LETTERS
First Amendment Problems Editors: Robert Post's critique of "liberal" First Amendment theory, "Outrageous Speech and the Constitution: Thoughts on Hustler v. Falwell" [Dissent,...
...When Justice Harlan protected Paul Cohen's right to wear a jacket that bore the words "Fuck the Draft," he said that "words are often chosen as much for their emotive as their cognitive force" and the "motive function" of speech is protected by the First Amendment...
...q Low Blow from Dissent Editors: I won't bother to cite even a few of the web of half truths, misstatements, and sleazy manipulations of assumptions and presumptions that inform virtually every sentence of Shelby Steele's racist piece (Summer 1990...
...The point of my article was to situate the Court's Hustler decision within the field of that tension...
...Post reminds us of the "darker side" of freedom of expression, the price in civility and dignity that is paid in tolerating disgusting speech...
...Engelstein himself quotes the precise holding of the decision: [P]ublic figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true...
...The result, not surprisingly, is a fierce tension...
...What does Professor Post say...
...But what a revelation this is about those responsible for Dissent—that you, too, have succumbed to the racial double-standard-ism intrinsic to the slavish promotion of the black neoconservatives...
...One final point...
...It turns out, therefore, that Engelstein may have a rather difficult time explaining Harlan's conclusion in Cohen...
...542 • DISSENT Engelstein, however, seems more concerned with outcomes than with explanations...
...The paradox exists only if the First Amendment's justification is exclusively that of fostering rational discourse...
...It does omit Harlan's important qualification that Cohen's rationale extends only to "the arena of public discussion...
...The result, I believe, is a muddle...
...If New York magazine had inflicted emotional distress on New York Governor Mario Cuomo, or even more community-like, if the WestSider newspaper had odiously attacked Manhattan Borough President Ruth Messinger, should these politicians collect damages...
...Post sees "the unfolding of First Amendment doctrine" as an "unabashedly Whiggish triumph of liberty and enlightenment" and is worried about the dark side...
...And where indeed is the "fatal confusion," pace Kant...
...A good example is his attempt to invoke Justice Harlan's famous opinion in Cohen v. California as grounds to deny what I call the paradox of public discourse...
...Defamation was not an issue because the Flynt article was self-designated as a parody and did not pretend to give actual facts about Falwell...
...The issue before the court in Falwell was simply, narrowly, and exclusively the limits of First Amendment protection of speech directed at public figures...
...Falwell may not be an unambiguous march toward enlightenment," says Post, but it is clearly a step forward for the rights of free expression...
...We get plenty of propaganda...
...Note...
...All that talking and horse trading and compromising...
...And we ought also to abandon the tort of invasion of privacy, which rests on a similar "highly offensive" standard, as well as those vast stretches of tort law that depend upon the related "reasonable person" standard, and so forth...
...What is the communitarian contribution to lightening the dark side that would not curtail our freedom...
...A superficial answer would invoke the value of the autonomy of the speaking subject, but this answer cannot explain a case like Hustler in which the autonomy of the speaker is purchased at the cost of destroying the autonomy of the subject of his communica tion...
...I have long accepted that the establishment press will shuck standards to publish the tripe of black neoconservatives, or anyone else willing to condemn African Americans...
...Well, if Kant said so, and Kant non disputandam, then it must be so...
...He introduced many of us to Marxist thought and, in his frequent role as "dissident" within the movement, taught us something about moral courage...
...But because we have a long "lead time" for each issue, you have to send us your letter within three weeks after getting an issue of Dissent in order to get it into the next issue...
...But it is well established doctrine that speech does not have to contain "ideas" to warrant protection...
...No, my wonder is how the editors of Dissent could have accepted a piece which is so devoid of facts, of reference to specific studies and situations that readers could "track" for themselves—of footnotes...
...He writes that "the Court's actual decision in Falwell was quite limited, holding only that an 'outrageousness' standard could not be applied to speech in nationally circulated magazines like Hustler" (my emphasis...
