Free Speech and Due Process, Part I

GUEST: Burt Neuborne, Esq.
VTR: 1/16/1997

I’m Richard Heffner, your host on The Open Mind. And though I haven’t the foggiest notion when you will see this program, I note that we record it mid-January 1997, and that twice in the last month the Sunday New York Times has quoted today’s Open mind guest on matters seemingly quite disparate.

First, on a major motion picture, The People vs. Larry Flynt, described by The Times as celebrating “a millionaire pornographer as an American folk hero” and as Director Milos Forman’s “raucous hymn to the First Amendment.” Then, on the real-life game playing that seems so distressing to many of us who search for truth and justice in our courtrooms rather than just the manipulations of our adversarial system.

Actually, it’s not surprising that The Times should, in both instances, quote the same well-known civil liberties lawyer. After all, New York University Law School Professor Burt Neuborne actually appears in the movie himself, though cast against type, of course, as the Reverend Jerry Falwell’s counsel. Besides, as the former national legal director of the American Civil Liberties Union, he so often fought the good fight for due process and the adversarial process.

But let’s start today with the movie — not as critics, to be sure, nor, in Professor Neuborne’s case, as an actor, or, in my case, as chairman of Hollywood’s film-rating system for 20 years — rather just as thoughtful Americans who want best to understand what it means when The Times reports that “Even Burt Neuborne worries that The People vs. Larry Flynt is one-sided. ‘Preachy’ is the word he used to describe some of the pro-Flynt courtroom speeches taken directly from court transcripts. Can it be,” The Times writes, “that a movie that features a cartoon of a sexually aroused Santa Claus is not too raunchy but too reverent about free speech to do justice to the First Amendment?…”

“I would have loved to see somebody in that movie make the case against the First Amendment position”, said Mr. Neuborne. “The pitch was always free speech against narrow-minded bigots. What you never heard was a more thoughtful voice.”

So now let me ask Professor Neuborne quite what he meant by that, “What you never heard was a more thoughtful voice.” Fair question?

NEUBORNE: Fair question. There’s a little bit of background to it. When I first made that argument to Milos Foreman himself, as the movie was being made, Milos was teasing me, and he said, “All you want is more lines. Hollywood bug has bit you. And since you’d be the one to deliver those lines, obviously you just want a bigger part”. But the point I was making… And let me say first, I loved the movie, and I’m proud to have been in it. And we can talk about that. But that, as a mass civics lesson about the First Amendment, it seems to me that it would’ve been more effective if we didn’t sugarcoat the First Amendment itself. In other words, when you finish that movie, and you walk out, you say to yourself, “Why would they wanted to have imposed these terrible censorship norms on Flynt? Why? What possible reason would these narrow-minded, blue-nosed bigots have had to put this guy away?” And I think if the argument had been developed at least in more plausible form, it’s a losing argument, but it’s important if you’re going to talk about the First Amendment to get both sides out there.

HEFFNER: Now wait a minute. What do you mean? Which is the losing argument?

NEUBORNE: Oh, I think the argument for censorship is the losing argument. I have no problem whatever with Milos Foreman’s desire to make this a love letter to the First Amendment, which is what the movie is. But it seems to me that there are powerful intellectual arguments that at least should be put on the table about limiting the degree to which speech is utterly uncontrolled. For example, you never once in the movie hear the feminist critique of pornography. What you hear is that pornography is dirty, and that sex is dirty, and that people like the Reverend Falwell and Charles Keating, who was the head of the Legion of Decency in those days, are somehow troubled by sex and therefore censoring this because they don’t like sex. What you don’t hear is the very powerful argument that much of violent pornography treats women as commodities, treats them in a dehumanizing way, which, in some sense, makes it harder for women to be able to attain genuine equality in this society. And I can understand why, for example, feminists take a political position on pornography which is very different from the old, anti-sex position. It is really an argument that says that pornography’s not about sex. it’s about power. It’s about depicting women in positions of servility and pretending that they like it. Or, even worse, of imposing violence or other forms of physical subordination on them, and pretending that they enjoy it, so that a mind-set is built up where women are thought to be a subgroup in the society that enjoys vilification.

