July 25, 2008
“Hide your children! The British are coming!!”
From the mouths of militiamen came the now-famous warning:
the British had invaded, and the time to fight for independence had arrived.
Today, nearly a quarter-millennium after the colonists’
struggle, some citizens see a new threat after the U.S. 3rd Circuit Court of
Appeals handed down two key free speech decisions this week. Their warning
would sound something like this:
“Hide your children! The Nipples are coming!!”
“[N]ine-sixteenths of one second”
worth of nipple, to be precise. That was the exact amount of time that halftime
viewers were exposed to Janet Jackson’s breast during the 2004 Super Bowl,
according to the court. A three-judge panel declared Monday that the FCC was
wrong to slap CBS with a $550,000 fine following the “wardrobe malfunction,”
saying that the regulatory body could not hold broadcasters responsible for
actions of the “independent contractors hired for the limited purposes of the
halftime show.” In other words, because CBS did not know that Jackson’s nipple would indeed slip, it could
not be held responsible.
The court went on to say that the FCC, in handing down such
a large fine, had failed to give broadcasters advance notice of changing its
policy of “practiced restraint” in regulating airwaves for the past 30 years.
While the decision was a victory for free speech advocates,
some social conservatives and federal regulators saw it as a blow to American
families. Kevin J. Martin,
FCC Chairman, said in a statement, “I am surprised by today’s decision and
disappointed for families and parents.” (Martin should not have been so
surprised, in fact. The notion that people should be punished only for
transgressions that they intend and
over which they have some reasonable degree of control has long been written into the Anglo-American legal system.
Only those with no respect for law would fail to understand this fundamental
precept.)
Just one day later, another decision favoring free speech
was delivered. The same Court of Appeals ruled that the 1998 Child Online
Protection Act (COPA{http://en.wikipedia.org/wiki/Child_Online_Protection_Act})
was unconstitutional, as it blocked too much content to be consistent with the
First Amendment. The law, which has been under a permanent injunction since its
creation in 1998, would block Web sites from making objectionable content
available to minors.
Again, there was frustration from family advocacy groups. “The 3rd Circuit has once again come to the aid of
online pornographers,” Bruce Hausknecht, judicial analyst for Focus on the
Family Action
said. “In effect, the court said we
can’t protect our children from online filth if the law might make some adult
seeking his porn ‘fix’ uncomfortable.” [emphasis added]
What is most interesting about this statement is Hausknecht’s
use of the word “we.” Who exactly is “we” in this case? Is it the federal
government? Is it the advocacy group, Focus on the Family? Or does it refer to
actual families?
If he is referring to families, he is simply wrong. Leaving moral judgments in the
hands of federal regulators would give families less ability to control what
their children watch. And that is precisely what the court recognized. Rather
than have Big Brother regulate online material, allowing less restrictive
methods such as filtering technologies and other parental tools would both
retain basic First Amendment freedoms and allow individual families to choose
what material is appropriate in their view.
Trading the freedoms for which our forbearers fought in exchange
for retaining a standard of “decency” (as defined by the federal government) is
simply ludicrous. And, if there must be a government body like the FCC to
monitor our airwaves, they must apply their “indecency” statutes with consistency.
If they are not told of changing standards at the FCC, how do avant-garde
programmers make new content? In short, they don’t.
The court, in these two important decisions, has shown that it
favors a less restrictive approach to regulation. Far from neglecting the
well-being of our youth, the decisions recognize the inability of Washington to
effectively monitor and enforce decency – a task better suited to the family.
But there is also a larger issue at stake – one of
government thought-control and the free flow of ideas. The late Supreme Court
Justice Hugo Black noted the importance
attached to these issues by those who gave us the American Revolution. “The
Framers [of the Constitution] knew that free speech is the friend of change and
revolution,” he said. “But they also knew that it is always the deadliest enemy
of tyranny.”
Kyle Smeallie assisted in the preparation of this piece.
