Outrageous Speech and the Constitution

...The United States Supreme Court, however, overturned the judgment...

...In fact, as the Supreme Court itself noted, most would undoubtedly view the Hustler parody as "gross and repugnant," the very antithesis of rational discourse...

...The law commonly functions, as in Falwell's case, to uphold the norms that make up this chain of ceremony...

...Contemporary First Amendment doctrine reflects what would otherwise be obvious, that the choice whether legally to privilege the autonomous or the socially situated aspects of the self can be resolved only in the light of specific situations...

...But on this interpretation Falwell is also a very narrow decision, leaving undecided the innumerably differing circumstances in which we might wish to regulate speech as outrageous...

...The virulence of this reaction underscores the significance of Dewey's point: the very rational deliberation that the First Amendment seeks to foster depends upon the observance of common rules of civility...

...Take, for example, the recent United States Supreme Court decision in Hustler Magazine v. Falwell...

...But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy...

...The justification that has proved most durable in First Amendment jurisprudence is essentially political...

...These are strong and attractive words...

...The deeper point, however, is that the First Amendment also requires neutrality with respect to the very structures that establish communal life...

...But from other, equally important, perspectives, the story appears darker and more complex...

...Contemporary social theorists like Michael Sandel have noted that members of a community conceive their identity . . . as defined to some extent by the community of which they are a part...

...It is to claim that the speech is unacceptable because it is inconsistent with community canons of decency...

...As Sabina Lovibond has recently reminded us, "the norms implicit in a community's . . . social practices are 'upheld,' in quite a material sense, by the sanctions which the community can bring to bear upon deviant individuals...

...The notion that the Constitution demands neutrality "in the marketplace of ideas" has of course been a legal commonplace for generations...

...Conversely, when constitutional doctrine regards speech as public discourse and privileges its communicative aspects, the Court renders the speech independent of its social context...

...Publics were said to exist in the space between communities, and to create cohesion "on the basis of a 'universe of discourse' " that is intrinsically "critical...

...To claim that speech is "outrageous" is to assert much more than that it is personally unpleasant or disagreeable...

...The domain of public discourse, therefore, will extend only so far as our dedication to these values outweighs other competing commitments, such as those entailed in the dignity of the socially situated self, the importance of group identity, or the authoritative character of the particular values of our own community...

...FALWELL: The Campari was great, but Mom passed out before I could come...

...The law commonly rests upon judgments of this kind...

...But the Court forbids the state from enforcing these norms within what Chief Justice Rehnquist called the "world of debate about public affairs," because to do so would prejudice the ability of individuals to persuade others of the need to change the terms of community life...

...But in the context of a case like Falwell it is difficult to regard them as evidence of an unambiguous march toward enlightenment...

...When the Supreme Court began in the 1930s and 1940s to interpret the Constitution to protect highly offensive speech, it grounded this protection on the recognition that the nation contained multitudes of divergent communities, each with its own unique shape and identity...

...For example, the so-called "dignitary torts" —defamation, invasion of privacy, and intentional infliction of emotional distress—all appeal to similar norms to distinguish acceptable from unacceptable speech...

...Goffman's works amount to an extended demonstration of the many ways in which personal identity is continuously constituted through the affirmation of norms...

...At about the same time that the Supreme Court was developing modern First Amendment doctrine, American sociologists were also confronting this question...

...That work forcefully demonstrates the extent to which, in the words of Mead, "[w]hat goes to make up the organized self is the organization of the attitudes which are common to the group...

...Because taste appeals to intersubjective, rather than to private, standards of judgment, Hans-Georg Gadamer has correctly observed that "taste, in its essential nature, is not private, but a social phenomenon...

...The Supreme Court, despite the "general First Amendment principles" announced in Falwell, has in fact been quite sensitive to this SUMMER • 1990 • 371 Speech and the Constitution dynamic...

...The case concerned the attempt of Larry Flynt, the enfant terrible of the pornographic set, to "assassinate" the integrity of Jerry Falwell, then leader of the Moral Majority...

...it is not merely a matter of personal or idiosyncratic preferences...

...In that case, Jesse Cantwell, a Jehovah's Witness, entered a Catholic neighborhood and played for two Catholic men a phonograph record that contained an attack on all organized religious systems as "instruments of Satan and injurious to man" and that further singled "out the Roman Catholic Church for strictures couched in terms which naturally would offend not only persons of that persuasion, but all others who respect the honestly-held religious faith of their fellows...

...When these latter commitments are more important to us, the Court has not hesitated to carve out exceptions to the constitutional shield envisioned by Cantwell...

...fighting words as instruments of aggression "whose very utterance inflicts injury...

...The justification for this protection is the hope that the discourse will sustain the kind of democratic deliberation capable of generating a truly public opinion...