HEFFNER: Well then what position do you take on Katherine McKinnon’s own suggested laws?

NEUBORNE: I oppose it. And it’s a complicated position. I oppose it for this reason: I make a distinction between social arguments against pornography, which I think are quite powerful, arguments that say, “Pornography isn’t nice. It’s not pleasant. It’s not something that we should be particularly proud of, or particularly proud of the people that make it”, like Flynt, and legal arguments that would impose sanctions on people doing it and on people reading it. I believe, in some very deep sense, that Katherine McKinnon has won the ideological war. I mean, she has persuaded large numbers of people that pornography is, in fact, a political issue, and that the subordinate status of women is, in some sense, connected to a pattern of speech over the years that has treated them as second-class citizens. Someone who is as committed to the free speech position as I am, I’m very troubled by that argument. It is a powerful argument. But I would not allow that argument to lead me to become a censor, to actually, to actually impose legal sanctions, to put people in jail because they disagree with me on that position. I’ll debate them, but I won’t jail them.

HEFFNER: But haven’t we… Let’s set jail aside, if I may. Haven’t we always in this country used the law as a means of establishing social norms?

NEUBORNE: Sure, but not by censorship. I mean, that’s… The law is an enormously important educational device and a device to set social norms. The way we, for example, protect equality, the way we’ve used the law to protect equality in recent years, is a very powerful legal tool. But to then translate that into an argument that says we feel so strongly about this that we will prevent somebody from saying something that we think will adversely affect it, that’s the hate-speech argument, it’s the argument about pornography. I get off the train at the point at which you go from social condemnation of that kind of speech to legal prohibition.

HEFFNER: Well, first let me understand how long, from where to where do you go on the train.

NEUBORNE: Well, I go on the train… I can imagine hate speech, for example… Well, I mean, for example: burning a cross on somebody’s lawn. It’s not protected speech. It’s trespass. It so terrifies them that they are seriously afraid and therefore maybe have to move out of the neighborhood. That’s not protected speech. Speech directed to somebody with the intention to frighten them out of the neighborhood, and where you violate their property rights and come right up on their front lawn and threaten them, is simply not protected speech. Violent… For example, I see nothing wrong with laws that would punish someone in connection with the making of violent pornography, for the actual acts, I mean, these snuff pictures, or these pictures that…

HEFFNER: There never was a snuff picture, was there, really? Wasn’t that a gag?

NEUBORNE: Well, it might have been a gag. There might have been some that came out of South America, but no one’s ever proved it. No one’s ever proved that there’s been a snuff picture.

It’s hard for me to think of a sexual depiction that I would do anything about other than condemn. Maybe children. I mean, the depiction of children in those types…

HEFFNER: You say, “Maybe?”

NEUBORNE: No, definitely children.

HEFFNER: Okay.

NEUBORNE: The depiction of children in those types of settings strike me as being so destructive to the child that we can prevent the event by saying, “You can’t take a picture of a child in this type of situation, because you’re, in some sense, shooting crap with the child’s life. The child is then going to then be, could be affected badly later.”

HEFFNER: So you do draw the line at certain places.

NEUBORNE: Well, I draw the line, yeah. But it’s a line that deals not with the effect of the speech, but with the effect on the person who is being photographed.

HEFFNER: How do you differentiate between the two?

NEUBORNE: Well, it seems to me that society has every right to protect a person against being involuntarily used in one of these sex films in a way that would harm them in later life. But that society doesn’t, I think, have the right to use the law to determine how that speech is going to affect other people if you play it.

HEFFNER: Well, we began the program by talking about a motion picture…

NEUBORNE: Right.

HEFFNER: …to a large extent because you perform in it.

NEUBORNE: And I had a wonderful time doing it. [Laughter]

HEFFNER: Well, I asked you before whether they are beating down the path to your door to…

NEUBORNE: Well, we’re in January 1997, and there are no crowds around my apartment at this point.

HEFFNER: Don’t worry. Hollywood will beckon.