...Larry Flynt's lampoon of Falwell's sanctimoniousness may have set a record for execrable taste...
...Hal was both theoretician and activist...
...To Letter Writers • We welcome succinct letters from our readers...
...This is too much...
...Falwell is not a public figure...
...Todorov gives no indication that he is one of the "devout," and so Muslims quite naturally might ask how he can stand as their representative...
...I believe that many contemporaries acknowledge with me our immense debt to Hal Draper, mentor, friend, comrade...
...According to Engelstein, Cohen stands for the proposition "that speech does not have to contain 'ideas' to warrant protection," for " 'words are often chosen as much for their emotive as their cognitive force.' " While I do not totally agree with this account of the case, it is not an implausible interpretation, so far as it goes...
...Engelstein is simply wrong when he claims that the Hustler opinion turns purely and simply on the "public figure" status of its plaintiff...
...In the same opinion, he memorably proclaimed that "one man's vulgarity is another man's lyric...
...We reserve the right to edit letters down to fit our space and to choose which shall be printed...
...It was not possible to formulate a "principled standard" to distinguish the Flynt parody from traditional political cartoons, the Court said, because " 'outrageousness' in the area of political and social discourse has an inherent subjectiveness about it" which would make speech prey to the dislikes of particular juries...
...When it comes to the crunch of letting a local Virginia jury decide what is "outrageous" for the rest of the country, Post turns out to be a "liberal" in "communitarian" clothing...
...STANLEY ENGELSTEIN New York, N.Y...
...q Satanic Verses Still Take Heat Editors: Our first issue of Dissent just arrived at the university library this month...
...For example, if the Court is correct that an "outrageousness" standard is truly and merely subjective, we would have good grounds for repudiating the tort of intentional infliction of emotional distress altogether...
...Then, Todorov comments that Rushdie's "remarkable novel is neither an insult to the devout nor an incitement to violence...
...It cited cartoons of George Washington as an ass and a historian's comment about the Nast cartoon: "It continuously goes beyond the bounds of good taste and conventional manners...
...Post also says no, but in his own language...
...The darker side of the Fourth Amendment protection against search and seizure is that criminals go free despite strong evidence unconstitutionally gotten...
...He implies that it makes no difference whatever whether the Court's decision in Hustler rests upon its professed rationale of antisubjectivism or instead upon the alternative rationale I propose, that of the intrinsic immunity of public speech from the regulation of community norms...
...Todorov's conception of evil—something holocaustal FALL • 1990 • 543 Letters or happening exclusively to Jews—is insufficiently generous to other peoples' experiences of genocide and suffering...
...So the rationale for the Court's Hustler decision matters (or ought to matter) for the general shape of our legal order...
...The actual opinion of the Court mentions a "magazine of nationwide circulation" once and only at the beginning to describe Hustler...
...The Court, in a strong opinion by the Chief Justice himself, concluded that "public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with 'actual malice,' i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true...
...Robert Post Replies Stanley Engelstein quite rightly asks, "What price `communitarianism...
...Where is the scholarship...
...Engelstein's letter, with its vigorous embrace of the value of freedom of expression, appears far too morally engaged to accept such a cynical and nihilistic position...
...The passages in my article to which Engelstein objects are merely gestures in the direction of uncovering some potential principles for that characterization...
...The paradox can no doubt be dissolved, but only on the basis of a more powerfully explanatory theory, one that Engelstein does not attempt to provide...
...The italicized language indicates that Hustler concerns not merely the public figure status of a plaintiff but also the manner in which the relevant speech has been disseminated...
...It seems to me ungenerous to the human being we all worked with for many years and unjust in its condescension toward his contributions to the socialist movement...
...In my article I propose a solution to what is generally perceived to be the conundrum of Cohen: the distinction between "cognitive" and "emotive" speech is itself a product of the application of community norms...
