secretary general said: "He condemned anti-Semitism 42 times in his 

speech, 42 times. What more do you want?" New York Times A1 (July 8, 

1992); Los Angeles Times M (July 8, 1992). 

84 

Los Angeles Times A20 (October 8, 1992). 

85 

Delgado (1982); Volokh (1992). 

86 

New York Times s.1 p.17 (March 8, 1992). 

87 

Los Angeles Times B1 (March 6, 1992). 

88 

New York Times B3 (March 5, 1992). 

89 

New York Times A12 (August 29, 1991); Chronicle of Higher Education 

A1 (October 23, 1991); Los Angeles Times B1 (September 21, 1992) 

(AIDS march). 

90 

Richard West Jr., a Stanford law graduate and Cheyenne-Arapaho, the 

161

Taking Sides 

first director of the Smithsonian's National Museum of the American 

Indian, declared: "No other modern museum has so self-consciously 

sought focused input of special concerns from a user population." 12 of 

the 25 governing board members must be Indian. "We're part of the 'we,' 

not the 'them.' " A pre-opening show in New York, "Pathways of 

Tradition," was shaped by the recommendations of 28 "culturally based" 

artists, religious leaders, educators, and museum administrators. New 

York Times s.2 p.53 (September 13, 1992). 

91 New York Times M (March 2, 1992). 

Many African Americans have condemned Huckleberry Finn as racist, 

deploring Mark Twain's use of the word "nigger" (200 times) and urging 

its exclusion from schools and libraries. Now a white literature professor 

has found an 1874 article in which Twain identified a 10-year-old black 

boy as the inspiration for Huck's speech patterns. Henry Louis Gates Jr., 

an African American professor of literature at Harvard, commented: 

"What we discover after all this time is that it is the black American 

linguistic voice which forms the structuring principle of the great American 

novel, and that ain't bad." New York Times A1 (July 7, 1992); Fishkin 

(1993). 

92 New York Times B9 (December 1, 1989), B2 (December 4, 1989). 

Evanston, Illinois, planned a public service announcement on television, 

created free of charge by a Chicago advertising executive. It began with a 

neo-Nazi giving the Sieg Heil salute while a voice over said "If they gave 

a medal for killing black people, this gang would win a bronze" for 12 

murders in the last decade. Then the hooded Ku Klux Klan appeared with 

a torch while the voice over said: "This gang would win the silver" for 20 

murders in the last three decades. Finally a young tattooed black man 

wearing a baseball cap, cutoff shorts, heavy jewellery, and a tank top 

appeared with sounds of gunfire in the distance while the voice over said 

"But this gang would win the gold. If you're in a gang, you're not a 

brother. You're a traitor." The screen showed 1300 murders in 1991 

alone. A black city councillor condemned the ad, while the head of the 

Police Department gang unit endorsed it. New York Times s.1 p. 10 

(August 23, 1992). 

93 A judge has since held that the Alderman violated the student's constitutional 

rights and ordered the policemen to stand trial. New York Times A9 

(August 12, 1992). 

In Negrophobia, a black author wrote the story of a white teenager 

transported to a world where the most bigoted stereotypes prevail. A 

white artist designed the cover, showing a scantily clad white girl with the 

shadow of an oversize black caricature peering over her shoulder. A 

black woman employee of the publisher was enraged: "it gives credence 

to the old stereotypes that too many people still believe." The publisher 

had anticipated that "less hip" readers might be "turned off" but concluded 

that "this was an appropriate reflection of the parody in the book." 

The author explained: 

162

Notes 

black people should start taking back these images from our iconography 

that have been stolen and corrupted through the years by racists. 

. . . You see these rap and hip-hop artists wearing tiny little braids just 

like those stereotypical pickaninny pictures. But it's a statement of our 

power instead of self-loathing. . . . It is subverting the perversion. 

New York Times B3 (June 17, 1992); James (1992). 

94 Germans were naively surprised by British anger at the proposed commemoration 

of the 50th anniversary of the launching of the V-2 rocket. 

Organisers claimed they were only honouring the "outstanding scientific 

and technical achievement" of "the first step into space." The head of the 

German Aerospace Trade Association, which sponsored the event, complained 

that "the celebrations have unfortunately become the subject of 

political discussions, which do not do justice to the scientific facts." 

Winston Churchill (a Conservative MP and son of the wartime Prime 

Minister) pronounced: "civilised nations do not celebrate weapons systems." 

To which the Munchner Merkur replied: "Some of those now 

protesting stood by silently or applauded when the Queen Mother 

unveiled a monument to Sir Arthur Harris, who as head of the British 

Bomber Command in World War II was responsible for the reprehensible 

bombardment of German cities and the deaths of hundreds of thousands 

of civilians." New York Times A1 (September 29, 1992). 

95 New York Times A7 (February 19, 1991), s.3 p.1 (March 22, 1992). 

96 Bettelheim (1976). The South African Broadcasting Company thinks 

differently. A report urging a ban on the occult concluded: "Good 

children's stories try to help children to create an aversion to what is evil 

(and to everything and everyone associated with it) and to appreciate and 

strive after what is good." Weekly Mail 15 (September 18, 1992). 

