HOUSE_OVERSIGHT_017181.jpg

4.2.12 WC: 191694 Chapter 6 Offensiveness- Pornography: I Am Curious Yellow and Deep Throat Freedom of speech is not free. The right to say, show or publish often carries a heavy price tag. As kids, we recited the following ditty: “Sticks and stones may break my bones, but names will never harm me.” Before too long we learned, often from painful experiences, how wrong it was. Names—such as “kike,” “fag,” “wop,” “nigger,” “retard,” “sissy,” “fatso”—could harm far more than sticks and stones. Lies, rumors, gossip, slurs, insults, caricatures could all be painful. Even the truth can hurt.*' That’s why we learn to be “polite’”—to self-censor. That’s why families, schools, groups and other institutions have rules, sometimes explicit, more often implicit, regulating speech. “We just don’t say that kind of thing around here,” is a common, if informal, limitation on freedom of expression. 99 ¢¢ It is a far cry, however, from an informal family understanding to formal government legislation and enforcement of formal restrictions on expression. I would never use —or allow anyone I love to use—the kind of epithets listed in the prior paragraph, but nor would I want the government to prohibit, under threat of criminal punishment or prior restraint, the use of those or other hurtful or offensive words. You may remember that in the 1970s, the comedian George Carlin listed the seven words that could never be uttered on radio or television. The list included such innocent words as “piss” and “tits.” (Use your imagination for the other 5!) Although the list was never officially promulgated by the Federal Communications Commission, the uttering of the prohibited words on a Pacifica radio station that broadcast Carlin’s routine led to a Supreme Court decision setting out standards for what could and could not be said during certain hours of the day and night. Carlin’s routine also became fodder for other comedians and led to the widespread mocking of any attempts to create lists of approved and unapproved words. Nonetheless, governments have understandably sought to protect some adult citizens*’ from being “offended” by the words or expressions of other citizens. Nudists are not free to bare their privates in public, since most people are offended by the sight of other people’s naked bodies, thought they may be free to do so in special areas set aside for those who are not so offended.** I 31 At common law, truth was not a defense to defamation because a “truthful defamation was deemed more harmful than a false one.” See Alan Dershowitz, Finding Jefferson (Wiley 2008 pages 104-05). » The exposure of such material raises separate issues but the Supreme Court has ruled that the potential exposure of children does not by itself justify censoring adults. See 3 See Dershowitz, The Best Defense, Chapter 5. In any event, the issue of pornography illustrates at least two distinct types of harm that have the alleged basis for prohibiting expression. A related harm grows out of the expectation that certain people who are offended by certain kind of speech will react violently to the offending person. Thus, if a white person confronts a black person and calls him by the “N word,” the black person may well respond by striking the offender. Similarly if a Jewish, Muslim, Italian, Irish, Polish or gay person is confronted with a word or name deeply offensive to him or his 94 HOUSE_OVERSIGHT_017181