Some close analogies to shouting “Fire!” or setting off an alarm are, of course, available: calling in a false bomb threat; dialing 911 and falsely describing an emergency; making a loud, gun-like sound in the presence of the President; setting off a voice-activated sprinkler system by falsely shouting “Fire!” (or any other word or sound); or shouting “Bomb!” on an airplane in flight.38
Analogies are, by their nature, matters of degree. Some are closer to the core example than others. But any attempt to analogize political ideas in a pamphlet, an ugly parody in a magazine, offensive movies in a theater, controversial newspaper articles, or any of the other expressions and actions catalogued above, to the very different act of shouting “Fire!” in a crowded theater, is either self-deceptive or self-serving.
Abbie Hoffman, on whose Chicago conspiracy case I worked, once described an occasion when he was standing near a fire with a crowd of people and got in trouble for yelling “Theater, theater!”39 That, I think, is about as clever a use as anyone has ever made of Holmes’s deeply flawed analogy. And it is about the right level of logical response Holmes’s silly argument deserves.
As I wrote in a 1989 article criticizing the Holmes analogy:
Let us hear no more nonsensical analogies to shouting fire in a crowded theater. Those who seek to censor speech will just have to come up with a somewhat more cogent illustration—one that bears at least some relationship to real speech.40
In the next several chapters, we will explore whether other arguments, analogies, or illustrations that purport to justify censorship are more cogent than Holmes’s deeply flawed effort.
6
DIRECT AND VICARIOUS “OFFENSIVENESS” OF OBSCENITY
I Am Curious (Yellow) and Deep Throat
Freedom of speech is not free. It often carries a heavy price tag. As kids, we recited the ditty “Sticks and stones may break my bones, but names will never harm me.” Before long we learned, often from painful experiences, how wrong this was. Names—such as “kike,” “fag,” “wop,” “nigger,” “retard,” “sissy,” “fatso”—could harm more than sticks and stones. Lies, rumors, gossip, slurs, insults, and caricatures could be painful. Bullying and verbal taunting can drive vulnerable people to desperate measures, including suicide. The truth can hurt.1 That’s why we learn to be “polite”—to self-censor. That’s why families, schools, groups, and other institutions have rules, sometimes explicit, more often implicit, regulating speech. “We just don’t say that kind of thing around here” is a common, if informal, limitation on freedom of expression.
Informal family understanding, however, is a far cry from formal government legislation and legally enforceable restrictions on expression. I would never use the kind of epithets listed above, but nor would I want the government to prohibit, under threat of criminal punishment, the use of those words in the open marketplace of ideas.2
You may remember that in the 1970s, the comedian George Carlin listed the seven words that could never be uttered on radio or television. The list included such innocent words as “piss” and “tits.” (Use your imagination for the other five!)
Although the list was never officially promulgated by the Federal Communications Commission, the uttering of the prohibited words on a Pacifica radio station that broadcast Carlin’s routine led to a Supreme Court decision setting out standards for what could and could not be said during certain hours of the day and night.3
Carlin’s routine also became fodder for other comedians and led to the widespread mocking of any attempt to create lists of approved and unapproved words.
Nonetheless, governments have understandably sought to protect some adult citizens4 from being “offended” by the words or expressions of other citizens. Nudists are not free to bare their privates in public, since most people are (or claim to be) offended by the sight of other people’s naked bodies, though the nudists may be free to do their thing in special areas set aside for those who are not so offended. I defended the right of skinny-dippers to sunbathe in an isolated section of the Cape Cod National Seashore.5 The federal judge in that case recognized a limited right to nude sunbathing in areas that present no conflicts with the rights of others.6 The decision was characterized as a “Magna Carta for nudism.” I refused to defend the right of a radical feminist to parade naked in areas not set aside for nudity.7
Pornography, like nudity, offends many Americans, but there are those who would ban not only public displays of pornography, but private use as well. They argue that three distinct types of harm are caused by pornography. The first, as with nudity, is that it is offensive to many people who are involuntarily exposed to it. No empirical evidence is required to prove this kind of harm: If people say they are offended, that is the end of the matter. The second is that some people are offended by the mere knowledge that other people, who are not offended by pornography, are looking at it in private. This alleged harm was mocked by H. L. Mencken’s definition of puritanism as “the haunting fear that someone, somewhere, may be happy.” Whether this type of what I call “vicarious offensiveness” warrants an exception to the First Amendment raises complex legal issues. The third, very different, kind of harm is that pornography is alleged to cause rape and other physical violence against women. This empirical claim, which if true would warrant legal protection, is hotly disputed and unproven, if not unprovable.8
I AM CURIOUS (YELLOW):
VICARIOUS OFFENSIVENESS
My initial professional encounter with the First Amendment involved a direct challenge to the concept of “vicarious offensiveness”—a term I coined, building on Mencken’s quip about puritanism—in the context of a Swedish antiwar film called I Am Curious (Yellow). The story involved a young girl coming of age both politically and sexually during the Vietnam War. It included scenes in which she engaged in sexual activities. By today’s standards, it could be shown on cable television and in art theaters with an R rating—indeed, it can now be downloaded by anyone on You-Tube—but in the late 1960s, it was scandalous.9
The film was seized by U.S. Customs and banned throughout the country. Grove Press, a radical publishing house in New York, owned the film and retained me to argue for its protection under the First Amendment. I don’t recall whether I charged a small fee or whether I took the case pro bono, but I put everything I had into my newfound role as part-time litigator on behalf of my beloved First Amendment.
