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TAKING FREE SPEECH SERIOUSLY:
Equality, Harm, and the Electronic Media

BY

Michael Squillace

A DISSERTATION
Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

Department of Philosophy

1995

TAXI FREE PEE ERIO LY °

Equality, HarmI and the Electronic media

ABSTRACT

Much of the philosophical and legal debate regarding the nature,
scope, and limits of free speech focuses upon situations in which an
individual either speaks directly to large audiences or addresses
potentially larger audiences via newspapers, journals, and other
"print media." Yet, such debates have given comparatively little
attention to the relatively new modes of communication provided by the
electronic media and, in particular, by television. In this
dissertation, I consider the extent to which some of the more
traditional explanations and defenses of free speech (and of
restrictions upon speech) are applicable to television. I also
discuss what new considerations might be introduced into debate about
free speech by television and how these considerations affect our
understanding of the nature, scope, and limits of this liberty.

Because concerns about free speech in the context of television
are most forcefully and frequently raised in discussions of programs
containing blatant violence or explicit sex, I begin by describing two
sorts of harms that may be brought about by such programming. The
first class of harms is exhibited in the results of psychological
research demonstrating an increase in tendencies to engage in harmful
or destructive behavior in those individuals who are exposed to such
programming. The other type of harm must be explained in terms of the
philosophy of language provided by J. L. Austin and can be illustrated
by the critique of pornography developed by writers like Catharine

MacKinnon. These harms point to some of the most important concerns

underlying attempts to restrict free speech and, also, to some of the
more interesting considerations that are both unique to television and
relevant to free speech debate. Although a seemingly plausible
response to these harms can be built upon the defense of free speech
offered by J. S. Mill in On Liberty, I argue that this response is
inadequate given Mill's limited notion of censorship and the sharp
contrast between his conception of speech and that which seems
inherent to the television program.

More importantly, however, I reject Mill's theory because it
cannot fully account for the intrinsic value and fundamental
importance assigned to the right to free speech by our institutions
and practices —- it cannot take the right to free speech "seriously."
I thus turn to a formulation of free speech based upon the work of
John Rawls and Ronald Dworkin, a view that explains and defends a
strong right to free speech in terms of what Dworkin calls the "right
to equal concern and respect." This "theory of free and equal speech"
has, as its chief element, the familiar model of the "marketplace of
ideas." Such a model imagines an exchange of ideas between persons
regulated by the familiar principle of neutrality and by what I call a
"principle of equity," wihch demands that individuals be treated as
speakers and listeners and that conditions for such treatment be
satisfied and maintained. I conclude by noting some consequences for

particular programs given my approach.

TABLE OF CONTENTS

Harmful Television

Behavioral Modification
What Words and Images Can Do
The Television Program as Speech Act

Free Speech and Television

A Millian Response
Conceptual Limitations: Censorship and Silencing
Speech, Television, and Public Discourse

Taking Free Speech Seriously

Rights, Goals, and Equality
Speech, Equality, and the Marketplace of Ideas
Speech and Power

Some Applications:
Justifiable Restriction and Prevention

Justifiable Restrictions and Preventative Measures
1. Justifiable Restrictions: Responding to
Ranking and Silencing
2. Preventative Measures: Responding to
Behavioral Modification
Rational Persuasion and Edifying Discourse

18
25

46
48
61
83
113
117
137
151
181
186

191

212
222

1

Harmful Television

There are, today, three very common ways in which to communicate
to large audiences. One might engage in direct communication by
simply speaking before a large audience at a political demonstration,
university lecture hall, auditorium, shopping center, or other area
that is regularly visited by a number of persons at one time. The
speaker need not, of course, be present at such gatherings. A sign,
drawing, or recording would serve the same function. A sizable
portion of the voluminous literature addressing the nature, scope, and
limits of free speech is devoted to clarifying and resolving the
questions and problems raised by this sort of communication.

Communication also takes place via newspapers, magazines,
circulars, fliers, and research journals. These print media have
proven quite effective in presenting information, thoughts, beliefs,
and arguments to large audiences. .Although the "free speech" and
"free press" clauses of the First Amendment of the United States
Constitution (1) have been (and ought to be) treated separately both
in the courts and in the literature, it is difficult, in many cases,
to maintain their distinctiveness. Cases such as New York Times v.
Sullivan (2), Gertz v. Robert Welsh, Inc. (3), and Hustler Magazine,
Inc. v. Falwell (4) invoke arguments linked to and have implications
for both liberties. These arguments and implications have also
received an enormous amount of attention in the literature, especially

since the New York Times case.

Finally, there is a third (and relatively new) mode of
communication that has received comparatively little discussion in the
literature concerning free speech. I am thinking of the electronic
media, especially the medium of television. The popularity of
television together with the ease with which persons have access to
its programming raise interesting and important questions about the
form, content, and consequences of such programming. Television
programs (and the messages that they seem, implicitly or explicitly,
to convey) have been blamed for everything from youth violence (5) to
a general demoralization or "dispirited confusion" that can be
observed in (and, perhaps, felt by) the public as a whole and that
has, alledgedly, led to (among other things) the unprecedented
accumulation of public and personal debt during the 19808.(6)

While psychologists and sociologists continue to identify and
describe the detriments of some uses of the electronic media (and,
especially, of television), little has been said in defense of these
media, especially with regard to their entitlement to First Amendment
protection. More specifically, we ought to be asking and addressing
questions like the following: Can and ought the right to free speech.
guaranteed via the combination of the First and Fourteenth Amendments
of the U. S. Constitution (7) and celebrated and defended by moral and
political theory since the seventeenth century. be extended to the
electronic media and, in particular. to television? If so, what is

the strength of this right in this context and how does this strength

compare to that had by the right in its more traditional contexts
(e.g. print media or direct oral communication)? What new
considerations does television (or other electronic mass media)
introduce into debates and discussions about free speech and how do
these considerations affect our understanding of the nature, scope,
strength, and limits of this liberty?

In this dissertation, I want to begin constructing a theory of
free speech that will assist us in answering such questions. However,
I will not proceed by way of an abstract discussion of television
programs in general. Rather, I wish to organize the discussion by
focusing upon one class of programs, namely, those containing sexually
explicit or blatantly violent material. This approach has several
advantages. First and foremost, the problem of articulating and
implementing a feasible and acceptable response to sex and violence on
television has drawn increased public attention (even though it has,
as we shall see, been of interest to scholars and researchers for some
time). It is in the context of such discussions that questions and
concerns regarding the legitimacy of First Amendment protection of
television programming are most frequently and forcefully expressed.
Hence, we have the opportunity to respond to an issue of public
concern while, at the same time, attending to the more complicated and
general questions I raised earlier.

Each side of the debate concerning the programs in which I am

interested has been developed in some detail. On the one hand, those

who oppose restrictions upon these programs frequently invoke familiar
and forceful arguments for free and open discussion and expression.
The opportunity to acquire truth (or, at least, to uncover falsity),
the benefits and opportunities spawned by a free exchange or
"marketplace" of ideas, the need for tolerance and public exposure to
diverse points of view in a pluralistic society, and the desire for an
informed and thoughtful citizenry all serve as premises upon which to
ground an argument for affording the most extensive liberties to
broadcasters, viewers, and listeners. I shall consider some of these
arguments in the chapters that follow, for, in deciding whether or not
to extend the right to free speech to television, we must, at the very
least, understand what values and purposes are to be advance by this
right and what individual interests it is meant to protect.

Proponents of severe restrictions or bans upon programs having
sexually explicit or blatantly violent content tend to cite the harms
and wrongs that can be brought about by such programs. The first
class of harms that I will discuss in this chapter includes harms that
are described in terms of the results of controlled psychological
research demonstrating the injurious or destructive behavior that can
(and does) result from exposure to the programs at issue. The other
harms and wrongs that I want to consider here must be understood in
terms of the philosophy of language presented by J. L. Austin. This
philoSOphy of language (and, in particular, the notion of a "speech

act" that lies at its center) has been successfully utilized in free

speech debate by Catherine MacKinnon and Andrea Dworkin in their
critique of pornography.(8) Their critique describes the way in which
some forms of pornography work to establish and arrange patterns of
sexual inequality. Although MacKinnon and Dworkin concentrate on
pornography and sexual inequality, we shall find that this view (and
the philosophy of language that supports it) is useful in analyzing a

variety of television programs having a wide array of content.

Behavioral modification

Like any other action or practice, television programs have their
desirable and undesirable effects. When persons speak or write about
the "harm" of programs containing blatantly violent or sexually
explicit material, they are frequently pointing to one class of the
more undesirable effects of such programs. This class includes those
psychological effects upon viewers and listeners that increase (or are
likely to increase) the tendency of these individuals to engage in
injurious or destructive behavior. Research concerning the
psychological effects of sex and violence in the media began in the
19508 (just after the introduction of television) and, for several
decades, focused upon three such effects. I will not, of course,
attempt to review the vast psychological literature regarding these
effects. Rather, I simply provide a general description and some
instances of each of these effects and the kind of behavior that can

and does result from them. There is no need (nor, perhaps, would it

be possible) to conclusively establish a strong causal relation
between viewing or listening to the programs in question and engaging
in injurious or destructive behavior. I will be content if the
reader, after considering the presentation to follow, acknowledges
that such effects can and do occur and that they can and do, at times,
result in harmful behavior.

Just as the physicist might employ, say, Newtonian mechanics or
Einsteinian relativity theory to explain the nature of the forces that
exist between physical bodies or to describe and predict events and
states of affairs in which such forces might reveal themselves, so,
too, the psychologist has various theories to describe the nature of
harmful or destructive behavior and to predict, with some accuracy,
the occurrence of such behavior. In the context of television, three
of the most commonly discussed effects identified and predicted by
these theories of behavioral modification are imitation,
disinhibition, and desensitization. Imitation is, by far, the easiest
of these effects to explain and illustrate. It is most readily
revealed in the behavior of children who imitate or mimic a variety of
TV or film characters. A child adopting the slang of the Teenage
Mutant Ninja Turtles or trying to copy the moves of basketball star,
Michael Jordan, are only two of the many examples that might be given.

As noted by H. J. Eysenck and D. B. Nias in their extensive
survey of early psychological studies in this area (9), imitation has

also been demonstrated in the laboratory. Many early experiments

involved showing children a 2.5-minute film of a child attacking a
clown. The children were then sent to a playroom and, upon entering
the room, a clown was identified and attacked by the children. A
control group of children who had not seen such a film did not attack
a clown in a similar setting. In this study, "mere exposure to the
film was sufficient to produce imitation of physical aggression in
most of the children."(10)

Instances of imitation provide those cases most often employed in
arguments for restricting or prohibiting television programs
containing sex or violence. They are, perhaps, also the most
successful at capturing public attention and winning support for
restrictions on these programs. In discussing the hearings before the
Minneapolis City Council regarding her proposed pornography ordinance,
Catharine MacKinnon writes, “If you want to know who is being hurt in
this society, go see what is being done (and to whom) in pornography
and then go look for them other places in the world. You will find
them being hurt in just the same way."(11) A variety of individual
cases cited in the testimony of women at these hearings confirms
MacKinnon's claim.(12) Another excellent example of imitation and its
persuasive power is the recent fire at a home in Moraine, Ohio in
which a two-year-old girl was killed. The fire was the result of a
five-year-old boy imitating the behavior of Music Television's "Beavis
and Butt-head," a cartoon depicting two crude and obnoxious teenage

boys who often play with (and insist upon the joy of playing with)

fire.(13) This case and the instances of imitation noted at the
Minneapolis hearings were certainly key factors in the decision to
restrict pornography in Minneapolis (14) and MTV's decision to edit
several episodes of their "Beavis and Butt-head."(15)

However, such an effect, if taken in isolation from the others I
will discuss, holds little weight in most arguments for censorship.
One might argue that, although it is clear that individuals do imitate
various television and film characters and that some of this new
behavior is certainly destructive or harmful, those who would actually
engage in such behavior would have done so with or without the newly
acquired behavior. A teenaged boy who, say, murders a member of a
rival gang in a way very similar to that shown in a movie about youth
gangs he has just viewed would have, in all likelihood, murdered the
other gang member without having adopted this novel style of homicide.
Such cases are, perhaps, the least helpful in evaluating the
legitimacy of any argument for restrictions upon programs because they
offer evidence not for a significant connection between viewing
violent programs and an increased tendency towards harmful behavior
but, rather, only for a dubious connection between viewing particular
scenes and engaging in activity that manifests a tendency towards
harmful or destructive behavior that was already present. In short,
instances of mere imitation can only reveal tendencies to injurious or
destructive behavior; they do not create or increase such tendencies.

One effect that might work in conjunction with that of imitation

to increase a tendency towards (and, perhaps, actually produce)
aggressive or destructive behavior is disinhibition. According to
Eysenck and Nias, "disinhibition theory makes the assumption that
certain responses already exist but that their expression is
inhibited."(16) Put another way, disinhibition theory assumes the
presence of aggressive tendencies rather than hypothesizing their
creation by television violence or other factors. Thus, for instance,
the desire to imitate a physical attack upon a child just seen during
some television program may be present in the child who has witnessed
the scene when this child is, say, angered by a playmate. Yet,
because of a strict upbringing and the inculcation of values that make
fighting appear wrong or undesirable to that child (the inhibitions),
the imitation will not occur. Given disinhibition theory, however,
viewing certain kinds of violent displays might lead to the weakening
or elimination of these inhibitions and, hence, to the imitative
behavior. Thus, while imitation theory describes the acquisition of
new sorts of behavior, disinhibition theory points to the
reconstitution or reorganization of the motives of behavior.

The effect of disinhibition can be exhibited in the psychological
laboratory. It is obtained by "providing a permissive situation in
which aggressive urges could be freely expressed."(17) One might
object to the construction of such "permissive situations" because, in
such cases, inhibitions are likely to be week from the outset. It is

important to keep in mind, however, that disinhibition theory does not

10

contend that the strongest of our inhibitions can be severely weakened
or removed by a single or short-term exposure to violent scenes but
only that some weakening will take place. Just as it would be
difficult (if not impossible) to demonstrate the benefits of
chemotherapy for a patient with widespread and advanced bone cancer
due to the strength and maturity of the disease, so, too, it would be
unfair to expect to witness disinhibition in an individual who has
very strong inhibitions against violent or aggressive behavior after
that individual has only viewed one or two violent scenes.

Eysenck and Nias describe several studies illustrating this
effect.(18) In one such experiment, adult males are told that they
will aid in studies of punishment and that, upon witnessing an error,
they are to administer shock to a confederate of the experiment, who,
unknown to the participants, is never actually shocked but only acts
as if he were electrocuted. Two groups are observed with regard to
the amount of punishment administered, measured in terms of the
intensity and duration of the shock given. During the experiment,
one group is shown a knife fight scene from the movie, Rebel Without A
cause, while the other is shown an educational film. Aggression was
compared before and after the films and the result was that the group
that was shown the violent clip punished the confederates more
severely than did the controls, who exhibited little or no change in
the amount of aggression. Since both the test and control groups

exhibited the tendency to perform harmful behavior in a permissive

11

situation before exposure to the film and, too, because this tendency
seems to be strengthened in the violent film group after exposure, it
is hard to account for this increase with any other effect besides
that of disinhibition.

A.more recent study indicates the potential danger of
disinhibition when it is the result of exposure to violent, sexually
explicit material. In a 1985 study (19), 430 students viewed one of
four sorts of films: 1) films depicting violent sex acts, 2) films
displaying acts that are degrading to women but nonviolent, 3)
sexually explicit, but nonviolent and nondegrading scenes, or 4) films
which were neither violent nor sexual in nature. Students were
exposed to these films for a total of 90 minutes during three separate
30-minute sessions. In a questionnaire to be completed during a
fourth and final session, students were asked (among other things) how
likely they would be to commit a rape if they could be assured of not
being caught and how likely they would be to forcibly evoke unwanted
or undesirable sexual activity during sex. "Subjects exposed to
violent pornography," notes Daniel Linz in summarizing the study,
"were more likely to report that they might commit a rape if assured
that no one would know and they would not be punished. A similar
result was found for subjects' willingness to use force to coerce a
female into other forms of unwanted sexual activity."(20) It is
unlikely that this short-term exposure would have created the tendency

to rape or to use force to procure unwanted sexual activity. Thus,

12

the experiment seems to indicate that violent pornography weakens or
removes (at least temporarily) some of the inhibitions that would
normally prevent one from entertaining the possibility of acting upon
these tendencies.

Disinhibition should not be confused with the final effect to be
discussed, namely, desensitization. Unlike disinhibition, which
effects the organization of the motives of behavior, desensitization
alters our physical and emotional reactions to certain types of
behavior or states of affairs. Such reactions might include nausea,
discomfort, fear, anxiety, increased or decreased heart rate, or some
combination of these and other reactions. Hence, while disinhibition
is an effect that rearranges or alters those values, aversions, and
desires that encourage us to or discourage us from behaving in certain
ways, desensitization is an effect that weakens or completely
eliminates our reaction to certain forms of behavior or states of
affairs. In the one case, we become more likely or less likely to
perform certain kinds of conduct while, in the case of
desensitization, we become less apt to react to (and, hence, more
tolerant of) a certain kind of behavior or state of affairs. (Of
course, desensitization might contribute to disinhibition in a given
case, as I shall point out momentarily. The effects should,
nevertheless, be kept distinct.)

Let us consider an ordinary example offered by Eysenck and Nias

that illustrates how desensitization takes place.(21) Suppose a child

13

is afraid to take a bath in a bathtub. Two essential steps are
required to dispose of this fear. First, the child must be relaxed.
This might be accomplished by the parent reading to or playing with
the child. Second, the parent must construct a "hierarchy" of
situations that will, over time, bring the child to the point of
comfortably taking a bath in the tub. The parent might begin by
having the relaxed child bathe in a small wading pool or basin. The
parent might then, after a few days, wash the child's feet in the
bathtub, still having to relax the child before proceeding.
Eventually, the child will be completely comfortable taking a bath in
the tub because, with the continuing relaxation procedure, the child
has come to associate the bathroom and the bathtub with relaxation.
It is important for the parent never to force the child beyond a
particular step in this hierarchy without the child's being completely
at ease. In this example, then, the child has been desensitized
because the initial reaction to the bathtub (or, perhaps, to bathing
in it), namely, the fear or anxiety, has been eliminated. Effective
desensitization, then, requires both relaxation at all points during
the process and a long-term, hierarchical succession of states of
affairs or situations that ends with the situation or state of affairs
to which the subject is to be desensitized.

Many studies affirming desensitization involve repeatedly
exposing subjects to particular scenes of a brutal beating or gruesome

accident while monitoring certain physical functions such as pulse,

14

muscle tension, and skin moisture for evidence of a lessened reaction
to the scene viewed. However, such studies do not always show a
tendency for individuals to become desensitized to scenes of violence
of a different sort than that presented to the subjects nor to actual
violent events. If this were to have been exhibited, it would have
been evidence of what psychologists call generalizatign. It is the
phenomenon of generalization that most worries those who advocate
censorship, for it is rendering actual violence and acts of aggression
more tolerable that is most likely to increase aggressive behavior and
to reduce the likelihood of intervention in or prevention of violent
occurrences. In a 1974 study summarized by Eysenck and Nias (22), we
have evidence that generalization does, indeed, take place. A group
of children is shown a violent film while a control group of children
is allowed to view an exciting sports match. Each of the two groups
was then asked to observe a couple of children at play and to call the
experimenter when and if the observed children began to act
aggressively towards one another. The amount of desensitization (and,
in this case, of generalization) that had taken place was measured by
noting the time taken for each group to summon the experimenter. As
Eysenck and Nias report, "Children who had watched an excerpt from
Manics took an average of 14Ssec. before summoning help whereas those
who had watched an exciting baseball film took only 8esec."(23) The
results of viewing violence are, in this experiment, precisely those

of which those who advocate censorship are most afraid. One could

15

imagine what years of viewing films as violent or more violent than
Manics might accomplish in terms of desensitization theory.

One might object that, while desensitization may make violence
towards others more tolerable or acceptable, it need not increase
one's tendency to behave violently. Thus, the existence of this
effect may not support an argument for censorship of or restrictions
upon the programs in question that is based upon the ability of these
programs to create or increase tendencies towards violent behavior.
Of course, desensitization need not lead to an increased tendency to
act aggressively or destructively but we need only show that such a
possibility is conceivable and that, perhaps, such occurrences have
taken place. "According to the reports of cinema managers," note
Eysenck and Nias, "some members of the audience fainted or were sick
during scenes of Soldier Blue and A Clockwork Orange."(24) Such a
reaction, ironically, is precisely that which Alex and his friends did
39; experience during their violent conduct in A Clockwork Orange and,
presumably, it was the absence of such a reaction that made their
crimes easier. On the other hand, the members of the audiences to
which Eysenck and Nias are referring would not, it seems, engage in
the sort of behavior exhibited in the movie. Such individuals are
"sensitized" to this activity and its results and this sensitization
serves to inhibit such behavior.

The phenomenon of desensitization has been invoked in many

arguments against the distribution of pornography. Recent

16

psychological research supports this appeal. In a 1988 study (25).
156 college-aged males were asked to view a series of either two or
five films. The students were divided into four groups. One group
viewed R-rated, violent films that contained some sexual imagery,
another viewed x-rated, sexually explicit, nonviolent films, and a
third group was exposed to R-rated "teenage" sex films that contained
no explicit sex but which featured male characters pursuing women and
young adults continuously discussing sex or engaging in sexually
related activity (e.g. flirtation). The fourth group saw no films
except for a reenactment of a rape trial that was also witnessed by
all other subjects after they had viewed the films assigned to their
group. The aim of the experiment was to identify any desensitization
in those individuals exposed to the three types of films and to
compare each group's reaction to the trial.

In this experiment, desensitization was measured via a scale that
psychologists have devised in order to quantify anxiety and
depression. Desensitization was observed in all of the film groups
and occurred very quickly in those who viewed the R-rated, violent
films. The reactions to the mock trial were measured using a number
of scales that tried to gauge the subject's sensitivity towards or
empathy for the rape victim. The researchers write, ”Subjects exposed
to R-rated filmed violence against women showed a tendency to be less
sympathetic towards the victim of rape portrayed in the trial....More

robust was the finding that the R-rated violent film subjects were

17

less able to empathize with rape victims in general when compared with
no-exposure control subjects and subjects exposed to other types of
films."(26) Such studies suggest not only desensitization but, more
importantly, the phenomenon of generalization, a lessened sensitivity
to violent acts or to the suffering of others not represented or
portrayed in the program viewed.

It is just such studies that many writers have in mind when they
speak of pornography's ability to change men's perception of women or
to modify the attitudes or beliefs of males who view it. Again, in
defending her proposed ban on pornography, MacKinnon writes,
"Crucially, all pornography (by our definition) acts dynamically over
time to diminish the consumer's ability to distinguish sex from
violence. The materials work behaviorally to diminish the capacity of
men (but not women) to perceive that an account of a rape is an
account of a rape."(27) When rape is seen as sex, when brutality
towards or the torture of a woman is not regarded as harmful, or when
the screams and shrieks of women are heard as cries of joy and
ecstacy, desensitization has taken place and it is this effect that is
produced by pornography. The claim is not merely that the already
disturbing and undesirable views of women are being perpetuated by
pornography, but that pornography creates and sharpens these beliefs
and attitudes.

I hope that the patience of the reader has not been exhausted by

this extended discussion of the psychological research in this area

18

but it seems, to me, necessary in the light of so many claims about
the inconclusiveness or dubious nature of psychological studies. As
I have tried to show, we are, indeed, affected by viewing blatantly
violent and sexually explicit material and these effects may and do
result in aggressive or destructive behavior. If such effects can be
produced by viewing only single clips or a small series of scenes or
films, we can only speculate about the sort of effects produced by
long-term exposure to such programming. To deny these tendencies is
to refuse to take seriously the claims of psychologists engaged in
professional scientific research. We might raise questions about the
sorts of individuals that are effected in the ways just described or
about the extent to which these effects produce or encourage injurious
or destructive action, but we cannot plausibly question the occurrence

of these effects and the tendencies they create and strengthen.

Uh W’r I Can DO

Thus far, I have described the harm of television programs
containing blatant violence or explicit sex in terms of the injurious
and destructive behavior that can and does result from the
psychological effects upon viewers produced by these programs. To
understand the other set of harms and wrongs that might be brought
about by the programming at issue, we must, as I said, turn to the
philosophy of language offered by J. L. Austin and to the notion of a

"speech act" that lies at the heart of this philosophy. In this

19

section, I describe this notion in some depth and use it to analyze a
photograph or display not conveyed via the electronic media. Given
Austin's view, I will argue that such a display might be seen as
ranking African Americans as inferior or as less than persons. My
claim will be not merely that this display depicts or conveys or
perpetuates the ranking of such persons. Rather, I will maintain
that, given its content and context, the display to be considered, in
and of itself, ranks African Americans as inferior or as less than
persons. In the next section, I show how Austin's philosophy is
utilized by Catharine MacKinnon and Andrea Dworkin in order to
demonstrate that some forms of pornography rank women in this way. I
also try to explain how this view can be used to show how other
television programs and films containing blatant violence or explicit
sex might constitute similar activity.

Consider a picture depicting an African American male bound to
the hood of a jeep with thick rope and heavy chains. Two white males
wearing white hoods sit in the jeep holding rifles that extend
slightly beyond the picture frame. The African American is wearing
tattered clothes, his eyes are closed, and his head leans to the left
while his arms and legs are spread so as to secure his hands and feet
to the corners of the hood and to the side mirrors of the vehicle.
The caption below the picture reads, "Coon hunting was especially good
for these two sportsmen." Now, imagine this picture being circulated

in a widely distributed magazine. Clearly, many individuals of all

20

races and ethnic groups would be offended. It might be argued that
those individuals exposed to this picture might, upon seeing an
.African American on the street late one evening, attempt to imitate
the behavior depicted in the photograph or that such individuals might
become desensitized to violence against African Americans.

Nevertheless, such considerations would not capture the more
forceful objections that are most likely to be made to such displays.
Such scenes are unacceptable (and, in many instances, prohibited) not
because of the effects they might have on persons and their behavior
but, primarily, because they are acts of racial harrassment and
discrimination. Noting similar displays, MacKinnon writes, "The fact
that such verbal behavior serves as a vehicle for a bigoted ideology
has not made it protected expression....Under discrimination law, such
expression is not a political opinion, it is a smoking gun."(28) The
picture in question is not a mere picture, a simple expressive act; it
is an act of harrassment or of discrimination. Its chief
accomplishments include subordination and denigration rather than
persuasion and communication.

Any African American male encountering this picture would be
shocked, outraged, or even afraid or anxious. Yet, he would also know
that he, as a black male, has been set up as a potential target for
ridicule, scorn, and hatred, placed in a subordinating position,
degraded, and dehumanized -- the picture (and its author) is doing

more than speaking to him. At bottom, the display in question not

21

only conveys and perpetuates inequality, it establishes, enforces, and
arranges it. As MacKinnon reminds us, "Words and images are how
people are placed in hierarchies, how social stratification is made to
seem inevitable and right, how feelings of inferiority and superiority
are engendered, and how indifference to violence against those on the
bottom is rationalized and normalized."(29) The fact that language is
used to create and destroy, enforce and undermine patterns of social
inequality and the more general notion that language is used to do
rather than merely to say something has, until recently, been ignored
or neglected in debates about free speech.

This neglected capacity of language was originally identified and
discussed in some detail by J. L. Austin in his ng T9 D9 Things With
flggdfi (30) and has recently been summarized and developed in an
illuminating article by Rae Langton.(31) One of the main themes of
Austin's book is that to say something is always to do something and
that the distinction so frequently drawn between expression and action
or speech and conduct is misleading and, perhaps, artificial. Austin
writes, "Once we realize that what we have to study is not the
sentence but the issuing of an utterance in a speech situation, there
can hardly be any longer a possibility of not seeing that stating is
performing an act."(32) It is the analysis of language that arises
from this contention that is essential to an understanding of the
claims I have been making about the display under scrutiny.

Consider my yelling "Fire!" in a crowded theater. According to

22

Austin's analysis, there are three senses in which to issue this
utterance, to perform this speech act, is to g9 something. First, my
screaming the word 'fire' means that I have uttered certain sounds
and, more precisely, a word from a recognized and accepted vocabulary.
I have uttered sounds but I have also put together a meaningful
vocable, an utterance of semantic value or import. I have, in short,
performed a lgggtigg. This is the most basic way in which I do
something when I say something.

My shouting ”Fire!" also has certain effects on those around me.
Persons may feel startled or anxious, turn to the source of the
scream, talk loudly and frantically among themselves, and, perhaps,
quickly exit the theater. In focusing on these effects, we are
describing the pgrlgcutignagy aspect of this act of expression or
noting the pgrlgggtigns of this act. Those who emphasize the results
of research on behavioral modification believe that the harm produced
by television programs that contain blatantly violent and sexually
explicit material can be described in terms of a certain class of
psychological (and, perhaps, physiological) effects that stem from
these programs and the behavior thought to result from these effects.
Thus, proponents of-such research attend to the consequences or
effects of these programs, that is, to their perlocutionary aspect.

Austin believes that there is a third aspect of acts of
expression, that, even after explaining what such acts convey and what

effects they have upon the environment in which they are performed,

23

something else can be said of them. I am doing more, here, than
simply uttering the word 'fire' and communicating to others. In
sincerely yelling, "Fire!," I am warning, urging persons to leave the
area and, if I had the appropriate position and authority (e.g. if I
were a fire-fighter or theater manager), commanding persons to leave
immediately. Noting my "action" in such cases is, for Austin, to
identify the illggutignagy aspect or force of expressions, to
emphasize what they do or accomplish rather than what they say or how
persons react to them. Borrowing the phrase from Austin, Langton
writes, "An illocutionary act is the action performed simply in saying
something, a perlocutionary act is the action performed by saying
something."(33) In the one case, we are asking what happens as a
result of or in addition to the utterance or depiction or broadcast
while, in describing the illocutionary aspect, we are asking what it
accomplishes, what act it constitutes.

Content and context are extremely important in an evaluation of
the illocutionary force of an act of expression. Consider the
foreperson of a jury saying, "Guilty as charged," in a court of law at
a criminal trial. The words would not accomplish the same task if,
say, they were uttered in front of the courthouse or by an observer
of the trial. Furthermore, it is this collection of words (or one
very similar to it) that accomplishes the act of conviction. In
short, understanding the content of the phrase 'Guilty as charged’ in

the appropriate context means more than an understanding, especially

24

for the person being tried. It does not imply or convey or
communicate a conviction -- it is a conviction. Put another way,
saying, "Guilty as charged," when spoken by the foreperson of a jury
in a court of law at a criminal trial, is not communicating but
convicting; once the defendant has understood the phrase in this
context, he/she realizes that a conviction (and not a mere
communication) has occurred.

We can invoke Austin's philosophy of language in order to analyze
a variety of acts of expression and I shall be especially interested
in appliing it to many different television programs. As just
indicated, two matters will be of special importance in such an
analysis. First, it is important to understand what action is
constituted by a particular television program and not to focus merely
upon the message(s) that are intended in or received as the result of
such a program. Second, if we are to fully grasp the activity
constituted by a program (that is, if we are to understand its
illocutionary force), the context of the program (with reference to
both the immediate environment and general social context in which it
is viewed and to how it is situated among other programs) must be
carefully considered.

We are now in a better position to analyze the display described
at the outset of this section. The words and images in the display
are meaningful, they have semantic import, and they can be understood

by persons. Moreover, persons encountering the display (especially

25

African Americans) may be shocked, offended, or outraged. They may,
as a result of encountering this display in a newspaper, for example,
call the paper's editors or cancel their subscription to the paper or
encourage others to take similar actions. These would be some of the
perlocutions of the display in question.