97 Felstiner et al. (1980-81). When France passed a law against sexual 

harassment (the toughest in Europe), a public opinion poll revealed that 

20 per cent of French women would not consider themselves harassed if 

asked to undress during a job interview, and 45 per cent would not if a 

male superior asked them to spend a weekend discussing a requested 

promotion. New York Times s.1 p. 10 (May 3, 1992). 

98 Nader (1980); Harris et al. (1984); Abel (1985b); Hensleretal. (1991); 

Merry (1990); Yngvesson (1988); Mather & Yngvesson (1980-81); Baumgartner 

(1986); Engel (1987); Greenhouse (1986). 

99 Russell & Howard (1983); Bourque (1989). Extrapolating a study based on 

telephone interviews with 4008 women, the National Victim Center and 

the Medical University of South Carolina estimated that at least 12.1 

million American women had been raped once, 61 per cent as minors; 

683,000 adult women were raped in 1990; 70 per cent did not want their 

families to find out; two-thirds were afraid of being blamed themselves. 

This figure was five times the Justice Department estimate. New York 

Times A14 (April 24, 1992). A Senate Judiciary Committee study estimated 

that three out of four women who suffer spousal abuse do not 

report it. The Surgeon General lists violence as the leading health risk 

163

Taking Sides 

among women 15-44 years old. Los Angeles Times A2 (October 3, 

1992). 

1 Independent on Sunday 2 (October 20, 1991). In the U.S. Navy 56 per 

cent of women harassed did not report it. Los Angeles Times A1 (February 

10, 1992). The Los Angeles Commission on the Status of Women found 

that 37 per cent of city employees had been sexually harassed, compared 

to the 25—30 per cent reported in national surveys. Only 9 per cent made 

informal complaints and 5 per cent formal complaints. Within that group, 

16 per cent found that coworkers and supervisors became unfriendly, 11 

per cent suffered health problems, 5 per cent were transferred, and 4 per 

cent said their job evaluations suffered. LosAngeles TimesM (September 

23, 1992). 

2 New York Times s.4 p.6 (November 24, 1991). Because these figures 

included physical assaults the proportion of insults reported is even 

lower. 

3 2-5 per cent in Camden, Newham and Southwark. 193 Searchlightb (July 

1991); Daily Telegraph (May 14, 1991); Independent (May 14, 1991). 5 

per cent in Newham in 1987. Home Office (1989: para 15). A survey of a 

single housing estate in Tower Hamlets disclosed 111 incidents in an 

eight-month period of 1982, although the police recorded only 205 for 

the entire borough. 72 of those respondents had called the police, who 

recorded no incidents. When the Metropolitan Police required a report 

every time a complainant alleged a racial motivation for a crime, the 

monthly average increased almost tenfold, from 25 in 1981 to 219 in 

1982. GLC (1984d: 4, 6, 33, 49). The Leeds Housing Department 

increased complaints of racial harassment nearly fivefold by responding 

promptly. Independent Commission (n.d.: 33-36). 

4 Best & Andreasen (1977). The clearest example is spousal abuse. 

5 Tyson also insinuated that Washington was after his money. In fact, an 

intermediary offered her a million dollars to drop the charges. New York 

Times B14 (January 31, 1992), A8 (March 16, 1992). 

When the tabloid New York Post reported that a forthcoming book 

accused Bush of spending the night with a female aide in the cottage of 

the U.S. Ambassador to Switzerland in 1984, Clinton piously declared "I 

don't think it has any place in this campaign"—thereby ensuring the 

charge would be repeated. The Los Angeles Times ran a story about the 

fact that there was insufficient evidence to warrant covering the allegation! 

Los Angeles Times A20 (August 13, 1992). 

6 Hirschmann(1970). 

7 Heinz & Kerstetter (1979). 

8 Moriarty (1975). 

9 Bentley (1955); McFeely (1968); Crouch (1992). 

10 Genn(1982). 


12 Observer 7 (September 19, 1991); Guardian 2 (October 31, 1991). 

13 Mothers Against Drunk Driving, Sisters Against Drunk Driving. See, e.g. 

164

Notes 

Ball (1986) (above-ground nuclear testing); Brodeur (1985) (asbestos); 

Erikson (1976) (Buffalo Creek dam burst) Stern (1977) (Buffalo Creek); 

Whiteside (1979) (dioxin); Levine 1982 (Love Canal); Gibbs (1982) (Love 

Canal); Schuck (1987) (Agent Orange); Insight Team (1976) (thalidomide); 

Teff & Munro (1976) (thalidomide). 

14 

In the United States, the NAACP, Maldef, GLAAD, NOW, etc. In England 

the Campaign Against Racism and Fascism and Searchlight. In France, the 

Mouvement Contre le Racisme, I'Antisemitisme et pour le Paix (MRAP) 

and the Ligue Internationale Contre Racisme et Antisemitisme (Lica). 

14(1) Patterns of Prejudice (January 1980); 15(4) Patterns of Prejudice 

(October 1981); Gordon (1982: 34-36). 

15 

Curran (1978); Marks et al. (1974). 