I decided on a bold challenge to the traditional power of government to censor obscene material—indeed to censor any “offensive” material shown only to people who aren’t offended by it. Instead of arguing that the film itself was not obscene, I decided to argue that it was none of the government’s constitutional business to act as censors—to tell its adult citizens what they could and could not watch in the privacy of a movie theater that was off-limits to children and that did not advertise in a pandering manner that would reasonably offend people outside the theater. There was no legally binding precedent for such a challenge to the concept of “vicarious offensiveness” as a basis for censorship. Indeed the Supreme Court had recently reaffirmed the power of the government to prosecute obscenity, as an exception to the freedom of speech. In this respect, my unprecedented challenge was much like the one I helped Justice Goldberg devise against the death penalty, with the difference being that he was a justice of the Supreme Court, while I was a novice lawyer litigating my first constitutional case. What both challenges shared was a large dose of chutzpah.
The leading case affirming the power of government to censor porn was Roth v. United States.10 But in a more recent case, Stanley v. Georgia,11 the court had carved out a narrow exception to the exception. A divided court ruled, in an opinion by Justice Thurgood Marshall, that the state had no power to prosecute an adult for merely possessing obscene material—in this case some old stag films—in the privacy of his home. The ruling was a combination of Fourth Amendment (the right of privacy in one’s home) and First Amendment principles and was somewhat
unclear as to its reach, because it went out of its way to reaffirm the holding in Roth that obscenity was not protected by the First Amendment.
I decided to use the Stanley case as a battering ram against the very idea that government had the power to tell adults what films they could watch in a theater. The mechanism I chose for this attack was to challenge the constitutionality of the Massachusetts obscenity statute under which the owner of an art theater located across the street from the famous Boston Symphony Hall was being prosecuted for showing I Am Curious (Yellow).12
In those days, a challenge to the constitutionality of a state statute could be brought in front of a three-judge district court with the right to appeal its ruling directly to the Supreme Court.13 The three judges we drew were not a promising crew.
When I learned that Judge Bailey Aldrich would preside, I was concerned that he would remember the incident we’d had when I turned down his invitation to speak at a restricted club. I didn’t know the other two judges, both of whom were Italian-American. One of them, Judge Anthony Julian, had anglicized his original Italian name, but his strict Catholic upbringing and worldview became evident throughout the hearing. The third judge, Raymond Pettine, was from Providence, Rhode Island, and he surprised me with his apparent liberalism.
I argued the case for several hours over three separate days. I began by presenting my broad challenge to the power of the state to regulate the content of films shown in adult-only theaters, on the basis of a fear that it might vicariously offend those who chose not to view it:
If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our constitutional heritage rebels at the thought of giving government the power to control men’s minds.
I argued that the ruling in the Stanley case was analogous to what was occurring in our case:
There is no distinction in law, in logic, in common sense between the individual [watching a film at home or] deciding to go to a movie theater [and] pay his $2.50.
I could see skepticism in the faces of the judges—they did not seem to see any connection between the Stanley case and this one—as I acknowledged that “the Supreme Court ruled only on [home] possession in the Stanley case.” I argued, however, that there was no real difference between home possession and limited, controlled exhibition:
Surely Stanley could not have been prosecuted under Justice Marshall’s decision if he were caught putting the film in the 8mm projector and showing the film to himself or his friends in the privacy of his basement.
Judge Aldrich expressed skepticism about the reach of my argument, suggesting that the Stanley decision wasn’t relevant to a movie theater. He told me about his grandmother, who “once went to a movie entitled Sur Les Troits de Paris. She thought it was a travelogue. She didn’t after she got there of course.… I heard about it.” I assured him that we had dealt with that problem by providing a “prologue” that advised the audience, who were admitted only before the film began, what they were about to see.14
As Judge Aldrich continued to press me about his grandmother’s sensibilities, I was reminded of the old Jewish joke about the man with a broken clock who goes into a store with clocks in the window and asks the man behind the counter to fix his clock. “I don’t fix clocks. I perform circumcisions,” the man replied. “Then why do you have clocks in your window?” the customer wondered. The store owner responded: “What do you want me to put in my window?”