In order to understand the illocutionary force of this speech act
(and, hence, the act it constitutes). much more must be known about
the situation in which the display is encountered. The intent of its
author, the medium in which it has been printed (e.g. a newspaper,
magazine, political pamphlet, etc.), the historical and social context
(especially with regard to race relations) surrounding the printing,
and many other factors must be understood in order to determine what
is being done in presenting (and in viewing) such a display. Those
reading this dissertation might be shocked or outraged at the
described scene but they are not, I think, subordinated or denigrated
in my describing it. On the other hand, in placing it on the desk of
an African American coworker, I am likely engaging in a form of racial
harrassment or discrimination.; my speech act might, in and of itself,

constitute such activity.

The Television Prgggam
Ag §peech Act

The central claim of the Dworkin-MacKinnon critique of

pornography is that pornography, like the picture just discussed, is

26

not mere words and images conveying and communicating ideas about sex
and women. Like the display just described (from which it is hard to
distinguish some pornographic material (34)), pornography not only
perpetuates and maintains social inequality, it can establish and
arrange patterns of social inequality and sexualize this arrangement.
In short, given the appropriate context, we are, in attending to or
viewing pornography (or in distributing or broadcasting it), engagin
in a form of sexual discrimination or harrassment; the illocutionary
force of such acts is sexual discrimination or harrassment.(35)

We can, of course, discuss the locutionary aspect of pornography.
A study of the words and images of which pornographic material is
composed, of their relative importance in what might be called the
"vocabulary" or "language" of pornography, or of what is literally to
be understood by those who hear the utterances of the models, actors,
and actresses in the film or scene might all be undertaken by one who
wishes to give a description of the locutionary aspect of pornography.
Also, we have already discussed some of the perlocutions of
pornography, some of its intentional and unintentional, desirable and
undesirable effects. The passages quoted from MacKinnon's writings
and the studies concerning the psychological and physiological effects
of viewing pornography aid in describing this aspect.

The Dworkin-MacKinnon position, however, focuses upon the
illocutionary force of pornography. It attempts to give an account,

in other words, of what action is constituted by or what is done in

27

viewing or attending to or distributing or broadcasting pornographic
material.(36) We begin with the obvious, namely, that pornography
gives men erections and is one element of the sexual activity of many
men. In MacKinnon's words, "What is real, here, is not that the
materials are pictures but that they are part of a sex act. The women
are in two dimensions but the men have sex with them in their own
three-dimensional bodies, not in their minds alone."(37) In viewing
pornography, men are having sex or engaging in sexual activity; in
broadcasting pornography, sex or sexual stimulation is given. The
primary accomplishment of pornography, the act it constitutes, is not
communication but physical stimulation, not providing enlightenment or
understanding but giving erections -- pornography is consumed, not
conveyed. The words and images of pornography function more like the
words used by a lover in attempting to arouse or seduce his partner
than, say, those used by a professor or scientist in instructing her
students or explaining her research to colleagues.(38) Such speech
constitutes sexual activity, not instruction or exposition.
Broadcasting, distributing, or viewing the sort of pornography
had in mind by the Dworkin-MacKinnon position might also constitute
other action such as the dehumanization or objectification of women.
In broadcasting some kinds of pornography, we are, in the appropriate
context, ranking women as inferior or as less than human. In the
display discussed earlier, the presence of the rifles, the ties and

the chains, and the reference to "coon" work together to dehumanize

28

the African American, to rank him as inferior or less than human. In
the context of this dissertation or in that of a documentary on racism
in America, the display might correctly be said to only depict or
convey dehumanization. If, on the other hand, the display is
circulated in a widely read sports magazine or used in a political
advertisement for a white supremicist group, the display might, I
think, rank African Americans as inferior or less than human.

Doubt as to whether or not the given display constitutes a kind
of ranking in these sample contexts stem from questions regarding the
extent to which these contexts satisfy certain "felicity conditions,"
conditions that must be satisfied if a given speech act is to
constitute a certain action or have a certain illocutionary force.
Speech acts that constitute a ranking are placed in the category of
acts of expression that Austin calls vergiggiveg. "verdictives,"
writes Austin, "consist in the delivering of a finding (official or
unofficial) upon evidence or reasons as to value or fact, so far as
these are distinguishable."(39) As verdictive acts, there are two
important felicity conditions that must be satisfied by a speech act
if it is to constitute an act of ranking: 1) the person or agency
issuing the speech act must be in a position of authority or occupy an
important and widely recognized social position or status and 2) the
evidence or reasons supporting the finding are regarded as true or
accurate and the conditions under which the evidence or reasons are

gathered are acceptable. Thus, for instance, someone's calling "Out!"

29

at a baseball game as the runner slides into home may be rejected as a
verdict either because the person calling out is not an umpire for
that game (or the most appropriate umpire, the home plate umpire) or
because the person, as umpire, was not looking at the play or had her
eyes closed or was drunk. In any of these cases, the call "Out!"
would fail and the ranking would not take place.

The speech acts noted earlier might fail to rank African
Americans because they fail to satisfy one or both of these
conditions, which, for the sake of brevity, I shall refer to as the
authority and evidence conditions, respectively. For example, one
might argue that the display in question, when distributed in the
sports magazine, fails to satisfy the evidence condition because there
is simply no argument (or anything that might be interpreted as
argument) present in the display. This condition would, however, be
satisfied if, say, that issue of the magazine had also included an
article reporting on the superior running, jumping, reaching,
climbing, and maneuvering abilities of black males when compared to
those of white males. Neither the picture nor the article would, in
and of itself, rank African Americans as less than human but both
might work in tandem to do so.

Again, consider the advertisement made by the white supremicist
group. One might object that ranking is not constituted in
broadcasting such an ad because the authority condition is not met.

White supremicist groups do not occupy the authoritative position or

30

possess the social status required by the authority condition. If,
however, such groups were to gain significant political ground and
social acceptance (say, through new "White Power" cable channels and
radio stations), the broadcasting of such acts seems more likely to
constitute a kind of ranking. This would be especially true because
such channels or stations would, in all likelihood, present arguments
and evidence that would satisfy the evidence condition. Disagreement
about the ability of such speech acts to, through their illocutionary
force, rank African Americans will continue. The point, here
(besides, once again, noting the importance of context), is that such
acts are more akin to a "Whites Only" sign with regard to their
ability to constitute acts of racial inequality than to, say, racist
political pamphlets that merely advocate or depict such inequality.

Some pornographic material (40), including some pornographic
videos and films, according to the Dworkin-MacKinnon view, ranks women
as less than human, as sex objects, or, perhaps, even as "sexual
slaves."(41) To provide a thorough defense of such a claim would take
me far beyond the scope of this dissertation. Nonetheless, if we
simply consider the degree to which the authority and evidence
conditions are satisfied by some pornographic programs and films,
there is some significant evidence for this claim.

One of the most disturbing aspects of pornographic films and
programs is the manner in which they satisfy the evidence condition.

Women are seen as enjoying everything that is done to or with them.

31

Beatings, cuts, slashes, burns, strangling, tying, strapping,
whipping, and penetration with a variety of objects (e.g.
screwdrivers, guns, knives, etc.) are all portrayed as producing
intense pleasure and ecstasy in the women who are the subjects of
these acts. Moreover, such activity is enjoyable, so the film
suggests, especially when it pleases men. Women will, it seems, do
anything for men and they will feel great joy in doing so. The fact
that all of this is on film is, in itself, "proof" of the enjoyment
women receive from such activity. Seeing is believing and television
and film are especially effective in making things plainly visible
(and credible) to us.

The extent to which the authority condition is fulfilled is also
clear when we consider the position of those who produce, distribute,
and broadcast pornographic material. Pornographers enjoy a
significant amount of legal protection because their industry (unlike
almost any other industry or business) is explicitly protected by one
of the most fundamental freedoms in our society, freedom of speech.
In addition, the pornography industry is a $10 billion industry so
that pornographers possess extensive influence upon political and
social policy. Such financial resources also allow extensive access
to the media of television and film, which, given their legal and
social structure in society today, create a direct relation between
speech and capital. (I will return to this point in Chapter 3.)

Finally, pornographers are, to some extent, regarded as "experts" in

32

their field, namely, that of human sexuality. Because they regularly
observe and work with women, they are in a suitable position for
making judgments about the beliefs, desires, and character of women
with regard to their sexuality. The satisfaction of these two
conditions, then, lends some weight to the contention that pornography
ranks women, although this argument is far from complete.(42)

Because, in viewing pornography, we are engaging in sexual
activity and because, in broadcasting or distributing pornography,
pornographers are ranking women, pornographic material, as a speech
act, constitutes one further action that should be noted here.
Pornography legitimates or justifies or excuses sexual inequality by
making the ranking it achieves or accomplishes seem part of or
essential to sexual relations between men and women; pornography, it
is often said, "sexualizes" this inequality. In other words, the
ranking that is constituted in broadcasting or distributing
pornography is not, in fact, seen as ranking but, rather, as sex or as
a part of sex. In turn, because sex is an acceptable and essential
part of human relations, so, too, is the ranking that is accomplished
via the sex act of viewing pornography. In short, we might simply say
that pornography legitimizes sexual inequality by sexualizing it.(43)

It might be objected that the sort of pornography targeted by the
Dworkin-MacKinnon ordinance is not likely to be shown anywhere on
television and that, therefore, I am dwelling on material not central

to this dissertation. I admit that finding such material on network

33

or cable television would be difficult yet the proliferation of home
video rental and the mere fact that such videos are viewed on one's
television must pose at least some questions and concerns similar to
those introduced by the actual broadcasting of such material.
Moreover, some sexually explicit television programming does, indeed,
seem to rank women in the ways described by Dworkin and MacKinnon.
Consider, for example, the program, "Real Sex," which is produced and
distributed via the Home Box Office (HBO) cable network. During one
episode (Episode #10 shown in December 1994), one topic for discussion
was new CD interactive games involving the pursuit of women by men.
One game, "Seamore Butts," involved a player attempting to pick up and
have sex with the woman playing the main character of the story around
which the game centers. Clearly, women are portrayed as commodities
by this advertisement, though because it appears as a part of a show
that purports to describe and defend the sexual practices of everyday
individuals (a show entitled "Real Sex"), this fact is disguised.

The ranking of women might take place even when little (or no)
sexually explicit activity is evident. For example, consider, once
again, MTV's "Beavis & Butt-head." Beavis and Butt-head regularly
refer to women as "babes" and "chicks" and often insist that the music
videos they watch would be vastly improved by the presence of "naked
chicks." The terms 'chick' and 'babe' certainly degrade women whether
they are utilized by Beavis and Butt—head or in our own lives. The

insistence of the characters that naked chicks improve the quality of

34

music videos also turns attention from women to their bodies and, more
specifically, to the use of their bodies as commodities (or, at least,
as elements of the commodity of the video). The use of such phrases
and the ranking of women as commodities whose bodies enhance the
quality of a music video might be viewed as mere instances of the
depiction of ranking rather than as constituting ranking itself.

Other aspects of the context in which this program is viewed and
aired,however, may increase the likelihood that the speech of Beavis
and Butt-head actually constitutes the ranking of women. For example,
many of the advertisements shown during the course of the program are,
in fact, advertisements for 1-900 sex lines and for magazines like
Playboy. Such advertisements can be regarded as affirming the
legitimacy of (and, to some extent, as realizing) the ranking that is
merely depicted in the television program. In short, such
advertisements help satisfy the evidence condition necessary for a
speech act to constitute ranking; they play the role held by the
article describing the superior athletic ability of African Americans
in the sports magazine containing the display discussed earlier. The
ranking of women is even more likely when we consider that so many
children watching "Beavis & Butt-head" idolize these characters,
assigning them a significant social status and, therefore, giving
them the authority necessary to satisfy the authority condition.

Given Austin's analysis, we can see how other television programs

might rank other groups. Consider a group that is rarely discussed in

35

free speech literature (or, for that matter, in nearly any literature
whatsoever), namely, persons with disabilities. In 1956, Cindy Jones,
a five-year-old girl, was selected as the March of Dimes "Poster
Girl." A few months after her photo sessions (in which she was
clothed in a fancy, white party dress with her crutches), her picture
appeared on fliers that urged parents to vaccinate their children
against polio. The headline at the top of the flier read, "PARALYTIC
POLIO IS INCREASING AGAINII" Under this caption appeared two
pictures. The first depicted a young boy and girl holding hands and
playing joyfully while the other showed Jones in her fancy dress with
her crutches. Above the first picture was stamped the word 'THIS'
while above the picture of Jones were the words, "NOT THIS."(44)

Of course, the flier conveys certain ideas about persons with
disabilities. It perpetuates the belief that such persons are
incapable, pitiful human beings who are deserving of sympathy rather
than respect. It seems likely that the flier might also convince
others that persons with disabilities are inferior, for it could not
urge parents to vaccinate their children unless it persuaded them that
to be healthy and fully able-bodied was to be preferred to a state of
incapacity. Moreover, Jones, herself, would certainly have felt
humiliated, embarrassed, angered, or degraded upon seeing this picture
(which, in fact, she did. These effects would be included among the
perlocutions of this speech act and they are, I believe, disturbing in

and of themselves.

36

When we turn to the illocutionary force of such a speech act,
however, it seems even more harmful (or, better still, wrongful).
Anything that can be said about the oppression of women or African
Americans can be said of persons with disabilities. Persons with
disabilities have, throughout history, faced the scorn, contempt, and
ridicule of others, they have been stereotyped and stigmatized as
pitiful, lothesome, and even as leading worthless and unfulfilling
lives, and they have suffered discrimination in all areas of life
including employment, education, and leisure.(45) In short, the
social and political context surrounding the polio flier was (and, for
the most part, still is) one in which persons with disabilities are
regularly and systematically subordinated and degraded. This context,
in part, contributes to the ability of the flier to rank such persons
rather than to merely persuade others of our inferiority.

The ability of the flier to rank persons with disabilities as
inferior is strengthened when we consider it with respect to the
evidence and authority conditions mentioned earlier. The source of
the flier is the medical community, which has rightly been given
substantial authority with regard to our physical well-being and in
issuing judgments and prescriptions about the care of our bodies. In
addition, the evidence for the legitimacy of the ranking is the
picture itself, which exhibits the joy and vitality that accompany
health and the incapacities and ailments that accompany a disability.

Thus, the felicity conditions for ranking have been, to a significant

37

degree, satisfied by the context of the act of expression in question.
Television programs and films are as capable of ranking persons
with disabilities and establishing patterns of social inequality as is
the polio flier. For example, the Muscular Dystrophy Association's
Labor Day Telethon, hosted annually by comedian, Jerry Lewis, is often
cited as perpetuating many of the myths that I have been discussing.
The extent to which the telethon, as a speech act (or series of speech
acts), satisfies the authority condition is especially noteworthy.
Jerry Lewis began running the show in 1966 and has, over the years,
gained wide recognition and respect in his efforts to acquire support
for the causes served by the program. The extent of his authority is
captured in the famous (or infamous) slogan, "Jerry's Kids," which
situates him as the paternalistic protector and savior of the children
he represents. The authority necessary in order to achieve the
ranking of individuals is significant, also, because the show
regularly appeals to the findings and innovations of the medical
community, which has been given substantial authority over the care
and in judgments about the care of our physical and mental well-being.
Finally, most of the individuals responsible for operating and
encouraging participation in the telethon (e.g. local fund-raising
centers, celebrities, etc.) are persons without disabilities. This,
together with the significantly inferior status of persons with
disabilities in our society (as exemplified by unemployment rates of

up to 66%), increases the ability of the program to satisfy the

38

authority condition.

For now, the question is how we are to respond to the harms just
discussed. Given that there are serious psychological effects of
exposure to television programs containing sex and violence and that
these effects can lead to injurious and destructive behavior and, too,
given that other programs can, via their illocutionary force,
constitute harmful or wrongful action, ought such programs be censored
or, at least, severely restricted? On the other hand, because both
the adherents to the theory of behavioral modification and proponents
of the Dworkin-MacKinnon view admit that such programs carry messages
and convey thoughts about matters of public interest, can we, in the
light of the First Amendment and the body of law that has developed
and enriched it, justifiably restrict or prohibit such programs? Can
we defend a significant right to free speech that will protect such
programs even in the light of the difficulties just discussed or is
the magnitude of these harms so large as to preclude such a right?

A theory of free speech must not only explain why and how this
liberty is to be protected but, in addition, be capable of answering
these questions. More generally, it must specify the conditions under
which restrictions upon or prohibitions of speech are justifiable.
The two theories to be considered in Chapters 2 and 3 attempt to
perform both of these functions. In the next chapter, I turn to the
theory of free speech offered by John Stuart Mill in On Liberty and,

in Chapter 3, I turn to a "theory of free and equal speech," which can

39

be constructed from the work of John Rawls and Ronald Dworkin and
which, I argue, is much more suitable to the considerations and
questions resulting from attempts to extend the right to free speech
to television. In Chapter 4, I will return to the harms and wrongs
discussed in this chapter and show how the theory introduced and

developed in Chapter 3 might respond to them.

40

HQSEE

1. The part of the First Amendment in which we will be interested
reads, "Congress shall make no law...abridging the freedom of speech
or of the press..."

2. 376 U. S. 254, 1964

3. 418 U. S. 323, 1974

4. 485 U. S. 46, 1988

5. As an example, so-called "hard core" or "gangster" rap music was
recently accused of contributing to the increased violence among young
black males at a conference on youth violence in African American
communities. See the New Yggk Times, Jan. 8, 1994.

6. Mggig Blight 939 the Dehumanizing of America by William K.
Shrader, New York, Praeger, c. 1992, especially Chapter 3.

7. The First Amendment commands only that congress not make laws
abridging speech. It is now accepted that the Fourteenth Amendment,
which guarantees that, "No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty, or
property, without due process of law," must be invoked in order to
defend a genuine right to free speech and to extend the scope of the
First Amendment's protection.

8. The popularity of their work is due, in part, to an ordinance
based upon their arguments restricting the production and trafficking

of pornography enacted by the city of Minneapolis in 1983. This

41

popularity intensified (as did opposition to this position) when a
similar ordinance was enacted in Indianapolis in 1984 and then
defeated in American Book Sellers v. Hudnut, 598 F. Supp. 1327 (SD
Indiana, 1984).

9. Sex, Violence, and the Media by H. J. Eysenck and D. B. Nias, St.
Martin's Press, c. 1978.

10. ibid., p. 150. The fact that "mere exposure" was enough to
produce aggressive behavior is, to some extent, not surprising.
Imitation is one of the first ways in which we learn new behavior. As
Dr. Brandon Centerwall points out, "Neonates are born with a
instinctive capacity and desire to imitate adult human behavior." He
cites studies in which new-borns, within a few hours of their birth,
imitate facial expressions (without, of course, cognitive awareness of
their actions). He adds, "Whereas infants have an instinctive desire
to imitate observed human behavior, they do not possess any instinct
for gaugeing a priori whether a behavior ought to be imitated. They
will imitate anything, including behaviors that most adults would
regard as destructive and anti-social." See "Television Violence: The

Scale of the Problem and Where to Go From Here," J9u;pgl_gf_§hg
MW Vol. 267. 1992. pp. 3059-3064.
11. Fgminism Unmodified; Discourses On Life and Law by Catharine

MacKinnon, Harvard University Press, c. 1987, p. 188.
12. ibid., pp. 187-190. The text here provides instances of all three

of the effects to be discussed.

42

13. New Yerk Timee, Oct. 10, 1993.

14. See citations in Hudnut, note 8.

15. Upon receiving numerous complaints about similar incidents and
because of the outrage caused by the case just noted, MTV decided to
move "Beavis & Butt-head" to a later time slot and to edit or cancel
all episodes that referred to 'fire'.

16. W p- 59

17. ibid., p. 154

18. ibid., pp. 151-152

19. "Exposure to Sexually Explicit Materials and Attitudes Towards
Rape: A Comparison of Study Results" by Daniel Linz, Journal of Sex
geeeegeh, vol. 26, 1989, pp. 50-80.

20. ibid., p. 68

21. Sex, Vielenee, ene SEQ Megie, p. 49

22. ibid., pp. 180-181

23. ibid., p. 181

24. ibid., p. 182

25. "Effects of Long-Term Exposure to Violent and Sexually Degrading
Depictions of Women" by Daniel G. Linz, Edward Donnerstein, and
Stephen Penrod, Jeernel ef Pereenaligy eng geeie; Peyehelegy, vol. 55,
1988, pp. 758-771.

26. ibid., p. 768

27. Feminism Unmodified, p. 187

28. Qply Worge by Catharine MacKinnon, Harvard University Press, c.

43

1993, pp. 50-51.

29. ibid., p. 31

30. How to Do Things With Worde by J. L. Austin, Harvard University
Press, c. 1975, 2nd ed. MacKinnon admits to using this work as a
basis for her own theory of pornography. See Only Words, Chapter 1,
note 22.

31. "Speech Acts and Unspeakable Acts" by Rae Langton, Phileeephy egg
Publie Affeire, vol. 22, 1993, pp. 293-330.

32. How To Do Things With Words, p. 139

33. "Speech Acts and Unspeakable Acts," p. 300

34. My example is quite similar to an illustration from Hustler
Magezine cited by Andrea Dworkin. The primary difference is that my
example involves an African American who is referred to as a "coon"
rather than a woman who is designated a "beaver." It is striking, to
me, that a picture like the one I describe in the text would be so
readily condemned by so many whereas Dworkin's illustration is
accepted and protected. See Porneggaphv: Men Possessing Women by
Andrea Dworkin, G. P. Putnam & Sons, New York, c. 1981, pp. 25-26.
35. It seems appropriate, at this point, to remind the reader that I
am concerned with the electronic media and, in particular, with
television. Hence, the material I have in mind is being broadcast or
sent via cable networks. Many of the features of television most
relevant to the discussion that follows are shared by videos and films

so that I include this material as well.

 

44

36. "Pornographic material" includes that material identified in the
Dworkin-MacKinnon ordinance. See Feminiem gnmgeified, p. 176.

37. Only Words, p. 17

38. See MacKinnon's discussion of the Anita Hill hearings during the
nomination hearings for Justice Clarence Thomas in ibid., pp. 64-67.
39. Hew Te 29 THinge Wigh Werge, p. 155

40. See note 36. MacKinnon, herself, admits that there are acceptable
forms of pornography but she does not typically refer to this class as
"erotica." See Feminism Unmodified, pp. 88-90.

41. Porneggaphy, pp. 199-203

42. One important question is whether or not an intention to rank must
be present if ranking is to occur. Langton discusses this matter in
"Speech Acts and Unspeakable Acts," pp. 322-325.

43. Langton contends that there are three conditions that must be
satisfied if a speech act is to subordinate a particular group: 1)
the group must be ranked as inferior, 2) the ranking and other
discriminatory practices must be legitimated by the act, and 3) the
group must be deprived of certain liberties or privileges.(pp.
302-303) Given the validity of the argument that pornography ranks
women and the fact that it seems to legitimize this inequality, one
need only show a deprivation of liberty produced by the pornography to
show that pornography subordinates women. This is a chief contention
of many feminist critics of pornography. The possibility that

pornography subordinates women is quite real given Langton's

45

contention that pornography "silences" women, an argument to which I
will return in the next chapter.

44. Jones' story is given in No Pity: People With Dieebilitiee Forgieg
ngew Civil Rights Movement by Joseph Shapiro, Times Books, New York,
c. 1993, pp. 12-13.

45. Shapiro documents such discrimination throughout his book. See

especially Chapters 4 and 5.

2

Free Speech and Television

Television programs that contain sexually explicit or blatantly
violent material are, according to the account in the preceding
chapter, troublesome for at least two reasons. First, given
psychological theories of behavioral modification, such programs
increase the tendencies of those who are regularly exposed to them to
behave aggressively or destructively towards others. Imitation,
disinhibition, and desensitization are just some of the effects
described and predicted by these theories that can and do result in
such conduct. Second, the programs in question can, in and of
themselves, constitute harmful (or even wrongful) activity. Given the
content of a particular television program, together with the context
in which this content is presented, this program (or speech act) might
constitute, say, an act of discrimination, an act that creates,
arranges, or enforces patterns of social inequality. This seems true,
according to the Dworkin-MacKinnon view, of much pornography and of at
least some comedy, films, and other products of the electronic media.
These are, without doubt, serious charges and they must be considered
by any theory of free speech that is to be applied to the electronic
media and, in particular, to television.

One response to these difficulties might be given in the light
of one of the most famous and eloquent defenses of free speech, that
offered by John Stuart Mill in On Liberty.(1) According to Mill, free

speech is to be explained and supported in terms of the benefits that

46

47

can be expected by (and those that have been realized in) those
societies in which it is protected and promoted. The theory of free
and open discussion offered by Mill has, until recently (2), dominated
discussions regarding the nature, scope, and limits of free speech.
Its prevalence has, as I shall note, been intensified and given legal
significance in much philosophical and legal writing.

After presenting Mill's defense of free speech and his account of
how it might be limited, I want to consider its adequacy for and
applicability to the difficulties at hand. I will argue that there
are at least four problems with using Mill's theory of free speech to
attempt to resolve these matters. The first and second of these
problems are what I term "conceptual limitations" because they point
to important distinctions and conceptions that are absent from Mill's
approach. First, I will argue that there are at least three kinds of
censorship and that each type, once understood, seems justifiable to a
different degree. These different levels of justifiability are, I
will maintain, unacknowledged by Mill. I will also explore the
various ways in which persons might be "silenced" by acts of
expression, ways in which words can, at times, prevent others from
saying what they wish to say or from doing with their words what they
want to do. I believe that these conceptions and distinctions are
essential to appreciating many issues surrounding free speech in the
electronic media (and, perhaps, free speech in general).

Besides these conceptual limitations, there are two other (and

 

48

more troubling) problems with Mill's account of free speech. The
first of these concerns the notion of "speech" or "discussion" that is
both implicitly and explicitly developed in On Liberty. This notion
stems from the notion of discourse that developed in the centuries
that followed the introduction of the printing press and may well be
ill-suited for the problems and questions posed by the electronic
media and, more specifically, by television. The final difficulty
(and, I think, the most insurmountable) is that Mill's account does
not, in Ronald Dworkin's sense, take free speech "seriously."(3) In
brief, this means that Mill sees the liberty of discussion as an
especially useful or valuable instrument in the pursuit of various
political and social goals rather than as a potent individual right
that constrains such pursuits. I shall develop these and related

notions in more detail in the next chapter.

A R n

In America, today, there is a heavy presumption against
censorship of any kind. Indeed, my very mention of the harms that can
and do result from television programs will, without doubt, call forth
the possibility of stringent and broad restrictions upon these
programs in the minds of many persons and, in turn, stir these persons
to an immediate and vigorous defense of such programs. One very
plausible and popular defense consists in pointing out the value or

worth of television programs and in stressing the imminent dangers of

49

censorship. Free and open discussion, at bottom, must be the rule,
censorship must be the rare (and, if necessary, the carefully
administered) exception.

This presumption against censorship receives one of its clearest
formulations in Chapter 2 of On Liberty. The explication and vigorous
defense of this presumption comprise one of the chief components of an
argument for the more general principle of liberty being developed by
Mill. This principle consists of two "maxims." These are, "First,
that the individual is not accountable to society for his actions in
so far as these concern the interests of no person but himself," and,
"Secondly, that, for such actions as are prejudicial to the interests
of others, the individual is accountable and may be subjected either
to social or to legal punishment if society is of the opinion that the
one or the other is requisite for its protection."(4) The first maxim
demands that the most extensive liberties (with regard to both their
number and scope) be secured for each individual. This range of
individual liberties includes the "liberties of thought and
discussion."(5) These particular liberties (as well as the other
liberties identified by Mill) are supported by noting the benefits
that can be procured by their being protected and advanced.

Most readers will be familiar with those benefits of free speech
and open discussion identified by Mill. First and foremost, free and
open discussion offers us an opportunity for rendering our claims and

beliefs more correct or plausible. .Although our opinions may be false

50

or contain only partial truths, they are always corrigible, always
capable of being made more correct or acceptable or, at least, of
being stated in a way that does not raise as many difficulties as did
their previous formulations. Also, our opinions and beliefs are, in
many cases, useful to us and, we like to believe, to others as well.
Whether or not an opinion is useful is a matter for debate given the
facts of the experience in question and the results of applying this
opinion to said situation. Hence, free and open discussion assists in
the formulation of correct or plausible opinions and in the
affirmation of the utility of these opinions; it gives us the
opportunity to increase the value or worth that an opinion has for us
and for others.

The benefits of free and open discussion can contribute not only
to the worth of opinions and beliefs but, also, to the "worth of the
manner in which they are likely to be held..."(6) One of the more
important questions to be asked when giving an account of the way in
which beliefs are held or apprehended must, in Mill's view, address
the certainty or confidence with which the belief is held. Questions
of certainty concern the extent to which an individual is convinced of
a belief or opinion that he/she holds and the degree to which an
individual feels confident in regulating his/her conduct according to
the belief adopted. Another benefit of open discussion is that it can
increase our certainty of opinions and positions. Open and public

discourse about a matter forces us to confront the quandaries raised

 

51

by our beliefs, such confrontations serving as tests of our own
certainty with regard to these beliefs. Discussion allows us to
encounter the powerful arguments of others who hold beliefs contrary
to our own and, hence, provides an opportunity for defense and further
confidence in our own positions. There is, perhaps, no better way to
strengthen such confidence than to witness the survival of our
Opinions through serious debate.

Finally, free and open discussion, in providing opportunities for
the formulation and modification of opinions, also produces
opportunities for exercising the abilities utilized in such
formulation and modification. The nurturing and strengthening of
these abilities is, for Mill, essential to individual development.
"Where not the person's own character but the traditions or customs of
other people are the rule of conduct, there is," Mill claims, "wanting
one of the principal ingredients of human happiness and quite the
chief ingredient of individual and social progress."(7) Through open
discussion and the thought required to seriously participate in it,
reason, judgment, observation, critical thinking, and other faculties
and abilities are employed and improved. In enforcing traditions and
customs, in forcing the individual to shape her/his experiences and
situations according to the principles and maxims dictated by these
traditions and customs, society is inhibiting individual development
by denying the use of abilities essential to it.

The possibility of rendering our opinions more correct or

 

52

plausible, of affirming their utility, of increasing our certainty
with regard to them, and of fostering individual development, then,
makes free and open discussion a potentially beneficial practice. In
turn, the expectation of such benefits (and, at times, their
realization) supports the protection and encouragement of the
liberties of thought, speech, and discussion. Moreover, because these
benefits are clearly evident in and legitimately expected from
television programs, such programs ought to remain, so far as
possible, unrestricted. The news and information we receive from
television help us to form and develop our opinions regarding a host
of issues such as crime, health care, violence amongst youths, human
sexuality, and race relations. The talk show, the film of real
occurrences and affairs, the press conference, the television
commercial, and many other programs are just as important as newscasts
in serving these ends.(8) Even those programs which do not serve to
inform or enlighten can be used to do so when set in the appropriate
context. The violent behavior of a criminal portrayed on a television
program or the inappropriate language of a cartoon character might,
under the proper supervision, serve as examples of inappropriate or
unacceptable behavior and the consequences that follow from such
behavior.(9) Finally, these programs (and many others) present a wide
variety of characters and personalities in a host of differing
situations. These characters practice different ways of life and

espouse a plethora of opinions and beliefs thus challenging our own

53

points of view and fostering confidence and individual development.
Such benefits are even more likely to be obtained and more widespread
because of the wide availability and ease of access to television.

The numerous benefits afforded by and to be expected from
television programs together with the immense pleasure so many persons
receive from viewing such programs provide, on this view, a strong
argument for protecting and encouraging them. Yet, the second maxim
of Mill's general principle of liberty permits us to entertain the
possibility of prohibiting or limiting certain kinds of programs (e.g.
those containing explicit sex or blatant violence) if it can be shown
that these programs harm (or are likely to harm) others. Mill states,
"If anyone does an act hurtful to others, there is a prime feeie case
for punishing him by law or...by general disapprobation."(10) Thus,
an exercise of liberty (including that of speech or discussion) that
results (or is likely to result) in harm to others offers a case for
public scrutiny but not necessarily for immediate punishment or
prevention. Given the arguments of the preceding chapter, I assume
that at least some programs containing blatant violence or explicit
sex might be challenged by appealing to this second maxim.