NEUBORNE: [Laughter]

HEFFNER: But we begin with a motion picture. Obviously, that would lead me very quickly to the question of violence. You have volunteered your concern about violence relating to women. Can you draw a line? Are you about ready to draw a line in terms of effect of violence upon our youngsters?

NEUBORNE: Again, you have the very, very difficult line that you have to draw between social condemnation and trying to allow individual people to behave in a particular way, and imposing legal norms. I’m concerned. I’m a parent, I’m a grandparent. I am concerned about the effect of violence on children. My sense is that a steady diet of violence over time dehumanizes or in some sense desensitizes a child to the nature of violence. And I didn’t let my kids watch it, and I, you know, hope that my grandson isn’t watching it, and I hope that other people aren’t watching a steady diet of violence. And that’s why, for example, I don’t see anything wrong with things like the V-chip, which would increase the ability of parents to try to engage in some control over what their children see. What I don’t support, and what I can’t support, would be some sort of legal norm that would be imposed on the industry and that would tell the industry how many violent acts a minute are okay, to try to actually engage in a subject-matter censorship that would put the government in control of what goes out. So that, again, it’s my private concern with violence, my desire to act as a private person to try to deal with it; but I would not allow the government to come in and do it.

HEFFNER: Now, that’s a very nice, traditional, civil libertarian’s approach.

NEUBORNE: Well, I am nothing if not a traditional civil libertarian.

HEFFNER: Okay. Do you see the, in terms of your concern about your grandson, as I’m concerned about my three grandsons… You’re not concerned, I believe, about your grandson watching. I’m not concerned about my grandsons watching. They’re well enough protected by us, their parents, etcetera. But wouldn’t you be concerned about the kind of society that is created around them, and the dangers they will live in…

NEUBORNE: Oh, of course.

HEFFNER: …given the furthering of violence in the media?

NEUBORNE: Of course. I mean, I have always felt… I mean, I have spent a lifetime fighting for a very broad First Amendment, keeping the government out of the First Amendment. But I have always said that there is a terrible price that one pays for that. I mean, there’s no free lunch. And that when you move the government out of the world of controlling ideas, you run the risk that the kind of mass communication that will evolve in the society is a mass communication that will coarsen and cheapen the society and lead to a spiral down.

Now, that’s a risk I’m prepared to take, because the risk of putting the government in control of what people says is even worse. Every society that’s ever tried to let the government control what the mass communication says has spiraled down to a much, much, to a political tyranny eventually. And it would happen here too. So the thing to do is to keep the government out. But I then acknowledge we’ve got to do something about the coarsened speech.

HEFFNER: How old is your grandson?

NEUBORNE: Twenty months.

HEFFNER: Okay.

NEUBORNE: He hasn’t started watching it yet.

HEFFNER: All right. But again, it’s not the watching; it’s the living in a society where so many others are watching and…

NEUBORNE: Oh, but I agree. But suppose you were also living in the society… Let’s flip the side. If Milos Foreman were here, he said he lived in a society in which the government said what got said. And he said the nature of that kind of stultifying society in which creativity was viewed with suspicion, in which, once the government got its hands on the communications media, it isn’t going to stop by just counting the number of violent… I mean, for example: suppose you want to do Hamlet. Hamlet’s an intensely violent show.

HEFFNER: Oh, you’re not going to use that industry gag about “Hamlet would be censored…”

NEUBORNE: No, no. No, no. Hamlet wouldn’t be censored. But you’d then have to get a set of rules which would distinguish Hamlet from something which you would censor. And that then means that someone is going to sit and say that, “This particular show, NYPD, is not good enough to fall into the Hamlet category; this particular show is good enough to fall into the Hamlet category”. I don’t know anybody that I would trust to make that judgment for me. I mean, I’m in favor of empowering individuals to make that judgment. And the V-chip, I think, is a good step in that direction. But I’m not in favor of delegating that judgment to anybody, whether it’s Jerry Falwell or even you.

HEFFNER: Well, particularly to me, because I’m more and more concerned about my seven-year-old grandson walking around in a city that is made up of people who watch more and more violence on the air.