16 

Felstiner et al. (1980-81: 643). 

17 

See Phelps & Winternitz (1992); Morrison (1992). 2100 cheering women 

listened to Anita Hill speak six months later, chanting "We Believe Anita 

Hill" and wearing buttons "Graduate of Thelma and Louise Finishing 

School." The chair of the National Commission of Working Women said: 

"This is one of those awakenings. It's like before, and we feel powerful 

again, and she did it." New York Times s.1 p.31 (April 26, 1992). 

18 

Guardian 29 (November 14, 1991); Los Angeles Times F4 (February 15, 

1992). Complaints to the Equal Employment Opportunities Commission 

increased more than 50 per cent from the first half of the 1991 fiscal year 

to the first half of the 1992 fiscal year. New York Times Al (July 13,1992). 

19 

On retaliatory actions against complainants, see Canan & Pring (1988); 

New York Times A17 (April 24, 1990) (consultant to campaign against 

housing discrimination sued for libel). On retaliation against whistleblowers, 

see New York Times A1 (March 22, 1991) (Dr Margot O'Toole, 

who accused Dr Thereza Imanishi-Kari and Dr. David Baltimore of 

scientific fraud); New York Times C1 (March 17,1992) (employee of arms 

company may lose job and pension for informing US government of 

illegal sales); Guardian 7 (November 12, 1991) (teacher who exposed 

sexual abuse himself accused of perversion). 

20 

Guardian 2 (October 22, 1991), 2 (October 23, 1991), 1, 3 (October 26, 

1991). 

21 

The Court of Appeals freed the three victims. Weekend Guardian 12 

(October 12-13, 1991). 

22 

Teubner(1982; 1988). 

23 

CRE (1988: 24) (Leeds schools); Observer 9 (September 22, 1991) 

(Gatehouse School, East London); Los Angeles Times B3 (March 19, 

1992) (Occidental College, California); Chronicle of Higher Education 

A35 (February 12, 1992) (Brown University, Emory University, UCLA, 

Eastern Michigan University, University of Arizona, University of Oklahoma, 

Harvard Medical School); Doev. Univ. of Michigan, 721 F.Supp 

852 (E.D.Mich 1989); Fineman (1992); Rohde (1991); Gale (1990-91; 

1991). 

24 

Delgado (1982:133); Leonard (1991); Volokh (1992). The Supreme Court 

165

Taking Sides 

will hear an appeal in Robinson v. Jacksonville Shipyards. New York 

Times A11 (January 23, 1991); Los Angeles Times A3 (September 24, 

1991). England has no reservations about protecting workers from abuse. 

Guardian 2 (November 14, 1991) (£20,000 to black Metropolitan policeman 

abused by other police); 193 Searchlight 6 (July 1991) (£2000 to 

construction worker whose boss called him "nigger," "black bastard" 

and "mongrel" merely to make him work harder). 

25 

Bethnal Green (1978: 88). 

26 

Tompson (1988: 125) (Newham Council); 194 Searchlight 6 (August 

1991); 191 Searchlight 13 (May 1991) (Edinburgh); 194 Searchlight 6 

(June 1991) CRE (1987: 27); FitzGerald (1989) (Hackney). 

27 

192 Searchlight 6 (June 1991). 

28 

Abel (1982). Others remain sceptical about the possibility of informalism 

in western societies. Fitzpatrick (1992). 

29 

Feeley (1979), paraphrasing Marshall McLuhan. 

30 

Matsuda (1987). For a feminist critique of tort damages, see Bender 

(1990a; 1990b). 

Punishment can nullify the status degradation of apology by evoking 

sympathy for the offender. After a New York Mets baseball player was 

found nude in a van with a joint and a woman not his wife he declared at 

a press conference: "I wish to apologize publicly to my wife and 

children, the Mets' ownership and management, my teammates, to all 

Met fans and to baseball in general for my behavior in St. Petersburg." 

But when the Mets chairman denounced the behaviour as "bad for 

baseball's image" and fined the player $2000, audience outrage turned 

to sympathy. The spokesman for the Japanese American Citizens League 

sought to prevent collective American guilt from turning into resentment 

of the $20,000 compensation paid by the United States to every surviving 

internee. Money showed that the apology was "sincere," although it 

"could not begin to compensate a person for his or her lost freedom, 

property, livelihood or the stigma of disloyalty." I have taken this and all 

other otherwise unattributed examples of apology from Tavuchis (1991). 

31 

Cf. Habermas (1984). 

32 

Scott & Lyman (1968); Blumstein (1974). 

33 

Garfinkel (1956); Blum-Kulka et al. (1989); Schlenker & Darby (1981); 

Darby & Schlenker (1982); Coulmas (1981). 