Once under the domain of the second maxim, the exercise of
liberty (the television program or series of programs) must satisfy
one of two conditions in order to render restrictions upon it fully
justifiable.(11) First, it might be that the detrimental consequences

of an exercise of the liberty of speech or of discussion produce (or

54

are likely to produce) a decrease in overall net benefit. This
condition might be satisfied whether one assumes that the benefits and
harms to be considered in the computation of net benefit are those
that result from a particular exercise of individual liberty or those
that would be realized after that liberty had been regularly protected
and exercised by many individuals for some period of time. Mill
argues, for instance, that we could not allow someone to proclaim
that corn dealers are robbers of the poor in front of an angry mob
gathered around the house of a corn dealer. Obviously, a great deal
of harm is likely to be suffered by the corn dealer and his/her family
and property (and, perhaps, by some of those participating in the
demonstration). Today, we could imagine a similar argument being
offered against allowing an anti—abortion activist to demand vengeance
for the murder of innocent babies in the presence of an angry mob of
pro-life demonstrators gathered in front of the home of a doctor who
performs abortions at a local clinic. In both cases, the harm that is
likely to result is so much greater than the benefits likely to be
achieved that prevention of such speech (or punishment of the speaker)
would be justifiable for Mill.(12)

The alternative condition that might be met in attempting to
justify intervention into free speech stems from the fact that it is
the set of benefits to be acquired from free and open discussion that
provide it with its chief support. Hence, any situation or period of

time in which the conditions for enjoying these benefits are

55

significantly threatened, extinguished, or wholly absent is one in
which the liberties of speech and discussion can be restricted.(13)
For example, Mill excludes so-called "backward states" as places in
which his principle might be implemented not because its
implementation would decrease overall net benefit but, rather, because
the conditions for realizing the benefits offered in support of free
and open discussion could not be fulfilled. He writes, "Liberty, as a
principle, has no implication to any state of things anterior to the
time when mankind has become capable of being improved by free and
equal discussion."(14) It would, in the end, be odd (if not
contradictory) to claim that free speech ought to be permitted and
protected due to the benefits it promises and, at the same time, to
assert that the conditions for procuring these benefits had been
extinguished or had not yet been established.

Let us now consider whether or not the programs at issue meet
either of these criteria. The first condition requires that there be
a decrease in the overall net benefit as a result of these programs or
that they are likely to lead to such a decrease. Thus, for example,
one might show that the injury and destruction that has resulted from
imitation, disinhibition, and desensitization exceeds the gains
provided by programs containing violence. This is one of the most
popular and straightforward ways to frame the debate yet it is also, I
believe, one of the least promising approaches.

Besides the difficulties that I will describe in the pages that

56

follow, there is a practical problem to be resolved. This problem,
familiar to utilitarians and their critics, is that of quantifying and
comparing benefits and harms. In my discussion of the psychological
research regarding television violence and its effects upon viewers, I
noted that some of the psychological effects of television programs
can be quantified and compared. Yet, it is difficult to conceive of a
method for quantifying or measuring the injury or destruction to which
these effects sometimes lead or the benefits supporting the liberties
of speech and discussion. Even if such a method were developed, a
scale for rendering all of these measurements commensurate with one
another for the purposes of comparison would be necessary.

Some utilitarians have suggested that such comparisons are
neither novel nor difficult, for we make them regularly in our
everyday lives.(15) However, the comparisons often cited as examples
(e.g. deciding whether to attend a dinner or go to a movie) are
trivial when juxtaposed to the comparisons that would be required for
the issues at hand, comparisons that would determine public policy
and, perhaps, legislation regarding important political and social
issues.(16) These matters become even more intractable when we turn
to, say, the social inequality produced by the kinds of programs that
can be challenged by the Dworkin-MacKinnon view. The strong
presumption against censorship set up by the initial argument, then,
is not likely to be displaced by arguments that rest upon questionable

assumptions about the quantification and comparison of a diverse range

57

of benefits and harms and upon the abstract calculations that are
derived from such assumptions.

Rather than attempt such complex quantifications and comparisons,
the proponent of Mill's view might try to show that the behavioral
modification caused by the programs in question would threaten or
extinguish the conditions under which the benefits of free and open
discussion can be enjoyed. I have said nothing, thus far, with regard
to what these conditions might be. Spelling them out in any detail
would take me too far astray from my more immediate concerns.
Nonetheless, one of these conditions does merit some attention given
some of the current arguments for restricting the programming at hand.

One condition for enjoying the benefits of free and open
discussion is that of order. Rules of order, whether given explicitly
in codes (e.g. Roberts' rules) or understood implicitly, are practiced
and enforced at meetings, conferences, lectures, presentations, in the
classroom, city hall, and on the talk show. More generally, overall
social order must be maintained. Foreign invasion, overwhelming
poverty and despair, or large-scale natural disaster might seriously
disturb social order and, in turn, the possibility of making
significant advances on some matters via discussion.

Now, it might be argued that some trends in current television
programming (especially those towards violent programming) threaten
this condition of order and, hence, the possibility of obtaining the

benefits of open discussion. For example, one might contend that

 

58

America has become an increasingly violent, dangerous, crime-ridden
society and that these attributes are due, in large part, to careless
and irresponsible television programming. Such an argument has
recently been given force by Dr. Brandon Centerwall in a fascinating
study.(17) Centerwall compares the white homicide rates of the United
States and South Africa during the periods in which television was
being introduced in each country. Both rates are compared to the
total homicide rate of Canada so as to avoid the objections to
television's influence on violence in the United States based upon the
effects of civil unrest and the Vietnam war.

Between 1945 and 1974, when television became popular in the
United States, the white homicide rate increased 93% in that country
while the same rate decreased 7% in South Africa during this period.
In Canada, where television was also becoming quite common, the total
homicide rate jumped 92% in this period. On the other hand, between
1975 and 1987, the rise in these rates for Canada and the U. S. was
significantly smaller than that for South Africa, which had been
introduced to television during this time and had experienced a 130%
increase in the white homicide rate. "It is concluded," writes
Centerwall, "that the introduction of television in the 19508 caused a
subsequent doubling of the homicide rate..mAlthough the data are not
as well-developed for other forms of violence, they indicate that
exposure to television is also a causal factor behind a major

proportion (perhaps one half) of rapes, assaults, and other forms of

 

59

interpersonal violence in the United States."(18) If such a study is
accurate, it is disturbing, for it seems hard to account for such
significant increases in crime without including television as at
least one of the primary factors.

Given such studies, one might argue that television is creating
disarray and disorder. One of the chief conditions for enjoying the
benefits of free speech, social order and security, has been seriously
threatened by television and, hence, the support for this liberty has
been compromised. It seems, then, that legal or social intervention
is justifiable.(19) In reviewing Centerwall's study, Senator Ernest
Hollings seems to imply just such an argument in referring to the
connection just described as the "television time bomb." Hollings
cites Centerwall's study in supporting the Children's Protection from
Violent Programming Act of 1993 offered by him and Senator Daniel
Inouye, which would place significant restrictions upon both network
and cable television programming.(20)

It is most likely that there are other conditions that must be
fulfilled if a society is to fully enjoy the benefits of free and open
discussion. Whether or not these other conditions are threatened by
the presence of television is a question that seems pertinent to the
success of this response to harmful (or potentially harmful)
programming. Even the extent to which the condition of order has been
jeopardized by the introduction of television seems dubious since,

after all, much public discourse continues and many benefits are

6O

procured through it. A final matter is that Centerwall's study and
the argument based upon it address only the introduction of television
in general rather than any particular sort of programming. Clearly,
the inference drawn by Hollings and Inouye, that restricting the
degree to which children are exposed to violent programs will address
the concerns raised by the study, is questionable. Only the complete
removal of television would, given this study, have a chance of
addressing the overall detriments noted by Centerwall and it is likely
that such a measure would be unacceptable on Mill's view.(21)

When we turn to programs that, through their illocutionary force,
constitute harmful activity and ask whether or not these programs meet
the demands of the second condition, a less plausible argument
emerges. Of course, if there are television programs that, in and of
themselves, erode or destroy the conditions under which the benefits
of free and open discussion can be enjoyed, these seem, on Mill's
view, justifiably censored or limited. (I will consider such speech
acts in Chapters 3 and 4.) Nevertheless, the problem with
pornography, for example, is that it constitutes sexual inequality.
The point was that pornography was violating the individual rights of
women and not that it threatened or extinguished the conditions under
which some set of benefits are enjoyed. In the preface to her book,
Andrea Dworkin writes, "The question this book raises is not whether
the First Amendment protects pornography or should, but whether

pornography keeps women from exercising the rights protected by the

61

First Amendment."(22) The conditions being threatened (or that might
be absent altogether) are not those under which the benefits of open
discussion are procured but, rather, those under which the rights to
free speech, discussion, and expression are or can be exercised.
Because I have not yet considered the notion of a "right" and because
I will argue that Mill cannot account for the fundamental role that
this notion plays in our social discourse, it seems premature to
explore the similarities between these two sets of conditions or the
extent to which the Dworkin-MacKinnon view can be accommodated by this
second criterion. As stated, at any rate, this criterion cannot yet
be employed to defend the restrictions that might be implied by the
Dworkin-MacKinnon view or by the possibility that some television

programs rank women or other groups.

Conceptual Limitations:
gengorghie egg Silencing

.At this point, then, the presumption against censorship stands
firm. Not only does television programming promise the numerous
benefits that, for Mill, support free speech and open discussion, but,
in addition, neither of the conditions for rendering restrictions upon
such programming justifiable are satisfied. The problems surrounding
the quantification and comparison of benefits and harms make it
difficult (if not impossible) to show that the first condition is

satisfied in the present context. Moreover, an attempt to satisfy the

62

second condition by showing that the order requisite for enjoying the
benefits of free speech is threatened or eroding as a result of
television programming falls far short of what seems to be required if
such programming is, indeed, to be restricted. Perhaps the
difficulties surrounding the quantification and comparison of benefits
and harms can be resolved or other conditions for enjoying the
benefits of free speech can be identified and shown to be threatened
by television programs containing blatant violence or explicit sex.
Still, as I suggested earlier, there are many other problems with this
Millian defense of such programs.

Before presenting what I take to be the most serious problems
with this Millian response to potentially harmful television programs,
I want to note two less troubling (though important) limitations of
Mill's approach. These problems might be described as "conceptual
limitations" because they point to useful conceptions and distinctions
that are absent from Mill's theory of free speech. I want to note two
such limitations. First, I will describe three kinds of censorship.
Although the effects of most (if not all) acts of censoring are quite
similar, the purposes, sources, and mechanics of these acts are very
different and these differences lead, I think, to different
conclusions about the degree to which each form of censorship is
justifiable or acceptable. Second, I want to consider (again drawing
on the feminist critique of pornography and its use of J. L. Austin's

philosophy of language) the various ways in which persons can be

 

63

"silenced," for, if an individual is silenced, the liberty to speak is
useless to that individual. Such conceptions are missing from Mill's
model of free and open discussion and this deficiency renders his
theory less applicable to many of the problems presented in the
previous chapter. The absence of such conceptions and distinctions
need not be fatal to Mill's theory. However, it does, I suggest,
raise questions about the adequacy of this approach for many current
debates about free speech in the electronic media.

The chief effect of censorship is to restrict speech or writing.
However, these restrictions can be initiated and implemented in very
different ways. We can distinguish between three types of censorship,
depending upon the individuals or groups that conceived of and imposed
the restrictions included in it. First, there is what might be called
pelieieel_eegee;ehip. In cases of political censorship, prohibitions
of or severe restrictions upon speech are initiated and imposed by a
government (or by some agency of a government). A classic example of
political censorship is the Sedition Act of 1798. Enacted by the
Adams administration, this act made it illegal to write or utter any
statement that was false of or scandalous towards the Congress, the
President, or the United States government in general.(23) Such
legislation is an act of political censorship not because of the sort
of speech or writing it prohibits but, rather, because of the position
in society of the institution or agency that gave rise to its

conception and imposition.

 

64

Mill is clearly concerned with this form of censorship. Whether
in a monarchy or democracy, citizens must protect themselves against
attempts by governments to restrict or prohibit their conduct,
including speech or expression. In ancient and early modern
monarchies, Mill notes, "The aim...of patriots was to set limits to
the power which the rulers should be suffered to exercise over the
community and this limitation was what they meant by liberty."(24) He
adds that, "The limitation...of the power of government over
individuals loses none of its importance when the holders of power are
regularly accountable to the community..."(25) Even in a democratic
society, which glorifies and attempts to establish the "power of the
peOple," such limitations are necessary, for, as Mill notes,
"...phrases like...the 'power of the people over themselves' do not
express the true state of the case. The people who exercise the power
are not always the same people with those over whom it is
exercised..."(26) Political power, whether wholly in the hands of a
monarch or distributed over many persons and agencies in a democracy,
includes the power to restrict speech. When these restrictions stem
entirely from the governing body itself, we have an instance of
political censorship. Because Mill is concerned with limitations on
political power, he is also interested in limiting instances of
political censorship. In our own Constitution, limitations on
political censorship are dictated by the First Amendment and by the

due process clause of the Fourteenth Amendment.

65

There are a variety of reasons for severely limiting political
power and, in particular, for limiting the conditions under which
political censorship would be desirable or necessary. For Mill, these
reasons include the importance of individual development and its
potential contributions to the betterment of society along with the
other benefits of free speech already mentioned. Other philosophers,
such as T. M. Scanlon (27), have argued that such limitations prevent
invasions into individual autonomy, the individual's ability to see
her/himself as "sovereign in deciding what to believe and in weighing
competing reasons for action."(28) To grant governments the power to
regulate the opinions that are to be distributed would not, Scanlon
contends, allow individuals to be (nor to regard themselves as) equal,
autonomous agents.(29) More familiar, perhaps, are the dystopian
novels like ieeg and Breve New Werlg that vividly illustrate the ways
of life and societies that might arise from such power. Such
arguments and illustrations have proven quite plausible and suggest
that, given the possible consequences for particular individuals and
for society at large of governmental power, this power (and the
privilege of political censorship that is derived from it) must be
closely scrutinized and sparingly exercised.

Decisions to restrict speech are sometimes made by private
institutions rather than by government. Of course, not all of these
decisions, when implemented, constitute censorship. Frederick Schauer

has noted two conditions that must be satisfied if we are to regard

66

such decisions as instances of private censorship.(30) First, such
decisions cannot be forced by a lack of resources or opportunities.
Libraries, for example, have only so much shelving and can, therefore,
only permit so many books to be stored. Again, radio stations must
budget their resources and cannot be expected to purchase and
broadcast every piece of music that might be consistent with their
format. Second, when the decision to restrict communication is not
made in one of these "necessary choice situations," the criteria and
considerations according to which the choice was made must be related
to the goals and purposes of the institution. Hence, with ample
shelving space available to them, librarians who continuously reject
books about communism because they find such ideas disagreeable can,
perhaps, be seen as censoring this material. Presumably, one of the
goals of the library is not to satisfy the literary and intellectual
tastes of its librarians.

Thus, we can, following Schauer, point to a second kind of
censorship, private censorship.(31) Private censorship includes those
attempts by private institutions (or public institutions not
affiliated with a government) to restrict speech, these actions
failing to meet the conditions just mentioned. Recently, for example,
Inner City Broadcasting, the owner of many radio stations in large
cities throughout the United States, decided that its stations would
no longer broadcast so-called "gangster rap," music that seems to

glorify murder and degrade women. The decision was made in an attempt

67

to respond to the dramatic increases in violent crime in the cities in
which many of the company's larger radio stations were situated.(32)
Because the stations had already been playing this music and because
this move was not in response to financial (or any other) constraints,
the decision was clearly not made in a necessary choice situation.
Thus, whether or not this act constitutes private censorship will,
given Schauer's conditions, concern the purposes and goals of the
radio station. In particular, the question is whether or not (and to
what extent) radio stations are participants in (rather than mere
forums for) discussion of public issues and social values.

The advocate of Mill's position might suggest that the company
has censored the music in question, for it has prohibited the
broadcasting of certain kinds of music due to their content and
restricted the sorts of messages that will be conveyed by its
stations. In this way, the radio station is seen as a mere forum for
or fountain of public discussion, as a space in which free and open
discussion is to occur. On the other hand, the decision to ban the
rap music might be seen as an act of expression and, in turn, the
radio station (or its managers and owners) might be seen as
participants in public discourse. The decision to prohibit the music
is an act that consists in a refusal to broadcast or to participate in
the conveyance of a certain message, which is, to be sure, a privilege
included in any liberty to speak. The point, in Schauer's words, is

that "the act of censoring by a private agent can, in many instances,

 

68

be an act of speech by that agent and that remedying this act of
censorship by a private agent can be a governmental restriction on
that act of speech....This additional dimension of private suppression
as an act of speech (or, at least, a corollary to it) sharply
distinguishes private from government censorship and makes the notion
of private censorship almost self-contradictory."(33) Media
enterprises such as newspapers, journals, and television stations are
not mere channels for or fountains of discussion. In so far as
questions regarding their autonomy and accountability in broadcasting
arise (as they do in the present case), these organizations must be
seen as participants in free and open discussion. Some of the
activities of the mass media may, indeed, detract from or stifle free
and open discussion. Yet, because such activities may be
simultaneously viewed as instances of private censorship and as free
acts of expression, they seem more justifiable than those included
under the heading of political censorship. Hence, while Mill would
likely regard the decision to restrict the rap music as an act of
censorship, we can view this act as an act of expression by invoking
the notion of private censorship and by attempting to justify the
decision in question by showing that this decision does not constitute
an instance of this form of censorship.

The third kind of censorship that I wish to discuss might be
called spcial censorship. Social censorship takes many forms but can

be defined, in general, to include those restrictions upon speech that

69

stem, ultimately, from the reasonable and well-grounded demands of
some portion of the populace. Mill is explicitly concerned with this
form of censorship. He writes, "Society can and does execute its own
mandates and, if it issues wrong mandates instead of right, or any
mandates at all in things with which it ought not to meddle, it
practices a social tyranny more formidable than many kinds of
political oppression since, though not usually upheld by such extreme
penalties, it leaves fewer means of escape, penetrating much more
deeply into the details of life and enslaving the soul itself."(34)
In Chapter 4 of his essay, Mill describes some extreme forms of social
interference (such as sabbatarian legislation or prohibitions against
dancing or drinking) that are akin to what I have in mind in speaking
of "social censorship." Today, the sensitivity about certain terms
used to denote minority groups is an excellent example of social
censorship as Mill seems to understand it. .Although there is, to my
knowledge, no legislation either in place or pending that forbids one
from referring to an African American as a "Negro" or that requires
one to identify persons with disabilities as "physically challenged,"
such restrictions are regularly practiced and deviations from these
practices can result in substantial public censure and outrage. The
case in which MacKinnon and Dworkin were able to win support for and
enactment of their ordinance against pornography in the city of
Minneapolis also illustrates social censorship. The source of the

restrictions consists of MacKinnon, Dworkin, and their constituency

70

and not the city of Minneapolis, which merely listened to these
persons and, after deliberation, enacted their recommendations.
Again, the case in which persons successfully forced Music Television
to edit episodes of "Beavis & Butt-head" is one of social (not
private) censorship. We keep these different forms of censorship
distinct when we refer not merely to their effects upon speech but,
more importantly, to the sources of their conception and the means
through which they are imposed.

.Although Mill is conscious of the distinction between political
and social censorship, the possibility of their being susceptible to
different modes and degrees of justification is not considered. For
Mill, either form of censorship has the same effect -- they both
inhibit free and open discussion and the benefits that flow from it.
As with private censorship, the extent to which social censorship may
be justifiable seems greater than that to which political censorship
is justifiable. This seems especially plausible when social
censorship uses legitimate means to advance its end. James Madison,
one of the chief architects of the First Amendment, said, "If we
advert to the nature of Republican government, we shall find that the
censorial power is in the peOple over the government, not in the
government over the people."(35) Schauer makes the same point when he
writes, "Government derives its ideas from the population, it does not
initiate them."(36) Both Madison and Schauer are distinguishing

between what I have been calling political and social censorship and

 

71

both writers also seem to look much more favorably upon social than
upon political censorship.

The conclusions reached by Madison and Schauer seem to agree with
our intuitions about some of the cases already discussed. For
example, it would be ridiculous to suggest that concerned parents
ought not to write to Music Television or that MTV, upon receiving and
being persuaded by these complaints, ought to be prohibited from
editing its programming. The means employed here (like the political
means used by MacKinnon and Dworkin) are legitimate and appropriate,
especially in a democratic society. Seen in this way, the
restrictions that have resulted from the actions of parents and MTV
seem more justifiable than, say, the restrictions that might have
resulted from the actions that might have been taken by Congress or
the Federal Communications Commission.

Mill's theory cannot account for the different degrees to which
political, private, and social censorship seem justifiable. On his
view, such interventions (legal or social) are understood and
justified in terms of their consequences alone and without regard to
their source and the means through which they were implemented. We
cannot explain or defend these different levels of justifiability
without referring to such factors. Once we understand the different
forms of censorship and their differing levels of justifiability, the
presumption against censorship (which seems indefeasible at this

point) might be more easily overridden in some cases.

 

72

Let us suppose that, in the end, the presumption against censorship
cannot be overridden in any of the instances discussed thus far. In
such cases, Mill would have to contend that MTV or the pornographers
or the rap musicians can only be subject to "the inconveniences which
are strictly inseparable from the unfavorable judgment of others."(37)
Later, in summarizing his position, he adds, "Advice, instruction,
persuasion, and avoidance by other people, if thought necessary by
them for their own good, are the only measures by which society can
justifiably express its dislike or disapprobation of...[their (e.g.
MTV's or the pornographers')]...conduct "(38) Thus, even when the
conditions for censorship stipulated by the Millian approach cannot be
met, there are still ways in which to express our objections to
programs. These might include, say, avoiding the programs of MTV or
the movies of pornographers or, again, attempting to persuade the
producers, sponsors, and distributors of these programs and movies.
Bearing our avoidance or attempts at persuasion are just some of the
"inconveniences" that stem from our disapproval.

Mill could not have foreseen the television industries nor the
conglomerates of powerful sponsors that support their programming.
Today, the "inconveniences which are strictly inseparable from the
unfavorable judgment of others" can, themselves, result in censorship
as it is understood by Mill. The Reverend Donald Wildmon and his
American Family Association have campaigned against a number of

popular television programs by boycotting some of the chief sponsors

73

of these programs.(39) Had these campaigns been successful, the
"inconveniences" that would have been encountered by viewers as a
result of these attempts to "persuade" or "avoid" would have been
indistinguishable from censorship. My point is that the line Mill
wishes to draw between the effects of social disapprobation and those
of justifiable social or legal interference is, in many instances,
hazier today than in Mill's day. Thus, it is difficult to say whether
Wildmon and his followers would have been (had their activities been
successful) engaging in social censorship or in mere disapprobation.
Regardless of the form of censorship being practiced or of
whether it is the result of justifiable intervention or social
disapprobation, the proponent of Mill's position might object, the
aim, at bottom, is to promote and protect free and open discussion and
its many benefits. Wildmon, MacKinnon, Dworkin, Inner City
Broadcasting, and parents might better serve their respective causes,
it might be urged, not by censoring opinion but by offering their own
views and attempting to persuade others. For example, the executives
of Inner City Broadcasting could broadcast public service
announcements regarding their distaste for gangster rap rather than
simply prohibit the broadcast of such music. Again, parents can
instruct their children with regard to the behavior of Beavis and
Butt-head, making them aware of the undesirable consequences of the
behavior portrayed and encouraging them to act in a more laudible

manner. In short, the more discussion, the better, so long as it is

74

not replaced by or does not end in censorship.

Rae Langton considers the same sort of argument with regard to
pornography.(40) Perhaps pornography does constitute sexual
discrimination, the advocate of Mill's position might concede. Again,
however, as in the cases of gangster rap or "Beavis & Butt-head," the
answer lies in fuller and broader discussion rather than in censorship
of this material. Women must demonstrate to persons what pornography
does and the extent of its damage. They must counter the "arguments"
given by pornography and attempt, through persuasion and instruction,
to establish the sexual equality that it impedes or denies. ("All
this may be possible," Langton notes, "if women can, indeed, fight
speech with more speech. But, if pornography...silences women, it is
not easy to see how there can be any such fight."(41) Thus, the
argument for fuller discussion as an alternative to censorship will
not succeed if some of the participants have been, in some manner,
silenced.

There are, for Langton, three ways in which a speech act might
silence another, corresponding to the locutionary, perlocutionary, and
illocutionary aspects of such acts. In the first (and most obvious)
sense, persons are silenced when they are prevented from speaking,
writing, or, more generally, from performing a locution. This sort of
silencing occurs when, say, a thief enters a bank and screams, "Move
and you're dead!" An individual might also be silenced when, although

he is heard and understood, his speech or communication is

 

75

ineffective. Consider the speech act of issuing an invitation. If I
convince everyone that Smith is a bore and that her parties are dull,
her subsequent invitation will have little effect; she would be
silenced (or, we might say, her invitation would "fall on deaf ears").
Langton labels this sort of silencing perlocutionapy frustration.
There is also a third manner in which one might be silenced, this
corresponding to the illocutionary force of an act of expression. In
cases exhibiting this kind of silencing (which Langton calls
illocutionapy disablement), the speaker says something and certain
effects (desirable or undesirable) are produced. However, he/she
fails to perform the action intended in and normally constituted by
speaking. If, for instance, two males wish to be married, they may
obtain a priest and participate in a traditional marriage ceremony.
Nevertheless, their saying, "I do," will not constitute a marriage as
it would for heterosexual couples. In Langton's words, "The act of
marriage is not speakable for homosexual couples."(42) The
homosexual, in this context, has been silenced -- he speaks, his words
are understood, and he conveys his desire to marry, but he does not
marry. Given the conditions established by law and social convention
under which 'I do' constitutes a marriage, he cannot use his words to
do what he wishes them to do or to do what they would normally do. In
this way, acts of expression are used to set (or, in this case, to
limit) the conditions under which other acts of expression have (or do

not have) illocutionary force. As Langton puts it, "Some speech acts

 

 

76

build a space, as it were, for other speech acts, making it possible
for some people to marry, vote, and divorce. Some speech acts, in
contrast, set limits to that space, making it impossible for other
people to marry, vote, or divorce."(43) In the current case, the
illocutionary force of law creates illocutionary disablement; speech
acts, themselves, render other acts unspeakable.(44)

Threats, my slander of Smith, and laws that make homosexual
marriage illegal are all speech acts that, through their illocutionary
force, silence others. One of Langton’s chief contentions is that
pornography, as a speech act, can (and does) silence women in all
three of the ways just described. For example, there are cases in
which a woman or child is involved in the production of pornography
and then later told that this material will be distributed to friends
or family if she reports abuse or abandons the enterprise.(45) Like
those held up at gun point in the bank, persons are prevented from
performing even the most basic locutions.

Again, given that some pornography portrays women as resisting or
refusing the sexual advances or attacks of men, men who regularly view
and masturbate to such pornography might learn to associate arousal
with a woman's refusal or protest. In this way, pornography, Langton
contends, "eroticizes refusal itself, presenting the overpowering of a
woman's will as exciting."(46) As a result, the refusal of the woman
on the street, say, might be ineffective in that it results in the

male's arousal and not in his ceasing his sexual advances. Thus, by

77

eroticizing refusal, in making rejection qua rejection a turn-on, the
pornography can (and probably does) silence some women; it constitutes
perlocutionary frustration. Rejection or refusal has not been made
unspeakable here any more than my convincing persons of the dullness
of Smith's parties makes it impossible for her to successfully issue
an invitation. Rather, in both cases, the effects that are typically
produced by and intended in speaking have been prevented; rejection
and invitation occur while their expected and intended effects do not.
In contributing to the arrangement of conditions under which
certain acts of expression have illocutionary force or in undermining
the ways in which women might satisfy these conditions in certain
contexts, pornography also silences women by creating illocutionary
disablement. One of the more obvious instances in which such
silencing occurs is when a woman cannot use a word like 'no' to refuse
or prohibit sexual advances. One of the conditions for an act of
expression to count as a prohibition is that the speaker have some
degree of authority in a relevant domain. The parent who says "No!"
to the child has been given such authority over his children by the
social convention present in the institution of the family and uses
this authority in the proper domain. The woman, too, must have
authority over her life or, more precisely, over her own body if she
is to successfully prohibit or refuse sexual advances. Yet, if
pornography (as a speech act and as an entire industry) degrades

women, if it estimates their worth in terms of the sexual pleasure

 

78

they can provide to men, if it values them only in terms of their body
and its features and, in the end, if it creates and enforces their
status as sexual slaves, as whores, then this authority is, to some
extent, undermined and prohibition will be, to that degree,
unspeakable for women in certain contexts (i.e. in sexual relations
with men). (The very notion of a "sexual slave" implies this
diminution in authority.)

Langton provides other illustrations of and insights into
pornography's ability to silence women in this third way.(47) Her
argument, however, is complicated and, as she, herself, admits,
incomplete so that I put it aside for now. My claim is that those
proponents of Mill's doctrine who wish to enforce fuller and more
regular discussion as a replacement for censorship may be silencing
persons in some of the ways just mentioned. Suppose that legislation
were passed stating that persons could criticize any broadcast (or
anyone contributing to that broadcast) to any extent they saw fit but
that they could not perform acts that did significant damage to media
organizations or their supporters. Thus, for example, parents could
discuss "Beavis & Butt-head" with those responsible for its creation
and production but they could not, say, blockade MTV's studios.
Again, they could try to persuade sponsors that "Beavis & Butt-head"
was a repulsive show that ought not to be financed but they could not
establish boycotts of these sponsors that seriously jeopardized their

commercial endeavors. Given such legislation, parents would, for

 

79

Langton, be silenced. Their ability to threaten, warn, or protest
would be seriously impaired because the occurrence of effects
typically intended in and resulting from serious protest (e.g. acute
awareness of a problem, alarm, anxiety, or change in policy) would,
under such circumstances, be inhibited or completely prevented;
parents would be suffering perlocutionary frustration.

Similar legislation might also result in illocutionary
disablement. For example, many state and local governments are
currently debating legislation that would permit companies to fire
striking workers and to permanently replace these workers with other
individuals. Proponents of such legislation often argue that it
forces workers into negotiations, which are more beneficial than a
strike for everyone involved in the conflict. In striking or
picketing, workers are, given our current social and legal
conventions, vigorously protesting the policies and procedures of
management; such strong protest is the illocutionary force of the
strike. By allowing companies to permanently replace striking
workers, such legislation would, of course, significantly impair the
workers' ability to protest by forestalling the typical effects of the
strike (e.g. decreased productivity and profits). In this way, such
laws result in the perlocutionary frustration of the workers.

Yet, let us suppose that such legislation is, in fact, adopted
throughout society and that management regularly takes advantage of

the privileges it provides. Striking workers who refuse to negotiate

 

80

are continually replaced with others who are seen as more cooperative
and congenial. After some time (during which, let us say, no progress
is made in repealing the legislation at hand), the fact that a large
number of workers leave their posts may no longer be seen as a strike
or as a protest. Such measures are fruitless and the response to them
is now habit. In leaving their positions, then, workers are simply
seen as resigning and not as protesting. Such persons suffer
illocutionary disablement. They can no longer do with the strike what
was once done; vehement protest has been made unspeakable for workers
in this context.