...How much freedom do we give up to retain civility and who will do the measuring...
...His argument is marred by two serious errors...
...Public figures or politicians can only collect for malicious defamation...
...Fair enough...
...For me and several hundred contemporaries, Hal was both mentor and conscience...
...The First Amendment defeats its own objective of "rational deliberation" by protecting the kind of abusive speech that makes rational deliberation impossible and "corrodes the basis of its own existence...
...It was not to award the palm either to communitarianism or to liberalism, but rather to explore the social relationship between these two important and necessary perspectives...
...544 • DISSENT...
...He managed, despite his "tendency to be rigid, even sectarian," to be accepted by the shipyard workers with whom he worked during the war years as a leader on the job...
...Perhaps, in honor of Steele and your own conversion, you should rename Dissent Deceit...
...LEE A. DANIELS New York, N.Y...
...But it also suggests that we must live with the paradox of public discourse...
...The Court here was reasserting the standard in the landmark New York Times v. Sullivan case...
...My hope was that an understanding of this relationship would sharply illuminate the general shape of our First Amendment jurisprudence...
...This function follows from our ambition to use public discourse, in John Rawls's telling and "liberal" phrase, to achieve "reconciliation through public reason...
...The jury verdict in Falwell was "constitutionally unacceptable not because it 'has an inherent subjectiveness about it' but because it would enable a single community to use the authority of the state to confine speech within its own notions of propriety...
...Were we to hold otherwise," the Court said, "there can be little doubt that political cartoonists and artists would be subject to damage awards without any showing that their work falsely defamed its subject...
...It is indeed a compliment to you Americans to conduct such an in-depth debate on European affairs, a debate which I am sad to say is still very superficial and one-dimensional in the Old World...
...But those who understand Islam to be a message of divine mercy to prevent evil and encourage good can certainly argue that The Satanic Verses causes evil...
...You mention but give grudging weight to his four-volume Karl Marx's Theory of Revolution...
...I suspect that the hard search for explanations would hold some surprises for Engelstein...
...But of course so is the price of liberalism, if by "liberalism" we mean a social outlook strongly premised upon individualism...
...Possibly yes, though not because there is no national publication here but because Mrs...
...Indeed, democracy itself is often the least efficient way of getting anything done...
...Fine...
...Long ago," in his third Critique, Kant said that there was "taste," and that "taste" was idiosyncratic and "demands the agreement of others," that is, presumably, community norms...
...However, a few points should not pass without comment...
...It is inappropriate to apply such norms to public discourse because the function of that discourse is to provide a space Letters that is neutral with respect to community standards...
...Letters must be kept to about 500 words, typed, double-spaced, and carry the full address and name of the sender...
...But Engelstein surely cannot mean to suggest that the law ought to be viewed as simply a string of unrelated outcomes...
...q On Hal Draper Editors: I was distressed by your "memoriam" for Hal Draper...
...But the immediate cause for writing is concerning Tzvetan Todorov's notebook entry ("The Satanic Verses in Paris," Winter 1990...
...The Court's denial that an outrageousness standard exists rests on a "fatal confusion...
...I could go on, but the point is clear enough: differing rationales for the Hustler opinion imply vastly different consequences for legal doctrine...
...The dignitary tort of intentional infliction of emotional distress was not overruled by Falwell, only its application to public figures...
...So what price "communitarianism...
...What was so compelling about the outcome that even conservative guardians of "family values" were constrained to join the opinion...
...Doesn't that mean that "outrageousness" (or "notions of propriety," if you must) can mean different things to different communities and isn't that what is "inherently subjective" about such a standard...
...The Falwell decision says no...
...Please convey my best regards to Bogdan Denitch, whose prolific pen we need today...
...But in fact a majority on the Court does not disagree because the concept of "community stan dards" is one of three prongs of decision in obscenity cases...
...Its national character is never referred to in the discussion or in the holding...