Rep. Patricia Schroeder (D-Colo) has been a harsh critic of sexual 

harassment in the military, most recently the Navy's 1991 Tailhook 

Association convention, where many women were manhandled. When a 

fighter-pilot party at the Miramar Naval Air Station unfurled a lewd sign 

imputing that she engaged in oral sex, Admiral Frank B. Kelso 2d, Chief of 

Naval Operations, visited Schroeder's office to apologise even before she 

heard of the incident. Vice Admiral Edwin Kohn Jr (Commander of Naval 

Air Force in the Pacific) echoed the apology, saying he was "humiliated, 

disgusted, frustrated." "We are going to change ... a decaying culture 

that has proven more and more unproductive and unworthy." Los 

166

Notes 

Angeles Times A32 (July 3,1992); New York Times A7 (July 3,1992). The 

Tailhook chairman subsequently wrote the Acting Navy Secretary: "We 

apologize to the women involved, the Navy and the nation for our part in 

what has become a source of embarrassment." Los Angeles Times A26 

(August 8, 1992). 

When Treasury Secretary Nicholas F. Brady said to an informal breakfast 

meeting of reporters "We have been told our workers . . . can't 

compete with the Japs. . . " Reps. Robert T. Matsui (D-Calif)and Norman 

Y. Mineta (D-Calif), both of whom had been interned during World War 

II, called for his resignation. Matsui said: "It really demonstrates the kind 

of insularity of this Administration ..." The Japanese Embassy also 

complained. Brady responded: "At no time did I intend to offend anyone. 

If I did, I apologize." New York Times s.1 p. 16 (August 2, 1992). 

34 New York Times s.1 p.24 (November 24, 1991). 

35 New York Times A9 (February 24, 1992). 

36 Examples include the "Truth Commission" established in El Salvador as 

part of the peace negotiations endings its civil war, and Argentina's 

investigation into the disappeared. Amnesty International (1987). 

37 14(1) Patterns of Prejudice (January 1980); 15(4) Patterns of Prejudice 

(October 1981); Gordon (1982: 34-36). This extends the more common 

practice of retraction and apology for defamation. 

38 New York Times B16 (November 28, 1991), 12 (December 28, 1991). 

South African President F.W. de Klerk's recent statement was similarly 

qualified and unsatisfactory: 

For too long we clung to a dream of separated nation-states, when it 

was already clear that it could not succeed sufficiently. For that we are 

sorry.. . . Yes, we have made mistakes. Yes, we have often sinned and 

we don't deny this. But that we were evil, malignant and mean—to that 

we say "no." 

Los Angeles Times A10 (October 10, 1992). 

39 The man who pleaded guilty to kidnapping the president of Exxon 

International, shooting him "accidentally," and locking him in a box, 

where he died from a combination of blood loss, asphyxiation, dehydration, 

and starvation, said he never intended to harm his victim, was 

extremely remorseful, and wished to apologise to the widow. New York 

Times A16 (September 16, 1992). 

Japan refused to allow a visit by the American pilot who dropped one 

of the atom bombs and sought absolution through an apology. It was not 

required to respond to the following full-page advertisement by the 

Peninsula Peace and Justice Center (California). 

To the People of Japan, On the Forty-Seventh Anniversary of the First 

Use of Atomic Weapons. 

We citizens of the United States of America express our sorrow for the 

suffering caused by the cruel and unnecessary bombings of Hiroshima 

and Nagasaki. We pledge to work for the elimination of nuclear 

167

Taking Sides 

weapons. We further pledge our efforts to end the continuing misuse of 

technology for the destruction of life. 

New York Times A11 (August 6, 1992). 

The Soviet Union refused to acknowledge that Jews were the dominant 

victims of the Babi Yar massacre. On the 50th anniversary in October 

1991, Ukrainian President Kravchuk apologised to Ukrainian Jews and 

said other Ukrainians must accept "part of the blame." Aleksandr A. 

Shlayen, director of the Babi Yar Center, was surprised and gratified. "He 

repented. He came to me personally and apologized. I was at a loss, 

frankly speaking. We aren't used to apologies." Shalyen made Kravchuk 

an honourary member of the Center. New York Times A3 (August 27, 

1992). 

40 

Los Angeles Times B3 (March 19, 1992). 

41 

Chronicle of Higher Education A35 (February 12,1992). Senator Larry E. 

Craig (R-ld.) introduced an amendment to the Higher Education Bill 

barring any college or university receiving federal funds (except religious 

and military institutions) from punishing a student for constitutionally 

protected speech. Chronicle of Higher Education A24 (February 19, 

1992). The University of Wisconsin repealed its regulations concerning 

hate speech in the wake of the Supreme Court's invalidation of the St. Paul 

ordinance. New York Times A10 (September 14, 1992). 

42 

Shapiro (1976); Hine (1966); Houriet (1971); Carden (1971); Zablocki 

(1971). 

43 

When the Slovak Prime Minister cracked down on media opposition, his 

supporters quit the journalists union and formed Journalists for a Correct 

Picture of Slovakia. New York Times s.1 p.7 (October 11, 1992). 

For balanced collections on the debate, see Berman (1992); Aufderheide 

(1992); Partisan Review (1991). For the conservative case, see 

Bloom (1987); Bennett (1984; 1988); Cheney (1988); d'Souza (1991a; 

1991b); Kimball (1990); Presser (1991); Schlesinger (1992); Heterodoxy 

(a foul-mouthed journal launched in 1992). For replies, see Diamond 

(1991); Beers (1991); Tushnet (1992); Carby (1992); Denning (1992); 

Garcia (1992); Scott (1992); Gates & Smith (1992). The antagonists are 

now organised into the National Association of Scholars, on the right, and 

Teachers for a Democratic Culture, on the left. 