Mill's theory cannot adequately account for our hesitation in
adopting such legislation and, more precisely, for our sense that such
laws would, to some extent, violate any serious liberty of speech.
Proponents of Mill's view might urge that such laws and conventions
would be unacceptable because they would prevent persons from saying
what they wish to say and because certain propositions would be
excluded from public discourse. While such individuals would be
correct in their conclusion, I believe that their argument is
inadequate. Most (if not all) actions and practices "speak" or, in
other words, can be interpreted as expressing propositions. Still,
many of these actions and practices (e.g. murders and child abuse) are
prohibited without raising any First Amendment concerns and many more
are permitted or required though they have nothing to do with the

First Amendment. Thus, when we argue against the legislation or

 

81

conventions in question in this way, there is no nonarbitrary method
to distinguish between that activity which merits and that which does
not merit First Amendment protection. Put another way, if the only
objection that can be raised by Mill to laws or conventions against
massive boycotts and vehement protests is that such activities are
expressive (or that they can be interpreted as "speaking"), then we
may be forced to accept many other actions and practices that do not
seem to warrant protection such as bribes or threats.

Following Langton, however, I think we can produce plausible
arguments against such legislation and conventions and still capture
some of the distinctions regarding First Amendment protection that we
wish to make. On this view, enacting such legislation or adopting
such conventions would be unacceptable not because it would hinder the
expression or promulgation of ideas (which it would) but, more
importantly, because it would render some of the acts we want to
perform undoable, some of our actions unspeakable. .A strong protest
in the form of a boycott or strike seems to warrant protection not
because of what it says or due to its contribution to some important
public issue but because of the act that it is and because of what it
does for the speaker. Threats, bribes, and exchanges of military
secrets, on the other hand, do not merit protection for similar
reasons. "The important point," writes Langton, "is that actions,
whether speech or conduct, can be protected or unprotected by law.

Whether they are protected should depend, in general, on the effects

82

they have and the actions they are."(48) Vigorous protest is a speech
act akin to those protected by the First Amendment, threats are speech
acts that are akin to assaults. Each ought to be evaluated in this
way. Indeed, one of the most important questions we might ask about
the First Amendment is not what sort of speech but, rather, what sort
of action merits protection. Because Mill considers neither the ways
in which persons may be silenced nor how speech acts might bring about
such silencing, these concerns and questions cannot be articulated or

addressed using his model.

83

Speech, Television, and
gpplie Dieeeerse

The distinction between political, private, and social
censorship, the different degrees to which each of these seems
justifiable, and the ability of speech to silence persons may or may
not alter the arguments supporting the protection of television
programs containing blatant violence or explicit sex, although they
remain important and relevant to the issues at hand. The problem I
will discuss in the remainder of this chapter, however, will, if
valid, present a direct challenge to the defense of television
programs that rests upon Mill's theory. I want to show that Mill's
model of free and open discourse employs a notion of "speech" or
"discussion" that is similar to that which arose in the centuries that
followed the invention of the printing press. This notion of public
discourse can, with the help of Neil Postman (49), be contrasted with
that which is inherent to and perpetuated by the television program.
Once this contrast is made, it will be obvious that Mill's theory of
free speech can support television programming only to a very limited
extent and that such a theory yields an especially weak defense for
the protection of television programs containing blatantly violent or
sexually explicit material.

Let us consider the notion of "speech" or "discussion" that is

offered in Mill's theory of free speech. This notion can be

84

characterized if we turn, once again, to the benefits that are to be
expected from free and open discussion or, more precisely, to what
such discussion must be like if these benefits are to be procured.
Recall that, according to Mill, free and open discussion provides
opportunities for rendering beliefs and opinions more plausible, true,
or correct, for affirming their utility in or applicability to certain
situations, and for increasing our certainty with regard to them.
Thus, discussion centers around the opinion or belief and, in
particular, those opinions of which it makes sense to say that they
are plausible or implausible, applicable or inapplicable, true or
false. Discussion, in short, centers around a proposition.(50)
Moreover, if discussion is to provide an Opportunity for
rendering our opinions more plausible or acceptable, it must
facilitate the clarification, modification, defense, and refutation of
propositions, for it is only through such processes that opinions and
beliefs can be made more plausible or correct or useful. There are
many ways to facilitate such processes or, more generally, to
influence and alter beliefs. The method emphasized by Mill and by
much First Amendment adjudication (51) is argumentation or exposition
or what Martin Benjamin and Joy Curtis, in their Ephiee epe Nepeing,
call rational persuasion. In rational persuasion, Benjamin and Curtis
write, "Reasons and information are provided for or against various
courses of action with a view towards changing the other person's

beliefs or conduct in some specific way. Ideally, rational persuasion

85

is conceived as a dialogue in which the persons attempting to do the
persuading recognize that those to whom they direct their arguments
are their equals as persons."(52) A similar notion is clearly at the
heart of Mill's theory of free speech. As we have seen, this liberty
is, for Mill, defended by identifying the advantages that can be
obtained through free and open gieepeeiep, by allowing the
presentation and exchange of reasons and information in the context of
a dialogue between persons who consciously offer and accept or reject
these reasons. Of course, rational persuasion is, itself, comprised
of propositions so that, in the end, the content of free and open
discussion, on Mill's view, is propositional or proposition-centered.

At this point, it might sound as if Mill is offering a model for
constructing the publishable essay or academic article rather than for
free and open debate. This observation is not off the mark, for the
notion of "discourse" to which Mill would have been most accustomed
resembles those patterns of thought and expression most forcefully
initiated by (and developed and reenforced in the centuries that
followed) the introduction of the printing press. By exploring
further the notion of discussion embodied by Mill's theory of free
speech and by noting some of the features of the notion of discourse
that resulted from the invention of the printing press (53), the
kinship of these notions will become readily apparent.

Because discussion, according to Mill's model, primarily

consists of rational persuasion, it is both presented and encountered

 

86

in a linear or sequential fashion. The speaker (or writer) must
carefully and systematically proceed from one proposition to the next
so as to maintain a coherent line of thought while the listener (or
reader) must reflect upon and evaluate each step of this process. In
the same way, to engage in the sort of discourse made common in the
centuries that followed the printing press is, Postman notes, to
"follow a line of thought, which requires considerable powers of
classifying, inference-making, and reasoning," to "uncover lies,
confusions, and overgeneralizations, to detect abuses of logic and
common sense," and to "weigh ideas, compare and contrast assertions,
to connect one generalization to another."(54) In short, discourse,
whether as understood by Mill or as shaped by the printing press,
demands much patience and effort from those who participate in it,
making it a slow and, at times, arduous task.

As portrayed by either model, discussion is also sequential in
that its content will be ordered according to both the difficulty of
the syntax and language in which this content is expressed and the
_experience necessary to appreciate its significance. One must not
only progress from one part of a single debate to the next but, also,
from one sort of debate to another. .A discussion of how to most
efficiently wash dishes could, it seems, be had with a very young
child whereas the same child could not reasonably participate in a
debate about the most appropriate response to crime or the

consequences of civil disobedience. Such topics require a certain

87

amount of experience, an extended vocabulary, and moderate
understanding of the methods of argumentation and exposition. Those
more complex issues mentioned by Mill such as religion or politics as
well as others like the nature of liberty or the scope and limits of
knowledge would, no doubt, be inaccessible to children and, perhaps,
to many older persons. The point is that Millian discourse (like the
kind of discourse that developed after the invention of the printing
press) differentiates content and segregates individuals; topics or
issues or subjects are made more or less accessible according to the
complexity of the lines of thought they invoke and the vocabulary,
understanding, capacities, and experience they require.(55)

Thus, if we are to enjoy the benefits of free and open
discussion, if we are to take advantage of the corrigibility of our
opinions, to affirm their utility or feasibility, and to increase our
confidence in them, discussion must focus upon the clarification,
modification, defense, and refutation of propositions. Such processes
are, for Mill, achieved through methods like rational persuasion,
through the careful consideration and evaluation of each proposition
in a series of propositions that comprise the discussion. Summarizing
the chief effects of the printing press in the centuries that followed
its introduction, Postman writes, "Individuality, an enriched capacity
for conceptual thought, intellectual vigor..., a passion for clarity,
sequence, and reason -- all of this moved into the forefront...What

had happened, simply, is that the literate man had been

88

created..."(56) It is just such literate persons that are able to
participate in and enjoy the benefits of free and open discussion as
it is understood by Mill.

Although these features are identified by Postman in order to
describe the notion of public discourse that arose after the
introduction of the printing press, they seem readily attributable to
the notion of discussion embraced by Mill. The most striking contrast
between this notion and that which is inherent to the television
program is that the content of public discourse on television is
centered around the image rather than the proposition. Television is
watched, it has viewers. There is, of course, abundant oral speech on
television. Yet, the central role of the image can be discerned when
we turn to those programs that seem to rely most heavily upon the
spoken word or of which it seems most appropriate to expect a
speech-centered rather than an image-centered approach.

For example, let us turn to the television newscast, which, as
the primary source of information for most persons, might be thought
to be less apt to rely upon the image than most other television,
programs. This, of course, is not the case. While news anchors and
reporters typically present their material orally, these presentations
are almost always accompanied by pictures and film clips. These clips
and images are essential to the "story." This was evident, for
instance, in reports of famine in Somalia in the early 19908 that

included images of malnurished children or, again, in coverage of

89

"Operation Desert Storm" (a multinational military campaign to free
Kuwait from an Iraqui invasion) in early 1991, which regularly
included long segments of film showing the bombing of cities and anti-
aircraft fire. It is difficult to imagine television coverage of such
momentous international events (or even of minor local occurrences
such as a county festival or murder) without pictures or film clips.

Furthermore, the anchors, co-anchors, and reporters, themselves,
Postman notes, must each have "a face that is both likable and
credible."(57) Television newspersons must not only be physically
attractive but must, in addition, be capable of conveying their
sincerity and trustworthiness. "Credibility," Postman contends,
"...refers only to the impression of sincerity, authenticity,
vulnerability, or attractiveness conveyed by the actor/reporter."(58)
The newscast, then, depends upon images and impressions as much as (or
more than) upon the proposition. (Even the speech that is a part of
newscasts is, as I shall show momentarily, not propositional in the
sense discussed earlier.)

The fundamental role of the image in the public discourse offered
by television is also evident in much current political discourse,
another area in which it seems most reasonable to expect propositional
rather than image-centered content. Writing of the Lincoln-Douglas
debates of the 18508, Postman notes that "speakers had little to offer
and audiences little to expect but language."(59) Today, Postman

maintains, "political knowledge means having pictures in your head

90

more than having words."(60) This point, I take it, need not be
belabored. We need only call to mind, say, the political campaign ad
of the 1988 Republican Presidential candidate, George Bush, in which
the photo of Willie Horton, a young, black male who had committed a
murder after an early parole, was used to attack the Democratic
candidate, Michael Dukakis, who had initiated such an early parole
program in his own state. More interesting examples of the use of
images occurred in the 1994 mid-term elections when, for example,
candidates whose views were thought to be indistinguishable from those
of the then unpopular President, Bill Clinton, had their faces slowly
altered (through a technique known as "morphing") so that they were
transformed into that of Clinton. Again, today's citizens are much
more likely to recognize the face of a major political figure than to
be aware of her/his writings or major speeches. These images will
remain in the minds of most persons much longer than any words that
were spoken during these ads or addresses.

A8 in the newscast, however, speech and oral communication does
occur within the political television ad or address and it is serving
one of two functions. First, speech may perform a narrative function..
The story or narrative is, without doubt, the chief form of the
television program. The situation comedy, the soap opera, the movie,
the drama, the news update, and the television commercial all take the
form of narratives. In such programs, speech and images work together

to narrate, not to argue, explicate, or rationally persuade; the

 

91

speaker is a narrator rather than a defender or instructor.(61)

Nowhere is the narrative form of the television program more
vividly illustrated than in the television commercial. In his
intriguing analysis of this particular genre of programs (62), Postman
notes that the typical television commercial begins with a problem, by
drawing attention to the discord or unhappiness in the life of the
main character(s) of the commercial. Standard methods for resolving
such difficulties are invoked to no avail. The resolution of the
problem is achieved only via the product or service being advertised,
which is portrayed as eradicating all discord and discontent from the
life of the main character(s). The final seconds of the commercial
are used to emphasize the newly discovered bliss.

The television commercial is, in fact, a special kind of story, a
moral tale or what Postman calls a "religious parable."(63) In these
programs, speech is neither argumentative nor expository. Rather, the
oral communication that is present in commercials is merely helping
the audience to understand the context in which various portions of
the story take place. The potency of the commercial is not found in
its spoken language but, rather, in its images and in the narrative
form in which it is presented. The spoken word plays only a
supporting role, serving only to amplify what is being shown or the
story that is being told.

In addition to its narrative function, speech also serves what

might be called a "semi-propositional" role in some television

 

92

programs. This function of speech is best illustrated by, say, a news
update regarding a matter before a local legislative body or, better
still, by those programs that make a serious effort to provide an
analysis of or debate about a complex and important public concern.
By "serious effort," here, I am referring to those programs that do
not employ music, images, cheering crowds, or special effects; as in
the case of the Lincoln-Douglas debates, "the speakers have little to
offer and audiences little to expect but language" in the programs I
have in mind. The speech in programs like "Face the Nation," "Meet
the Press," or "The McNeill-Lehrer News Hour" is often used to convey
series of propositions or statements that form arguments or
explications and, in turn, that contribute to the clarification,
modification, defense, or refutation of opinions and beliefs. Like
the discussions imagined by Mill, the content of the communication on
such programs is propositional.

Yet, even programs like "Meet the Press" fall short of Mill's
model of discussion. Time constraints, commercial interruptions, and
other factors work together to diminish the extent to which the,
discussion is linear or sequential and, in turn, to which it can be
seen as rational persuasion.(64) Discourse, given these factors, can
be, to a certain degree, "fragmented and discontinuous."(65) This
feature of discourse is especially pronounced during the newscast in
which, "There is no murder so brutal, no earthquake so devastating, no

political blunder so costly, for that matter, no ball score so

93

tantilizing or weather report so threatening that it cannot be erased
from our minds by a newscaster saying, 'Now...this.'"(66) Careful
scrutiny of or reflection upon the points being made or the
conclusions being drawn is made difficult (or, in the case of a
newscast, rendered impossible) given the form and speed of the
information being offered.

Thus, the television program, whether in the form of an image-
centered narrative or semi-propositional discussion (and this form is
infrequent), requires little effort, attention,or energy. Unlike the
tedious and burdensome task of discussion as it is understood by Mill,
the discussion found in the television program is straightforward,
readily comprehensible, and easily accessible. In Postman's words,
"Television offers a fairly primitive but irresistible alternative to
the linear and sequential logic of the printed word and tends to make
the rigors of a literate education irrelevant."(67) This holds not
only for individual programs or portions of programs but, for the most
part, for the daily series of programming that television offers.
Television weaves a world in which that which is presented during one
30- or 60-minute segment has nothing to do with that which is offered
in any other, in which all order and progression is sacrificed for the
unordered, unorganized, and incoherent. Obviously, then, there is no
way (nor any reason) to rank or order the content of television
programs according to their difficulty or complexity.

One final feature of the discourse of television programs is

 

94

noteworthy and it is implied by all that has been said. Because the
television program is an image-centered narrative or semi-
propositional program, because, in either form, it is nonlinear and
unordered, and because it is so readily grasped and easily accessed,
its content is open to all those who are exposed to it. "One must
qualify," writes Postman, "for the deeper mysteries of the printed
page by submitting oneself to the rigors of a scholastic education....
Television, by contrast, is an open-admission technology to which
there are no physical, economic, cognitive, or imaginative
restraints."(68) Whether literate or illiterate, mentally competent
or mentally impaired, very young or very old, one may participate in
and enjoy the benefits of television's version of public discourse;
unlike discussion on Mill's view, it is not open solely to the
"literate man."

In the first section of this chapter, I claimed that a defense of
television programs could, following Mill, be mounted by appealing to
the various benefits to be expected from free and open discussion. I
have also argued that, in order to procure this particular set of
benefits, a certain sort of discussion must be practiced. The
clarification, modification, and refutation of opinions are the
processes through which these opinions are made more plausible or true
or useful and via which we might increase our certainty with regard to
them and experience individual and social development. These

processes are made possible by debate and discussion, the content of

 

95

which is almost wholly (if not entirely) propositional and the form of
which is argumentative and expository. Such discourse (which
exemplifies the intellectually rigorous discourse that developed in
the centuries following the invention of the printing press)
differentiates or segregates its potential subject matters according
to their complexity and, in turn, expands or limits the range of
persons that can participate in it and enjoy its benefits.

Television, on the other hand, offers a primarily image-centered,
narrative discourse that leads neither to a differentiation or
ordering of content nor to a limitation to the range of persons who
might enjoy its benefits. Its lack of propositional (or, at best, its
semi-propositional) content makes viewing television a nearly
effortless task, not requiring the arduous activity involved in the
sequential or linear approach demanded by proposition-centered speech
and debate. In short, the "discussion" offered by the television
program does not exhibit the characteristics of Millian discourse that
ensure that such discourse yields the benefits that are to support the
liberties of speech and discussion. Put another way, we cannot
defend the television program by appealing to the benefits of free and
open discussion set forth by Mill if, in fact, no (or very little)
television discourse takes the form of discussion that makes these
benefits possible. Indeed, because the features of the "discourse"
most frequently provided by the television program stand in such sharp

contrast to those of Mill's conception of discussion, it is highly

 

96

unlikely that the benefits identified by Mill could be expected from
exposure to television programs.

The inability of Mill's theory to support the protection of the
vast majority of television programs seems especially pronounced when
we consider those programs that contain blatant violence or explicit
sex. Pornography, violent cartoons, films like Terminator and Rambo,
and many music videos are objectionable precisely because they offer
some of the most striking and sharp images of sex and violence.
Without such images, most of these programs would (if they could exist
at all without such images) be, for the most part, acceptable to most
persons. Moreover, such programming is as easily accessible and
readily comprehensible to young children as would be almost any other
broadcast. Finally, what little speech is present in these programs
is performing a primarily narrative function, emphasizing the machismo
of the hero or the thrill of the sexual encounter (that is, the
images). Thus, the programs that I have made the focal point of
this dissertation most emphatically exhibit those characteristics of
the discourse offered by television that force such a sharp contrast
to be drawn between such discourse and that conception of discussion
utilized by Mill.

I am not claiming, of course, that television programs do not
"speak" or that they ought to speak in a different manner. .As I have
stressed, most (if not all) actions and practices "speak" to someone

or "say" something and television programs are not exceptions to this

97

general rule. Furthermore, it would be ridiculous to suggest that
such programs can be improved by, say, forcing broadcasters or
producers to fashion their products after the sort of discourse
produced by the printing press. Television programs are the products
of television, not the printing press. They have their own features
and form and this cannot be changed.(69) What is needed is not a way
to change television programs but, rather, a theory of free speech
that can articulate and contribute to the resolution of the questions
and problems introduced by them.
As with the conceptual limitations described in the previous section,
Mill cannot be condemned for utilizing the conception of discourse
that I have outlined here. Indeed, the telegraph and photograph,
which were to give birth to television and its form of discourse (70),
were only being invented and formally introduced at the time Mill was
writing On Liberty. The problem, here, is not the introduction of
considerations that might or might not be amenable to Mill's theory
but, rather, the introduction of a form of discourse for which Mill's
theory, in my view, is not fully adequate. In other words, it is not
that interesting or important conceptions or distinctions are absent
from Mill's theory but that the theory, itself, presupposes a
conception of discussion that is quite distinct from that which is
necessary here, that which is inherent to the television program.
Mill's reliance upon a conception of discussion that resembles

that which developed in the centuries that followed the invention of

 

98

the printing press (and, hence, the inability of his theory to support
the protection of most television programs) is not unrelated to the
conceptual limitations described in the previous section. One of the
more dramatic effects of the advent of writing was what might be
termed the "decontextualization" of speech.(71) In a purely oral
culture, the word is always spoken by one person to another person in
a particular setting, at a particular time, and with a particular
intonation and set of movements or gestures. Spoken words, in such
cultures, are sounds or, more precisely, events and, according to
Walter Ong, they are "always modifications of a total situation which
is more than verbal."(72) Speech, when delivered via the spoken word,
"takes place" in a particular context in which both speaker and
listener find themselves.

With the introduction of writing (and even more so with that of
printed text (73)), however, the word becomes separated from an
overall context or setting. Its only setting is the printed page,
that is, other words positioned in a designated area and in rigidly
defined spaces. The time at or place in which the writer writes, the
particular circumstances under which the page is written, the events
that surround the writer, and, indeed, whether the writer is alive or
dead is not (and, to some extent, need not be) in the forefront of the
mind of the reader. Likewise, the particular readers that will
encounter the text, their circumstances or the time at which the text

is read are all, to a moderate degree, absent from and irrelevant to

 

99

the concerns of the writer. The context in which language is found
is, in other words, less apparent and, to a certain degree, less
relevant when speaker and listener become writer and reader.

This decontextualization of speech is evident in Mill's view,
especially when we turn, once again, to the conceptual limitations
that I have discussed. To take the most obvious instance, recall that
the second limitation described in the previous section concerned the
illocutionary force of speech acts and their ability to silence
individuals in various ways. This aspect of acts of expression
cannot, as I have noted, be adequately understood without considering
the context of such acts and it is this failure to attend to context
(in part) that prevents Mill from addressing the illocutionary force
of speech acts and, in turn, the silencing they can accomplish. The
decontextualization of speech that developed in the centuries
following the advent of writing and that was reenforced after the
printing press could account for this lack of attention to context.
If the context of language is, at best, the printed page or the book
(as it would have been given the print-centered conception of
discourse employed by Mill), it would be difficult to attend to
considerations that contribute to the illocutionary force of acts of
expression such as legal or social conventions and the social status
of both speaker and listener.

The other conceptual limitation I described concerned the notion

of censorship. Political, private, and social censorship and the

100

different degrees to which they seemed justifiable were explained in
terms of the sources and mechanics of the censoring act. For Mill,
censorship meant restricting or prohibiting the flow of speech or
discussion or, what is the same at this point, interfering with the
exchange of words and propositions; censorship, in other words,
inhibits the processes through which opinions and beliefs are
clarified, modified, or refuted and, too, through which the benefits
of discussion are realized. On such a view, there is no consideration
of the source of these propositions (e.g. a citizen's group or the
local legislative body) or of the mechanics by which these
restrictions are to occur (e.g. boycott or legislation). Again, it is
the tendency to regard speech as that which is (or can be) found on
the printed page that might partially account for such a view.

None of what I have said thus far calls into question the ability of
Mill's view to eloquently and powerfully defend the protection of
speech and discussion that exhibits the characteristics needed to
procure the benefits he identifies. Research journals, public debates
and addresses of many sorts, newspapers, books and articles of many
varieties, and even some semi-propositional television programs such
as "Meet the Press" or live coverage of local town meetings will be
guaranteed the strongest protection under Mill's approach. However,
if the criticism I will raise in the next chapter holds, we must put
aside Mill's approach. This criticism will, I believe, not only

undermine the basis of Mill's theory of free speech but, more

101

importantly, offer a starting point for the development of a view that
may be more able to provide a more appropriate and powerful defense

for television programs.

 

102
Noggg

1. On Liberty and Other Writings by J. S. Mill, edited by Stephen
Collini, Cambridge University Press, c. 1991.

2. I shall have much more to say about nonutilitarian accounts of
free speech in Chapter 3. They are, for the most part, derived from
either John Rawls' doctrine of "justice as fairness" in A_Tpeepy_p§
Justice (Harvard University Press, c. 1971) or from a conception of
individual autonomy (e.g. T. M. Scanlon, "A Theory of Freedom of
Expression," hileeephy eng 22211; Affeire, Vbl. 1, 1973, pp.
204-226). These sources need not be unrelated or wholly distinct.

3. I use this term in the sense that Ronald Dworkin gives it in
Taking Rights Seriously, Harvard University Press, c. 1978, pp.
198-204. I will return to Dworkin's position in the next chapter.

4. On Liberty, p. 94

5. ibid., p. 19

6. ibid., p. 37

7. ibid., p. 56

8. As mentioned in the previous chapter, we have yet to discuss the
sense in which television news and similar programs might "inform" us.
I shall return to this matter in the final section of this chapter.
9. Such arguments are not uncommon and, as I note later, they become
quite powerful when adopted by legal and social conventions. This
occurs, for example, in Whitney v. California. Justice Brandeis there

writes, "If there be time to expose, through discussion, the falsehood

 

103

and fallacies, to avert the evil through the processes of education,
the remedy to be applied is more speech, not enforced silence."(274
U.S. @377) Also see note 40 below.

10. On Liberty, p. 14

11. It has been suggested to me that, besides fulfilling one of the
following conditions, it must be shown that the implementation of the
proposed intervention must not produce more harm than good. This is
reasonable given Mill's adherence to the principle of utility. I
will, however, ignore this condition because the question of its
satisfaction will only arise if one of the conditions I am about to
discuss is met. In other words, it would be pointless to discuss the
implementation of a suggested intervention before considering whether
or not such intervention is, indeed, warranted.

12. Similar considerations may have led to the well-known rule of
"clear and present danger," first formulated by Justice Holmes in
Schenck v. United States (249 U.S. 47, 1919). "The question in every
case is," writes Holmes, "whether the words used are used in such
circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and
degree."(@52) The cases I consider here seem to indicate the same
concerns of overwhelming physical danger that are evident in Holmes'
own example of someone falsely shouting "Fire!" in a crowded theater.

By explicitly calling attention to the "proximity and degree" of these

 

104

dangers, Holmes makes it difficult to resist thinking of these cases
in utilitarian terms.

13. This may be the view of Justice Brandeis in Whitney when he
proclaims that, "...no danger flowing from speech can be deemed clear
and present unless the incidents of the evil apprehended is so
imminent that it may fall before there is an opportunity for free
discussion."(@377) According to Alexander Meiklejohn's interpretation
of this opinion, "...only an emergency can justify suppression," a
"emergency" being, as Meiklejohn understands Brandeis, ”a situation in
which there is no opportunity for full discussion, in which there is
no time 'to expose through discussion the falsehood and fallacies, to
avert the evil by the process of education.’(®377)" In short, then,
it is an emergency, a situation in which the benefits of discussion
cannot be realized, that, on Meiklejohn's view of Brandeis,
constitutes a clear and present danger and, in turn, a sufficient
reason for restricting speech. See "Free Speech and Its Relation to
Self- Government" in Political Freedom; The Constitutional Powere of
phe Peeple by Alexander Meiklejohn, Harper Publishing Co., New York,
c. 1960, pp. 48-49.

14. Qn Liperey, p. 14

15. See, for example, Moral Thinking; Its Level. Method, epd Point by
R. M. Hare, Oxford University Press, c. 1981, pp. 124-127. Here is
especially concerned with some of the difficulties raised by

interpersonal comparison of preferences. He argues that the problem

105

of understanding the preferences of others is only a special case of
the general difficulties we might encounter in deciding what to do
when at least one of our options is an experience or situation yet to
be encountered. He writes, "...our whole governance of our lives
depends on the solution of a problem of which knowledge of other
people’s preferences is a special case, the problem of truly (and with
confidence) representing to ourselves experiences which are now
absent, for all (or nearly all) preferences are between
experiences...at least one of which is absent."(p. 126) In the end,
then, the actual quantification or measurement of benefits (or
preferences) is not required in the utilitarian scheme any more than
it might be required for our everyday decisions.

16. ibid., pp. 127-128. Because nearly all preferences are "between
experiences" and because the problem of interpersonal comparison is no
more (or no less) complicated than that of comparing our own
preferences, we can, according to Hare, make comparisons between any
number of persons and parties with regard to any sort of experience.
17. "Television Violence: The Scale of the Problem and Where to Go
From Here" by Dr. Brandon Centerwall, gepppel_e§_ppe_pme;ieep_fiegieel
Aeepeiepiep, Vbl. 267, No. 22, 1992, pp. 3059-3064.

18. ibid., p. 3061

19. Centerwall, himself, does not advocate censorship or any other
serious intervention into the media. Rather, his suggestions include

measures to be taken by parents and health care specialists such as

 

106

pediatricians providing guidelines for parents regarding the amount of
television to be watched by a child, "television free" areas and times
in the home and in public, and electronic time-channel locks that
automatically control when television is available to children and
what channels can be selected during those times.(pp. 3063-3064)

20. "The Television Time Bomb," New Yerk Timee, July 27, 1992.

21. Besides the obvious impracticality of such a move, this action
would violate the third condition for intervention described above in
note 11.

22. Pornography: Men Possessing Women by Andrea Dworkin, G. P. Putnam
& Sons, c. 1981, p. vii.

23. Lipel end phe Fire; Amendmen; by Richard Labunski, Transaction
Books, New Brunswick, NJ, c. 1987, p. 35.

24. 9am. p. 6

25. ibid., p. 8

26. ibid., pp. 7-8

27. This is Scanlon's tactic in the article cited in note 2 of this
chapter. It should be noted that this is his initial attempt
regarding these matters. Much of what is done here is rejected by
Scanlon, himself, in a later article. See "Freedom of Expression and
Categories of Expression" in University of Pittsburgh Law Review, vol.
40, 1979, pp. 519-551.

28. ibid., p. 213

29. ibid., pp. 214-215

107

30. Free speeeh; A Philospphieel Ingpipy by Frederick Schauer,

Cambridge University Press, New York, c. 1982, pp. 117-119.

31. My notion of "private censorship" is narrower than that given by
Schauer. Schauer does not distinguish between this form of censorship
and what I shall call "social censorship." Rather, he seems to
suggest that anything that does not count as political censorship is
to be recognized as private censorship. My reasons for making a
three-fold rather than a two-fold distinction will be given shortly.

32. "Cleaning Up Television Violence," New York Times, Dec. 11, 1993.

33. Free Speech, pp. 122-123

34. On Liberty, p. 8

35. Lipel egg phe Fire; Amendmenp, p. 36
35- 2:22.529929. P. 122

37. n Li r , p. 78

38. ibid., p. 94

39. For a brief summary of the activities of Wildmon and his group,
see the biography of Wildmon in Current Biegraphy, vo1. 53, No. 1,
1992, pp. 607-613. More recently, Wildmon and his followers placed an
advertisement in the New Yerk Timee Megezine (March 6, 1994)
advocating the boycott of companies sponsoring NBC's "NYPD Blue" due
to the sex and violence depicted in some episodes of this program.

40. "Speech Acts and Unspeakable Acts" by Rae Langton, Philosophy epd
Public Affairs, VOl. 23, 1993, pp. 315-320. Also, see note 9 above.

41. ibid., p. 314

 

108

42. ibid., p. 317

43. ibid., p. 319

44. I am, for now, only concerned with the notion of silencing in so
far asit is absent from Mill's theory. I shall have much more to say
about this notion and its relation to television in the next chapters.
45. "Speech Acts and Unspeakable Acts," p. 323

46. ibid., pp. 323-324. This effect should not be confused with
desensitization, although it is a form of conditioning.

47. ibid., pp. 320-322. Especially intriguing is Langton's discussion
of the appearance of Linda Marchiano's book, Ordeal, in a mail order
catalog of pornographic material. Ordeal is Marchiano's account of
her exploitation and physical and emotional suffering during her
involvement in the pornographic film, Deep Throat. The book is
obviously meant as a protest but its appearance in such a context
shows that many see it as just more pornography. Langton writes, "If
you are a woman using sexually explicit speech, describing in some
detail the savage sexual violence you have suffered (and especially if
you are already a famous pornography star), what you say simply counts
as pornography."(p. 326) I will return to this example of silencing
in Chapter 4.

48. ibid., pp. 296-297

49. Many of the features of the print-centered notion of public
discourse and of the image-centered conception resulting from

television are described by Neil Postman. The two works upon which I

 

109

shall rely most heavily are The Dieeppearepee of ghildheed, Delacorte

Press, c. 1982, and Amu in r lves Dea h- P li Di

the Age of Show Business, Penguin Books, New York, c. 1985. Postman,
himself, provides an extensive bibliography on these matters from
which he draws regularly in his own work.