...The sanctions that the law can bring to bear to support community norms are unique, not so much because of their monopoly of physical force, but because they alone purport to define social standards in accents that are universal...

...In both fields the tenets of one man may seem the rankest error to his neighbor...

...And it has allowed the Federal Communications Commission to appeal to "contemporary community standards" to define and prohibit the broadcasting of "patently offensive" speech at "times of the day when there is a reasonable risk that children may be in the audience...

...In a powerfully worded opinion by Chief Justice Rehnquist, the Court reaffirmed its support for "the general First Amendment principles" that "speech does not lose its protected character . . . simply because it may embarrass others" or because "society may find [it] offensive...

...It creates, in the words of Alvin Gouldner, "a cleared and safe space" in which that context can be questioned, negated, and evaluated...

...Thus the law permits outrageous speech such as racist or sexist insults to be regulated within the workplace, where it makes obvious sense to view persons as dependent upon their social circumstances...

...And Mom looked better than a Baptist whore with a $100 donation...

...This suggests, however, that the aspiration to be free from the constraints of existing community norms is in tension with the aspiration to engage in the social project of reasoned and noncoercive discourse...

...Underlying First Amendment protection for outrageous speech, therefore, is the assumption that community life in America is constituted by the voluntary choices of its members...

...The first aspiration is sustained by the values of neutrality, diversity, and individualism...

...They enforce these norms in order to protect the respect and dignity to which persons are entitled...

...SUMMER • 1990 • 373 374 • DISSENT...

...For them, community describes not just what they have as fellow citizens but also what they are, not a relationship they choose (as in a voluntary association) but an attachment they discover, not merely an attribute but a constituent of their identity...

...The Court in Cantwell declared the specific function of the First Amendment to be the creation of a shield under which "many types of life, character, opinion and belief can develop unmolested and unobstructed...

...On this account, then, the "outrageousness" standard that sustained Jerry Falwell's judgment is constitutionally unacceptable, not because it "has an inherent subjectiveness about it," but rather because it would enable a single community to use the authority of the state to confine speech within its own notions of propriety...

...As defined by contemporary First Amendment doctrine, public discourse reflects and instantiates the distinctive values of neutrality, diversity, and individualism...

...Such special categories of speech are, in effect, transposed from a realm of pure communication to one of action...

...Defining the Domain of Public Discourse One important implication of this paradox is that the domain of public discourse must be limited...

...In doing so it offers protection and compensation to those who have suffered from their violation...

...This image of personality has been usefully articulated in the work of the symbolic interactionist school of American sociologists, beginning with George Herbert Mead and culminating in Erving Goffman...

...To bind speech within the norms of any single community would destroy this diversity...

...But in the heterogeneity of contemporary culture only the law can authoritatively speak for norms that define a common ideal of rational deliberation...

...The question arises, therefore, how any coherent public opinion can form across the deep chasms that divide American communities from each other...

...The basic idea was that persons from diverse cultural backgrounds could join together in a common and productive conversation only if they were also empowered to question, contradict, and rationally evaluate the distinctive cultural assumptions that divided them...

...Their response was to develop the concept of a "public" as a distinct social formation that emerges only when "social organization is widened and complicated by economic and cultural differentiation that entail[s] incompatible schemes of group behavior...

...We might say, therefore, that the Constitution creates a concept of public discourse that is neutral in the marketplace of communities...

...As one would expect, therefore, a number of commentators have attacked the Supreme Court's Falwell decision on the ground that Flynt's parody amounted to little more than a "punch or kick" and that it had no "plausible nexus to cerebral activity...

...The jury that imposed liability upon Flynt spoke for and with the authority of a specific community where expression like the Hustler parody is deemed utterly demeaning and intolerable...

...Each of these circumstances will call for a particular exercise of judgment, and there are no neutral rules to which we can turn to escape from the heavy responsibility of that judgment...

...370 • DISSENT Speech and the Constitution The neutrality prescribed by First Amendment doctrine protects just such a critical discourse...

...This logic is explicit in an important 1940 decision, Cantwell v. Connecticut...

...But it also serves a second—and from the constitutional point of view more important—function...

...This is normally accomplished by defining a specific category of speech, like "obscenity" or "fighting words," and removing it wholesale from the domain of public discourse...

...INTERVIEWER: Campari in the crapper with Mom . . . how interesting...

...If the boundaries of that domain were to sweep too extensively, if they were effectively to suspend enforcement of community norms in all instances of communication, norms of reason and respect could not survive, and the very possibility of rational deliberation would be endangered...

...Falwell sued and was awarded $200,000 in damages for the tort of intentional infliction of emotional distress...

...Framed in this way, the question closely parallels the contemporary debate between "liberals" and "communitarians...