44 

Los Angeles Times A3 (January 24, 1992); New York Times A8 (February 

13, 1992). The owner of a downtown Santa Cruz restaurant commented: 

"If someone has 14 earrings in their ears and their nose—and who knows 

where else—and spiky green hair and smells like a skunk, I don't know 

why I have to hire them." The executive director of the Chamber of 

Commerce warned that at least three businesses were considering leaving 

because of publicity about the law. Los Angeles Times A3 (May 25, 

1992). 

45 

Guardian 22 (September 17, 1991). 

46 

Los Angeles Times A3 (April 23, 1992). 

47 

The University of Massachusetts Daily Colleagian allocated an editor and 

168

Notes 

two pages a month to numerous constituencies: blacks, women, third 

world, multicultural, Jewish, and lesbian-bisexual-gay. But when it failed 

to publish an editorial condemning the Rodney King verdict, angry 

students attacked the building, threatened a staff photographer, removed 

the paper from newsstands, and called for a boycott of advertisers. The 

demonstrators demanded a minority co-editor, an editorship for women 

of colour, separate elections for minority editors, and seats on the 

executive board. The editor-in-chief accepted all this, saying he had been 

threatened with violence and mass resignations. New York Times B8 

(May 27, 1992). 

48 

Styron (1967); Clarke (1968) (black criticism of Styron); Gates (1991). 

49 

Los Angeles Times F6 (April 23, 1992). A Canadian male critic reviewing 

five exhibits of photographs of women by men questioned "why men are 

suddenly so fascinated with these issues" and proceeded to attack each: 

Chagnon's "positive images" imply that all is well, that women are 

now being accepted as equals and that no further struggle is required. 

it is unfortunate that Mitchell seems to have passed up an opportunity to 

deal with how he felt about not seeing his kids during the day . . . 

The Birth Report appears to be a celebration of white, middle-class, 

heterosexual couples, a project that essentially maintains the status 

quo. 

Replacing out-dated and counter-productive cliches with new positive 

ones still ultimately leaves you with prescriptions. 

he is still using the porn images and perhaps to gain a certain degree of 

attention and notoriety, still using the porn controversy. 

The reviewer concluded disarmingly: "I don't want to imply that 

'women's problems' should not be addressed by men." Samuels (1985). 

Indians on the Pine Ridge Lakota Reservation staged a four-month 

protest against the white manager of radio station KILI, established by the 

American Indian Movement in 1989 to preserve the Oglala Sioux language 

and culture. He had lived on the reservation since 1975, was 

married to a Lakota, and taught social science at the tribal college. Los 

Angeles Times A5 (August 31, 1992). 

50 

Santiago (1983). Nineteenth-century abolitionists wrote novels in the 

form of "slave memoirs" in order to enhance their propaganda value. 

Gates (1991). Such ventriloquism continues. The screenwriter for a 1971 

film on ecology produced by the Southern Baptist Radio and Television 

Commission had Chief Seattle tell his people in 1854: "I have seen a 

thousand rotting buffaloes on the prairies left by the white man who shot 

them from a passing train." Susan Jeffers repeated the phrase in her 

children's book Brother Eagle, Sister Sky: A Message from Chief Seattle, 

which reached fifth place on the New York Times Best Seller list and sold 

250,000 copies in its first year. Told there were no bison within 600 miles 

of Puget Sound and the railroad only reached it 15 years after Chief 

169

Taking Sides 

Seattle's death, she replied: "Basically, I don't know what he said—but I 

do know that the Native American people lived this philosophy, and 

that's what is important." Knowing that the speech was apocryphal, 

organisers of the 1992 Earth Day celebration nevertheless performed it 

after checking with some Indians. New York Times A1 (April 21, 1992). 

51 Carter (1990); Gates (1991). Rennard Strickland, a distinguished American 

Indian law professor, wrote the foreword to the 1990 reissue of the 

1976 book. 

52 Leon Higginbotham (1992), the most senior black judge on the U.S. Court 

of Appeals, wrote a scathing open letter to Thomas after his confirmation, 

which elicited thousands of requests for reprints, as well as support from 

other prominent black legal academics like Lani Guinier of the University 

of Pennsylvania and Derrick Bell of New York University. Los Angeles 

Times M (February 14, 1992). 

53 Katt Shea's "Poison Ivy" infuriated most of the audience at the Seattle 

International Festival of Women Directors. At New York's Museum of 

Modern Art two months later "half the audience thought it should be seen 

and talked about . . . the rest found it beneath consideration." Shea 

commented: 

I've been called a male-basher and a female-basher. At a screening, 

one woman said to me, "How could you, as a woman, write a 

character like Ivy?" At that point I was really into saying, "You can't 

censor art to be the way you want it depicted. Because pretty soon no 

one can be bad. There can't be bad men. There can't be bad black 

people. 

New York Times s.2 p. 13 (May 3, 1992). 