...It was not easy to remain within their movement and yet do battle with leaders like Trotsky or even Max Shachtman...
...Post speaks of a Paradox of Public Discourse...
...The Court says no...
...No national magazine, after all...
...And in such a case the speaker cannot be privileged by reference to the importance of the "marketplace of ideas," because by Engelstein's hypothesis we are concerned with speech that has no ideas...
...Post's reconstruction of the holding in Falwell at the FALL • 1990 • 541 Letters conclusion of his essay is bewildering in its irrelevance...
...This rendering, which has nothing to do with the case, is based on some theory of an "independent reader" of national magazines not subject to community norms as against the "socially situated" reader...
...So what is Post unhappy about with the Court's rationale and conclusion...
...You barely manage to suggest Hal's extraordinary historical and literary erudition and the range of a person able simultaneously to function as mentor to the Free Speech movement of the sixties while working on his monumental translation of Heine...
...To reinforce the importance of the "national" aspect of the holding, Post says that Falwell's mother would certainly have collected if Flynt had abused her on the phone...
...Professor Post disagrees...
...PIERRE SCHORI Stockholm q Ed...
...Though he expresses serious disagreement with the rationale in Falwell, he winds up supporting the result, but only if translated into "communitarian" language...
...And he is also right to intimate that the price is substantial...
...First Amendment Problems Editors: Robert Post's critique of "liberal" First Amendment theory, "Outrageous Speech and the Constitution: Thoughts on Hustler v. Falwell" [Dissent, Summer 1990] raises more issues than can be treated in a letter...
...He says that would be "constitutionally unacceptable" because other communities may have different "notions of propriety...
...This solution has the advantage of explaining why hurtful speech "without ideas" can be regulated in private life, but not in public speech...
...Anyone who has read Steele knows this is par for him—down to the setup of the blind anecdote: Of course, he involves an "innocent" white woman who is waiting on him...
...So if you want to write about something that you like, or dislike, in or about Dissent, please do it quickly...
...ERIC A. WINKEL Kuala Lumpur a A Compliment Editors: I would like to compliment you on your informative, exciting and very timely spring issue covering the revolution in Europe...
...That would deprive the law of its grounding in normative coherence, and therefore strip it of what Ronald Dworkin calls its "integrity...
...Letters will not be returned to senders unless they are accompanied by stamped, self-addressed envelopes...
...The essential flaw in Engelstein's argument, however, is its characteristic failure to penetrate beneath the surface and ask why it is that the Court in Cohen extended protection to speech "without ideas...
...Todorov notes that the Protocols of the Elders of Zion is banned not because what it says is not true, "but because they cause evil...
...When he attempts to do so, I suspect that he will find that the thrust of the decision turns on whether we choose to characterize speech as public discourse, and that the status of a plaintiff is pertinent but not determinative of that characterization...
...Reactions to "Islamic awakenings" are often violent, with lynch mobs raised as easily against Muslims as against Jews...
...I am looking forward to reading once again the insightful and incisive articles which Dissent is able to attract...
...Yet it is noteworthy (though not noted by Post) that a unanimous Supreme Court reversed a Circuit Court in overturning the jury verdict that gave Falwell a $200,000 award for his emotional distress...
...If rational deliberation were the only justification of First Amendment protection, who would decide—which community—what degree of abusiveness would lead to what measure of corrosion sufficient to warrant prohibition...
...The author of this letter is Sweden's Under-Secretary of State for Foreign Affairs...
...RICKIE FLANDERS New York, N.Y...
...Are, however, such standards applicable to speech about public figures in the public arena...
...In light of all of the things he accomplished in Northern California from at least the early sixties until his death, your comments on Hal's "retirement" in Berkeley are condescending...
...I wonder if on his trip South he met any white policemen or state troopers—and then thought about the past...
...Engelstein must therefore explain how and why the distribution of speech is relevant to the Hustler holding...
Vol. 37 • September 1990 • No. 4