July 15, 2008
By Harvey Silverglate,
My wife and I wish to commend the
staff of The New Yorker. They have
finally realized that the level of political rhetoric in this country has
fallen so low that the only appropriate response is satire. There is no way
that I could have possibly responded to my critics and detractors as
effectively as has the artist who drew that cover. It demonstrates once again
that a picture is worth more than a thousand words.
I’ve been unable to convince the
nation that I am not a Muslim, for one thing. Now, mind you, I would not feel ashamed
if I were a Muslim. It would be a sad day in America if citizens have to be
ashamed of their religious beliefs and affiliations. But my hidden critics and
enemies are seeking to ‘tar’ me with the brush of being a Muslim. And somehow
that rumor takes on a life of its own. I hesitate to even deny it, because one
should be proud to be a Muslim in America, much as Catholics are
proud, Protestants are proud, Jews are proud, Buddhists are proud,
Scientologists are proud – but you get the point. However, facts and truth seem
not to matter in the realm of the Political Attack Machine, or perhaps I should
call it the Hate Machine.
And this Hate Machine spares not
even my better half. Vile whispers have cast Michelle as a modern-day 1960s
black radical, carrying with her the racial hatred that any sensible person
would have long ago rejected. Will my
children be the next objects of these attack dogs? We can only hold our breath
and wait and see.
So when unreality begins to take
over reality, and truth and facts cease to matter, our only effective remaining
weapons are satire and parody. My wife would never carry an AK-47 assault
rifle, just as she would never carry the racial hostility so readily placed
upon her shoulders. I would never burn an American flag (although I believe
that such burning is and should continue to be constitutionally protected by
our First Amendment), but a lack of lapel pins signals, to some, a “lack of
patriotism.” Sadly, such is the reality of our political culture in 2008. Far
from advancing racist ideology, The New Yorker has well served the
national dialogue by, at long last, exposing the ludicrous – and evil –
underbelly of the Hate Machine.
If you want to understand the
importance of parody and satire in the life of a free nation, you cannot do
better than to sit down and read the Supreme Court’s unanimous 1987 opinion in
the historic case of Hustler v. Falwell,
found at 485 U.S. 46.
It was written, interestingly, by the late Chief Justice William Rehnquist, not
always a friend to freedom. But in the realm of protection of satire and parody
as an essential method by which social and political evils may be effectively exposed
and criticized, the justices were unanimous in joining the Rehnquist opinion. In
that case, the justices ruled that the First Amendment protected Hustler Magazine’s vicious parody directed
at the now-deceased Reverend Jerry Falwell. Hustler
publisher Larry Flynt suggested that the good reverend experienced his first
sexual encounter in a drunken orgy with his mother in an outhouse. Not only was
this vicious satire deemed constitutionally protected, but the court went on to
review the importance of satire and parody in the American political discourse
from the very earliest days of the founding of the Republic. Many of the
satires and parodies that helped advance American political life were as or
more biting even than The New Yorker’s
well-crafted assault on my and my wife’s cowardly whispering critics who spread
anonymous rumors rather than announce their lies openly.
Long live satire! Long live parody!
Long live truth! May God bless you all, and our beloved United States of
America which, I have the duty to advise you, is in some trouble if The New Yorker suffers for telling the
truth with such moral clarity and, even more importantly, good humor.
And, oh yes, one more thing: Please
remember to vote!
July 10, 2008
By Wendy Kaminer,
Barack Obama is poised to become “our first president who is a civil libertarian,” Jeffrey Rosen wrote hopefully and not without reason, less than 6 months ago. But it didn’t take long for the audacity of politics to expose the naivete of hope. Today, given Obama’s support for the grossly and gratuitously anti-libertarian FISA amendments (painstakingly explored by the tireless Glenn Greenwald,) civil libertarians are likely to vote for him with a lot more resignation than enthusiasm. Today, Obama is merely poised to become a president who would be more sensitive to civil liberty than John McCain and would leave us with a centrist Supreme Court rather than a right wing extremist one. That’s change we can manage to tolerate.
