Besides being wedded to the fallacy that porn is exclusively about consenting adults, many of our opponents try to equate citizen activism and criticism of another’s speech with state censorship that violates the First Amendment. Nadine Strossen is one of the more prominent employers of this approach.
One commenter claims that asking businesses to avoid profiting from suffering is “dangerous territory” that “smacks of harassment”. Perhaps this person is not familiar with the Montgomery Bus Boycott or the divestment campaign that influenced South Africa. Were those actions harassment or peaceful resistance to oppression?
With respect to Don Imus, who recently called members of the Rutgers University women’s basketball team “nappy-headed hos”, citizen activism and private economic pressure appear to be doing a good job of responding to bad speech. After a vigorous outcry from Al Sharpton, feminists, and many others, eight advertisers withdrew their campaigns from Imus’s show on MSNBC. MSNBC then decided to cancel its Imus simulcast yesterday. Today CBS, owner of Imus flagship station WFAN-AM, delivered the “finale” by firing Imus.
Over at The Liberty Papers, a blog that does not appear to be a fan of censorship, Doug Mataconis frames the issue as follows:
…Freedom of Speech, as a Constitutional issue, only
means that you have the right to say what you want without the
government punishing you, and even then there are things you can’t say.
Libel and slander laws are not barred by the First Amendment. Neither
are laws against defamation. Saying that Don Imus had a First Amendment
right to make the stupid comments that he did doesn’t really mean
anything, because we’re not really talking about the government
punishing him here.
Imus, however, isn’t just talking. He’s an employee using the
property of someone else — [specifically] MSNBC and CBS Radio — and they
have the right to determine how it’s used and whether something that is
broadcast is appropriate or not…
It may be a bad business decision, it may be unfortunate that they
are bowing to pressure from people like Al Sharpton, but the one thing
it wouldn’t be is a violation of Don Imus’s rights.
Citizens have every right to criticize the speech of pornographers and bring social pressure to bear on market actors. It can work well.
Added later on 4/12/07:
“There has been much discussion
of the effect language like this has on our young people, particularly
young women of color trying to make their way in this society,” CBS
President and Chief Executive Officer Leslie Moonves said in announcing
the decision. “That consideration has weighed most heavily on our minds
as we made our decision.”
8 thoughts on “The Imus Affair: Criticizing Speech is Not Censorship”
I’m sure you’re aware that you go beyond merely criticizing pornography. I’m sure you’re aware that you also lobby in favor of anti-porn zoning ordinances. No one involved in the Imus affair suggested that comparable action should be taken. It’s hard to imagine what that would even be. How do you zone against a radio show?
I saw Al Sharpton on the Today show on Tuesday. Rev. Sharpton said that one of the principle reasons Imus should be fired was his stature: his is the kind of radio show on which, for example, Presidential candidates appear. Someone who would refer to people as “nappy-headed hos” should not have that sort of stature in the privately-held radio industry. (That’s not a legal ‘should.’ He wasn’t saying there should be a law.)
But Capital Video does not have that sort of stature. No one from Capital Video interviews Presidential candidates. They just sell porn, and the first amendment says they should be legally permitted to do so. Just like Imus should be legally permitted to say whatever he wants. No one is obligated to employ him, or advertise on his show, though, just as you’re not obligated to shop at Capital Video. That’s how first amendment protections work.
I think your opponents don’t really object to your criticism of offensive speech. That’s a red herring. What we object to is your use of the offensiveness of porn to encourage the City Council to pass an anti-porn zoning ordinance.
The Supreme Court says that zoning ordinances cannot be based on content. But you mention the offensiveness of the content pornography in your rationale for the zoning ordinance you drafted and lobbied for. This indicates that it was content-based. It is therefore in violation of the first amendment.
That’s the criticism. Not this other thing.
Saying that “offensiveness” motivates adult-use zoning is a classic dodge, just like saying criticism of speech is equivalent to censoring it. I am amazed by our opponents’ remarkable inability to concede the reality of secondary effects even when it’s happening right now in front of our noses.
We can justify adult-use zoning to mitigate secondary effects, and go on to make a broader critique of the harm of porn so people will make the individual choice to avoid it in general. There is no contradiction.
How is it a dodge? You heard they were going to put a porn store up in your neighborhood. So you put this website up to lobby for a zoning ordinance to keep it away. A primary component of your case is how offensive you find pornography to be. It’s not a dodge; it’s an accurate description of your behavior. Unfortunately for you, laws like that are against the law.
It’s not like saying that criticizing speech is the same thing as censoring it. For one thing, nobody ever said that. I certainly never said that. Who said that? Do you have an example?
Don Imus fouled up at his job and got fired. People who called for him to be fired were not suggesting that congress should pass a law. No one took the position you’re arguing against.
You opponents continue to be surprised by your obtuse refusal to understand that Springfield’s problems are bigger than a Capital Video store.
One of the major problems your opponents have with your strategy is that you use the “vileness” of porn to support your overall zoning strategy. That *is* censorship. Outlawing something because you find it vile is censorship.
I know you’re not outlawing porn. You’re outlawing porn stores near your house. It’s still censorship.
You are trying relabel an exposition of the harm of porn into a debate about its “offensiveness”. These are two separate things. We have shown with overwhelming evidence that porn is a factor in the abuse of adults and children. This harm is occuring whether or not I am “offended” by porn. This website isn’t about our tender sensibilities. It’s about real people being hurt right now.