...In his third Critique Kant long ago distinguished between taste, which "demands" the agreement of others, and the sense of the agreeable or pleasant, concerning which "everyone is content that his judgment, which he bases upon private feeling and by which he says of an object that it pleases him, should be limited merely to his own person...

...The Legal Constitution of Community At his trial Falwell testified that the Campari parody inflicted a "very deep wound of personal anguish and hurt and suffering, such as nothing in my adult life I ever recall before...

...This assumption contrasts sharply with the presumption that underlies legal regulation of outrageous speech, which is that persons are instead constituted by the life and norms of their communities...

...If we ask how it is that Flynt's mere words could cause such a wound, the answer must be that the integrity of Falwell's very personality must somehow depend upon the norms violated by Flynt's parody...

...But the Court overturned his conviction: In the realm of religious faith, and in that of political belief, sharp differences arise...

...Ever since Cantwell the Supreme Court has interpreted the First Amendment to require state neutrality with respect to the enforcement of community norms within the arena of public discourse, so as to create a free and undistorted field for the informed exercise of individual choice...

...It has refused to expand the arena of public discourse in such a way as significantly to impair the processes by which communities socialize the young and cause them to identify with community norms necessary, in the Court's view, for rational deliberation...

...I very much doubt that the Court would have prohibited the application of an "outrageousness standard" if Larry Flynt were to have called up Falwell's mother and privately read to her on the telephone the exact words of the parody...

...This might be called the "paradox of public discourse...

...Without such authoritative support the norms defining reasonable, noncoercive discourse stand to be seriously weakened...

...Ultimately, then, the reasoning of Cantwell places the Constitution firmly on the side of those individuals who would attempt to use speech to alter the terms of community life...

...And so forth...

...Clearly this is not a debate we would want to resolve tout court...

...It held that the First Amendment precludes government from penalizing speech about public figures on the basis of laln `outrageousness' standard...

...Whereas First Amendment doctrine is premised on the possibility of using speech to create new communities and therefore new identities, torts that penalize outrageous speech proceed on the assumption that speech that infringes upon existing community norms violates the very identities of community members...

...Flynt's parody, in other words, must be tolerated because state regulation of "outrageous" speech would give juries unrestrained discretion to censor expression on the basis of their subjective tastes and preferences...

...From the perspective of democratic theory, this rapid unfolding of First Amendment doctrine reads like an unabashedly Whiggish triumph of liberty and enlightenment...

...The purpose is to protect the integrity of those whom the speech would otherwise harm...

...It is no accident, therefore, that the Court's actual decision in Falwell was quite limited, 372 • DISSENT Speech and the Constitution holding only that an "outrageousness" standard could not be applied to speech in nationally circulated magazines like Hustler...

...Cantwell interpreted the First Amendment as establishing a level playing field, in which no particular community could use the power of the state to obtain an unfair advantage and prejudge the outcome of this competition by enforcing its own particular norms...

...It was a poisonous, revolting performance...

...When this chain of ceremony is broken by outrageous speech, as for example by Flynt's parody, the wound is to personality itself...

...The justification of this function rested upon the Court's perception of America as a land of "sharp differences," in which communities and cultures were labile and evolving, competing, like the Jehovah's Witnesses, for the allegiance of individual adherents...

...The commitment of modern First Amendment doctrine is unquestionably to the first of these aspirations...

...Cantwell was convicted of the common-law crime of inciting breach of the peace...

...Thus, for example, the Court had recently permitted a school to censor "lewd speech" on the grounds that it was "a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse," so as to "inculcate the habits and manners of civility...

...While this justification carries undeniable liberal appeal, it also rests on a fatal confusion...

...The Paradox of Public Discourse For a court to set aside state law as unconstitutional is a grave matter, requiring extraordinary justification...

...the second by the deliberative enterprise of democratic self-governance...

...As a matter of constitutional history, the First Amendment began effectively to safeguard freedom of speech only in the second third of the twentieth century...

...The Marketplace of Communities It is precisely this fact, however, that offends the First Amendment...

...The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed...

...Consequently, the constitutional structure that regulates the domain of public discourse denies enforcement to the very norms upon which the success of the political enterprise of public discourse depends...

...Like taste, the "outrageousness standard" at issue in Falwell invokes social standards and demands the agreement of others...

...The First Amendment protects "the liberty to discuss publicly . . . all matters of public concern," so that the public opinion necessary for the performance of democratic selfgovernance may freely be formed...

...Thus when John Dewey expressed his "democratic faith . . . in the possibility of conducting disputes, controversies, and conflicts as cooperative undertakings in which both parties learn by giving the other a chance to express itself," he contrasted such productive interaction with confrontations where "one party conquer[s] by forceful suppression of the other—a suppression which is not the less one of violence when it takes place by psychological means of ridicule, abuse, intimidation, instead of by overt imprisonment or in concentration camps...

