The Free Expression Policy Project: The Concept Paper (2001)

Freedom of expression has taken a beating in recent years. With few exceptions, our political leaders prefer to attack violence on television, sex on the Internet, or the general crudeness of popular culture than to champion the enduring but seemingly abstract American value of free speech. The purpose of the FREE EXPRESSION POLICY PROJECT is to challenge this state of affairs by analyzing tough censorship issues, finding sensible, free speech-friendly solutions, and persuading policymakers that it isn't necessary to take knee-jerk stands in favor of censorship in order to be responsive to popular concerns about violence, sex, racism, or taxpayer-funded art.

What are some of these tough issues that make the quintessential American value of free speech such a poor orphan in the political arena? At the outset, we've identified four: public funding, the Internet, harassment, and "harm to minors."

Public funding

For at least a decade, attacks on government-supported expression - from artists' grants to public library collections÷have been premised on the argument that it's not censorship simply to refuse to spend tax dollars for controversial art, theater, school texts, or library books. Of course, this is too simple: government pays for streets and parks, yet it can't censor the leaflets that citizens distribute on this tax-supported property. Government also pays for public universities, which are recognized as important venues for free expression.

At the other extreme, some government-funded speech (the whitehouse.gov Web site, for example) obviously expresses the government's point of view and isn't open to dissenting voices. Where do arts and humanities funds, public schools, museums, and libraries fit on this continuum? This question became a political hot potato in the 1990s, when the National Endowment for the Arts was accused of misusing taxpayers' money because it funded sexually provocative or religiously controversial art. It took a particularly dramatic form in 1999 when New York Mayor Rudolph Giuliani cancelled all city funding to the Brooklyn Museum because of an exhibit that he found offensive. Similar controversies occur÷though with less media hoopla - almost daily in cities and towns all over the U.S.

A related free-expression issue is the "shrinking public forum" - the fact that much public space where citizens used to exercise free speech rights has now been privatized through shopping malls or, in the electronic sphere, through monopolization of the media by ever fewer gigantic corporations. Should principles of access and diversity be applied to these corporate owners, or do their own free-speech rights entitle them to control the information, art, and discussion available to Americans? Corporations also increasingly fund academic research; but should they be able to control the results? These are among the thorniest policy questions in the field of free expression.

The Internet

The robust, anarchic world of the Internet has created a host of free speech policy problems. In 1997, the Supreme Court struck down the clumsy, sweeping Communications Decency Act (which banned "indecent" or "patently offensive" expression in cyberspace), but Congress and state legislatures have been passing other laws to replace it. Media companies are aggressively (and understandably) trying to enforce their copyrights online, with troubling implications for the free exchange of ideas, information, and entertainment. Although initially the Internet was characterized by open access and incredible diversity, it was not long before the "information supermarket" took over: large commercial interests now dominate the Web.

One of the greatest threats to free speech online is the use of corporate rating and filtering systems that block huge numbers of Web sites using methods that are either mindlessly mechanistic or highly subjective, or both, and that the filter manufacturers guard as proprietary information. The examples of overblocking are now legion - and often ludicrous - from health information (e.g., "breast cancer") to NASA's Web site on Mars exploration (one address was marsexpl.htm). Originally marketed as voluntary "parental empowerment," filtering is now required in many public schools and libraries, inhibiting research projects, censoring controversial speech, and depriving arts, informational, and advocacy groups of much of their audience.

Yet the concerns that have fueled the filtering boom can't be discounted. There is plenty of truly awful speech online. Public libraries traditionally make selection decisions; why should a decision to block parts of the Internet be different? Parents have legitimate concerns about what their kids may be reading or viewing on school or library computers. Should their demands for controlling youngsters in these public spaces be honored? What is the effect of school and library filtering on the already pronounced digital divide between those who can afford home computers and those who can't? How can access and diversity be enhanced in the face of increasing corporatization of the Web? And what happens to free speech when companies monitor their employees' e-mail, or when Internet Service Providers screen and monitor the communications of their subscribers? These are just a few of the tough cyber-censorship issues that need nuanced, speech-friendly solutions.