50. One might wish to add, here, that discussion also includes that
"symbolic conduct" that is readily converted or translated into a
particular proposition (e.g. American Sign Language). The main
contrast that I want to make at this point will not depend on such
subtle distinctions.

51. See, for example, the passages from Whitney cited in notes 9 and

13 above.
52. Ephiee egg Npreing by Martin Benjamin and Joy Curtis, Oxford

University Press, 3rd ed., c. 1992, p. 63.
53. These features are most thoroughly described in Amusing Ourselves

to Death, Chapter 4 and Disappearance of Childhood, Chapters 2 and 5.

54. Amusing Ourselves to Death, p. 51

55. Dieeppeerance ef gpilgpped, pp. 76-77. The differentiation of
content initiated by the printing press together with the systematic
enforcement of such differentiation through the proliferation of
schools in the centuries following the printing press substantially
contributed, according to Postman and others, to the emergence of the
modern notions of "child" and "adult." The theme of Postman's book

is, as the title suggests, how these notions are being undermined by

 

110

the introduction of television. If Postman is correct, this makes
legislation like the Children's Protection from Violent Programming
Act (discussed earlier in this chapter) especially ironic since
television, itself, is eroding the boundaries that define the class of
persons that are to be protected by such legislation.

56. ibid., p. 36

57. Ampeing Ourselves to Deeth, p. 100

58. ibid., p. 102, my emphasis.

59. ibid., p. 48. It is also worth noting that the language of these
debates was, in the fullest sense of the term, propositional. This is
evident from Postman's analysis of these debates.(cf p. 49-) Also,
compare 2isappearasce_9f_§hildh22d. pp. 101-102-

60. ibid., p. 130

61. It is tempting to argue, here, that narratives and stories are
mere instances of rational persuasion in that they contribute to the
clarification, modification, and formulation of beliefs. This is
misleading because, while narration does influence belief, it should
not be confused with rational persuasion. I shall pursue this claim
in Chapter 4 and argue that narration, as a way of influencing beliefs
and behavior, has not received the attention it deserves in theories
of free speech. Furthermore, I shall claim that most television
programming, if it is to enjoy any kind of First Amendment protection,

must be treated in this light.

62- 2isennearasse_9f_shildhegd. pp. 108-111. Also. compare Amusing

 

111

Opreelvee go Death, pp. 124-130.

63. ibid., pp. 108-109

64. One such factor concerns the environment of television itself.
Viewers of televised debates or discourse are not actually present at
such debates and, hence, not subjected to the rigid codes of behavior
that are associated with these debates. The typical television is
situated in the main living room or family room of the home, which is
a more relaxed environment than the lecture hall or auditorium. See
Postman's contrast between a television environment and the classroom
in Teaching As A Congerving Activity, Dale Publishing Co., New York,
c. 1979, pp. 50-52. Compare Disappearance of Childhood, p. 113.

65. Ampeing gereelvee to Deeph, p. 90. Postman provides what is,
perhaps, one of the best examples of what I have been calling a
"semi-propositional" role for speech. The analysis is of the panel
discussion following the controversial movie, The Day After, which
concerned nuclear warfare and its prevention.(pp. 87-91)

66. ibid., p. 99

67. Dieeppeerange ef ghilgpepg, pp. 79—80

68. ibid., pp. 83-84

69. ibid., p. 113
70. Amusing Ourselves to Death, Chapter 5.

71. Orality and Literacy; The Technelggizing of the Word by Walter

Ong, Methuen & Co., c. 1982, pp. 101-103.

72. ibid., p. 101

 

112

73. ibid., Chapter 5 and Amusing Qpreelves to Deeth, pp. 22-28.

 

 

3

Taking Free Speech Seriously

Proponents of Mill may be able to modify his theory of free
speech so as to accommodate the different levels of justifiability
that seem appropriate to political, private, and social censorship.
Also, it might turn out that Mill's theory can make contributions to
the articulation and resolution of problems arising from the
perlocutionary and illocutionary aspects of acts of expression and
from the silencing of persons that can and does result from such acts.
All of this may be possible even though, as I have suggested, these
conceptual limitations may be related to the notion of discussion that
is essential to Mill's view, a notion that exhibits many of the
features of the conception of discourse that developed in the
centuries that followed the introduction of the printing press. Of
course, given the sharp contrasts between this notion and the sort of
discourse that is, according to the analysis at the end of Chapter 2,
inherent to television programs, it seems unlikely that Mill's theory
of free speech could offer a plausible defense of such programs
(especially those containing blatantly violent or sexually explicit
material) even if the matters surrounding censorship and the silencing
of individuals were adequately addressed.

Nonetheless, let us suppose that defenders of the Millian
approach to free speech are able to answer the difficulties
surrounding the various forms of censorship and the silencing of

individuals that can take place via television programming. Let us

113

 

114

also suppose that the image-centered, nonlinear, narrative discourse
that is inherent to the television program exhibits a number of the
features of some genre of literature that could be regarded as
"propositional" in the sense described in the previous chapter. Thus,
if television programming were to resemble, say, a novel or a play
(forms of discourse that would likely be regarded as propositional) in
the relevant respects, we might, indeed, expect benefits from such
programming akin to those imagined by Mill. Better still, we might
suppose that the discourse inherent to the television program yields
its own unique class of benefits not anticipated by Mill, yet capable
of supporting free and open discourse on television in the same way
that the benefits identified by Mill support his own version of free
and open discussion.

Given such suppositions, forceful arguments against restrictions
upon television programming can be developed. Not only does
television promise numerous benefits but, in addition, the conditions
for rendering restrictions upon programming justifiable seem not to be
met by the more common arguments given for such restrictions. Either
these arguments rely upon questionable assumptions about the
quantification and comparison of benefits and harms (and upon the
calculations based on such assumptions) or the restrictions that can
legitimately be derived from these arguments are too broad or general
to be feasible or acceptable. This is especially so, I suggested, in

those arguments that attempt to demonstrate that one or more of the

115

conditions required for enjoying the benefits of free and open
discussion have not been realized or are in some way threatened by
television. Thus, even given the harms and wrongs that can and do
result from television programs containing sex and violence, it seems
best, on this Millian approach, to afford strong protection to such
programming and guard against attempts to restrict it.

Yet, a serious problem with Mill's theory of free speech still
remains. This difficulty stems not from concerns about the extent to
which this theory can be applied to television but, more
significantly, from Mill's utilitarian approach to the explication and
defense of free speech. One of the themes of Ronald Dworkin's Taking
Righge Serieeely is that no goal-based theory (i.e. a moral or
political theory that justifies all social decisions, ultimately, by
referring to the advancement or protection of a single goal) can, in
his words, "take rights seriously."(1) My claim is that Mill's
theory, as a goal-based theory that treats individual rights as mere
instruments in the pursuit of one social goal (general utility).
cannot take the right to free speech seriously. Following Dworkin and
employing certain conceptions introduced by John Rawls (2), I argue
that, in order to take rights seriously, one must view them as
embodying a particular conception of equality that is understood in
terms of a certain conception of the person. On this view, a person
is a being who is capable of forming, revising, and pursuing a

determinant conception of the good or way of life and of participating

 

116

in the deliberation and implementation of principles of social justice
that regulate public interaction and cooperation between such beings.
The notion of equality to be sketched claims that persons are to be
treated as equals, that is, that they are treated rightly or justly
when they are recognized and respected in ways that are dictated by
their possessing these capacities.

This conception of equality and its corresponding conception of
the person are captured in the individual right to equal concern and
respect as understood by Dworkin. I argue that the right to free
speech, if taken seriously, must be explained and grounded in terms of
this right to equality and that explaining and defending the right to
free speech in this way has various implications for the common
understanding of this liberty in current social and legal debates. In
particular, I consider the implications of such a conception of free
speech for the familiar model of the "marketplace of ideas," which has
been explicitly invoked in many important First Amendment case8.(3)
When properly understood, the marketplace model is, to a limited
degree, capable of reflecting a conception of equality that permits it
to take the right to free speech seriously. Nevertheless, I shall
contend that it must be regulated by other principles, in addition to
that of the principle of neutrality in terms of which it is
traditionally conceived. The need for such additional principles will
be especially evident when this model is employed in the context of

television, which, as a medium, introduces considerations into debates

117

about free speech that are not anticipated by the marketplace model in
its conventional form. I claim that, without at least one such
principle (what I shall label the "principle of equity"), this model
contains an inadequate conception of equality, a conception that does
not allow it to take the right to free speech seriously. Hence, the
aim is not to utterly reject or refute the marketplace of ideas model
but, rather, to develop and modify it so that it can most fully
reflect the right to equal concern and respect and, in turn, take the

right to free speech seriously.

Righpe, peele,
and Eggality

The objection to Mill's doctrine of free speech that I have in
mind is an instance of an objection to utilitarian theories in general
that has been made by many moral and political philosophers. This
objection contends that utilitarian theories, as goal-based theories,
cannot give a plausible account of the intrinsic value of an
individual right or of the unique role that this notion plays in our
social institutions and practices; in short, the claim is that
goal-based theories cannot take rights seriously. To understand this
objection, let us begin with the notion of a "goal-based theory."

A goal-based theory is a moral or political theory that attempts
to explain or justify all moral judgments and political decisions

(whether made about individual conduct or social institutions and

118

practices), ultimately, in terms of the protection or advancement of a
single goal. Mill's theory is a goal-based theory that centers around
the promotion of the goal of general utility, a state of affairs in
which there is a maximum overall net benefit. Mill is explicit about
this matter. In Utilitarianism, he writes, "According to the greatest
happiness principle..., the ultimate end...whether we are considering
our own good or that of other people, is an existence exempt, as far
as possible, from pain and as rich as possible in enjoyments both in
point of quantity and quality....This being, according to the
utilitarian opinion, the end of human action, is necessarily also the
standard of morality..."(4) Hence, we refer to Mill's theory as a
goal-based theory because all moral and political decisions must be
ultimately grounded upon (and all institutions and practices evaluated
in terms of) their ability to protect or promote this goal.

This goal-based strategy is quite evident in Mill's treatment of
the notion of an individual right. For Mill, justice and the set of
individual rights that partially comprise this "branch" of morality
are central to utilitarianism. He writes, "Justice is the name for
certain classes of moral rules which concern the essentials of human
well-being more nearly (and are, therefore, of more absolute
obligation) than any other rules for the guidance of life." He adds,
"And, the notion which we have found to be of the essence of the idea
of justice, that of a right residing in an individual, implies and

testifies to this more binding obligation."(5) Mill's insistence upon

119

justice and the individual rights that stem from this central moral
concept is affirmed in his defense of the rights of women. In Qn phe
§ppjection of ngep, he writes that the most important benefit of
sexual equality in public life is that of "having the most universal
and prevading of all human relations regulated by justice rather than
injustice."(6) For Mill, then, individual rights are especially
useful instruments for promoting and protecting general utility and
their unique value stems from their ability to advance this goal.
Compare this notion of an individual right with that offered by
Ronald Dworkin. "An individual has a right to some opportunity or
resource or liberty," Dworkin claims, "if it counts in favor of a
political decision that the decision is likely to advance or protect
the state of affairs in which he enjoys the right even when no other
political aim is served and some political aim is disserved thereby
and counts against that decision that it will retard or endanger that
state of affairs even when some other political aim is thereby
served."(7) Here, a "political aim" is any state of affairs, the
protection or advancement (or inhibition or endangerment) of which
counts, according to a political theory, as a good reason for or
against adopting some political decision. General utility is, in
Mill's theory, a political aim because the fact that some decision
will contribute to the promotion or protection of this state of
affairs always counts as a good reason (indeed, the best reason) for

adopting that decision.

120

One immediately evident contrast between this view of individual
rights and that offered by Mill is that the state of affairs
considered in Dworkin's definition of an individual right is not one
in which there need be a maximum overall or average benefit. Rather,
the fact that a decision promises to advance or protect a state of
affairs in which a particular individual enjoys certain benefits is to
count as a good reason for adopting that decision regardless of the
overall or general benefit generated in that state of affair8.(8)

Notice that attending to the consideration at hand (namely, the
fact that a decision is likely to protect or advance a state of
affairs in which a particular individual enjoys some benefit) might be
rather burdensome. Such considerations are especially burdensome when
we realize that they may, on Dworkin's view, dictate decisions that
are ineffective in (or even counterproductive to) advancing other
political aims, including general utility. Dworkin writes, "The
institution of rights against the government...is a complex and
troublesome practice that makes the government's job of securing the
general benefit more difficult and more expensive and it would be a
frivolous and wrongful practice unless it served some point."(9)

Thus, individual rights are to be regarded as introducing
considerations that may lead to constraints upon the pursuit of goals
rather than as especially useful tools for their advancement. Indeed,
because Mill sees individual rights as instrumental to an effective

pursuit of general utility whereas Dworkin views them as introducing

121

considerations that may lead to decisions that are ineffective in or
even counterproductive to such a pursuit, I shall argue that Mill sees
individual rights (and moral and political reasoning in general) as
entirely rational whereas Dworkin views them, to appeal to a
distinction that is emphasized by Rawls, as both pepippel and
peeeepeple.(10) Furthermore, I shall maintain that these two views of
individual rights embody different conceptions of equality and that
the conception of equality embodied in the Millian view of reasoning
about rights is inadequate. In the end, I want to base a conception
of an individual right to free speech not only upon rationality but,
also, upon reasonableness. Such a conception will, I will argue, most
adequately and fully reflect the status of persons as equals.(11)

In claiming that, for Mill, the reasoning that leads to the
institution of individual rights is entirely "rational," I am
asserting that it is fully consistent with the principles of rational
choice enumerated in Rawls' A Theopy of gestice.(12) These principles
are those regularly employed by us in choosing means to our ends and
in selecting and ordering these ends. More recently, Rawls sums up
the "rational" in this way: "The rational...applies to a single,
unified agent (either an individual or corporate person) with the
powers of judgment and deliberation in seeking ends and interests
peculiarly its own. The rational applies to how these ends and
interests are adopted and affirmed as well as to how they are given

priority. It also applies to the choice of means in which case it is

122

guided by such familiar principles as to adopt the most effective
means to ends or to select the more probable alternative (other things
equal)."(13) Thus, in claiming that rights are to be viewed as
considerations that may lead to constraints upon the rational pursuit
of goals, I am claiming that they will, at times, force us to make
decisions that are inconsistent with the principles just mentioned.
Our moral and political reasoning, especially when it involves appeals
to individual rights, may dictate decisions that, say, are less
effective than other decisions in bringing about some end or that do
not further as many aims as might be promoted by some other decision.
More generally, Mill's theory, as a utilitarian theory, can be
seen as understanding our moral and political reasoning entirely in
terms of the rational. In Ipeepy, Rawls notes that, "The most natural
way...of arriving at utilitarianism...is to adopt for society as a
whole the principlels] of rational choice for one man." Such a move
can be imagined via the device of the "impartial sympathetic
spectator...who is conceived as carrying out the required organization
of the desires of all persons into one coherent system of desires" and
through which "many persons are fused into one."(l4) On this view,
political and social decision-making is a matter of efficient
coordination governed only by the principles of rational choice and it
is seen as being performed by a single agent who adheres to these
principles. In this way, we can model the reasoning that leads Mill

to the principle of liberty or to the institution of individual rights

123

(which includes the right to free speech).(15) In a word, embracing
the institution of rights and the principle of liberty is, on Mill's
view, entirely rational.

The conception of equality that underlies this view is apparent
when we consider a simple example of its application.(16) Suppose
that someone proposes that a community is to be governed by the
principle of utility but that the preferences and desires had by a
particular member, Sarah, are not to be counted when making political
and social decisions. Mill would clearly find such a community
unacceptable. He asserts that equality is the "highest abstract
standard of social and distributive justice" and that the principle of
utility "is a mere form of words without rational signification unless
one person's happiness, supposed equal in degree..., is counted for
exactly as much as another's."(17) Equality, here, means impartiality
in calculating utility and to ignore Sarah's preferences (or those of
any other individual) is to disregard an essential element of any
acceptable form of utilitarianism. This is why utilitarian reasoning
is modeled by the deliberations of both a rational and an impartial
sympathetic spectator, an agent who weighs all preferences on the same
scale and who counts preferences of equal strength equally.

Now, suppose that Sarah belongs to a community that adopts Mill's
version of utilitarianism and that she is disliked very much by nearly
all members of the community because she leads a life that is

overwhelmingly regarded as disgusting. For these reasons, persons

124

demand that Sarah's preferences be ignored in the decision-making
process. Members of the community are quite content when these
demands are honored and very disappointed when they are not. Even
supposing that Sarah has done no harm to the community as a whole or
to any member of it, we cannot simply invoke the principle of liberty
in order to defend her. This principle, itself, is based upon
utilitarian reasoning which might, in certain circumstances, yield the
same result, namely, the elimination of Sarah's preferences from the
decision-making process.

We would, without doubt, demand equal treatment for Sarah.
However, "equal treatment" cannot, here, simply mean impartial
treatment, for it is the impartial consideration of preferences that
would lead to Sarah's preferences being ignored; impartial
consideration, in this case, would undermine itself.(19) Here,
demanding egpality for Sarah must entail the following:

1. First, we are insisting that Sarah's preferences be counted
even though general utility might be advanced by not counting them.
The fact that Sarah's preferences would not be counted were the
decision at hand to be adopted is a good reason for not adopting it
even though that decision would promote general utility. In short, we
are, in Dworkin's words, demanding that equality (in some stronger
sense than that incorporated into utilitarianism) "trump" utility,
that it be viewed as a right as earlier defined by Dworkin.

2. If we are, in fact, to count the above consideration as a

125

good reason for rejecting the decision at hand, moral and political
reasoning can no longer be seen as based only on rationality and
impartiality. Treating Sarah "equally" (in the sense under scrutiny)
involves taking steps that are obviously counterproductive to the
advancement of general utility, steps that would not be regarded as
rational. Moreover, the "equal treatment" of Sarah implies that all
preferences need not be considered impartially. In insisting upon
equal treatment for Sarah, we are asking that, for example, the
preferences of members of the community concerning how Sarah's
preferences are to be considered be given less significance in (or,
perhaps, eliminated from) our moral deliberation; preferences of equal
strength need not be counted equally. In short, the kind of equality
being advocated here, the kind of equality that "trumps" utility,
cannot be seen as mere impartiality or neutrality.

A utilitarian might concede that moral and political reasoning
must be amended so as to accommodate the importance of considerations
like that underscored by the situation just described. Nonetheless,
she might argue that we can model this accommodation in the device of
the impartial sympathetic spectator by simply demanding that general
utility is to be protected and advanced except in cases in which
impartiality is threatened. In the given example, then, the impartial
sympathetic spectator would be seen as rejecting the demands of the
majority. Neither Sarah's preferences nor those of any other member

of the imagined community can be discounted in the utilitarian

 

126

calculation in order to advance general utility.(20)

We need only modify the illustration slightly to see the
inadequacy of this response. Suppose that members of the community no
longer demand that Sarah's preferences be ignored but, rather, that
institutions and practices be fashioned so as to further their own way
of life or, at least, so as to make Sarah's way of life impossible or
impractical. Sarah would, no doubt, object to this plan and her
preferences would be impartially considered. The situation resulting
from the modified utilitarian reasoning would not be one in which
Sarah's preferences are ignored but, rather, one in which they cannot
be (or are unlikely to be) satisfied and in which she cannot
effectively lead and govern her own life. This result, it seems to
me, would be as generally unacceptable as that reached when fully
impartial and rational deliberations are practiced. We must, then,
add one final element to the notion of equality being developed:

3. The fact that a state of affairs in which Sarah is able to
govern and pursue her own way of life is likely to be threatened or
inhibited by a certain decision should count as a good reason for
rejecting that decision even though general utility is likely to be
advanced by it. It is just such a consideration that most forcefully
captures what demands for Sarah's equality must entail. In turn, the
purely rational and impartial character (that is, the utilitarian
character) of moral and political reasoning seems even more

questionable than had been suggested in earlier interpretations of

127

equality. For instance, in the example just discussed, many sorts of
preferences and desires (indeed, many more than simply those
concerning how Sarah's preferences are to be counted) are likely to be
given less weight in (or, perhaps, eliminated from) the decision-
making process. Such preferences might include, for instance, those
preferences of individuals regarding what Sarah ought to have or
do.(21) Also, because the state of affairs now at issue is one in
which Sarah can formulate and pursue her own way of life rather than
one in which impartial consideration of her preferences is secured,
even more significant constraints upon the pursuit of utility are
likely to be necessary; the rational pursuit of general utility (or of
any other goal) is likely to be severely compromised.

This series of examples constitutes not a demonstration but,
rather, an illustration of an intuition or conviction about our moral
and political reasoning. Such reasoning must, whatever else it does,
make room for a consideration that, to a significant degree, must
carry substantial weight in and of itself in moral and political
argument. This consideration is the fact that a particular state of
affairs is protected or promoted, namely, a state of affairs in which
a particular individual has her/his preferences (especially those
concerning the conditions under which one will formulate, revise, and
pursue a way of life) considered in the process for making political
decisions. In short, moral and political reasoning must embody an

individual right to equal concern and respect. Moreover, as seen in

128

the given examples, moral and political reasoning that accommodates
such a consideration, that embodies the right to equal concern and
respect, cannot be based solely on rationality and impartiality.
Utilitarian reasoning, in so far as it can accurately be modeled via
the device of the rational and impartial sympathetic spectator, cannot
accommodate the consideration just noted (nor the right to equal
concern and respect that it embodies when invoked in moral and
political argument) and, hence, must be substantially altered or
rejected.(22)

Rawls' original position is a device that adequately models a
form of moral and political reasoning that can accommodate the
consideration just noted. To see this, let us briefly consider the
way in which the original position embodies each of the three elements
of the right to equal concern and respect. The original position is
composed of three key elements: 1) the portrayal of the parties as
"rationally autonomous" agents, 2) the "veil of ignorance," and 3) the
"formal constraints" upon principles of right.(23) The second and
third of these elements are, in effect, two sets of constraints upon
the deliberations of the parties as rationally autonomous agents.

Under the veil of ignorance, the parties are not aware of their
conceptions of the good nor are they aware of their talents and
abilities or of their position or status in society.- This condition,
however, does not preclude the parties from having certain "highest-

order interests," interests that stem from their having an ability to

129

form, revise, and pursue a conception of the good and an awareness of
the need to offer acceptable and practical rules governing the
cooperation that must exist between members of a society that have
such an ability.(24) Each party has an interest in understanding and
complying with a public conception of justice, which includes rules
specifying the fair terms of social cooperation that regulate
interaction and agreement between persons. Also, given their ability
to form, alter, and pursue a particular conception of the good, each
representative has an interest in securing conditions under which
he/she can form, revise, and modify his/her conception of the good as
well as those under which he/she can maintain and pursue a determinant
conception of the good (although the details of the particular
conception will be unknown to each party). In the end, then, the
principles and positions to which the parties agree are wholly derived
from the recognition, by each party, of the importance of each other
party's highest-order interests and from the deliberations resulting
from the rational pursuit of these (and only these) interests.
Earlier, I claimed that demands for Sarah's equality meant not
only that her preferences ought to be considered, but that certain
kinds of preferences ought to be given less weight in (or eliminated
from) the decision-making procedure. These included preferences
concerning how Sarah's preferences are to be considered or weighed and
those concerning what Sarah ought to have or do or the way in which

she ought to live. Given the veil of ignorance and the emphasis upon

130

the highest-order interests of the parties, our intuitions about such
a distinction among preferences can be developed and justified. The
original position utilizes a particular conception of the person as
a being who can (and does) form, revise, and pursue a determinant
conception of the good according to his/her own tastes, interests, and
abilities and also according to principles that make living and
cooperating with other such beings possible. Given this conception of
the person, there are certain interests that will be pursued whatever
other interests are pursued (namely, the highest-order interests) and
the goods that help to satisfy these are what Rawls calls "primary
goods."(25) These include basic liberties, opportunities, income,
wealth, and a social basis for self-worth. To treat these goods as
any other goods or the interests that they satisfy as any other
interest or preference is to ignore the view of the person as a being
who can (and does) form, revise, and pursue a determinant conception
of the good according to his/her own interests and abilities and also
according to principles that make living and cooperating with other
such beings possible. In the end, this will entail a failure to treat
persons as equals, for it is a feature of the original position that
it model a form of reasoning that embodies the right to equal concern
and respect as described earlier. (Of course, this can only be clear
when I have finished the description of the original position in terms
of the three elements given above.) To engage in reasoning that

ignores or overlooks the importance of highest-order interests and the

131

primary goods that satisfy these interests is to engage in reasoning
that does not reflect a view of the person as a being who can (and
does) form, revise, and pursue a determinant conception of the good
according to his/her own interests and abilities and also according to
principles that make living and cooperating with other such beings
possible. This denial constitutes an abandonment of the original
position and, hence, if this position sufficiently embodies the right
to equal concern and respect, an abandonment of this right as well.

The other set of constraints are the so-called "formal
constraints" upon principles of right. According to these
limitations, the parties must, when deciding upon a conception of
justice, settle upon general and universal principles that are
capable, to some extent, of yielding final judgments about the
ordering of claims. One other especially important constraint is the
publicity condition, which demands that the adopted principles of
justice must be readily comprehensible by and justifiable to every
citizen.(26) These constraints along with the veil of ignorance are
included in what Rawls calls the :eeeepeple. "The reasonable," he
writes, "subordinates the rational because its principles limit...the
final ends that can be pursued....In the original position, we view
the reasonable as expressed by the framework of constraints within
which the deliberations of the parties as rationally autonomous agents
of construction take place."(27) As just noted, these constraints

include the veil of ignorance (with its effect of emphasizing the

 

132

importance of the highest-order interests of the parties) and the
formal constraints upon principles of right. At bottom, the effect of
such constraints (or, what is the same, of demanding reasonableness)
is to insure that the reasons and arguments that are offered are, in
fact, reasons and arguments to and for each person. In turn, in
reasoning according to such a model, we inevitably acknowledge persons
as beings who can (and do) form, revise, and pursue determinant
conceptions of the good according to their own interests and abilities
and also according to principles that make living and cooperating with
each other possible; in short, we acknowledge persons as equals.

It is at this point that the character of moral and political
reasoning, as modeled by the original position, can be seen as based
on more than mere rationality and impartiality. The series of
examples I have been discussing point to an aspect of our moral and
political reasoning that is not entirely based on rationality, an
aspect that is captured by the constraints within which the rational
deliberations of the parties take place. If we understand our moral
and political reasoning as it is depicted in the original position,
the decisions that will be reached can be viewed as both rational and
reasonable. They are rational because they can be seen as consistent
with the principles of rational choice as these are employed by each
party in pursuing their highest-order interests and they are
reasonable in that they reflect some of our convictions about the most

basic rules that govern moral and political reasoning, especially

133

those that help insure that such reasons are comprehensible and
justifiable to all. Thus, for instance, the reasoning that leads to
Rawls' principle of equal liberty is viewed as both rational and
reasonable as opposed to that leading to Mill's principle of liberty,
which, as noted earlier, is only rational.

In addition, we can now clarify the way in which this notion of
equality moves beyond mere impartiality. The parties must do more
than impartially consider all of the other interests had by each other
party in making a decision or proposal. In addition, they are to make
proposals that respect the constraints imposed by the veil of
ignorance and the formal constraints upon principles of right. In
particular, the veil of ignorance forces persons to recognize and
consider only their most relevant features (and, hence, the most
relevant features of each other) when offering principles. Also, the
publicity condition demands that decisions be justifiable to each
other party. The fact that persons are forced to recognize only the
most relevant features of one another (especially the importance of
highest-order interests) and that they must offer proposals that can
be justifiable to one another comprises Rawls' notion of pegippeeipy.
He writes, "...the idea of reciprocity lies between the idea of
impartiality, which is altruistic, being moved by the general good,
and the idea of mutual advantage understood as everyone's being
advantaged with respect to each person's present or expected future

situation as things are."(28) The parties are not to be regarded as

134

mere repositories for the preferences and aversions to be submitted to
an impartial sympathetic spectator nor are they to attempt to imitate
the decision-making process of such an agent. Rather, they are to
submit proposals and positions to one another on the basis of their
own highest-order interests that will be fully comprehensible and
justifiable to each; they are subjects of cooperation, not objects of
coordination. Equality, in short, implies reciprocity, not mere
impartiality; equal treatment does not simply mean impartial
treatment, but treating persons as equals.

Finally, the fact that, on this view, equality is seen as a
"trump" over utility is obvious once we note that the original
position is a form of the more general device of the social contract.
When we view moral and political reasoning according to this device
rather than that of the impartial sympathetic spectator, moral and
political reasoning is portrayed as embodying the notion that each
person has a veto over any decision proposed.(29) Such a veto would
be impossible given the model of reasoning provided by the impartial
sympathetic spectator. It is equality as understood by the original
position, equality that is not seen as mere impartiality, that can
explain and justify the legitimacy of such a veto power. In turn, it
is the social contract in general (and Rawls' original position in
particular) that allows us to give an adequate account of why we must
reject the utilitarian notion of equality as impartiality and the

unacceptable conclusions to which it may lead.

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To take rights seriously, then, is to view them as based not
merely on rationality but, rather, as based on both rationality and
reasonableness. We take rights seriously, in other words, when we
explain and defend them in terms of the fundamental individual right
to equal concern and respect, which, I have argued, is sufficiently
embodied by the original position. More specifically, we take rights
seriously and uphold the right to equal concern and respect when we
explain and defend them with regard to three essential ideas: 1) the
conception of the person as a being who is capable of formulating,
revising, and pursuing a determinant conception of the good and way of
life according to her/his own tastes, abilities, and interests and
according to principles that can regulate social interaction and
cooperation between her/himself and other such beings, 2) the
distinction between interests that, when respected, best reflect the
view of persons as set out by this conception and those interests
that, when acknowledged, least reflect this view, and 3) the
derivative idea of equality as a trump over utility, which, in itself,
reflects the first two ideas by giving each a veto over decisions that
most profoundly effect one's capacities to form, revise, or pursue a
conception of the good or conception of justice. This conception of
equality is, as we have seen, recognized in moral and political
argument when the fact that a decision that promises to promote a
state of affairs in which some particular individual has certain basic

interests satisfied or enjoys certain primary goods (i.e. is able to

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form, revise, and pursue her own conceptions of the good and of
justice within the framework provided by the principles of justice)
counts as a good reason for adopting that decision even when that
decision might threaten or inhibit the promotion of other social
goals. Rawls' original position may not be the only model of moral
and political reasoning that embodies such a right but I shall rely
upon it in the remainder of this dissertation. The important point is
that utilitarianism, as understood here, does not embody this richer
conception of equality and, hence, cannot take rights seriously. In
turn, the doctrine of free speech that stems from it may be based upon

rationality, but it is hardly reasonable.

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S eech E alit and
h rk 1 f I

Initially, I introduced Mill's theory of free speech in order to
consider whether or not (and to what extent) television programs
containing blatant violence and explicit sex might be protected as
free speech. I also introduced this theory in order to respond to
some of the harms and wrongs that result from such programs that I
discussed in the first chapter. Given the limitations of Mill's
approach described in Chapter 2 and, even more importantly, the
inadequacy of the conception of equality (and, more generally, of the
scheme of moral and political reasoning) that form the basis of this
approach, it seems best to put aside Mill's account of free speech.
We require an account of free speech that takes this right seriously,
that explains and defends this right in terms of the fundamental
individual right to equal concern and respect, and that is based both
on rationality and on reasonableness. Only once such a theory is
given can we turn, once again, to the problems surrounding television
programs containing blatantly violent and sexually explicit material.