You dismiss Springfield’s Capital Video store as a small thing, but as has also been shown, small things matter. This understanding is a major reason why Rudy Giuliani was a successful mayor of New York City.
I did not claim that you personally were using the ‘criticizing porn is censorship’ dodge, but certainly Professor Randazza’s students have made liberal use of it.
I can’t stop you from calling adult-use zoning “censorship”. However, this extreme, absolutist view of the First Amendment is not supported by the courts or common sense. The trivial harm to free speech is vastly outweighed by the physical benefits to the neighborhoods involved, and pornographic content remains widely available elsewhere. The First Amendment has many, many carveouts that recognize competing values. Adult-use zoning strikes me as one of the most modest and reasonable of these carveouts.
I am not relabeling anything. I’m just looking at what you say here. You say stuff like, “there ought to be a zoning ordinance keeping porn stores out of my neighborhood. Look at how “vile” these porn titles are. See?” Although a great deal of material on this blog *is* about your tender sensibilities, your activities go way beyond merely criticizing offensive speech. You lobby for zoning ordinances against the offensive speech. Maybe calling a spade a spade is “relabeling” it, but I think it’s just calling it what it is.
I don’t want to get into a whole big Giuliani thing with you, but his success in reducing crime in NYC wasn’t just a result of his shutting down the adult businesses in Times Square. Still less was it a result of his shutting down 1 such business. It was a result of a years-long, city-wide crackdown on petty crime, such as graffiti and subway turnstile-jumping. This crackdown sent a message that the City was not impotent.
Springfield’s problems are deep and serious, and a result of years of economic decay, corruption, and impotence. They’re not being caused by one porn store. And the City could more effectively address its problems by eliminating the economic, educational, and law-enforcement-related conditions that cause them, in ways that wouldn’t violate the first amendment.
The Supreme Court does not share your opinion that anti-porn zoning ordinances never violate the first amendment. In the Alameda case, the Court says that zoning ordinances that are strictly tailored to control secondary effects are permissible, but zoning ordinances that are designed to curtail offensive speech are illegal. They go so far as to say that zoning ordinances that curtail speech more than is absolutely necessary are illegal. It’s very easy to read your blog and get the idea that the legislation you lobbied for is designed to do exactly that.
The first amendment has three carveouts: obscenity, libel, and speech that causes immediate harm. There is no “gradual harm” carveout. There’s no “I don’t like what this guy is saying” carveout. There’s no “my house is expensive” carveout. I don’t why you think there are “many, many” carveouts. I don’t know why you think that the first amendment is subject to a cost/benefit analysis.
Ours is a Nation of great ideals and principles. Your critics and I think that it is far more important to protect these ideals and principles than it is to protect your delicate sensibilities, or the value of your house. That’s what makes me proud to live here. I find the fact that the City council passed your ordinance to be embarrassing, but I’m proud that it didn’t work, and that the store is going to open in spite of you.
Let’s clarify what we mean by “vile”. We do not mean that sexual depictions are, in themselves, vile. However, it does bother us when women are called “sluts” and “whores”, when they are paid to suck on penises smeared with their own shit, when a celebrity’s sexual “shame” is highlighted and exploited for money, when violent abuse of a baby is made light of. Not all of these situations lend themselves to a legal solution, but that doesn’t mean we can’t protest them.
So tell me, should we be indifferent to the phenomenon of Baby Kick and Bleed and ass-to-mouth porn?
Yeah, it bothers me when women are called sluts and whores. I do not, however, think that the objectionability of calling women sluts and whores is a good reason to keep porn stores out of your neighborhood. I understand that the first amendment prohibits laws like that.
My understanding of the 1 Night in Paris situation is that Ms Hilton makes quite a bit of money from it. If that’s not the case, it nevertheless does not license the sort of zoning strategy you employ. It suggests that privacy laws should be more strict, so that porn stores cannot sell videos like that. It does not suggest that porn stores, who are legally permitted to sell the tape, should be located away from your house.
My understanding of the first amendment is that cartoons like “Baby Kick and Bleed,” while offensive, are nevertheless protected. The existence of offensive cartoons like that does not license the sort of zoning strategy you employ. It does not suggest that porn stores, who are legally permitted to sell the cartoon, should be located away from your house.
My understanding of “Ass to Mouth” is that editing and special effects create the illusion of genuine anal/oral contact, shit eating, etc. As disgusting as this is, my understanding of the first amendment is that very disgusting movies are nevertheless protected, as are stores that sell very disgusting movies. That you find “Ass to Mouth” movies to be very disgusting does not license the sort of zoning strategy you employ. The disgustingness of “Ass to Mouth” does not license a legal prohibition of porn stores near your house.
Furthermore, the fact that you keep bringing this up, and are willing to have this conversation, is a strong indication that your motives for drafting and lobbying for a zoning ordinance to keep the porn store away from your house were based on content—the “vile” offensiveness you keep complaining about. This is a clear violation of the first amendment. Even your precious Renton decision says so.
I have presented Professor Frederick Schauer’s article to you several times, yet it appears you have either not read it or not understood it. The First Amendment has many more carveouts than you seem to believe.
You may not believe the First Amendment is subject to a cost/benefit analysis, but the Supreme Court certainly does. They approved a carveout to restrict the possession of child porn because they perceive the costs to be great and the benefits slight. Even the ACLU approves of this, at least when real children are depicted.
We understand that some adult-use zoning ordinances can overreach. The ordinances of Revere, MA may be such a case. We have been mindful of this danger and crafted our proposals to avoid it.