...Flynt published in Hustler magazine a parody of the well-known Campari Liqueur advertisements, which featured celebrities reminiscing, with a strong undercurrent of sexual innuendo, about their "first time" tasting Campari Liqueur...

...The most that can be said, therefore, is that the parody ought to be (grudgingly) SUMMER • 1990 • 367 Speech and the Constitution tolerated in order to protect larger interests in freedom of speech...

...A person is a personality because he belongs to a community, because he takes over the institutions of that community into his own conduct...

...Since all speech is simultaneously both speech and action, this transformation is best understood as a process of recharacterization...

...To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement...

...The Court gives legal saliency to those aspects of speech that are like conduct, and hence orders the social relations of those involved with the speech according to relevant standards of decency and respect...

...Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds...

...Understood in this way, the Court's decision in Falwell is clearly correct...

...Any other conclusion, the Court reasoned, would frustrate "the government's interest in the 'well-being of its youth' and in supporting parents' claim to authority in their own household.' " The functional dependence of public discourse upon community norms is, however, not the only reason for limiting the scope of public discourse...

...As the unease generated by the Falwell decision illustrates, this contradiction is deeply disturbing...

...For this reason Cantwell SUMMER • 1990 • 369 Speech and the Constitution constitutionally disabled the state from imposing the most elementary norms against "exaggeration" or "vilification" or "excesses and abuses" upon speech about public subjects like "religious faith" or "political belief " or "prominent" individuals...

...This process of socialization, however, should not be understood as having a definite terminus, a point at which an independent and autonomous self emerges as if from a chrysalis...

...But the Falwell opinion, speaking for a long line of decisions that have enunciated "general First Amendment principles," prevents the law from functioning in this manner, at least with respect to speech that falls within the realm of what the Court calls "public discourse...

...Goffman in fact describes society as a "chain of ceremony" in which compliance with norms of civility 368 • DISSENT Speech and the Constitution sustains both our own identity and the identities of those around us...

...Democratic deliberation can achieve its purpose only if it is experienced as rational and noncoercive...

...What Is to Be Done...

...If the audience for the print media were not conceptualized as able autonomously to evaluate what they read, precious little would be left of that democratic public which is so integral to our political identity as a nation...

...These norms can, of course, continue to be enforced by means of private and social pressure...

...The "outrageousness" standard at issue in the case can have meaning only by reference to the norms of a particular community...

...The characterization of speech as communication or as action—as within public discourse or as outside of it—thus ultimately depends on whether we wish to view those involved in communicative processes as autonomous evaluators of their circumstances, or instead as situated within and in significant ways constituted by their particular web of social norms...

...Obscenity, for example, is conceptualized as a form of moral pollution...

...But hidden within this hope lies a dramatic and consequential paradox...

...Such a claim may be controversial, but it need be neither arbitrary nor subjective...

...It represents precisely a judgment that the offending speech is "intolerable" in light of "generally accepted standards of decency and morality...

...The jury was instructed to find for Falwell if he could demonstrate that Flynt had purposefully caused him psychological harm by means of conduct that "was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality...

...In this area of the law, as in many others, the ultimate question is thus one of selfcharacterization...

...In its Falwell opinion the Supreme Court defined them this way: "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression...

...The powerful consequence of this neutrality is visible in the Falwell opinion itself...

...Flynt's parody featured a thoughtful Jerry Falwell, who recalled that the first time he drank Campari he was having sex with his mother in an outhouse, among the feces, flies, and goats: FALWELL: Well, we were drunk off our Godfearing asses on Campari, ginger ale and soda— that's called a Fire and Brimstone—at the time...

...The First Amendment is merely the mirror that reflects the destiny we choose...

...But what exactly, if the inquiry were to be pressed, are these "larger interests...

...There is little value in the creation of a public opinion that is neither voluntary nor considered...

...This suggests that when the law upholds common norms that help constitute individual identity, it also serves to maintain a shared community, which subsists in the chain of ceremony created by those norms...

...Well, how was it...

...We are left, therefore, with the following paradox: to the extent that a constitutional commitment to a neutral public discourse prevents the law from articulating and sustaining a common respect for the standards of decency that make possible the ideal of rational deliberation, public discourse corrodes the basis of its own existence...

...In a culturally heterogeneous nation like the United States, democratic public opinion must bring together persons from diverse traditions and communities...

...But it suspends such regulation in the context of the print media, where the image of the independent reader predominates...

...The precise question, then, is why the First Amendment should be interpreted to preempt the enforcement of such important norms within the domain of public discourse...

...Thus whenever the law enforces the norms defining outrageous speech, it necessarily employs the power of the state to sculpt a community of a particular shape...

...Yet speech that is outrageous, that violates fundamental community norms of decency and respect, is perceived as both irrational and coercive...

...The purpose is to empower those who speak, so that in their communication they may reshape their world...