In the remainder of this chapter, I wish to provide such a theory
by developing and modifying a model of free speech that will be
familiar to most of those who participate in philosophical and legal
debate about this liberty, the model of the marketplace of ideas. In

doing so, I shall point to various features of television that

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demonstrate the need to reevaluate and alter this model in the light
of the conception of equality sketched in the previous section. At
the same time, I will show ways in which this model already exhibits
and embodies the right to equal concern and respect and how viewing
the marketplace model in this way has certain implications for
television programming. Thus, I shall be interested in how the
marketplace of ideas model (in so far as it reflects the right to
equal concern and respect) aids us in understanding and resolving
difficulties that stem from television programming. However, I shall
also be interested in how the conception of equality developed earlier
might strengthen this model so that it might handle other features of
the television market that it has not confronted in its original form.
It is at this point that we will be prepared to return to sex and
violence on television in Chapter 4 and to consider how the problems
described in Chapter 1 might be addressed in light of this alternative
theory of free speech.

In order to construct a theory that takes the right to free
speech seriously, we must construct a theory that explains and defends
the right to free speech in terms of the right to equal concern and
respect. This might be achieved by beginning with a detailed
consideration of the view of the person as a being who is capable of
formulating, revising, and pursuing a determinant conception of the
good according to her/his own talents and abilities and according to

principles that facilitate public interaction and cooperation between

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such beings. Such reasoning would appeal to, among other
considerations, the features and capacities of persons in this sense
that would be dependent upon and served by language and to the
individual interests that, when respected and protected, best reflect
this view of the person.

This is the approach taken by David A. J. Richards, who uses
Rawls' theory to articulate, defend, and criticize the religion,
speech, and press clauses of the First Amendment and the body of law
that has enriched and developed them.(30) Richards emphasizes the
essential role that speech and writing play in the lives of the
persons that inhabit Rawls' theory and in our own lives in so far as
we are accurately and appropriately represented by this conception of
the person. Given this connection between speech and writing and the
conception of the person offered here and, also, given that it is this
conception that is at the center of a strong individual right to equal
concern and respect, a restriction upon speech may, Richards argues,
constitute a partial denial of the rationality or reasonableness of
persons; it may fail to treat persons as equals. This is especially
true if the restriction is based upon judgments about the truth,
worth, or appropriateness of the speech in question, for such
restrictions usurp persons' powers of rationality and reasonableness,
the powers that enable one to form, revise, and pursue a particular
conception of the good and of justice and that are most evident when

they are put to such ends. A right to free speech that is based on

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both rationality and reasonableness, therefore, would guard against
such usurpation and is grounded in the right to equal concern and
respect. "Such protections," Richards concludes, "aim to disperse
control of belief formation to all persons in the society and,
therefore, to extend to every aspect of communication (including their
media) through which persons as equals may express or realize their
communicative integrity in conscience formation, exercise, and
revision....Such communicative integrity, consistent with its
background right, protects decisions whether, with whom, and how to
communicate (both as speaker and as audience) about the issues central
to our dual moral powers of rationality and reasonableness."(31) Free
speech, then, is not justified according to the benefits that are
likely to be obtained by its promotion or protection or, more
generally, by its potential to advance or preserve some general social
goal like general utility. Rather, it is grounded in an individual
right, the right to equal concern and respect, which embodies a
conception of equality that is most appropriate for a view of persons
as beings who are capable of forming, revising, and pursuing a
conception of the good and of participating in the formation,
revision, and implementation of principles that make cooperation with
such persons both possible and acceptable.

There is a pitfall to be avoided in Richards' approach. It would
be a mistake, on Rawls' theory, to treat the conception of the person

at hand (and, more generally, the original position which, by using

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this conception, yields a model of reasoning that sufficiently
embodies a right to equal concern and respect) as a starting point or
foundation for a theory of free speech. This conception of the person
and the model of moral and political reasoning that employs it, the
original position, are just two of the many tools to be used in moral
and political deliberation. The aim of such deliberation, for Rawls,
is not to derive basic principles from fundamental premises about the
person and moral and political reasoning. Rather, the aim is to reach
what he calls "wide reflective equilibrium" among basic moral
principles (e.g. the principle of equal liberty), considered
intuitions and judgments (e.g. those intuitions about equality
underscored by the series of examples in the previous section), and
background theories concerning various aspects of the individual and
society.(32) I am not claiming that Richards makes such a mistake.
Indeed, his overall project is to provide a theory of constitutional
interpretation that takes seriously the roles of political and legal
theory, history, and the legal principles and considerations that have
been emphasized and developed via the jurisprudence of various clauses
of the U. S. Constitution. I am claiming, however, that to begin a
defense of free speech with this conception of the person (or to
initiate it from the standpoint of the original position), as Richards
does, is to flirt with the possibility of making this error.

To avoid this pitfall and, at the same time, to tread on

territory that is, in all likelihood, more familiar to most involved

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in free speech debate, I urge that we begin not with a philosophical
conception but, rather, with an existing model that has gained legal
recognition and widespread support. This is the model of the
marketplace of ideas. The aim will not be to derive a right to free
speech from a philosophical conception of the person or of equality or
of moral and political reasoning itself but, rather, to use such
conceptions to articulate and evaluate a particular model of legal
reasoning about free speech. We will consider both the extent to
which such a model is capable of yielding a doctrine of free speech
that is based both on rationality and reasonableness and how this
model can be modified so that it more fully reflects such a doctrine.
(This does not mean, of course, that Richards' approach is useless and
I shall, in fact, draw upon it several times throughout this chapter.)

Beginning with the marketplace model has an additional advantage
over Richards' approach. It allows us to shed light on one of the
most popular responses to those harms and wrongs that result from
television programming described in Chapter 1. If people find certain
television programs distasteful or offensive or if they are concerned
about the effects of certain programs upon themselves or their
children, this objection contends, they should simply turn off such
programs. Rather than arranging boycotts of certain programs or
asking the government to restrict such programs, persons can tune out
such programming and, perhaps, persuade others to do the same.

Eventually, the television market will respond by canceling the

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offensive program or by altering its content according to the desires
of viewers. In the end, only the most acceptable and desirable
programs will be offered and there will be no need for censorship. We
can more fully and accurately evaluate this response once we
understand the market model upon which it rests.

As I have said, I want to consider the extent to which the model
of the marketplace of ideas, as traditionally understood, is capable
of reflecting a doctrine of free speech that takes this liberty
seriously and, too, how this model can be modified so as to more fully
reflect such a doctrine. To avoid confusion, then, it will be best to
distinguish between a limited and an expanded model of the marketplace
of ideas. The limipeg mpgel (that is, the model as it is
traditionally understood) has two basic elements:

1. First, the marketplace of ideas , like the marketplace of
goods and services, is thought to be driven by the preferences and
aversions of the consumer. In the marketplace of ideas, the
"consumer" is the rational and reasonable agent who selects or rejects
ideas, beliefs, and values according to his/her conception of the good
and sense of justice. By purchasing certain goods and services and
avoiding others, the consumer plays a role in ultimately determining
which goods and services will be available and, to some extent, what
the value of these commodities will be. In the same way, the
"consumer of ideas," in favoring some ideas and rejecting others,

helps determine which ideas are acceptable and unacceptable and the

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worth of these ideas.

2. The second element of the marketplace of ideas model is the
principle of neutrality, which demands that the preferences and
aversions of rational and reasonable agents are to be the only factors
that determine the success or failure, value or worthlessness of any
particular idea. This principle implies that no judgment by
government (or, perhaps, by any individual or agency whatsoever)
regarding the truth or worth of an idea is to be given prior to the
entrance of that idea into the market. As summarized by Cass
Sunstein, the principle of neutrality demands that, "All speech stands
on the same footing. Thus, the protection accorded to speech extends
equally to communists and Nazis, the Klu Klux Klan and the Black
Panthers, Martin Luther King, Jr. and George Wallace."(33) Ideas are
to be treated as equals (i.e. neutrally) in every respect before their
entrance into the market.

The principle of neutrality also implies that one of the chief
tasks of government is to enforce this principle in the operation of
the marketplace of ideas. In other words, government is responsible
for facilitating (and not regulating or manipulating) the exchange of
ideas. The primary test of government's fidelity to this principle is
whether or not it respects the resulting distribution of ideas (the
distribution that, at any one time, makes some ideas most popular and
others scarce). Such distributions are thought to be fair when the

preferences and aversions of rational and reasonable consumers of

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ideas are neutrally considered in the way just described. Thus, any
attempt to manipulate the resulting distributions of ideas is viewed
as a partisan (and, therefore, as an unjust) exercise of state power
in the same way that the imposition of minimum wage or maximum working
hour regulations were seen, in the 19208, as unjust attempts to alter
the distributions of benefits resulting from the marketplace of
commodities in which similar rational and reasonable consumers have
their preferences neutrally considered.(34) It is this aspect of
neutrality that formed the basis of the Supreme Court's proclamation
in Buckley v. valeo that, "The concept that government may restrict
the speech of some elements of our society in order to enhance the
relative voice of others is wholly foreign to the First Amendment,
which was designed to secure the widest possible dissemination of
information from diverse and antagonistic sources."(35) To diminish
or regulate the speech of some in order to enhance the speech of
others is to engage in the kind of partisanship that is prohibited by
the principle of neutrality.

According to this limited model of the marketplace of ideas,
then, the right to free speech entails the right of a rational and
reasonable ”consumer of ideas" to have her/his ideas neutrally
considered in the marketplace of ideas and to participate in and enjoy
the benefits of the neutral consideration of the ideas of other such
consumers. Yet, questions can be raised regarding the extent to which

each component of this model, as realized in the context of today's

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television market, reflects the various elements of a strong
individual right to equal concern and respect. In other words, we can
inquire into the extent to which the television market reveals these
two components of the marketplace model and, in turn, the extent to
which it reflects and embodies the right to equal concern and respect.
We shall thus explore the degree to which the limited marketplace
model reflects a right to free speech that is based on both
rationality and reasonableness and, too, the degree to which the
television market reveals this limited model. In the end, I shall
offer an additional principle for regulating the marketplace of ideas,
a principle that, given certain features of the television market and
of the medium of television itself, is necessary if a doctrine of free
speech that takes this right seriously is to be achieved.

Consider, first, the supposition that the television market is
driven by the preferences and aversions of the rational and reasonable
consumer of ideas, the television viewer. These preferences and
desires, it might be thought, are generated by one's own conception of
the good and sense of justice. They are the result of the sort of
planning and reasoning characteristic of the persons imagined by
Rawls' theory and, hence, the expression and pursuit of such
preferences contribute to the formulation, revision, and pursuit of
one's conception of the good and sense of justice. Were such
suppositions not made, the marketplace of ideas model could not

purport to be a model of free speech that adequately and appropriately

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embodies the right to equal concern and respect, a right that must
underlie any significant right to free speech.

It is this element of the model, perhaps, that makes it seem most
readily applicable to television. The ideas that compete in
television's marketplace of ideas are those that are conveyed by
television programs and advertisements. Thus, the preferences and
aversions that drive this market stem from two sources. First,
television programs could not be created and distributed without
substantial financial support from commercial sponsors who express
their taste or distaste for a program through such support. Thus, for
example, a determination by a large number of potential advertisers
that a program is undesirable or inappropriate will mean its absence
in the market.(36) The other source, as already noted, is the
television viewer who has, in recent years, become even more like a
traditional consumer in that he/she now directly "purchases" programs
(or packages of programs) from cable television companies or via
satellite dishes much like he/she might purchase any other product or
service. This fact is regularly noted in cases concerning attempts to
manipulate or regulate resulting distributions of ideas in the
television market.(37)

The description of the preferences of the rational and reasonable
consumer just given, however, may not be fully suitable for the
preferences of the television viewer (i.e. the preferences that are to

guide the television market). In Chapter 1, we saw that theories of

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behavioral modification describe ways in which beliefs and behavior
may be influenced with little (if any) conscious effort on the part of
those exposed to certain forms of programming. Desensitization and
disinhibition, for example, create, modify, or eliminate preferences
for violence without our having to exercise the powers of rationality
or reasonableness or our referring to a conception of the good or
sense of justice. Other studies demonstrated that those individuals
who are regularly exposed to sexually explicit films may become
conditioned to react favoritively to such material so that, to a
certain extent, such material perpetuates its own success.

Again, consider the television commercial as described in the
previous chapter. There, following Neil Postman, I argued that the
typical television advertisement takes the form of a religious
parable, using music, vivid imagery, and other effects to show how
lives are dramatically and instantly improved by technology and
technique. "A McDonald's commercial, for example," Postman writes,
"is not a series of testable, logically ordered assertions. It is a
drama, a mythology, if you will, of handsome people selling, buying,
and eating hamburgers and being driven to near ecstasy by their good
fortune."(38) Here, preferences are not formed via reason
but,rather, by emotional appeal; the television commercial does not
address itself to our rationality or reasonableness but, rather, to
our hopes, fears, and fancies. Its aim is to make us angry, ecstatic,

sad, or frightened, not informed or persuaded. This is why Postman,

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after noting the reliance of capitalist theories upon a marketplace
model guided by principles similar to those just enumerated, asserts,
"...the television commercial has mounted the most serious assault on
capitalist ideology since the publication of Qas Kapital."(39)

The problem, here, is that the marketplace of ideas model assumes
that the market will be driven by the preferences and aversions of
rational and reasonable consumers while the television market is, in
fact, often driven by those of what we might call "manipulated"
consumers. "Manipulation," write Martin Benjamin and Joy Curtis,
"...puts a premium on the results of one's intervention...It is a mode
of altering another's beliefs or behavior by subverting or bypassing
his/her rational capacities." Manipulation is to be contrasted with
rational persuasion, which "consists of appealing to another person's
rational capacities in order to influence his/her behavior....Ideally,
rational persuasion is conceived of as a dialogue in which the persons
attempting to do the persuading recognize that those to whom they
direct their arguments are their equals as persons."(40) Underlying
the marketplace of ideas model is the assumption that the preferences
and aversions of persons are shaped by rational persuasion (or some
method similar to it), by a method that reflects and embodies the
conception of the person essential to upholding the right to equal
concern and respect. However, in practice, the television market
makes at least some use (intentionally or unintentionally) of the

technique of manipulation (whether it take the form of behavioral

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modification or manipulative advertising), thus partially denying the
status of viewers as persons. To the extent that this is so, the
television market is not a genuine marketplace of ideas. In other
words, the marketplace of ideas model, when applied to television,
does not yield an account of the right to free speech that fully
reflects the individual right to equal concern and respect.(41)
A.variety of methods might be used to correct these
"imperfections" in the marketplace of ideas. Television manufacturers
might be encouraged to utilize technologies that enable viewers to
block out programming that is, say, violent in nature, thus protecting
individuals (and especially children) from the effects described by
theories of behavioral modification.(42) Others might propose
legislation that attempts to curb these effects by limiting
advertising time during certain kinds of programming or the amount of
violent scenes that can be shown during any one period.(43) Many will
insist that such measures constitute censorship. Yet, it is important
to note that such steps are taken to promote (rather than limit) free
speech when this right is understood as explained and supported by a
right to equal concern and respect and its corresponding conception of
the person. The aim, on my view, is not to protect an unrestrained
marketplace of ideas for its own sake but, rather, to aid the
television market in reflecting a marketplace of ideas that takes free
speech seriously. (I will say more about such measures in the next

chapter when we return to the questions and problems surrounding sex

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and violence on television.)

Speech and Powep

Let us suppose that manipulation in the television market is
substantially reduced so that, for the most part, this market is
driven by the preferences of rational and reasonable viewers. Whether
or not the limited model of the marketplace of ideas, as realized by
the television market, embodies a right to free speech that is based
on rationality and reasonableness will now depend upon whether or not
a marketplace of ideas guided only by the principle of neutrality
sufficiently reflects a right to equal concern and respect as
described earlier. I shall argue that it does not fully reflect such
a right and that the television market must be regulated by at least
one additional principle, what I shall call a "principle of equity."
While this expanded model of the marketplace of ideas may still be
inadequate, it will, I think, be more acceptable than the limited
marketplace model considered earlier, a model that conceives of the
market as being governed solely by the principle of neutrality.

As a general rule, a marketplace of ideas governed only by the
principle of neutrality does, indeed, reflect the right to free speech
as explained and defended by the right to equal concern and respect.
For example, we might appeal to the principle of neutrality in order
to prevent government from censoring broadcasters who, through their

programming, are conveying ideas that it views as false or to prevent

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it from subsidizing those media enterprises disseminating ideas that
it sees as correct. This appeal to neutrality, on the view I am
defending, would not be for the sake of merely insuring the fairest
market procedure but, rather, would be made in order to, as Richards
put the point earlier, guard against the usurpation of the powers of
viewers to determine and pursue their own conceptions of the good and
of justice. Persons cannot accept such interference with the market
and, at the same time, regard themselves as being treated as equals,
as individuals who are capable of formulating, revising, and pursuing
their own conception of the good according to their own interests,
reasons, and abilities and according to principles that might
facilitate cooperation between such individuals.(44) Such attempts by
government to so blatantly manipulate the result of the marketplace of
ideas are not unacceptable merely because they are partisan (which
they are) but, more importantly, because they fail to uphold the right
of each to equal concern and respect as earlier described. In other
words, the marketplace of ideas is fair not because it treats ideas as
equals but because it treats persons as equals.

Although, as a general rule, a marketplace of ideas governed only
by the principle of neutrality (that is, the market as conceived by
the limited marketplace model) reflects a doctrine of free speech that
is based on both rationality and reasonableness, there are many
instances in which this model fails to reflect such a view. Suppose

that Smith, a staunch advocate of strict gun control, walks along a

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busy city street trumpeting his beliefs through a powerful megaphone.
He claims to be exercising his right to free speech. Upon being
approached by individuals who wish to debate the matter with him and
by others who merely want to persuade him to refrain from his
insensitive and intrusive mode of communication, Smith continues to
forcefully and loudly defend his beliefs, ignoring (or, perhaps, not
hearing) the speech of others.

Proponents of the marketplace model may attempt to defend Smith's
activity by suggesting that any measures that might be used to prevent
him from speaking violate the principle of neutrality. They would
argue that persons who disagree with him ought to subject their own
views as well as the opinions held by Smith to the marketplace of
ideas for consideration and evaluation and that any judgments prior to
this procedure would be unjust. They would also maintain that
objections to Smith's use of a megaphone are grounded in complaints
about the relative power or force of his speech. To address such
complaints would be to violate the Buckley maxim, which prohibits
limitations on the speech of some in order to enhance the speech of
others. Smith’s action, on this view, would be an exercise of his
right to free speech and be fully protected by the First Amendment.

One problem with this analysis is that neutrality, as understood
here, is likely to undermine itself. Recall that the marketplace of
ideas model depends upon the participation of rational and reasonable

consumers of ideas alone for its results. Indeed, this is why

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judgments about the truth or worth of an idea before the operations of
the market commence and interference with these operations are
prohibited by the principle of neutrality. Nonetheless, the use of a
megaphone, in the current example, is inhibiting the participation
upon which this model depends. Persons are prevented from affirming
or rejecting the ideas being offered by Smith by the very power (i.e.
the force and range) of his speech. In the end, we might even say
that it is the power (and, in this case, the mechanical or acoustical
power) of Smith's speech rather than the operations of the market that
determine the success of his ideas. The measures that are meant to
insure neutrality, those steps taken to shield the market from
external (and possibly corrupting) forces, also permit those
operations that define neutrality for this view to be extinguished.

Similar reasoning may have guided the Supreme Court's decision in
Red Lion Broadcasting Co. v. FCC, which upheld various FCC regulations
that formed part of the so-called "fairness doctrine."(45) In that
case, Justice White wrote, "Just as the government may limit the use
of sound amplifying equipment, potentially so noisy that it drowns out
civilized private speech, so may the government limit the use of
broadcast equipment. The right of free speech of a broadcaster, the
user of a sound truck, or any other individual does not embrace the
right to snuff out the free speech of others."(46) He added, "It is
the purpose of the First Amendment to preserve an uninhibited

marketplace of ideas in which truth will ultimately prevail rather

155

than to countenance monopolization of that market..."(47) Those who
wish to salvage the marketplace model might urge that to "snuff out
the speech of others" is to prevent individuals from offering,
selecting, or rejecting ideas in the competition of the market. By
engaging in such behavior, then, Smith is threatening that which
shapes the neutrality of the market, namely, the participation of
rational and reasonable consumers of ideas in the market and, in
particular, their submission, selection, and rejection of ideas. In
other words, Smith's speech (or, more precisely, its mode or medium)
undermines or "snuffs out" free speech as it is understood on this
view. Thus, proponents of the marketplace model might concede that
certain regulations are needed in order to insure the most efficient,
fruitful, and neutral competition in the marketplace of ideas. These
might include, for example, permits for the use of megaphones or other
amplification devices or guidelines describing when and where such
speech is appropriate. Of course, such regulations must remain
"content-neutral" so as to adhere to both aspects of the principle of
neutrality as described earlier.(48)

If it is the principle of neutrality that enables the marketplace
of ideas model, in general, to reflect the status of persons as
equals, then this principle must be modified so that neutrality can,
in fact, be preserved. Diminishing or restricting the speech of some
in order to enhance the speech of others is not, contrary to the

Buckley decision, "wholly foreign to the First Amendment." Indeed, if

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the right to free speech guaranteed by the First Amendment is
understood in terms of a marketplace of ideas governed solely by a
principle of neutrality, then such manipulation may be necessary in
order to uphold this right and, more precisely, to prevent this
principle (or its enforcement) from undermining itself. Hence, the
principle of neutrality does not merely require that government
facilitate the operations of the marketplace by refraining from
interfering in these operations. More generally, this principle
requires it to guard against those institutions and practices that
threaten the integrity and neutrality of the market, even when this
means direct interference with the operations of the market or
intervening in the activities of particular individuals involved in
the exchange of ideas.

There is, however, another problem with defending Smith's speech
in terms of the marketplace model. The concern, here, is not so much
with the preservation of the market itself but, more directly, with
the respect due to the individuals who are ignored or disregarded by
Smith. Thus far, the problem with a defense of Smith in terms of the
marketplace model has been expressed only with regard to the ideas
that are or are not subjected to the scrutiny of the market and to the
process via which such scrutiny takes place. However, this second
difficulty turns our attention from the treatment of ideas to the
treatment of individuals and, in the end, will point to considerations

that remain unacknowledged by a marketplace of ideas governed only by

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the principle of neutrality.

Let us consider the example at hand simply in terms of the three-
fold conception of equality developed earlier in this chapter.
Consider, first, the view of the person that is at the center of this
conception. In the present case, a difficulty arises because the
capacities of individuals as listeners are ignored by Smith. .A
"listener" (and, too, a "speaker"), here, is not merely one who can
participate in the marketplace by offering and selecting ideas. More
importantly, speakers and listeners are those agents who can, via
their rationality and reasonableness, form, revise, and pursue a
determinant conception of the good according to their own abilities
and interests and according to principles that facilitate cooperation
between them; speakers and listeners are persons.

There are a variety of implications for a doctrine of free speech
that is to treat individuals as speakers and listeners (and,
ultimately, as persons). For example, listeners not only receive,
select, and reject ideas, they understand, evaluate, and criticize
them and this understanding and evaluation occurs with reference to
their own conception of the good and sense of justice. Upon
completing the understanding and evaluation of an idea, listeners are
also respondants in that they react to the idea by questioning,
challenging, or defending it (though, of course, the response need not
be overt). In short, listeners must be treated not merely as rational

and reasonable consumers of ideas but, more significantly, as rational

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and reasonable participants in meaningful dialogue.

Some of the conditions that must be satisfied in order to treat
individuals as speakers and listeners may differ from those that must
be fulfilled when individuals are to be treated as participants in a
neutral marketplace of ideas (though there will, without doubt, be
some overlap between these two sets of conditions). For example, I
have suggested that to treat persons as listeners is, in part, to
treat them as respondants. The limited model of the marketplace of
ideas treats persons in this fashion simply by permitting them to
offer their own ideas about issues to the market. Nonetheless, if we
understand some of the conditions under which an individual is most
likely to respond (e.g. when a matter concerns him directly or
severely challenges his way of life). there may be situations in which
such conditions are met and in which it would, therefore, be a
violation of that individual's right to free speech to refuse to grant
him a right to reply.(49) We might, in this vein, also discuss the
conditions that must be met if a person as listener is to understand
ideas and argue, say, that avoidable illiteracy is a violation of
one's free speech right. These conclusions might seem odd to some,
but they are the result of an account of the right to free speech that
takes this right seriously.

Smith's speech is unacceptable because it fails to treat
individuals as listeners, as persons with the features and capacities

just mentioned. Like the technique of manipulation, Smith's speech

159

forecloses (or, at least, inhibits) dialogue, dismissing this view of
the person. However, rather than bypassing or subverting the
capacities essential to this conception of the person (and especially
to the person as listener), Smith's speech simply ignores or denies
these capacities. Moreover, the conditions that must be met in order
to treat individuals as listeners are not satisfied as a result of
Smith's behavior. These conditions include many of those already
discussed when considering the maintenance of a neutral marketplace of
ideas. After all, if the market is not neutral from the outset, then
the view of the person at the center of the right to free speech as I
understand it is not reflected in-this model. This account explains
our intuition that, even if neutrality were not undermined by Smith's
action, his behavior would remain unreasonable. At bottom, his
behavior fails to treat persons as equals by ignoring the capacities
that help define persons as listeners and by threatening the
conditions under which persons can be recognized as such. Once again,
we must be attentive to both the treatment of ideas and of persons.
It is the power of Smith's speech (determined, in part, by the
resources that facilitate his communication and the mode of this
communication) that enables him to overlook or ignore individuals as
persons. Yet, a marketplace of ideas governed only by a principle of
neutrality fails to reflect equal concern and respect in another way.
This principle urges, as we have seen, that all speech "stands on the

same footing." It is to be upheld regardless of the power of the

160

speech as determined by the context, mode, and resources that support
speech. However, protecting all speech without regard to its power
is, in some cases, to ignore the distinctions between those interests
that most and those that least reflect the view of persons at the
center of the individual right to equal concern and respect.

For example, let us suppose that Smith has not a megaphone, but a
sophisticated communications system that allows him to convey ideas
and information in a variety of forms and to mass audiences. Smith's
speech is, due to the variety of forms of communication he may
utilize, the material and financial resources at his disposal, and the
potential range of his communications, quite powerful. It is
powerful, once again, not because of its content but, rather, due to
the circumstances that define the way in which it is conveyed. To
protect his speech is to protect not only the interests traditionally
supporting a right to free speech but, in addition, many of his
financial, property, and other interests. Affording the same degree
of protection to some (or, perhaps, most) of these interests as is
given to traditional speech interests may blatantly ignore the
distinction between interests that must exist if a right to equal
concern and respect is to be acknowledged. This may be why the
Supreme Court, in Red Lion, states, "It is the right of viewers and
listeners, not the right of the broadcasters, which is paramount."(50)
In other words, it is the traditional speech interests of individuals

qua speakers and listeners rather than any additional interests of

161

individuals qua broadcasters (e.g. an interest in turning a large
profit or in utilizing one's property) that deserve significant
protection. To protect powerful speech may be, in effect, to treat
all of these interests with the same degree of consideration.

Powerful speech in the marketplace of ideas, then, may yield
concerns and questions about the extent to which such a market,
governed only by the principle of neutrality, is capable of reflecting
a strong individual right to equal concern and respect. The presence
of powerful speech in a neutral marketplace of ideas may raise
concerns about the maintenance of this market with regard to its
efficiency or neutrality. Also, the presence of such speech might
give rise to questions about the extent to which individuals are
treated as speakers and listeners and to which the conditions for
treating persons in this way are satisfied. Power is, perhaps, only
one of the features of speech (or of speakers) that leads to such
issues but, given the power of speech when conveyed via television,
it is a factor that must be considered in any doctrine of free speech
that is to be applied to this medium.

Several features of television and its market render speech on
television quite powerful. Three of these features are especially
noteworthy. First, television, as a medium, has a substantial range,
especially in the United States. Nearly every home has a television
set and many homes have several; television reaches mass numbers of

individuals. Also, as discussed in the previous chapter, television

162

programming reaches people of all levels of intelligence and
experience, children as well as adults, the mentally impaired as well
as the intellectually gifted, the poor as well as the rich. It is a
medium that does not differentiate into categories or classes the
individuals that partake in its offerings.

Second, communication via television is costly given the
technology and skills involved in the production and distribution of
television programs. Due to this direct relationship between speech
and capital, it is possible to "snuff out" the speech of others merely
by outspending them, whether one is a political candidate seeking a
public office or a commercial sponsor attempting to alter television
programming.(Sl) The power of speech on television is determined, in
part, by the financial resources invested in it. The sound truck or
megaphone, in such cases, is the pocketbook.

The final feature of television that contributes to the power of
speech when it is conveyed via this medium is, in fact, a set of
characteristics that describe the way in which information is conveyed
by this medium. Television has changed the form, speed, and direction
(e.g. whether information flows from a single source to many people
or, say, between many persons simultaneously) more radically than at
any other time in history.(52) In the previous chapter, we saw how
such a change has effected various kinds of discourse such as
political discourse and discussion of important social issues. In

these areas, I argued, using the work of Neil Postman and others, that

163

the speed and form of information in a television newscast, for
example, has transformed what most people take to be serious public
discourse, that the current view of serious discourse is instant, eye-
catching, straightforward communication. In short, we might simply
say that television amplifies discourse because it simplifies it; the
medium of television, itself, is a very powerful (that is, a
technologically powerful) megaphone.

The range of television as a medium, the strong relation that is
established between speech and economic and material resources by the
television market, and the characteristics of television as a medium
(e.g. the form, speed, and direction of its information) work together
to make speech on television quite powerful. Television is, as
already suggested, very much like a powerful megaphone and, therefore,
gives rise to many of the questions and concerns introduced in the
example involving Smith. If we take the television market (that is,
the marketplace of ideas in so far as it is produced and sustained by
television) as an element of the marketplace of ideas in general,
these questions and concerns can be put into three classes: 1) those
concerning the efficiency and neutrality of the marketplace of ideas,
2) those concerning the extent to which individuals who participate in
the marketplace are recognized as speakers and listeners and to which
the conditions that must be met for such recognition are satisfied,
and 3) those concerning the interests that are at stake in issues

arising from interactions between the television market and the

164

marketplace of ideas in general, especially when these interactions
are gauged with regard to the power of speech on television. Notice
that, because the second class of concerns are those regarding the
extent to which individuals are treated as persons, we can include
those problems surrounding the presence of manipulation in the
television market discussed in the previous section under this head.

Questions and concerns surrounding the efficiency and neutrality
of the market can, as we have seen, be addressed without resorting to
any additional principles other than that of neutrality itself. The
problem, in such instances, is not that the principle of neutrality is
inadequate but, rather, that this principle (or its enforcement when
understood in the most narrow sense) risks undermining itself.
Permits, time and place regulations, and other such measures might be
implemented in order to resolve many of the difficulties cited by the
first class of concerns just noted. The creation of the Federal
Communications Commission and the regulations at issue in Buckley also
aid in resolving such difficultie8.(53)

It is the second and third class of concerns (those regarding the
extent to which individuals are treated as speakers and listeners and
those concerning the individual interests at stake when the television
market is seen as part of the marketplace of ideas in general) that
call for a principle of equity in addition to the principle of
neutrality. The aim of this principle is to insure that the

marketplace of ideas model, as an account of the right to free speech,

165

captures the three-fold conception of equality set out at the
beginning of this chapter. Such a principle would dictate, among
other measures, steps to fulfill the conditions under which
individuals are treated as speakers and listeners, including those
discussed in the previous section that reduce the occurrence of
manipulation in the television market. It would also demand
consideration of the individual interests involved when powerful
speech is present in the market. The aim, here, would not be to weigh
individual interests against one another but, rather, to respect the
distinction between those interests that best reflect and those that
least reflect the conception of the person that is essential to the
right to equal concern and respect.