I had that joke in my head when I offered the following argument to Judge Aldrich:
If a store were to open in Boston which was simply marked PORNOGRAPHY SHOP, it had nothing in the window, it had no advertising, it was a place where people like Stanley could come and quietly and discreetly purchase their 8mm films, [I submit] that Stanley vs. Georgia would proscribe prosecution of that seller. I submit that necessarily if there is this right to exercise one’s freedom to read and see a film, there is necessarily the concomitant right to purchase it.
The judges pressed me on whether obscene films, even when viewed in a restricted theater, could cause viewers to go out and commit crimes such as rape. I responded that if that were true, it would be just as likely—perhaps even more so—that a person watching such films alone in his basement would be influenced in that manner. I argued that Stanley had implicitly rejected that theory.
The questioning persisted, with Judge Julian wondering whether Judge Aldrich’s grandmother was typical:
JUDGE JULIAN: As a matter of common sense though, unless we are to be so gullible as to be incredibly gullible, don’t the great vast majority of the people who go to a theater to see a film like this know what they’re going to see?
MR. DERSHOWITZ: Precisely.
JUDGE JULIAN: So this prologue is a lot of nonsense, just a gesture to try to wipe out—
JUDGE ALDRICH: He’s looking after my grandmother who went to see Sur Les Toits de Paris.
MR. DERSHOWITZ: The only valid basis for punishing obscenity … is to protect people [like Judge Aldrich’s grandmother] from being offended, from having something thrust on them in an unwilling manner and also to protect youngsters.
When I then advised the court that under my theory, the judges would not have to view the film, Judge Aldrich immediately interjected with a broad smile: “Are you trying to bribe us to decide the case so we don’t have to see the film? … I will admit that’s the best bribe I have ever been offered.”
Judge Julian did not seem to understand my argument. He kept asking me whether I wanted the court to assume that I Am Curious (Yellow) was not “pornographic.”
I tried to explain:
It’s exactly the opposite. We do not ask you to decide whether or not the film is pornographic. We are asking you to decide that the film shown in a nonobtrusive way, advertised in the way that it’s been advertised right from the beginning, with no hint, no suggestion of obscenity or prurience, played, if you wish, with the warning being given—exhibited in that manner, the film is protected by the First Amendment without regard to its contents.
Judge Julian then questioned me about whether this case was really about money, rather than freedom of speech, because Grove Press was a commercial distributor of films for profit. I replied that the New York Times also makes a profit and that if the First Amendment were limited to nonprofit media, it would become a “dead letter” in our profit-driven economy.
I then returned to my distinction between an enclosed theater and an open display:
MR. DERSHOWITZ: If Grove Press were to put up a billboard … above a large area where people congregate and there were to be an alleged obscene picture on the billboard, and the state were to try to enjoin that, I would have to [concede that there might be some harm to people who didn’t want to be exposed to obscenity].
JUDGE JULIAN: That’s a very generous concession.
MR. DERSHOWITZ: But in this case … nobody is being exposed to anything that he doesn’t want to be exposed to at all. The only thing that people are being exposed to is the fact that they know that a film is being played in Boston … and that fact, if it offends people [vicariously], is not entitled to constitutional protection so long as they can avoid being exposed directly to the contents of the film.
Judge Aldrich was intrigued by this last point and said that he wished to pursue it. I knew I was in for tough questioning:
I wish to pursue that point. I happen to be very straightlaced. Every time I walk down through Harvard Square and I see there is a movie going on there that I know is obscene, of course, I don’t have to go in. I can protect myself. But I’m offended by the fact that I see all these students who are age twenty-one and a half going in and that we are maintaining in my hometown, in which I have such great pride, we are maintaining this house—I use the word “house” advisedly—filthy pictures are being shown. Do I have any interests or rights?
Judge Aldrich had put his finger directly
on the vicarious offensiveness rationale for censorship. I needed to come up with an answer that didn’t devalue his concerns (and his grandmother’s):
It seems to me you have an interest but no right.… I can understand how you would be offended by that. But one of the prices of living in a complex society, with freedom, is for you to have to simply tolerate the fact that you know that certain people are engaging in conduct that you don’t approve of. That was precisely the argument made by the State of Connecticut in the birth control [clinic] case.15 They said that people of the State of Connecticut are offended by knowing that this kind of immoral conduct is being engaged in by people, married people, all over the state. And the Supreme Court did say that this is something that members of the society must tolerate in a pluralistic society. There are a great many things which offend me, to know that they’re going on in people’s homes—I have an interest in that, but I don’t think I have a protected constitutional right [to be] disturbed about what’s going on.
Taking the Stand Page 16
