Parody flunks out

By HARVEY SILVERGLATE  |  July 30, 2008

Some have argued that the Christmas carol at Tufts went beyond critiquing affirmative action and actually made racist statements (black students are called “boisterous,” for example), or that the Harvard Law Revue Frug piece went beyond critiquing postmodernist feminism and insulted women in general. But even if these pieces did perpetuate racist or sexist stereotypes and held certain members of the community up to ridicule, the argument that they ought to be censored is still far-fetched, at least as far as Supreme Court jurisprudence is concerned. Racist and sexist language — so-called hate speech — may not be pleasant, but it is nonetheless legally protected in public places governed by the Bill of Rights. Private campuses, however, are allowed to make up their own rules as to what speech is and is not acceptable. Traditionally, this separation between town and gown has made our campuses more free than the “real world,” since academic freedom has long been deemed more protective of speech than mere legal requirements provide. For academic freedom to offer less protection for speech is a breathtaking departure from long-standing assumptions about the nature and purpose of the academy. As the cynics now note in Cambridge, one may not safely say in Harvard Yard what is constitutionally protected in Harvard Square. The same may be said for just about every campus where there once was a hallowed hall of learning, now converted to a humorless hall of conformity.

Hustler and the Good Reverend Falwell
While campuses may be tightening the noose on political humor, parody, in particular, has the courts’ unmitigated support. In 1988, the Supreme Court decided in Hustler v. Falwell that the First Amendment protects a parodist or cartoonist who intentionally inflicts “emotional distress” on anyone who plays a role in American public life. In that landmark case, Hustler publisher Larry Flynt resorted to a fake Compari liquor ad to suggest that his ideological adversary, Reverend Jerry Falwell, had lost his virginity in a drunken encounter with his own mother in an outhouse.

“Were we to hold otherwise,” wrote Chief Justice William Rehnquist, “political cartoonists and satirists” would be vulnerable to lawsuits. After all, “[t]he appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events — an exploitation often calculated to injure the feelings of the subject of the portrayal.

“The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided,” continued the court. The opinion went on to discuss how the weapon of humor and exaggeration was in the past directed to such figures as William M. “Boss” Tweed in New York City, and even to such notables as George Washington, Abraham Lincoln, Theodore Roosevelt, and Franklin D. Roosevelt. “From the viewpoint of history it is clear that our political discourse would have been considerably poorer without” such vicious depictions, concluded Rehnquist in a decision that has clearly become anathema on campus, and now, sadly, in the political arena. Still, the decision was unanimous and sufficiently clear, so that the issue has not been cast into doubt in any subsequent case.

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