54 Research on the possible biological basis of homosexuality, for instance. 

The prestigious Proceedings of the National Academy of Science reported 

that the structure connecting the left and right brain hemispheres, which 

is larger in women then men, is larger still among homosexuals. A 

spokesperson for the Gay and Lesbian Task Force in Washington welcomed 

the finding: "This study supports our belief that nature created us 

just the way we are and that there is no reason to fix anything because 

nothing is broken." Gorski & Allen (1992); Los Angeles Times B1 (August 

1, 1992). A t-shirt declaring "It's a brain thing" quickly became popular 

in the West Hollywood gay community. But some gay activists are 

reluctant to stress such scientific findings, fearing they may be disproved. 

And they do little to influence the religious right. Los Angeles Times B1 

(August 12, 1992). 

The National Institutes of Health withdrew support for a conference on 

"Genetic Factors in Crime: Findings, Uses and Implications" under attack 

from black scholars and the Congressional Black Caucus. The deputy 

director for extramural funding criticised the conference brochure for 

touting "genetic research as offering the prospect of identifying individuals 

who may be predisposed to certain kinds of conduct." "The N.I.H. 

cannot condone the unjustified leap to the conclusion that there is a 

170

Notes 

genetic predisposition to crime." He added disingenuously: "the suggestion 

that this is political is offensive to the N.I.H. and personally offensive 

to me as an African-American." The Secretary of the Department of 

Health and Human Services, also African American, denied that the 

National Institutes finance studies of the relationship between race and 

crime or violence. "I have full confidence in the scientific and ethical 

merit of the Public Health Service's research activities on the problem of 

violence and pledge that these programs and their leadership are free of 

any racial bias." The president of the Association of Black Psychologists 

denounced the conference as "a blatant form of stereotyping and 

racism." A spokesman for the University of Maryland, which had organised 

the conference, called this "political correctness in motion. The 

University of Maryland has had conferences on racism and sexism, and 

just having such a conference doesn't mean the university endorses 

racism or sexism." In fact, the conference was to begin by critically 

examining a 1970s fad—the extra Y chromosome—which was shown to 

have nothing to do with criminality. And the conference prospectus stated 

that any genetic markers probably would "have little specificity, sensitivity 

or explanatory power: most people with the markers will not be 

criminals" and "most criminals will not have the markers." New York 

Times 1 (September 5, 1992), B5 (September 15, 1992), A18 (October 2, 

1992) (letter to The Editor, September 24). 

Consider the furor over Oscar Lewis (1961) on the culture of poverty, 

Daniel Patrick Moynihan on dysfunctional families (Rainwater & Yancey, 

1967), Hannah Arendt (1964) on Jewish passivity in the Holocaust, Fogel 

and Engerman (1974) on living conditions under slavery, or Lawrence 

Harrison (1992) on culture and inequality. 

55 A black woman's criticism of black men for relationships with white 

women (Campbell, 1992) provoked angry replies: 

I happen to be a black woman who is tired of hearing other black 

people's complaints about things like "racial mixing," which would be 

construed as racist and offensive if uttered by white people. 

I'm an African-American man who happened to fall in love with a 

white woman. ... I will not let the color of my skin limit my life's 

possibilities. 

The pain of being made to feel unattractive or "not good enough" as a 

black woman because of our cultural definition of beauty ... is not 

justification enough for the dissemination of prejudicial stereotypes 

... As one of those blond white women who was involved with a 

black man for five years, I was neither "docile" nor "obedient." 

My wife and I find that maintaining an "interracial" marriage in a 

society as obsessed with race as the United States is hard enough. The 

last thing we need is more divisive rhetoric. 

New York Times Magazine 12-13 (September 13, 1992) (letters to The 

Editor). 

Israel's Law of the Return has raised awkward questions about who is a 

171

Taking Sides 

Jew. Although the country celebrated the airlift of Ethiopian Jews, orthodox 

rabbis required Ethiopian men to undergo a ritual circumcision 

before marrying and refused to recognise the religious authority of the 

kessim (62 traditional elders). A spokesman for the Chief Rabbinate said: 

"It is the same as with physicians from Russia who headed hospital 

departments there but have to take tests here." Israel is more uncomfortable 

with the 50-100,000 Falash Mura, who converted to Christianity in 

the nineteenth century; thus far it has admitted only a hundred, who have 

a least one child in Israel. The 1300 members of the Black Hebrew 

movement—African Americans claiming to_be one of the biblical tribes, 

who settled in the Negev—were not admitted under the Law of the 

Return, although they have just been given temporary resident status. 

New York Times A4 (September 29, 1992). 

56 Sarat(1977). 

172

Appendix 

Lyrics from "The Buck". See page 36. 

That's the only way to give her more than she wants, 

Like a doggie-style, you get all that cunt. 

Cause all men try real hard to do it, 

To have her walking funny so we try to abuse it. 

Bitches think a pussy can do it all, 

So we try real hard just to bust the wall. 

I'll break you down and dick you long. 

Bust your pussy and break your backbone. 

I'm gonna slay you, rough and painful, 

You innocent bitch! Don't be shameful! 

That dick will make a bitch act cute, 

Suck my dick until you make it puke 

Lick my ass up and down, 

Lick it till your tongue turns doodoo brown. 