But let me ask you something straight: Do you think, when you look at yourself in the mirror, or on screen, that you may find yourself saying, “Yeah, I’m talking about a balancing act. I don’t want what Milos Foreman ran away from or wants to oppose. But I am worried about that little boy and the society in which he lives.” Can you anticipate seeing the balancing act, the teeter-totter, moving differently than it does now?

NEUBORNE: I never say “never,” and there are areas in which I think the First Amendment has gone too far, but it’s not that area. The illusion that we can have just a little bit of censorship… You know, we’ve all lived through a period, an extraordinary period in human history in this country in which we’ve succeeded in building a society that’s had remarkable free speech. Almost no one else has ever lived through this period. Many of us — I’m afraid sometimes I fall into it myself — think it’s the natural order of things, that freedom is a natural thing, and that why can’t we just tinker with the margins and take away a little bit of the freedom so that we can get the mix exactly right. And there’s a huge risk with that, because no society has ever been able to develop a mechanism that says, “We’re going to take just a little bit of the speech away, and keep the rest.” The moment you start tinkering, especially with something as amorphous as whether the violence is tasteless, particularly dangerous. I mean, the moment you stop, we all have to concede there’s no objective measure of violence. The very fact that Hamlet is great and some of the other stuff is garbage means that it’s not how many swords get stuck through how many bodies that will tell us whether something is violent; it’s a contextual aesthetic judgment. Contextual aesthetic judgments made by the government have always been disastrous. I don’t know how you could organize a group of people who could make those that wouldn’t be advancing their own agenda. Would you let Falwell do it? I wouldn’t let Falwell do it. I’m not sure I’d let you do it. You’re worried about your seven-year-old, but somebody else is going to be worried about the seven-year-old developing into a creative artist, and doesn’t want to stultify what comes out. I mean, there are so many different visions.

So that the way to go, I think…

HEFFNER: Yeah?

NEUBORNE: …is not the government. The way to go is to say, “Look, freedom creates a real problem. And the real problem is that we will spiral down to a coarse society. And we have to figure out ways for individuals to be able to fight back and push back to try to be able to deal with that. The V-chip is… You show me something that empowers individuals to make judgments about what they want to watch and what they want their children to watch, and I’ll tell you you’re on the right road.

HEFFNER: Of course. Right road, except there is an intersection along the way in which we suddenly look around us and find that this is a nation of latchkey children in large part, not just technically latchkey children where there are no parents at home at all, but where parents are worried about making a living, if there are two, and if there is one. If there are ten, they’re all worried about making a living. And the concerns for the children aren’t that manifest. So that I come back and say to you: I don’t want to talk about censorship. You’re right. I don’t trust me, and I don’t trust you, and I don’t trust most of the people who want to do that. But I do think there is a clear and present danger posed to us now, and I think we’ve got to do something. You say no censorship. What happened to that honored, to me, American tradition that I reflect, at the end of the program, I say, “If you want to get a transcript of Professor Neuborne, send to the post office box, FDR Station…” blah, blah, blah. And I say it with emphasis and a smile on my face because I belonged to The New Deal era when regulation — not censorship — but “regulation” was not a dirty word. I admit that Reagan and Bush and Gingrich have made it a dirty word.

NEUBORNE: Yeah, but it wasn’t regulation of speech. I mean, we can get Orwellian here and say whether it’s regulation or whether it’s censorship, but I don’t care what words you use. Roosevelt didn’t… There was no part of the Roosevelt New Deal that attempted to manage the substance of what people said. Now, if you want to talk to me about concentration of media ownership and whether we should be breaking up the seven large conglomerates that control virtually every single station in the country, that’s different. You want to use really tough antitrust laws now to break up these huge concentrations of power. That’s an area where I think the First Amendment has gone too far, that they’re using the First Amendment as a way to insulate themselves against government regulation — not government censorship, but government regulation — to try to make sure that there are enough competing units so that if I don’t like what one channel is showing, I can at least shift to another channel.

HEFFNER: You know, it’s interesting, in the old New Deal days, people were saying those whose goods and products were being regulated made the same arguments. And I wonder if you’re not going to have to take a somewhat different view to conserve as much as what you and I want…

NEUBORNE: Yeah.

