Following the indictment on obscenity charges of Karen Fletcher, aka “Red Rose,” a series of debates has cropped up on various message boards, both adult industry and otherwise, centering on a loosely-defined but oft-referenced principle of “free speech.”What strikes me about these debates is that none that I have witnessed include any distinction between what manner of “free speech” standard is being discussed. Are we talking about a legal definition of free speech, as bound by U.S. law, or a philosophical principle of free speech?
In most cases, it seems people are talking about some combination of both, or perhaps neither.
As I see it, the current debate concerning this case and its relationship to free speech actually consists of three related, yet discrete, topics and discussions:
1) The reality of limitations on ‘free speech’ as a matter of U.S. law, within the context of expression protected by the First Amendment, and as interpreted by U.S. courts to date.
2) The general subject of “free speech” as a matter of philosophy and an exercise in logic, entirely divorced from the realities of speech-restricting law, U.S. or otherwise.
3) How and where the boundaries of “free speech” should be set within law, U.S. or otherwise – in essence, an extension of the philosophical “free speech” discussion represented in item #2.
First, let’s dispense with the only definitive ‘reality’ here, and address the implications of the answer to #1 above.
Fletcher is charged with an obscenity crime. Whatever one thinks of the U.S. federal law as it pertains to obscenity, and however rare obscenity prosecutions based on pure text may be, such prosecutions are at least arguably “valid” under the standards of U.S. obscenity law.
As pointed out by UCLA law professor Eugene Volokh on his “Volokh Conspiracy” blog at Volokh.com (which anyone interested in legal issues and/or intelligent debate should bookmark and check frequently, by the way), “Obscenity prosecutions based on text are very rare, but they are in theory permissible under the ‘describes’ aspect of the famous Miller v. California obscenity test.”
Yes, whether one likes it or not, the prosecution of purely fictional, written material is possible, because under terms of the Miller test, a work is not deemed to be protected by the First Amendment if (paraphrasing slightly and omitting internal references from the test) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, and such work depicts or describes, in a patently offensive way, sexual conduct as specifically defined by the applicable state law, AND that the work taken as a whole, lacks serious literary, artistic, political, or scientific value.”
This settles one debate; whether work such as Fletcher’s can be targeted for obscenity prosecution under the conditions of the Miller test – the answer is yes, for better or for worse.
Moving on to topic #2, the more philosophical and general discussion of “free speech,” we can consider what the boundaries of free speech should be.
It’s useful here to note that no known society, ever, anywhere, has adopted a standard of entirely “free” speech – meaning that literally anything can be written and/or said without risk of running afoul of that society’s system of law, however that society’s law might be codified and executed.
Throughout the history of the published word, crimes against the State, as well as crimes against individuals and institutions composed of the printed word alone have been punished, and punished severely. In societies both ancient and modern, crimes of heresy, apostasy, obscenity, libel, slander, and defamation – just to name a few – populate the codes of law.
The question, then, is not “should speech be restricted?” Speech is restricted, by law and otherwise, as a matter of course, and throughout human history it has been thus. The question is how much speech should be restricted, by what standard, and by what means should that speech be restricted?
While no two people are likely to draw the “free speech line” in precisely the same place, the wide variety of opinions stem from two major schools of thought and their opposing standards for restriction of free speech, standards often referred to as the standard of “harm” and the standard of “offense.”
One of the people primarily associated with the “harm” principle is the author John Stuart Mill, who argues in his famous work On Liberty that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
Mill applies this principle in a far broader context than speech, of course, but he applies an especially strict scrutiny to claims of harm with relation to speech, and argues that nearly every manner of speech ought to be outside the regulation of law. As such, Mill is a favorite among more “liberal” (for lack of a better word) participants in the speech debate.
Another school of thought holds that speech which causes “offense” should also be subject to the restriction of law, at least in some contexts and situations. Under the “offense” standard, some classes of speech are considered to be so egregiously offensive, and so lacking in merit or value, that they should be regulated for reason of their offensiveness alone.
While many proponents of the “offense” standard do hold that speech causing “offense” should be subject to less penalty than speech that causes “harm,” there is the inherent problem that the degree to which a listener is offended is informed largely by the personal biases and perspectives of the listener, and is not necessarily true that listeners will take “offense” only at those certain types, classes or varieties of speech that the State would even contemplate regulating.
Complicating the debate further is another line to draw – where does speech that merely causes “offense” end, and that which causes actual “harm” begin?
Can words that can (and are) easily avoided by the vast majority of society be said to be an “offense” to those that voluntarily read those words?
I have not read the stories that Fletcher was indicted for distributing, nor do I intend to; the stories do not sound like the sort of thing that I would find interesting or enjoyable in the slightest degree. How, then, can I (or any other non-reader of the material) claim that the story constitute an “offense” to me?
Consider the statement made by U.S. Attorney Mary Beth Buchanan concerning Fletcher’s stories: “Use of the internet to distribute obscene stories like these not only violates federal law, but also emboldens sex offenders who would target children.”
Note the separation and distinction there; “not only violates federal law, but also emboldens sex offenders.”
Some who read this quote have confused Buchanan’s rhetoric with a legal argument – namely, that the reason for the indictment is the direct “harm” the speech does by “emboldening sex offenders. ” It is the first part of the statement excerpted above, however, in which Buchanan specifies the legal claim; Fletcher’s stories are a violation of obscenity law, and material need not cause actual “harm” in order to be deemed legally “obscene.”
This confusion has caused some to draw an analogy between this prosecution and the oft-cited example of the legal sanction one might face for “yelling ‘fire’ in a crowded movie theater.” This analogy fails, because the prohibition of yelling “fire” in a crowded theater has to do with the actual harm that speech can cause – a panic-driven stampede of moviegoers towards the exit, possibly leaving trampled peers in their wake.
Given that the government is not required to show direct harm to prove its case, and likely will not endeavor to do more than suggest harm in its arguments, the crime alleged in the Red Rose case is an example of how American law restricts material that can cause offense as well as speech that causes direct harm.
In the end, topic #3 as I have listed it here is one that cannot likely be “settled,” in the sense that human laws restricting speech will continue to be challenged, and by such challenges be refined, ad infinitum.
In having the debate that surrounds the prosecution of Fletcher, each individual should feel free to condemn, deplore, or defend the content of Fletcher’s stories as they see fit.
What I wish we were able to do more of, both in our society and in the narrower band of the adult industry, is to separate the debate from the debaters, as it were.
I don’t think it’s reasonable to hold any defender of a “strict harm” standard to be someone who endorses child abuse, merely because they think descriptions of child abuse, no matter how revolting, should not be criminal in and of themselves.
Conversely, one should not condemn as a prude (or worse, a “fascist”) anyone who prefers some manner of the offense standard as the guiding principle for limiting speech.
Separating the arguments thus, and divorcing the principle being debated from the pathos elicited by the actual content of the speech we might as a society or industry reasonably seek to restrict, affords the possibility of arriving at a compromise position between those that favor expansive, near absolute freedom of speech, and those that seek a restriction so tight that few of us could live with the standard.
Ultimately, given the lack on uniformity about where to draw the “free speech line,” I believe such a compromise is the best we can hope for.