175

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196

Abortion 

family planning clinics, 118 

government control of, 43 

television, portrayal of, 56, 78, 120 

Advertising 

alcohol campaigns, 38, 62 

Benetton, 119 

minorities, 160 

pharmaceutical, 61 

restrictions on, 56 

smoking campaigns, 37, 60, 61, 62 

speech, ambiguity of, 98 

television, 56-57 

Affirmative action, 131-132, 135, 157 

AIDS 

censorship towards, 46 

"Magic" Johnson, 57, 74 

Alcohol 

advertising campaigns, 38 

American Indians, 151, 169, 170 

American Nazi Party, 9 

Malcolm Lambert, 9 

American Psycho, 91 

Anti semitism 

art, context of, 92 

1936 Public Order Act, 82-83 

British government reaction to, 

82-83 

judicial reaction, 85 

legal penalties, 97 

Art 

attempts to shock, 128-129 

blasphemous, 110 

censorship, 120 

"ready-mades", 111 

state regulation, attempt to, 88-69 

Index 

Arts 

censorship of, government regulation 

by, 46-47 

Ayatollah Khomeini, 15 

Barnard Conference, 5 

Beauty contests, 135-136 

Billboard advertising, 57 

Body piercing, 113 

Breast implants, 43, 95 

CIA 


Car publications 

censorship, businesses by, 73 

Censorship see also Freedom of Speech 

Chao, Stephen, 77 

Child photography, 110 

Civil libertarianism see also Chapter 2 

theory of, 33-34 

Collective status 

influence of, 23—24 

Commercials see also Advertising 

censorship of, 78 

Communism 

censorship of, 68 

fall of, free market effect, 124-125 

outlawing of, 128 

Consequentialism, 93-97 

Cosmetic surgery 

men, 114 

Creation science, 53 

Crime 

genetic predisposition towards, 171 

197

Index 

Cuban-American interests, 58, 79 

"Deep Throat', 6 

Divorce 

secrecy agreement, 44 

Doctors 

referrals, payments for, 72 

Drugs 

penalties for, 156 

Education 

segregation, voluntary, 133-134, 

158 

Election campaigns, 50-51, 53, 54, 63, 

65, 77, 80, 119, 150 

distortion of free speech, 102 

Endowments 

universities, control of, 75 

Erotica 

pornography, differences in, 87 

FBI 


Feminism 

actresses, exploitation of, 37 

pornography, reaction to, 4—5 

Films 

African American, reaction to, 95—96 

restrictions on, 54—55 

reviewers, censorship of, 73 

First Amendment, 6, 25, 28, 29, 102, 

128, 146 

Flag burning, 39 

Freedom 

private, illusion of, 47-58 

Freedom of speech 

American flag, use of, 39 

black popular music, effect of, 36 

censorship, government departments 

by, 40 

communism, demise, effect of, 

49-50 

contractual prevention of, 43 

costs of, 34r38 

film industry, 42 

government, neutrality of, 44—47 

law, failure to regulate, 86—93 

military censorship, 39—40 

penalties, legal, 97-105 

political donations, 50-51 

198 

Freedom of speech—cont. 