Too bad that a candidate who ran against political cynicism is now encouraging it, but we should have known better than to hope that a presidential candidate would look favorably upon limiting presidential power. It’s no coincidence that a nation founded on a dream of individual liberty (for some) over 225 years ago still awaits a civil libertarian president. Jefferson had his moments, as Harvey Silverglate suggested here, but no slaveholder can be called a civil libertarian. James Madison had his moments too, but both Jefferson and Madison made their primary contributions to liberty in imagining the nation, not presiding over it. If Obama wins the presidency (and I continue to hope that he does) he will (like virtually all presidents) guard the prerogatives of power that civil libertarians seek to restrict.
Congress and the courts will often fail us too (as passage of the FISA amendments showed,) but for all their faults, Congress and the courts probably offer the best checks against the apparently irresistible temptations of the imperial presidency. Even a right of center Supreme Court has required the Administration to provide at least minimal due process to Guantanamo detainees. Even the reliably craven Congress includes some good civil libertarians (see who voted against the FISA amendments,) and Democrats in Congress derive whatever strength they can muster from numbers. The ’08 Senate races are perhaps as important as the race for the White House, which civil libertarians should always regard as alien territory. Approach the president as a friend or allow him to embrace you as one, and instead of opposing his power you’ll probably be seduced by proximity to it. Civil libertarianism is a game for outsiders.
July 08, 2008
By Harvey Silverglate
Three cheers for Margery Eagan for her July 8th Boston Herald column’s deft skewering of those who have reacted with horror and, even worse, threats of future censorship toward this year’s Beverly Farms Horribles Parade, posted on YouTube. Eagan alone appears to understand the appropriateness of the biting – even crude and vicious – satire directed at the whole brouhaha over whether a group of teenage mothers-to-be in Gloucester got together to plan their deliveries at about the same time.
Most of the controversy has revolved around the question of whether the girls planned this gala as a group pregnancy, or whether so many pregnancies in one high school were simply a coincidence. (Dan Kennedy has written about this bizarre controversy competently, as usual, on his blog). But Eagan has addressed another aspect that gets to the heart of the matter: What’s wrong with satirizing the bad judgment of these girls, whether they have gotten pregnant as a group project or individually, in bringing babies into the world in a manner statistically likely to wreck the lives of both babies and mothers?
True, the satire, as reported by Eagan, was as crude as it was vicious; the parade included “floats featuring women’s legs splayed as if at the gynecologist and signs like: ‘We got Humped, Now We’ve Got Bumps.’” The good townspeople are criticizing the satirists, but, as Eagan argues persuasively, the real problem is the bevy of pregnant teens who have earned the criticism, not for having sex, but for producing a small army of babies under very unpromising life-circumstances.
If parents in town don’t want their 5-year-olds to view such a risqué Horribles parade, suggests Eagan, they should keep the kids at home. After all, the nature of the parade floats is by now well-known and utterly predictable. “The Horribles parade is a long-standing, thoroughly offensive tradition in town, fully advertised as such,” reported the columnist.
There is a point to be made in delivering harsh and heartless criticism of reckless conduct such as that exhibited by the teenaged mothers. The heartaches that accompany single-parent motherhood at such a young age invariably impact the young mothers far more than the teenaged fathers, Eagan notes. “In real life it’s girls who get left. It’s girls whose minds we must change.” Satire and parody are among the most potent social formats for delivering withering critiques in an effort to change views and behavior, even if that satire comes, unappetizingly, from over-privileged residents of a tony suburb.
One of the more disturbing developments of contemporary society is the widespread hostility to parody and satire, demonstrated by people and institutions that should know better. I’ve written and agitated at length, for example, over the hostility demonstrated by institutions of higher education toward student-authored parodies and satires about important social and political issues. That our society criticizes the satirists rather than the people being satirized tells us that we’re unprepared to face up to difficult social problems, and so we try to shoot the messenger.