I will not work out, in detail, the variety of implications for
the television market yielded by a marketplace of ideas governed by
both the principle of neutrality and the principle of equity. Rather,
in the next chapter, I want to use this model in order to address some
of the harms and wrongs cited in Chapter 1. We shall see, in the next
chapter, how television programs containing sex and violence
precipitate the sorts of questions just enumerated. I want to use the
marketplace of ideas model, as it has been modified here, to consider
whether or not the right to free speech can and should be extended to
television programming that contains blatant violence and explicit sex
and, also, how this expanded marketplace model might be used to

respond to the harms and wrongs brought about by such programming.

166

167

HOLES
l. Teking Righps Seriouely by Ronald Dworkin, Harvard University

Press, c. 1978.

 

2. I shall be drawing primarily from A Thepry of Justice, Harvard
University Press, c. 1971, and Political Liberalism, Columbia
University Press, c. 1993.

3. This model was first given legal precedence in Justice Holmes'
famous dissent in Abrams v. United States (250 U. S. 616, 1919).
Holmes writes, "But when men realize that time has upset many fighting
faiths, they may come to believe (even more than they believe the very
foundation of their own conduct) that the ultimate good desired is
better reached by free trade in ideas, that the best test of truth is
the power of the thought to get itself accepted in the competition of
the market, and that truth is the only ground upon which their wishes
safely can be carried out. That, at any rate, is the theory of our
constitution."(@630)

Other cases explicitly invoke this model. For example, Justice
Powell, writing the majority opinion in Gertz v. Robert Welsh, Inc.,
states, "We begin with the common ground. Under the First Amendment,
there is no such thing as a false idea. However pernicious an opinion
may be, we depend for its correction not on the conscience of judges
and juries but on the competition of other ideas."(418 U. S. 323,
1974, @339) Later, when I more fully examine the elements of this

model, other illustrations of its prominence will be offered.

168

4. gpiliperianism by J. S. Mill, edited by Oskar Piest, Bobbs-Merrill
Co., c. 1957, p. 16.

5. ibid., pp. 72-73

6. On Liberty and Other Writings by J. S. Mill, edited by Stephen
Collini, Cambridge University Press, New York, c. 1989, p. 196.

7. WW. 9. 91

8. Dworkin distinguishes between a right and a goal by referring to
the "distributional character" of the justification that refers to the
state of affairs that is to serve as the political aim. When the
benefits and burdens generated by this state of affairs are discussed
in general terms (i.e. without reference to the benefits and burdens
received by or assigned to particular individuals), the state of
affairs is a goal. .Although I find this way of putting the matter
intriguing, I avoid this explanation here because it can be rather
cumbersome for both reader and writer. See ibid., pp. 89-93.

9. ibid., p. 198. Dworkin is not, of course, the only writer to
discuss individual rights as constraints upon the pursuit of social
goals. For example, Charles Fried has stated, "The right to a fair
trial implies, in the case of indigency, the right to a lawyer and,
even without implying such a right, a fair trial is clearly a costly
procedure in terms of time and resources. But, more dramaticaly, my
right to freedom of speech and of conscience only has bite if
respecting those rights is a real constraint on the pursuit of some

other social goals. To say that a right is a right only when its

169

recognition puts a spoke in no one else's wheel at all is just to say
that there is no such thing as rights." See Medieel Egperimenpetien;
Personal Integrity and Social Poliey, North Holland Publishing Co.,
Amsterdam, c. 1974, p. 93.

10. Rawls first set forth this distinction in "Kantian Constructivism
in Moral Theory," gpprnel pf Philoeephy, vol. 67, 1980, pp. 527-530.
He provides a clearer and fuller explanation of this distinction in
Pelipieel Liperaliem, pp. 48-58.

11. The view at which we shall arrive will also agree with the defense
of individual rights suggested by Dworkin. He asserts, "Anyone who
professes to take rights seriously and who praises our government for
respecting them must...accept, at the minimum, one or both of two
important ideas. The first is the vague but powerful idea of human
dignity....The second is the more familiar idea of political
equality..." See Taking Rights §eriously, pp. 198-199.

12. See, especially, pp. 411-415.

13. Political Liberalism, p. 50

14. Ipeepy, pp. 26-27

15. It might be objected that I have oversimplified Mill's position by
attempting to model it via the device of the impartial (and rational)
sympathetic spectator. Mill is not, it might be urged, merely
concerned with the coordination and manipulation of pleasures and
pains, benefits and harms, or preferences and aversions. Rather, the

life, conduct, and development of each individual is most important to

170

his theory. The principle of liberty, after all, is a principle of
indivigeel liberty, demanding that persons be permitted to live their
lives as they see fit so long as their conduct or way of life does not
harm others. Also, the eloquent and vigorous defense of individuality
in Chapter 3 of On Liberty should serve as further evidence of Mill's
concern for the individual.

Finally, the objection might continue, in his gepeieepeeiepe_gp
32R££§§E£§£129_§QY§£EEEE§ (a work that might be regarded as the climax
of Mill's political thought), Mill insists that the merit and
legitimacy of a government is to be evaluated, primarily, in terms of
the tendency of that government to utilize and contribute to the
development of the abilities, capacities, and talents of those it is
to govern. The foundation of the merit of government, asserts Mill,
"...consists, partly, of the degree in which they [the political
institutions that comprise the government] promote the general mental
advancement of the community...and, partly, of the degree of
perfection with which they organize the moral, intellectual, and
active worth already existing so as to operate with the greatest
effect upon public affairs. A government is to be judged...by what it
makes of the citizens and what it does with them." (See
gonsiderations On Representative Government edited by K. Shields,
Bobbs-Merrill Co., Liberal Arts Press, c. 1958, pp. 27—28.) Thus, the
objection concludes, both in the defense of the principle of liberty

and in the evaluation of government, it is the abilities, capacities,

171

and other qualities of individuals and the development of these
abilities and qualities (rather than mere overall net benefit) to
which Mill ultimately appeals.

A refutation of this objection will become clearer in the pages
that follow. For now, it is sufficient to note that I do, indeed,
concede that I have oversimplified Mill's position. Yet, it is the
goal of general utility itself rather than utilitarian reasoning (and,
in particular, its wholly rational character) that I might be accused
of misrepresenting. In Qn Liberty, Mill notes that individual
character and development is the "chief ingredient of human
happiness." He adds, "If it were thought that the free development of
individuality is one of the leading essentials of well-being, that it
is not only a coordinate element with all that is designated by the
term 'civilization' -- instruction, education, and culture -- but that
it is, itself, a necessary part and condition of all those things,
there would be no danger that liberty should be undervalued..."(p. 57)
Thus, maximum overall net benefit or the general happiness may be, on
Mill's view, more complex than I have indicated in the text. However,
it would be wrong, I think, to conclude that individual development or
the individual's ability to pursue her/his own good in her/his own way
is prior to or more fundamental than these goals; such considerations
may enrich or give shape to the goal of general utility but they do
not override or supersede it. (cf below, note 21.)

16. Here, I slightly alter a pair of examples given by Dworkin in "Do

172

We Have a Right to Pornography" in.A Mepper pf Prineiple, Harvard
University Press, c. 1985, pp. 360-361.

17. Utilitarianism, p. 76

18. Some writers have argued that this way of interpreting the
principle of liberty is too simplistic. To understand the principle
of liberty as demanding an impartial view of all individual interests
is to ignore some of its more intriguing applications as these are
made by Mill himself. For example, David Dyzenhaus, in an
illuminating interpretation of On the Subjection of Women, argues that
this principle must be seen as protecting not only mere injury to
individuals but, also, as securing very basic interests for each
individual. Thus, he writes, "...Qp Liperty is written in order to
combat a predominant, growing, and false conception of
interest....Mill's understanding of harm is normative in so far as one
of the harms he is concerned about is harm to the interest individuals
have in autonomy." In this way, On the Subjeceipn of Wemen is to be
viewed not as a plan for the liberation of women based upon the
overall net benefit such liberation promises but, rather, as a
documentation and rejection of the suppression of women by men via a
systematic social coercion that is wrong in itself because it inhibits
the pursuit by women of their interest in autonomy. See "John Stuart
Mill and the Harm of Pornography" by David Dyzenhaus, Ethiee, vol.
102, 1991, p. 545. As shall become clear soon, if Dyzenhaus is

correct, this would constitute a serious modification of

173

utilitarianism and, indeed, may not be a form of utilitarianism at all
as I have characterized it thus far.

19. Compare A Matter of Principle, pp. 361-362.

20. It might be argued that Mill, himself, would be willing to concede
this point. As already noted, Mill insists that equality as
impartiality is the "highest abstract standard" of justice and
acknowledges that the principle of utility would be an unacceptable
principle without a corresponding principle of impartiality. Also, in
the Considerations On Representative Government, he makes a
distinction between "true" and "false" democracy, conceptions of
democracy that insure representation of all and representation of the
majority only, respectively. Mill favors "true" democracy, arguing
that, unless the minority receives a fair share of representation in
the government, "there is not equal government but a government of
inequality and privilege. One part of the people rules over the
rest," which is "contrary to the principle of democracy, which
professes equality as its very root and foundation."(pp. 103-104)
Later, Mill writes, "Democracy is not the ideally best form of
government...unless it can be so organized that no class, not even the
most numerous, shall be able to reduce all but itself to political
insignificance and direct the course of legislation and administration
by its exclusive class interests."(p. 128) Through proportional
representation and a procedure for insuring that all interests and

claims are heard in the popular assembly, such equality, Mill claims,

174

can be guaranteed.

Yet, there are two important qualifications to Mill's demand for
equality here. First, there is a qualification based upon the simple
appeal to the principle of utility. Mill writes, "...it is a personal
injustice to withhold from anyone, unless for the prevention of
greater evils, the ordinary privilege of having his voice reckoned in
the disposal of affairs in which he has the same interest of other
people."(p. 131, my emphasis) More importantly, however, those who
are illiterate (pp. 131-133) or who might show a lack of fiscal
responsibility (due to, say, failure to pay taxes or receipt of
charity, pp. 133-134) are excluded from the suffrage. Also, plural
voting is to be given to those with more extensive education or who
have demonstrated significant intellectual ability.(pp. 136-139)

These exceptions are important because they illustrate the modified
goal of general utility mentioned earlier. (See note 15.) In the
end, the goal that is to be pursued, perhaps, is one that might be
described by what Dworkin calls the "virtuous society." On this view,
persons are treated equally not merely by being impartially considered
in the utilitarian calculation but, in addition, when they are given
equal concern and respect in proportion to the extent to which they
exhibit (or promise to exhibit) the virtues and attributes essential
to a certain conception of the "good person" or the "good life."
Indeed, it is remarkable to note the number of parallels between

Dworkin's description of this notion of equal concern and respect

175

(what he terms a "conservative" conception of equality) and Mill's

doctrine as it is set forth in the Qpneigeretippe. (cf Mepper ef

Principle, p. 198.)

21. Such preferences are labeled "external preferences" by Dworkin.
22. One might argue that Dyzenhaus provides just such a modification
with his interpretation of Sn phe Sppjeetien e: Wemen. Yet, given the
rejection of impartiality and the richer conception of the person
implicit in his discussion, the version of utilitarianism he offers
looks more nonutilitarian than utilitarian. I will not pursue this
argument here.

23. These elements are discussed in Theopy, pp. 130-150.

24. Pelipieel Lipereliem, pp. 71-74

25. ibid., pp. 187-190

26. ibid., pp. 66-72

27. ibid., p. 49-50

28. ibid., p. 17

29. Taking Righte Seriously, p. 174

30. Telerepien epd ghe genetitptiep by David A. J. Richards, Oxford
University Press, New York, c. 1986.

31. ibid., pp. 169-170

32. See Theopy, pp. 46-50.

33. "Free Speech Now," p. 259

34. The connection between government as a mere facilitator of

commercial interaction in the marketplace of goods and services and

176

its role in the marketplace of ideas as I have described this model
here is pursued by Cass R. Sunstein in "Free Speech Now," univereiey
of Chicago Law Review, Vbl. 59, 1992, pp. 263-267. For a more general
discussion, see his "Neutrality and Constitutional Law with Special
Reference to Pornography, Abortion, and Surrogacy," Columbia Lew
Review, Vbl. 92, 1992, pp. 1-12. For more recent discussion and
important elaboration, see his D mo r nd h Pr 1 m f Fr

Speeep, McMillan, the Free Press, c. 1993, especially Chapter 2.

35. Buckley v. valeo, 428 U. S. 1, 1976, @48-49.

36. Some examples are given in "Free Speech Now," pp. 282-283.

37. For example, in Turner Broadcasting Systems, Inc. v. FCC, in which
the Court considered the "must carry" provisions of recent legislation
governing the operations of the cable industry, the Court writes, "At
the heart of the First Amendment lies the principle that each person
should decide for him/herself the ideas and beliefs deserving of
expression, consideration, and adherence. Our political system and
cultural life rest upon this ideal." The Court adds that the
provisions at issue "raise the specter that the government may
effectively drive certain ideas or viewpoints from the marketplace."
38. WW
Business by Neil Postman, Penguin Books, New York, c. 1985, p. 125.
39. ibid., p. 127-128. Sunstein documents other ways in which the

preferences and aversions of viewers are regularly manipulated by

advertising and news programming in Demperegy egg phe Preplem pf Free

177

Speegh, pp. 59-60, 73-74.

40. Sphiee In Nureing by Martin Benjamin and Joy Curtis, Oxford
University Press, 3rd ed., c. 1993, pp. 63-64.

41. It should be noted that Rawls is not unaware of the ways in
which preferences are shaped by manipulation in the marketplace of
ideas. For example, in the realm of advertising, he distinguishes
between advertising that informs consumers about prices and features
of products and what he calls "market strategic advertising." This
second kind of advertising mirrors the technique of manipulation
described by Benjamin and Curtis because its primary aim is to expand
market shares or to preserve one's hold on or position in an industry;
in short, it puts a premium on consequences. In these cases,
"Advertising tries to influence consumers' preferences by presenting
the firm as trustworthy through the use of slogans, eye-catching
photographs, and so on, all designed to form and strengthen the habit
of buying the firm's product." Rawls concludes, "Much of this kind of
advertising is socially wasteful and a well-ordered society that tries
to preserve competition and to remove market imperfections would seek
reasonable ways to limit it." See Pelitieel Lipereliem, pp. 364-365.
Of course, such arguments need not be restricted to the television
market. Manipulative advertising anywhere in the marketplace of ideas
will, on this view, be unacceptable.

42. Brandon Centerwall, in a study cited in the previous chapter,

favors just such measures. See "Television Violence: The Scope of the

178

Problem and Where to Go from Here" in Jpgrnal pf phe Amerieen Meeieel
Aeeeeiepiep, vol. 267, 1992, pp. 3062-3064. Similar measures are

summarized by a front page story, "Television Violence: A.Closer
Look," in the New York Times, Dec. 15, 1994.

43. Such legislation includes, for example, the Children's Protection
Against Violent Television Act of 1993, defended in "The Television
Time Bomb," New Yerk Timee, July 27, 1992. .Also, see Sunstein's
discussion of the Children's Television Act of 1990 in "Free SPeech
Now," pp. 257-258.

44. T. M. Scanlon advocates governmental neutrality with regard to
ideas in a similar manner. For Scanlon, this neutrality is supported
by a principle of legitimate governmental authority which states that,
"a legitimate government is one whose authority citizens can recognize
while still regarding themselves as equal, autonomous, rational
agents." When government favors ideas because it sees them as true or
attempts to censor them because they appear to be false, it violates
this principle and, in my words, the right to equal concern and
respect. See "A Theory of Freedom of Expression," Spileeeppy_epg
gpplie Affaire, vol. 1, 1972, pp. 214-216.

45. 395 U. S. 367, 1969

46. ibid., @387. It is this passage that spawned the example I have
been considering.

47. ibid., @390 citing (with approval) Associated Press v. United

States, 326 U. S. 1, 1945, @20.

179

48. Such reasoning may have also led, in part, to the creation of the
Federal Radio Commission and its predecessor, the Federal
Communications Commission. Compare ibid., @379-383. For fuller
discussion of these matters, see "Liberal Constraints on Private
Power: Reflection on the Origins and Rationale of Access Regulation"

by Stephen Holmes in Demeeregy egg the Mega Medie edited by Judith

Lichtenberg, Cambridge University Press, c. 1989, pp.22-55 and compare
Iplerepien eng phe genetitptiep, pp. 216-217.

Other regulations regarding the use of "public forums" has been
regularly upheld by the Supreme Court in order to maintain the
efficient and productive use of such areas for speech. For example,
in Forsyth County, GA v. Nationalist Movement, the Court affirms its
commitment to the use of permits for regulating the uses of such areas
given the satisfaction of various conditions, including that the
regulation in question not discriminate on the basis of content. (111
S. Ct. 2395, 1992, @2401 citing Cox v. New Hampshire, 312 U. S. 569,
1941, @574-576.)

49. The issue of equal reply time for one who has been personally
attacked on a radio broadcast is at the center of the Red Lion case.
50. 395 U. S. 367, @387

51. I have already cited information regarding the influence of
advertisers in previous notes. We need only look at the success of
Ross Perot in the 1992 Presidential campaign who spent $60 million of

his own money, mostly on television advertising.

180

52. Postman refers to these features collectively as describing the
"information environment" of a given medium. See Teeghing 5e e
Conserving Activity, Dale Publishing Co., New York, c. 1979,
especially Chapter 2.

53. See note 48 above.

4

Some Applications:

Justifiable Restriction and Prevention

.A theory of free speech must include at least two elements if it
is to be complete. First, it must explain and justify freedom of
speech in terms of the goals to be advanced, the values and purposes
to be served, and/or the individual interests to be protected by this
liberty. We must know, in other words, what privileges,
opportunities, and claims are entailed by this liberty and why it
deserves to be protected and promoted. Second, a complete theory of
free speech must identify and describe the conditions under which
speech can be legitimately restricted or prohibited and give some
indication as to why these conditions (and not others) are to serve as
the criteria for determining the legitimacy of restrictions. Threats,
bribes, conspiracy, coercion, perjury, and many other speech acts are
restricted without raising any questions or concerns about free
speech. A theory of free speech must be capable of justifying such
restrictions. Moreover, criteria for determining when (and if) other
restrictions might be appropriate or necessary must be offered.

In this dissertation, I have considered two theories of free
speech, Mill's theory of free and open discussion and the theory of
free speech that is based upon both the limited and the expanded model
of the marketplace of ideas. I introduced these theories for two
reasons. First, I wished to consider whether or not a right to free

speech, as explained and justified by some of the more traditional

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political theories that celebrate this liberty, could be extended to
protect television programs, especially those containing blatantly
violent or sexually explicit material. I also wanted to explore the
extent to which restrictions upon such programming, given the harms
and wrongs that can and do result from it, might be justified by these
theories. These harms include the injurious and destructive behavior
that can and does result from the psychological effects of such
programming upon those individuals who are exposed to it. We should
also be concerned, I urged, with the harms and wrongs that stem from
the illocutionary force of acts of expression, with the speech act
that might, in and of itself, constitute a harmful or wrongful act
given the appropriate content and context. Most important among such
speech acts were those that ranked persons or groups of persons as
inferior and those that silenced individuals in one of the ways
discussed in Chapter 2.

In Chapter 2, we saw that Mill provides a complete theory of free
speech in the sense just mentioned. According to Mill, free and open
discussion is to be explained and justified with regard to the
benefits that are likely to be obtained by (and those that have been
realized in) those societies that protect and promote it. Such
benefits include the opportunity to render opinions more plausible or
acceptable, to affirm their utility, to increase our confidence with
regard to them, and to foster individual development. Mill's theory

of free speech also provides criteria for determining when

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restrictions upon speech are justified. Speech or discussion may be
restricted, first, when it promises to decrease overall net benefit
or, second, when it is likely to threaten or extinguish the conditions
under which the benefits of free speech can be enjoyed. Given the
inability of some of the more popular arguments for restricting
television programs containing sex and violence to meet these criteria
and, too, given that such programs (like most television programs) are
likely to lead to benefits akin to those promised by free and open
discussion in general, I argued that, on Mill's view, such programming
must be protected and that efforts to restrict it must be resisted.
Yet, as I also argued in Chapter 2, there are many problems with
Mill's theory of free speech, especially when it is applied to
television. Among the more serious difficulties with Mill's approach
are its inability to account for the silencing of individuals that can
be brought about by some speech acts and the reliance of this theory
upon a form of discourse that is not revealed by the typical
television program. More significantly, I argued that, in conceiving
the right to free speech as instrumental to the pursuit of the goal of
general utility rather than as a possible constraint upon this
pursuit, Mill's theory does not reflect the intrinsic value of this
right nor the fundamental role that it plays in our institutions and
practices. In particular, I maintained that the conception of
equality (and, more generally, the scheme of moral and political

reasoning) upon which Mill's theory is based does not sufficiently

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reflect the status of persons as beings who are capable of forming,
revising, and pursuing a determinant conception of the good according
to their own abilities and interests and according to principles that
facilitate cooperation between them. I also urged that this
conception of equality ignored the distinction between interests that,
when respected, best reflect this view of the person and those that,
when respected or protected, do not (e.g. the distinction between
one's interest in being able to determine one's own conception of the
good and in having a say in what conception of the good others ought
to adopt, respectively). In short, I claimed that Mill's theory does
not take rights (including the right to free speech) seriously.

A moral or political theory that takes the right to free speech
seriously would describe, develop, and justify this right in terms of
a strong individual right to equal concern and respect. More
specifically, it would reflect the conception of the person just noted
and the distinction between interests that best reflect this
conception and those that do not. In turn, such a theory would be a
theory of free speech that is, in Rawls' words, based on both
rationality and reasonableness. Initially, I proposed a limited model
of the marketplace of ideas as a starting point for such a theory.
This model imagined a procedure governed solely by a principle of
neutrality in which rational and reasonable consumers of ideas
determined the truth, merit, and worth of an idea. It became

apparent, however, that modifications to the principle of neutrality

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as well as an additional principle, the principle of equity, would be
necessary in order to permit the marketplace model to more fully
embody a strong individual right to equal concern and respect (and the
conception of the person at the heart of this right).(1) The need for
such an expanded model of the marketplace of ideas was especially
evident in the light of certain features of television (and of the
television market) that dramatically enhance what I called the
"technological" power of speech on television.

What remains, then, is to consider the restrictions upon speech
that might be justified by this theory and the criteria according to
which these restrictions are to be assessed. .Although some suggested
restrictions were given towards the end of the previous chapter, many
of these were mentioned in passing and most were not specifically
aimed at television programs containing blatant violence and explicit
sex. In this chapter, then, I want to consider the kinds of
restrictions (as well as other measures) that might be justified by
the theory of free speech developed in the previous chapter (which I
shall now refer to as the theory of free and equal speech) by
exploring the ways in which this theory might respond to the harms and
wrongs described in Chapter 1. I shall also show why some of the
more popular arguments for restricting television programs (those
primarily grounded in concerns about behavioral modification) cannot
be justified on my view. In place of such restrictions, I will

propose certain "preventative measures" that can be implemented by

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individuals in their homes and elsewhere that may reduce the harms
that may result from behavioral modification. I will also use this
chapter to anticipate and respond to an objection that might be made
to the application of the theory of free and equal speech as I have
developed it thus far to television programs that contain explicit sex
or blatant violence.

Justifiable Restrictions and
rev n v r

In Chapter 1, I placed the harms and wrongs that can and do
result from television programs that contain blatant violence and
explicit sex into two classes. These classes include those harms
resulting from the effects described and predicted by psychological
theories of behavioral modification and those that stem from the
illocutionary force of television programs as speech acts. Hence, I
want to treat these two classes separately here. In each case, I will
review the kinds of harms and wrongs that fall into the class at issue
and the relation between these harms and wrongs and the programs under
scrutiny. I will also make some additional remarks about each type of
harm in light of the discussion that has taken place since they were
introduced in Chapter 1. I shall be particularly interested in
showing how certain features of television are related to (and, in
some cases, how they intensify the influence of) the processes through

which such harms and wrongs arise. Finally, I will consider some of

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the ways in which the theory of free and equal speech might respond to
these harms and wrongs and what steps can be taken, on this view, to
mitigate or eliminate them.

Before turning to restrictions upon programs containing blatant
violence and explicit sex, however, it is worth noting some
similarities between the way in which free speech is conceived by my
theory and by Mill's theory and, too, between the kinds of
restrictions that are justifiable according to each view. On both
views, freedom of speech entails (at the very least) the liberty to
participate in a procedure that, when appropriately regulated and
maintained, is to determine the truth, merit, and worth of an idea.
This procedure is, for Mill, the process of free and open discussion
while, on my account, it is described in terms of a neutral and
equitable marketplace of ideas. Thus, free speech may well depend
upon the possibility of interaction and cooperation with others and
upon facilitating such cooperation. It might be more profitably
compared, then, to, say, the right to a fair trial (which, it seems,
must also be understood in terms of participation in a procedure) than
to other liberties such as the right to keep and bear arms or the
right to travel. This is an important point because free speech is
often compared to such liberties and, in turn, described as a so-
called "negative right," a liberty that demands mere noninterference
with the activities and privileges protected by it. In other words,

free speech does not entail merely the liberty to speak freely.

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Rather, it includes (at the very least) the liberty to participate, as
a certain kind of being (e.g. a being with certain capacities,
abilities, and interests), in a process with other such beings, a
process that might, at times, depend upon either significant
intervention or simple inaction for its fair or effective operation.
Given an explanation of free speech in terms of a liberty to
participate in a certain kind of procedure, then, it is no surprise
that the theories of free speech that I have been discussing recognize
the legitimacy of restrictions upon speech that attempt to preserve
order in the procedures they advocate. On Mill's view, such measures
are justified by the second criterion for restricting speech, which
demands that speech be restricted when it is likely to erode or
extinguish the conditions under which the benefits of free and open
discussion can be enjoyed. One of these conditions, as noted in
Chapter 2, is order. My theory captures the legitimacy of such
restrictions by emphasizing the importance of preserving the
neutrality of the market, which can be undermined, for example, by new
modes of communication that might jeopardize the extent to which the
preferences and aversions of rational and reasonable consumers of
ideas are the sole factors in determining the truth and worth of an
idea. Therefore, both theories would applaud the creation of agencies
(like the Federal Communications Commission) and the implementation of
practices (like the granting of licenses to broadcasters or cable

television operators) that enhance the order or efficiency of the

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procedure that, in practice, is to help maintain freedom of speech.(2)

Unlike the conclusions just noted, which are supported by quite
similar considerations, other conclusions about the legitimacy of
restrictions upon speech may be acceptable to both my view and that
offered by Mill but they will be supported by very different
arguments. For example, consider the Supreme Court's prohibition on
"fighting words" given in Chaplinsky v. New Hampshire.(3) Writing for
the Court, Justice Murphy states, "There are certain well-defined and
narrowly limited classes of speech, the prevention and punishment of
which have never been thought to raise any constitutional problem."
Such classes of speech include "the insulting or fighting words, those
which, by their very utterance, inflict injury or tend to incite an
immediate breech of the peace."(4) As an example, consider an
individual who, after positioning himself directly in front of a gay
participant in a demonstration supporting civil rights protection for
gays and lesbians, loudly and fiercely screams at the protestor, "Burn
fuckin' faggot." Today, such speech is, perhaps, a better
illustration of "fighting words," the words that "by their very
utterance, inflict injury," than those to which the Court was
responding in Chaplinsky.(5)

Mill would, it seems, clearly be willing to impose restrictions
upon such speech. Indeed, the Court's own argument for prohibiting
the use of fighting words seems to appeal (at least implicitly) to the

first criterion for restriction in Mill's theory. Justice Murphy

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writes, "It has been well observed that such utterances are no
essential part of any exposition of ideas and are of such slight
social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and
morality."(6) On the other hand, I would argue that, given a theory
that explains and defends the right to free speech in terms of the
right to equal concern and respect, the primary problem, in this
instance, is that this situation is not one in which individuals are
regarded as speakers and listeners. Persons (and, in particular, gay
persons) are being assaulted or attacked, they are being confronted,
not addressed, approached as combatants, not as respondents. In this
case, the capacities of individuals as speakers and listeners, those
capacities that are directly related to their status as persons, are
being denied or ignored by the speaker. Thus, on my view,
restrictions upon fighting words do not promote general utility, but
protect persons as equals.

These similarities in application between the theory I have
developed and that offered by Mill are meant to illuminate each view
and, more generally, the concept of free speech. I am not arguing, of
course, that Mill's theory might be salvaged if it were understood in
terms of the view I have been defending. Indeed, a proper
understanding of the conception of equality and the scheme of moral
and political reasoning that is essential to each view would show that

such a reconciliation is impossible. Nevertheless, such a comparison

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is useful in gaining an initial understanding of the kinds of
restrictions that will be justifiable according to the theory of free
and equal speech and of the considerations that count in arguing for
such restrictions.

1. Justifiable Restrictions: Responding to
Ranking and Silencing

The theory of free and equal speech that I have proposed explains
and defends the right to free speech in terms of a neutral and
equitable marketplace of ideas, a procedure governed by both the
principle of neutrality and that of equity in which persons engage in
the orderly exchange of ideas according to their own conceptions of
the good and of justice. In this way, the theory of free and equal
speech is able to embody the fundamental individual right to equal
concern and respect. On this view, there will be four conditions
under which restrictions upon speech are fully justified:

1. Because the neutral and equitable marketplace of ideas is, at
bottom, a procedure, speech that fails to satisfy or that seriously
threatens the conditions for preserving and maintaining the order and
integrity of this procedure may be restricted. Persons cannot all
speak simultaneously nor can technological innovations or social
improvements in communication be permitted to hinder fruitful or
productive dialogue. In such cases, the market procedure is

undermined from the outset and free speech is, on this view,

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impossible. Let us refer to this condition as the erder eengitien.

2. Speech may be restricted if it enforces or institutes a
judgment regarding the truth, merit, worth, or appropriateness of an
idea prior to the operation of the market. Thus, laws that prohibit
discussion of a particular issue based on the supposed
inappropriateness of the topic or social organizations or associations
that, through coercion, prevent particular views from being heard
violate this condition, which stems directly from the demands of the
principle of neutrality. I shall call this condition the pipe;
neutrality condition.

3. The principle of neutrality not only places demands upon the
activity prior to the operations of the market but, in addition,
requires that activity within this procedure conform to a certain
standard. In particular, techniques like manipulation that bypass or
subvert individuals' capacities of rationality and reasonableness or
speech that wins approval merely by relying upon the technological
power provided it by, say, media of communication must be, so far as
possible, eliminated from the market. Such speech or techniques of
speaking deny the status of persons as equals by systematically
rejecting or ignoring persons' capacities of rationality and
reasonableness. In turn, such activity undermines the chief ground
upon which demands for neutrality rest. Recall that neutrality is not
desirable in and of itself or merely in order to insure a fair market

procedure but, rather, to assist the model of the marketplace of ideas

 

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in sufficiently reflecting the right to equal concern and respect. I
shall label this condition the eeeeng neppreliey epngieien.

4. Finally, because the principle of equity demands that
individuals be treated as speakers and listeners and that the
conditions under which individuals are seen in this way be fulfilled
and maintained, speech that seriously threatens or extinguishes these
conditions may be restricted. The phrase, "Burn fuckin' faggot," as
employed by the counter-protestor in an earlier situation, is an
excellent example of such speech. We shall have several occasions to
expand upon and apply this equity condition in the pages that follow.

These four conditions for rendering restrictions upon speech
justifiable play the same role in the theory of free and equal speech
that the two criteria offered by Mill for evaluating the legitimacy of
restrictions upon speech played in his own theory. Such criteria
suggest, in general, when restrictions upon speech are justified and
why such restrictions are justified according to the theory of free
speech being considered. We shall see that, in fact, very few
television programs can be legitimately prohibited or censored -
according to the criteria provided by the theory of free and equal
speech. Indeed, it shall turn out that those programs that make the
most plausible candidates for severe restriction on my view are rarely
the subjects of controversy in popular debate about television
programming. In the next section, I show how my theory might respond

to these more controversial programs. Although this response will not

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consist in restricting these programs in any significant way, my
theory does not leave the concerns of the more traditional and popular
discussions entirely unaddressed.