Racial and sexual harassment

Racist or sexist harassment can not only be hurtful and offensive, it can undermine equal opportunity. Yet regulations banning "hate speech" in workplaces and on college campuses are almost impossible to write and enforce with a degree of precision that doesn't risk censorship of everything from art and literature on racial or sexual themes to trivial jokes and daily conversation. The term "sexual harassment" has too often become a buzz word, used to justify the censorship of nude sculptures in the college art gallery, or of controversial literature in the humanities class.

In practice, members of minority groups are often the ones censored by, rather than the beneficiaries of, hate speech codes. In addition, rules against offensive speech tend to punish crude epithets while permitting racist and sexist sentiments to be expressed in more subtle, polite - and thus often more insidious - forms. On the other hand, civil libertarians opposing hate speech restrictions haven't always been very sensitive to the ways that true harassment does undermine equal opportunity at school or in the workplace.

Drawing the right lines between punishable harassment and constitutionally protected free speech is a challenge. The hate speech debates of the past two decades have caused rifts and bad feelings among people who share basic anti-discrimination goals. Policy solutions must be sensitive to both free speech and civil rights concerns.

"Harm to minors"

Protecting minors from "dangerous" or libidinous words and ideas has long been a potent justification for censorship. Legislative hearings and political rhetoric in the 1950s sounded the same harm-to-minors themes as yesterday's headlines÷only now, in addition to complaints about TV, movies, comics, and books like Huckleberry Finn or The Catcher in the Rye, we also have anxieties over the freewheeling Internet, attacks on violent video games, and dangerously distorted, "abstinence-only" sex education.

Many policymakers rely on alleged social science proof of harmful effects to justify censoring minors' access to presumably dangerous information and ideas. Much more is claimed for this literature than it merits, as even the Federal Trade Commission's Sept. 2000 report on the marketing of violent entertainment acknowledged. (An appendix to the report explained that decades of social science research have not brought us any closer to establishing whether viewing media violence really causes real-life imitation in any significant number of youngsters.) But apart from statistics, society does have a serious interest in the upbringing of youth - what they will see and learn, what values they will adopt. The question is whether censorship is the answer - and, equally important, whether government (or large corporations) should be deciding questions of child-rearing, thus imposing majoritarian moral standards on a nation of parents who hold widely varying cultural views about sex, violence, and religion.

Youngsters are rarely brought into these debates, but today, many are fighting school censorship, organizing Web sites, and participating in youth arts or journalism programs that confront rather than avoid difficult, controversial topics like sex and violence. Policy work in this area needs to address affirmative alternatives to censorship÷media literacy, critical thinking skills, truly comprehensive sexuality education, arts programs for at-risk teens. Whether the issue is violent entertainment, abstinence-only sex education, rock music, or Internet filters in libraries, public policy should acknowledge the free-speech interests of youth.

The First Amendment is not an "absolute." But the values it embodies - open discussion, political dissent, artistic freedom - are at the core of the American experiment. Certainly, free speech deserves better treatment in the public policy arena than it has been getting. At the same time, we need to be sensitive to the concerns that often drive censorship campaigns. The task of the Free Expression Policy Project is to find creative, speech-friendly alternatives to censorship that address legitimate concerns about racism, sexism, responsible use of tax money, and the development of youth.

THE FREE EXPRESSION POLICY PROJECT
Marjorie Heins, founder & coordinator, marjorie.heins@nyu.edu

Advisory Board: Kwame Anthony Appiah, Erwin Chemerinsky, David Cole, Robert Corn-Revere, Paul DiMaggio, David Greene, Marci Hamilton, Bennett Haselton, Henry Jenkins, Nan Levinson, Robert Post, Ellen Schrecker, Rodney Smolla, Catharine Stimpson, David Strauss, Philippa Strum, Julie Van Camp