private agreements to waive, 

private freedom, 47-58 

publications, government regulation 

of, 41-42 

regulation of, 38—44 

schools, regulation of, 43 

state regulation, 38—44 

university activities, 35-36 

French law 

racial hatred, penalty for, 147 

Hamlyn lectures 

author, aims of, 1-3 

history, 1 

Holocaust revisionists, 101 

Homosexuality 

behavioural study, banning of, 46 

biological basis for, 170 

denial of, 126, 159 

employment discrimination, 112 

ethnic reaction, 126 

Local Government Act 1988, clause 

28,45 

military reaction to, 64 

schools, reaction to 66-67 

Huckleberry Finn, 162 

ICE-T, 59 

"Cop Killer", banning of, 105, 115 

In the Spirit of Crazy Horse, 38 

"Informercials", 61 

Intellectual property rights, 48 

lawsuits, 70 

Interracial relationships, 171 

Islamic Front, 127 

Jackson, Michael, 137 

Jones case, 34-35 

Judicial system 


King, Rodney, 161 

KuKluxKlan, 103, 104, 109, 111 

Law 

failure to regulate freedom of speech, 

86-93 

regulate, inability to, 94 

violence, causality, link, 96 

Lawsuits 

media influence against, 116

Legal aid 

restrictions on, 45 

Lesbian sex mafia, 5 

Libel actions, 103 

Liberal political theory 

failure of, 124-130 

Libraries 

books, censorship of, 45 

Mahfouz, Naguib 

The Satanic Verses, support of, 31 

Maxwell, Robert, 38 

Media 

control of, 38-44 

effect on society, 114-115 

fiction vs reality, 96-97, 117-118 

moral responsibility of, 134-135 

news, reporting of, 53-54 

political campaigns, 54 

Military censorship, 39 

Movies see Films 

National Museum of the American 

Indian, 162 

National Socialist Party of America, 9 

Frank Collin, 9 

Oppression 


Paglia, Camille, 153, 154 

Patents 

gene fragments, 70 

Politics 

fundraising, 76 

media campaigns, 54, 72, 75-76 

Political correctness 

Barnard conference 1982, 5 

'Political correctness', 149 

Political donations, 50-51 

Pornography, 4-8 

entrapment, 86 

legal battles, 5-8 

Alexander family case, 5-8 

mainstream, acceptance into, 113 

media, 109 

Russia, 50 

software, 100 

violence, link with, 93-94 

Preferential treatment, 131 

Property rights, 48-49 

Publishing 

blasphemous, 154 

market, regulation of, 52-53 

prizes, 52-53 

Quayle, Dan, 65 

Index 

Racial hatred, 8-11 

Racism 

academic support, 108-109 

Commonwealth Immigrants Act 

1968, reaction to, 83-85 

martyrdom, encouragement of, 

103-104 

pressure groups, censorship by, 79 

Rape 

estimated, 163 

Rappers, 36, 59-60, 104 

Record companies 

censorship, 59, 64 

Recording contracts, 69 

Religious dissent, 53 

see also The Satanic Verses 

Reparations, 132, 147 

Hungary in, 156 

Rushdie, Salman, see 77ie Satanic Verses 

Russia 

communism, breakdown of, media 

effect, 71 

Satanic Verses, The, 11-22 

banning of, 12 

British Muslim reaction, 12-13 

Christian reaction to, 13-14 

death threat, issue of, 15 

European Community, reaction to, 

17 

media, reaction to, 15-16 

politicians, reaction to, 17 

publishers, reaction to, 18 

Muslim march, 18-19 

paperback, publication of, 22 

political background, India, 11-12 

Rushdie 

Columbia University lecture, 

20-21 

conversion of, 19 

Scholarship 

dissemination of, 53 


199

Index 

Schools 

advertising in, 71 

censorship of books, 45 

Science 

donations towards, 51 

publications, censorship of, 53, 65 

state regulation over, 45^t6 

Sex education 

censorship of, 41, 45—46 

Sexism 

employment, 153, 163 

Sex objects 

men, 153 

Sexual harassment 

reporting of, 164 

Skokie 

Nazi march, 9-11 

Smith, Kennedy William, 8, 23 

Smoking 

advertising campaigns, 37 

"Son of Sam" law, 49 

South Africa 

media, ANC reaction to, 79-80, 118 

President F W de Klerk, 167 

Speech see also Freedom of Speech 

apologies for, 146-148, 166-167, 

168 

communication through, 136-137 

communities, regulation by, 145 

complaints, encouraging, 141-144 

dissemination, 141 

effect on status, 137-141 

freedom of, problems caused, 28-29 

motive, 138-139 

speaker identity, 137-138 

speaker & target, relationship 

between, 139-140 

status competition, effect on, 25-29 

style, 141 

target, 139 

utilitarianism, effect on, 93 

victims of, 142-144 

consciousness of, 142 

crime, reporting of, 142 

200 

Speech—cont. 

Victims of—cont. 

state intervention, 143 

State regulation 

art, attempt to, 88-89 

excesses of, 90-93 

freedom of speech, effect on, 38-47 

history of, 82-66 

information, withholding of, 63-64 

legal penalties, ineffectiveness of, 

97-105 

political campaigns, 63 

property rights, 48-58 

science over, 45^t6 

threats against the state, 127-128 

Status competition 

role of, 22-29 

speech, effect on, 25-26 

Status victims, 144-149 

Strippers, 118 

Television 

censorship, 68—69 

real life events, 70 

Thomas, Clarence, 8, 23, 42, 75, 126, 

155 

Tobacco 

advertising of, 37, 99, 101-102, 119 


Trump, Ivana, 44 

Utilitarianism 

speech, effect on, 93 

V-2 Rocket 

commemoration of, 163 

Victimisation, 141-144 

Voting, 100 

Women's magazines 

influence of, 94 

Yakuza, 80

Speech and Respect 

By 

Richard Abel 

Professor of Law, University of California, Los Angeles 

In Speech and Respect, based on the forty-fourth series of Hamlyn 

Lectures, Professor Abel explores the fundamental contradiction 

that speech, which makes us human and constructs society, also 

can cause serious injury. 

Speech is essential for effective democracy, economic productivity, 

artistic creativity, scientific discovery and individual self-expression. 

Yet women, people of colour and gays and lesbians have recently 

protested against the harms it inflicts. Speech and Respect explores 

this tension through examples of racism, pornography and "The 

Satanic Verses". The author analyses the inevitable constraints 

imposed on speech by both the State and private actors and 

examines the arguments against State regulation. Speech and Respect 

concludes with a plea for communal regulation of harmful speech 

in the continuing struggle for a more humane society. 

Extensive footnotes and a lengthy bibliography will be particularly 

helpful in guiding readers to the American literature. 

Speech and Respect will appeal not only to students of law, sociology 

and politics but also to anyone with an interest in the contemporary 

debate about the harms of speech. 

Published under the auspices of 

THE HAMLYN TRUST 

1994 

ISBN D-M21-5D2ZD-7 

9 780421 502208 >

speech and respect - College of Social Sciences and International ...

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