HEFFNER: …from the First Amendment tradition.

NEUBORNE: I think there were two areas where I might do it.

HEFFNER: Tell me where. I’m interested.

NEUBORNE: The one where I wouldn’t go is the suggestion that you made a moment ago of trying to do some sort of subject-matter tinkering, to try to control the subject matter of what goes out by asking whether it’s too violent, too sexy, too tasteless, too coarse.

HEFFNER: Let’s limit it to too violent.

NEUBORNE: Too violent.

HEFFNER: I am not worried about the others.

NEUBORNE: But of course we couldn’t stop with too violent. The moment you go too violent, someone is going to say, “What about sex?”

HEFFNER: Sure, the V-chip was supposed to be violence; now it’s the whole gamut.

NEUBORNE: Yeah. So, but I would concentrate on two areas where I think the First Amendment is now part of the problem, not part of the solution. The first is the ability of large media companies — Time-Warner and Disney — to trot the First Amendment out as an insulation against some form of structural control designed to assure competition, designed to assure that there is access to this incredibly expensive and now powerful media unit that you don’t have to be a millionaire to be able to get your views out in some sense. They have successfully melded the notion that it’s their property and the First Amendment into a kind of glue that makes it almost impossible to effectively regulate the structure of the industry. I wouldn’t tell them what they had to say, but I would say I don’t want them all to agglutinate into a single mass where seven companies control everything. There has to be more competition.

And then the other one — and this is a program in itself — is campaign financing. I mean, the First Amendment has been used as the way to insulate campaign financing from any form of serious regulation. For 20 years now we’ve watched — you want to talk about spiraling down — we’ve watched American democracy spiral down to the point where it is really in crisis proportions. I mean…

HEFFNER: Yeah, but that’s what bothered the dickens out of me when I read something you wrote sometime back, your essay, “Free Speech, Free Markets, Free Choice: An Essay on Commercial Speech.” Wasn’t this, in a very real sense, an intellectual defense of the present argument against limiting campaign expenditures, political commercials?

NEUBORNE: Well, no. The essay that you point out was an extended effort on my part to develop a theory for the regulation or the protection of advertising as opposed to political speech. I wanted to keep them apart, because I’m nervous that if they get linked together either there’ll be too much regulation, or there won’t be enough. I believe there should be very little regulation of political speech, but the possibility, the truth of commercial speech. And I was trying to develop a theory. And my theory was that commercial speech is necessary because it’s necessary for competition. If you’re going to have a market economy, people have to know the information about the goods that they’re going to buy, or else you just can’t have an efficient market economy. And so, commercial speech under those circumstances is driven by the necessities of the market. If you want a market, and you want an efficient market, then you have to have the free flow of information or you can’t have an efficient market.

The same thing, I think, governs in democracy. If you want a democracy where voters can make real judgments about their candidates, you need a free flow of information to them so that they can make that judgment. What frightens me now is that what we have is, we call them elections, but they’re more like auctions where the side that raises the most private money has got the best chance of winning, overwhelming. If you have the money, you win; if you don’t have the money, you lose. And that means that the people who are making the donations are essentially controlling the outcome of the election, so that… I mean, this is an extreme thing to say, but I swear, if I had to carve something on the tombstone of American democracy, it would be, “One dollar, one vote.” It wouldn’t be “One person, one vote”; it would be “One dollar, one vote,” the way things operate now. And the biggest obstacle to reform is the First Amendment, because the Supreme Court has said that giving money to politics is the same thing as speaking. If I give money to a candidate, or if I spend money to elect a candidate, they said that’s exactly the same thing as speaking. And it seems to me what we have to do in the years to come is pry those two years apart.

HEFFNER: We’re going to pry them apart, if you’ll sit where you are, in a few minutes, and our audience, I hope, will come back next week to watch us, because our time is up today.

NEUBORNE: Well, this was delightful. Thank you.

HEFFNER: Professor Neuborne, thank you so much for joining me.

And thanks too, to you in the audience. I hope you do join us again next time. If you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150.

Meanwhile, as an old friend used to say, “Good night, and good luck.”