Let us begin by considering the harms and wrongs produced by
television programming that are likely to be taken most seriously by
my theory. Like threats, slander, or sexual harassement, television
programs that contain blatant violence or explicit sex might, as acts
of expression with a certain content and conveyed under specific
circumstances, constitute harmful or wrongful activity and it is such
activity that belongs to the first class of harms and wrongs that I
want to discuss. As noted in Chapter 1, it is the philosophy of
language provided by J. L. Austin that provides the framework within
which such harms and wrongs can be explained and critiqued.

Austin's chief contention, I said, is that an act of expression
or speech act is, at bottom, an action, that to say something is
always to do something, and that any distinction between speech and
conduct is blurred and, at times, misleading. In this vein, Austin
offers a three-fold analysis of speech acts. Acts of expression are
actions, first, in that they involve the utterance or communication of
a proposition or message; they entail the formation of semantically
significant vocables and, in doing so, involve physical motions and
sensory-motor coordinations. Second, the issuing of a speech act has
intended and unintended consequences or effects upon others who

encounter it and upon the environment in which it is issued. Indeed,

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I claimed that psychological theories of behavioral modification, on
Austin's view, describe just such effects when television programs are
taken as speech acts. Such effects or consequences are said to be the
perlocutions of the speech act.

The most interesting and important aspect of a speech act, the
aspect that identifies the most significant way in which to say
something is to do something, is what Austin calls the illpeppiepegy
ggpee of an act of expression. When speech acts of a certain content
are issued under very specific conditions, these acts may constitute
other acts, acts more significant than, say, a mere communication or
assertion. (Of course, communications, assertions, denials,
proposals, and the like may be among the illocutions of a speech act
given the right circumstances.) Thus, the statement, "Guilty as
charged," when uttered by the foreperson of a jury during the course
of a criminal trial, does not merely communicate or convey or describe
a conviction -- it is a conviction, it convicts. The conditions under
which a speech act constitutes a particular action (e.g. a conviction,
threat, assertion, etc.) are what Austin calls felicityyeppgipiepe.

This philosophy of language was expanded in Chapter 2 by Rae
Langton, who described three ways in which individuals might be
silenced by speech acts. Individuals are silenced, in Langton's
sense, when they are prevented from saying with their words what they
want to say or from doing with their words what they wish to do. For

example, then, a threat might silence an individual if the one issuing

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the threat says something like, "Not a peep" while holding a gun to
the head of his victim during a kidnapping. In this case, the victim
is prevented even from uttering a word and, therefore, from performing
even the most basic activities involved in a speech act. Again,
consider the act of stating one's beliefs. If one's character has
been severely slandered or if one's critics have successfully
challenged one's honesty, the assertion of beliefs will not be taken
seriously; it will be evaluated as empty and the words of the speaker
will have little or no effect upon the audience. Here, too,
silencing, on Langton's view, has taken place because the desired
effects of a speech act (e.g. making another aware or persuading
another of the correctness of one's belief) cannot be realized.

Finally, there is a form of silencing that corresponds to the
illocutionary aspect of speech acts. This sort of silencing is
exemplified, for example, by laws (speech acts) that prohibit
homosexual marriages, for such laws prevent some citizens from using
the phrase 'I do' to do what others use it to do or from doing what it
would normally do under the right circumstances. Such cases
illustrate the way in which speech acts, themselves, render other acts
unspeakable. They do so by altering the felicity conditions for a
particular speech act (e.g. a marriage) or by limiting the ways in
which these conditions might be satisfied by those who try to perform
such speech acts.

After setting out Austin's theory of speech acts in Chapter 1, I

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showed how Catharine MacKinnon and Andrea Dworkin use it in order to
develop a critique of pornography. In Chapter 1, I said that, on this
view, much pornography constitutes sexual activity, that it ranks
women as inferior, and that it sexualizes this inequality by
instituting this ranking in the sex act of pornography, thus making it
seem a part of sexuality itself. In Chapter 2, I discussed how
Langton expands upon this critique by demonstrating ways in which
pornography silences women. Again, it is important to stress that
these writers are claiming more than that pornography depicts or
conveys the ranking or silencing of women or that pornography sends a
disturbing message about the status of women in our society. More
importantly, some pornography, in and of itself, given its content and
various features of the context in which it is produced and
distributed, ranks and silences women. I also tried to show how this
view might be employed in order to explain the wrongfulness of other
displays, films, and television programs. Thus, I argued that
certain displays constitute the degradation of.African Americans and
that some television programs or advertisements might, in the same
way, rank or degrade such persons. In addition, I suggested how one
might see programs like the Jerry Lewis telethon as a speech act that
degrades or denigrates persons with disabilities.

Let us consider, first, the restrictions that, according to my
view of free speech, might be placed upon television programs that,

given their content and context, rank individuals or groups of

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individuals as inferior or as less than human, as non-persons. For a
speech act to constitute a ranking, I noted that at least two felicity
conditions must be fulfilled, namely, the authority and the evidence
conditions. These conditions require, first, that the person or
agency issuing the speech act be in a position of authority or occupy
an important and widely recognized social position or status and,
second, that the evidence or reasons supporting the finding are
regarded as true or accurate and that the conditions under which the
evidence or reasons are gathered are acceptable. In general, speech
acts that, given their specific content and a context in which these
two conditions are fulfilled, rank persons or groups of persons as
less than persons or as non-persons are clearly wrong and ought to be
prohibited on the theory of free speech I am defending. The argument
is straightforward. Most significantly, such speech acts would be
wrong in and of themselves, for they would blatantly deny or ignore
the conception of the person that is at the heart of a strong
individual right to equal concern and respect or, what is the same,
the status of persons as equals as determined by this conception. Put
another way, ranking of the sort I am here considering (whether it is
achieved through a speech act or any other action or practice)
constitutes a rejection of the status of persons as equals and a moral
or political theory that purports to take the right to equal concern
and respect (and the conception of the person that determines the

status of persons as equals) seriously cannot permit such ranking.

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Furthermore, speech acts that rank persons or groups of persons
undermine the basis of a right to free speech as I understand it, for
this right, on the theory I propose, is to be understood and justified
in terms of a strong individual right to equal concern and respect.
Thus, to allow into the marketplace of ideas those speech acts that
rank individuals is to put the grounds upon which this model rests
(and, hence, the right to free speech itself) at risk. This point can
also be pressed in terms of the equity condition, which prohibits
speech that threatens or undermines the conditions necessary for
treating individuals as speakers and listeners. Speakers and
listeners are, in fact, persons and, therefore, to rank individuals as
less than persons or as non-persons is to fail to meet the demands of
the principle of equity; individuals, in short, cannot be treated as
speakers or listeners if they are not first treated as persons. It is
this explanation and justification of the right to free speech in
terms of the fundamental individual right to equal concern and respect
that leads me to refer to my theory as not a theory of free speech,
but a theory of free and equal speech.

There are certain features of television programs that enhance
the ability of such programs, when taken as speech acts, to rank
individuals as inferior or as less than persons. The ranking ability
of such programs is enhanced because these features often make it
easier for such programs to satisfy the evidence condition. In

discussing the feminists' claim that pornography ranks women, for

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example, I said that the evidence condition could be most readily
satisfied by pornographic movies because the truth of the evidence for
women's status as sexual slaves (and for their desire to be seen and
treated as such) is right in front of our eyes; seeing is believing in
the world of television. Indeed, it is the image-centered nature of
the discourse of television that, more generally, makes it so easy for
such programs to satisfy the evidence condition. Put simply,
televised evidence is, in many cases, usually (and understandably)
regarded as true or credible evidence.(7)

The evidence condition not only requires that accumulated
evidence be regarded as true but, in addition, that the conditions
under which evidence is gathered be acceptable. Again, television is
especially accommodating in this regard. There are numerous and
complicated conditions for accepting, say, the evidence given in a
court of law, the support for an argument in a scholarly work, or the
empirical evidence utilized by a scientific study. These conditions
might govern the nature and source of the evidence to be presented,
the methods utilized in gathering evidence, or the ways in which
evidence may be legitimately questioned or considered. Such
conditions help to guarantee, to a certain degree, that the evidence
or reasons offered are not wholly devoid of truth or merit. Televised
evidence is not subject to such standards and, indeed, to very few
standards whatsoever. Televised evidence is not only typically

regarded as true or credible evidence, but as acceptable evidence, as

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evidence that is gathered in a legitimate and satisfactory manner. "I
saw it on TV" is slowly emerging as the most common and widely
accepted footnote in current public discourse.(8)

In discussing the ability of pornography to rank women, it is
also important to consider the social and legal power assigned to
pornographers as discussed in Chapter 1. This power, assigned to
pornographers via their supposed expertise in sexual matters and
enhanced in the legal protection granted to them on the basis of their
"discussions" of these matters in pornography, helps pornography to
satisfy the authority condition. More generally, this authority is
increased simply given the fact that so many pornographers are men and
that men enjoy a superior social status when compared to that of women
(in so far as this status is determined by the economic standing and
education of as well as the abuse and sexual and reproductive barriers
encountered by each group). (These features are not, of course,
exclusive to the pornography produced and distributed within the
electronic media.)

If there is pornography that does, in fact, rank women, then this
fact is, in itself, an excellent reason to severely restrict or
prohibit such pornography on the view I am defending. Prime
candidates for such restrictions would, I think, include those
sexually explicit videos, films, movies, and television programs that
have content very similar to that detailed in the Dworkin-MacKinnon

ordinance accepted by the city of Minneapolis in 1983.(9) The content

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of such material would, given the satisfaction of the evidence and
authority conditions, help comprise a speech act that is most likely
to rank women. In addition, we focus upon videos, films, movies, and
television programs having such content because of their enhanced
ability to meet the evidence condition.(10) Such restrictions and
prohibitions are the results of a theory of free speech that attempts
to most fully reflect and embody a strong individual right to equal
concern and respect. They are the result of realizing that the
ranking of women that is most likely via the pornography targeted by
Dworkin and MacKinnon not only blatantly denies the status of women as
equals, but undermines one of the conditions for treating women as
speakers and listeners, namely, that they be treated as persons.

.Also, consider, once again, the Muscular Dystrophy Association's
Labor Day Telethon hosted by Jerry Lewis discussed in Chapter 1.
Given the features of television that enhance the ability of the
typical television program to satisfy the evidence condition mentioned
earlier together with the significant degree to which the authority
condition might be satisfied by this show (see Chapter 1), the
telethon risks ranking persons with disabilities as inferior depending
upon the particular scenes shown during the course of the program.
This was illustrated by one of the most disturbing scenes in which a
girl was shown walking across the stage without using her crutches and
then falling face down upon it.(11) Other scenes that might

constitute ranking of such persons might exhibit, for instance, a

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child being completely guided or aided by an adult in performing many
of his/her everyday activities or show work or advocacy being done
only by fully able-bodied adults. I am not, of course, urging that
the program be cancelled, though I believe serious scrutiny of its
content by both its producers and groups advocating for persons with
disabilities is in order. (Notice that the scenes at issue here are
likely to have no violent or sexual content at all.)

It might be thought that the restrictions upon pornography
(especially given their specific content requirements) or the scrutiny
of the content of the Jerry Lewis telethon are clear violations of the
principle of neutrality. Such restrictions and scrutiny are obviously
directed at the content of the programs at issue and seem to involve
judgments regarding the appropriateness of an idea prior to the
operations of the market. There are two responses to this objection.
First and foremost, the restrictions upon pornography and the scrutiny
of content I have recommended receive their justification from the
equity condition, which requires that speech that threatens or
undermines the conditions under which individuals can be treated as
speakers and listeners must be prohibited. One of these conditions,
as already noted, is that individuals be treated as persons. Speech
acts that rank individuals as less than persons or as non-persons
clearly ignore this condition and, hence, must be prevented. This way
of rendering the restrictions at issue justifiable merely reflects

that the marketplace of ideas that is at the center of the theory of

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free and equal speech is governed by both a principle of neutrality
and a principle of equity. The aim of such a model is not to protect
neutrality or equity in and of themselves but, rather, to most
adequately reflect the fundamental individual right to equal concern
and respect. The force of each of these principles in a particular
situation is, therefore, to be considered with respect to this right.

Furthermore, to suggest that restrictions based upon the ability
of some speech to rank persons are illegitimate because they involve
judgments about the appropriateness of ideas prior to the operations
of the market is to miss one of the chief themes of this dissertation.
The problem, here, is not the appropriateness of an idea, but the
wrongness of an action. Ideas do not rank individuals; people, using
speech, rank individuals. Restrictions upon certain sorts of
pornography or scrutiny of the content of Jerry Lewis' program are not
based upon judgments about ideas prior to their entrance into the
market. Rather, such restrictions and scrutiny stem from concerns
about what happens when the content of certain ideas is presented or
issued in a particular context. To focus upon neutrality, in such
cases, is, in effect, to emphasize the content of these ideas at the
expense of what these ideas do (or what people do with them) in
certain situations.

Content and context are each of great importance in considering
what activity is constituted by a given speech act, as emphasized in

Chapter 1. For instance, I argued that some episodes of MTV's "Beavis

 

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and Butt-head" might be seen as constituting the ranking of women when
we consider the content of a particular episode along with some of the
advertisements that are aired during its broadcast. Thus, the wrong
at issue might be eliminated, here, by simply changing or modifying
the advertisements being shown rather than the content of MTV's
program. The point, once again, is that the content of such programs
and advertisements must be assessed within the context in which it is
issued; we should not be concerned with ideas in themselves, but with
what they do and with how persons use them in particular situations.
The theory of free and equal speech takes seriously not only the
ranking of individuals accomplished via speech, but, too, the
silencing of persons that can be brought about by speech. Rather than
consider particular examples of silencing or try to examine whether or
not particular television programs silence individuals, I want to make
a few general remarks about silencing that seem most appropriate given
the theory of free and equal speech as it has been developed thus far.
First, there is a relation between the technologically powerful speech
of television and the ability of speech to silence individuals.
In Chapter 3, we saw that one of the chief considerations that leads
to the need for and legitimacy of the principle of equity is the power
that can be given to speech when it is conveyed through certain media.
I illustrated such power and the need for the principle of equity in a
rather simplistic fashion by introducing the example involving Smith

and his megaphone. The primary purpose of that illustration was to

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show the ways in which the status of persons as equals can be denied
or ignored by speech when its power is enhanced by certain features of
a given medium and by the legal and social conventions that govern the
operations of that medium. In particular, I urged that Smith's
expressive activity does not respect persons as equals because, at
bottom, it does not treat them as speakers and listeners. Television
raises similar concerns in certain contexts, I said, because it is,
given various features of this medium, akin to a very powerful
megaphone. These features include its range, ease of access,
simplistic discourse, and the importance the television market assigns
to wealth and material resources.

At the same time, we might, following Langton, claim that the
persons encountering Smith in my example are being silenced. They are
not able to do with their words what they wish to do, namely, convince
Smith of some other position regarding gun control (the issue upon
which Smith is supposed to be speaking) or protest his intrusive and
obnoxious behavior. Langton refers to this form of silencing as
perleeptienegy fruepretien because it prevents individuals from
producing the desired effects of their speech or the effects that
would normally be produced by it (e.g. Smith's conversion to some
other belief or his ceasing to use the megaphone). In this instance,
then, it is the technological power of Smith's speech that inhibits
the production of such effects or that, in a word, silences

individuals. Given the features of television and of the television

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market just summarized that make speech on television technologically
powerful, then, such silencing can occur in our society as well. Such
an observation is not a condemnation of television but, rather, a
warning of its potential.

Speech that silences individuals by way of its technological
power can be justifiably restricted by appealing to the second
neutrality condition given earlier. This condition is meant to insure
that speech that is injected into the market does not undermine the
feature of the market that helps define its neutrality, that is, the
fact that it is the preferences and aversions of rational and
reasonable consumers of ideas alone that determine the truth, worth,
or merit of an idea. The technique of manipulation bypasses or
subverts these capacities of persons and, therefore, must be
restricted according to this condition. In a similar way, the use of
technologically powerful speech bypasses or ignores such capacities
when employed in certain ways, for it prevents the kind of selection,
rejection, and provision of ideas by rational and reasonable consumers
of ideas necessary for a neutral and just market. We will never,
completely eliminate technologically powerful speech or manipulation
from the market (a point to which I will return in the next section).
Yet, we can try to prevent uses of the kind of speech or techniques
that promise to severely or irreversibly destroy the defining features
of a neutral marketplace of ideas.(12)

The silencing that stems from technologically powerful speech, as

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I said, is a form of silencing that Langton called "perlocutionary
frustration." Yet, speech might also constitute a form of silencing
that she labels "illocutionary disablement." Here, speech acts,
through their illocutionary force, alter the felicity conditions that
determine when a particular utterance constitutes a particular action
or hinder the ability of persons to satisfy these conditions. In
Chapter 2, we saw, for instance, that pornography effects the felicity
conditions according to which uttering the word 'no' counts as a
refusal. Pornography portrays women as not wanting or not needing
control over their own bodies, as willing to yield such control to
men. It also depicts (and, perhaps, ranks) women as sexual slaves.
Through such depictions, portrayals, and the ranking of women that may
be constituted by some forms of pornography, the authority women have
over their own bodies, the authority that is necessary for a refusal
in the domain of sexual relations, is threatened or undermined. If
this challenge to women's authority is successful, uttering the word
'no' will not constitute a refusal for women in this context; women
will be silenced in this context.

Langton offers an even more intriguing example for my purposes
here. She describes the case in which the book, ngeel, written by
the former pornography star of the film Deep Throat, Linda Marchiano,
is listed in an adult mail order catalog as if it were just another
pornographic item for sale. Ordeal is Marchiano's story of the

subordination, degradation, exploitation, and physical and mental

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suffering that she experienced during the time she was involved in the
making of Deep Throat. Yet, it is listed in a catalog as just more
porn. Marchiano's protest is not only unheard; it is not recognized
as a protest by some individuals at all. Langton writes, "Marchiano
says the words appropriate for an act of protest....She intends to
protest but her speech misfires. Something about who she is,
something about the role she occupies prevents her from satisfying
protest felicity conditions (at least here)....Protest is unspeakable
for her."(13) Marchiano's speech "misfires" because, although she
describes her experiences of subordination, pain, and exploitation,
she is not protesting as most of us would be were we to sincerely
offer such a description. Something about the way pornography effects
the felicity conditions for protest or Marchiano's ability to satisfy
these conditions renders protest unspeakable for her.(14)

I think that the equity condition justifies restricting the kind
of pornography (perhaps, again, that targeted by the Dworkin-MacKinnon
ordinance) that silences women in this way. This condition, I said,
demands that speech not seriously threaten or extinguish the
conditions under which individuals can be treated as speakers and
listeners. Yet, as should be clear at this point, we are rarely (if
ever) merely "speaking." We use our words in a variety of situations
to affirm, deny, criticize, argue, reject, challenge, question,
protest, refuse, and to perform many other actions. Marchiano must

not merely be treated as a speaker; she must be engaged as a

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protestor, as protesting and warning against (rather than as merely
speaking about) the sort of practices that seem to lie behind some
elements of the pornography industry. Put another way, the only
meaningful way to treat Marchiano as a speaker in this instance is to
engage her as a protestor. The problem, then, is not merely that she
cannot speak; it is that she cannot protest. If there is something
about Marchiano or the role she occupies that prevents her from
satisfying the felicity conditions for protest, then, more generally,
the conditions under which she can be regarded as a protestor, as a
speaker who uses her speech to protest, have been extinguished or
undermined. The speech that led to this situation must, then, be
restricted according to the implications of the equity condition.

This brings us around to a point at which I could only hint in
Chapter 2. My contention there was that the speech and press clauses
of the First Amendment ought, perhaps, not to be seen as protecting
certain kinds of speech (e.g. political, social, commercial, etc.) or
even as protecting speech at all. Rather, these clauses might more
profitably be seen as protecting certain actions of individuals such
as protesting, asserting, questioning, denying, challenging,
petitioning, criticizing, and the like.(15) To say that the relevant
clauses of the First Amendment protect only speech (or speakers) is to
disregard the uses to which persons put speech and, in turn, the kinds
of action or practices that thwart the ability of individuals to

employ speech in these ways. In the end, then, to violate an

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individual's right to free speech will be not merely to forbid speech
but, depending upon the circumstances, to prevent that individual from
protesting, arguing, criticizing, or asserting.

Appealing to the equity condition to justify restrictions upon
speech acts that, in and of themselves, rank or silence individuals
suggests a more general point about the notion of a "marketplace of
ideas." This notion, given the interpretation of the equity condition
I have been considering, may be somewhat misleading, for it is not
merely the neutral and equal exchange of ideas that is at issue in
free speech. Rather, what the equity condition reveals is not merely
a marketplace of ideas, but a community of free and equal speakers and
listeners and, more precisely, of persons who assert, reject,
defend,respond, question, criticize, protest, and challenge one
another. Attending to the equity condition means attending not merely
to the content of speech, but to what persons do with speech in
particular situations; it implies a focus not merely upon the ideas,
but upon the actions of persons. Thus, we may want to consider
discussing not merely the neutrality of a marketplace of ideas but,

also, the equity in a community of speakers and listeners.

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2. Preventative Measures: Responding to
Behavioral Modification

Let us now turn to the second class of harms that can be brought
about by television programs containing blatant violence or explicit
sex, the harms that arise from behavioral modification. Recall that
psychologists employ theories of behavioral modification in order to
describe and predict the behavior of individuals in much the same way
that, say, a physicist might use the theory of Newtonian mechanics in
order to explain and predict the motion of a physical object.
Imitation, disinhibition, and desensitization are three of the most
common effects identified and predicted by theories of behavioral
modification used to account for the injurious and destructive
behavior that can and does result from exposure to the programming at
hand. In some instances (such as when a child imitates the moves of a
famous basketball player or the inappropriate activity of a cartoon
character), minimal exposure is all that is required for some of the
predicted effects to occur. Other effects, like desensitization to
violence, require prolonged and regular exposure to scenes or clips of
violence under specific conditions (e.g. that the exposed individual
be relaxed at each stage of a series of scenes that is progressively
more violent or disturbing). Thus, although it is the sexual or
violent content of television programs that is most often cited by

those who use the occurrence of these effects to defend restrictions

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upon such programs, the context in which individuals are exposed to
these programs is important as well.

We are now in a better position to identify some of the features
of the context surrounding the distribution and viewing of television
programs that enhance their ability to produce the effects predicted
by theories of behavioral modification. First and foremost, those
programs that contain the most sex and violence are also, in all
likelihood, those programs that best exhibit the sort of discourse
that is inherent to the television program. This discourse, as
described in Chapter 2, is an image-centered discourse that does not
require one to follow a line of thought or to reflect upon or evaluate
a series of propositions. It is a primarily narrative (as opposed to
an argumentative or expository) discourse that, together with its
other features, makes it readily accessible to individuals of all
backgrounds, mental capacities, and ages.

More importantly for theories of behavioral modification,
however, is the fact that the discourse inherent to the television
program is, given the features just mentioned, simple, straight-
forward, and, hence, quite influential and effective at producing
whatever effects upon individuals it happens (or is intended) to
produce. Programs containing sex and violence, with their emphasis
upon vivid imagery, bright colors, exciting music, attractive and
captivating personalities, and continuous action most pronouncedly

exhibit these features and, in turn, are able to most forcefully

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affect individuals in the ways described by theories of behavioral
modification. Indeed, as I put the point in Chapter 3, the discourse
of television programs containing sex and violence is, given the
features just discussed, technologically powerful speech. It is the
simplistic and straightforward discourse, the technologically powerful
speech of television, I think, that most sharply distinguishes its
ability to produce the effects in question from that of novels, plays,
poems, magazines, and other text-based material that, in fact, are
less frequently thought to bring about these effects. The fact that
research concerning these effects began in the 19508, just after the
introduction of television, serves as testimony to this claim.

Other features of the context in which television programs are
distributed and viewed point to characteristics of the typical
"viewing situation," the situation in which average viewers enjoy
television programs containing sex and violence. For example, the
relaxation that is required for effective desensitization is assured
in the typical viewing situation. One is often seated in an easy
chair or lying comfortably on a sofa in a room (most likely, one's
living area or bedroom) which is conducive to relaxation and enveloped
by a fully controlled physical climate. Also, effects like
desensitization and disinhibition depend upon regular exposure to the
programming at issue. The television market can accommodate this
requirement by offering the most popular (and, hence, some of the most

violent and sexually oriented) programs on a weekly (or even daily)

 

215

basis. .All of these features of the typical viewing situation work
together to intensify the effects of programs that contain blatant
violence and explicit sex that are identified by psychological

theories of behavioral modification.

 

The theory of free and equal speech responds to behavioral

modification in a more limited fashion than it does to the ranking and

 

silencing of individuals. Indeed, I shall argue that very few
restrictions upon (and that no prohibitions of) television programming
based on concerns about behavioral modification can be justified by
this theory. There are two reasons for this limited response. First,
the psychological effects described by theories of behavioral
modification are, to some extent, inevitable. These effects are, in
essence, some of the typical or normal (some might even say natural)
reactions we, as human beings with a particular physical and
psychological composition, have to the events, conduct, and practices
that we encounter.(16) According to the theories at issue, a child's
imitation of a violent act or one's desensitization to murders is, to

a certain degree, as unavoidable (given the appropriate circumstances)

 

as the acceleration of a billiard ball when it is struck by another
ball. Moreover, according to these theories, such imitation or
desensitization can take place regardless of whether or not the
violence or murders in question are encountered via television or in
our own everyday experience. Hence, to completely eliminate the

effects at issue, one must eliminate most or all of the conduct and

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practices that give rise to them, including television.(17)

It is also important to keep in mind that the psychological
effects under scrutiny may be positive as well as negative. We
imitate appropriate as well as inappropriate behavior, we have
desirable and undesirable inhibitions, and the fears or aversions that
might be eliminated through the process of desensitization may be
legitimate or illegitimate. Hence, the psychological effects at issue
are not, in and of themselves, problematic. In turn, any argument
that television, as one of the practices primarily responsible for the
occurrence of such effects, is inherently evil or undesirable seems
unwarranted. More generally, given that imitation, disinhibition, and
desensitization are, to some extent, inevitable (and, at times,
desirable), restrictions that seek to significantly limit (or
eliminate) their occurrence seem fruitless and somewhat unjustified.

Proponents of restrictions based upon psychological theories of
behavioral modification might concede that the kinds of effects
identified by these theories are inevitable and, at times, desirable.
Nonetheless, they might also contend that the aim is not to eliminate
these sorts of effects but only to prevent certain negative instances
of them. The goal, they might argue, is to eliminate imitation of
inappropriate (not appropriate) actions or to prevent the extinction,
through desensitization, of legitimate (rather than illegitimate)
fears. Given that programs containing blatant violence or explicit

sex are also those that depict behavior that is most likely to lead to

217

instances of, say, inappropriate imitation or of undesirable
desensitization and, also, given the technological power of the
messages conveyed by such programming, these programs ought to be
severely restricted or prohibited.

This argument points to the second reason for the limited
response of my view to concerns about behavioral modification. As we
have seen, the occurrence of the effects described by theories of
behavioral modification primarily depend upon three factors: 1) the
content of television programs, 2) the form given to this content by
the medium of television (that is, its image-centered, nonlinear,
narrative form), and 3) the overall viewing situation. Those who wish
to make distinctions between appropriate and inappropriate imitation
or between desirable and undesirable disinhibition or desensitization
must, it seems, be addressing the first of these factors, namely, the
content of television programs. For example, whether or not a given
instance of imitation is appropriate will depend upon whether or not
the behavior that is imitated (that is, the behavior shown in the
television program) is regarded as appropriate. Again, whether or not
a case of desensitization is desirable will depend upon whether or not
the reactions that were eliminated by it are desirable and, in turn,
upon whether or not the activity to which one initially reacted (once
again, the activity depicted on the screen) is regarded as desirable.

Restrictions upon television programs based on such judgments

are, on the view I am defending, a violation of the principle of

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neutrality. This principle, as an element of a theory of free speech
that is based on rationality and reasonableness, demands that no
judgments by government (and, perhaps, by any other individual or
agency) regarding the truth, merit, or worth of an idea be made prior
to the operations of the marketplace of ideas. Such a market, driven
by the preferences and aversions of rational and reasonable consumers
of ideas, yields the final word on such matters. By adhering to the
principle of neutrality in this market, we prevent the usurpation of
the powers of individuals to determine their own conceptions of the
good and of justice and, more generally,of their powers of
rationality and reasonableness; in short, we insure that the
marketplace recognizes and respects individuals as persons.

It is important to understand why the content-based restrictions
proposed here cannot be justified by my view whereas the content-based
restrictions proposed in the previous section are justifiable on this
same view. The difference, once again, is that, when we address
concerns about the ability of speech to rank or silence individuals,
we consider the content of speech in order to understand what that
speech does in a particular situation; what is at issue is the
rightness or wrongness of an act, a speech act. On the other hand,
the restrictions under scrutiny here are based on judgments about the
appropriateness or inappropriateness, desirability or undesirability
of content itself; they focus upon the worth or worthlessness of

ideas, not upon the rightness or wrongness of action. My claim is

 

219

that restrictions grounded in concerns about behavioral modification
tend to address content (and only content) and, hence, cannot be
justified by my view.

To avoid violating the principle of neutrality, then, we must
forgo many attempts to restrict programming that are based on concerns
about behavioral modification. This does not mean, however, that we
are powerless in responding to behavioral modification. Rather than
legal measures, I propose certain preventative measures that address
the typical situation in which individuals view the programming at
issue and the form given to such programming by television; I consider
context rather than content.

Let us begin with measures that might be taken with regard to the
typical viewing situation. The aim, here, must be to alter this
situation so that it is less conducive to undesirable psychological
effects. We might begin with the very positioning of the television
set itself. Typically, television sets are found in homes and, for
the most part, positioned as centerpieces in the most comfortable
rooms in the home such as the living room, bedroom, or family room.
The television is situated so as to insure that viewing is convenient
and unobstructed from nearly any point in the room. To counter
processes like desensitization, people might simply place their sets
in a room in which viewing is less comfortable and convenient.

Parents may put the television set, for example, in a laundry room,

basement, or walk-in closet. These areas normally have few (if any)

220

comfortable furnishings, a less than desirable physical environment
(e.g. they may be cold, damp, cramped, etc.), and rarely afford a
position for the set that is either convenient or feasible.

Other adjustments in the typical viewing situation might be made
in order to minimize the regularity of exposure that is necessary for
the occurrence of many of the effects I have discussed. Parents might
purchase television sets with time-channel looks that allow them to
automatically control the periods of time that television will be
available to their children and the channels that can be selected by
children during these periods. The frequency of exposure might also
be minimized by so-called "television free" zones that are declared by
owners or proprietors of restaurants, bars, business reception areas,
or in other areas outside the home.(18) Finally, incentives might be
offered to broadcasters or cable operators who provide the most
variety in programming rather than weekly or daily doses of the same
selection of shows. Notice that issues surrounding violations of the
principle of neutrality are avoided by encouraging variety rather
than, say, the cancellation of programs containing sex and violence.

More generally, neutrality is likely to be enhanced not only with
this increase in variety but, in addition, by all of these
preventative steps that, when taken together, work to reduce the
psychological effects identified and predicted by theories of
behavioral modification. These effects, as noted in the previous

chapter, manifest instances of manipulation rather than of rational

221

persuasion. In turn, they limit the extent to which the marketplace
of ideas is driven by the preferences and aversions of rational and
reasonable consumers of ideas, which is the defining characteristic of
neutrality on this view. In the end, then, the preventative measures
I have proposed regarding concerns about behavioral modification are
not only neutral themselves, but also work to protect and promote
neutrality and, therefore, a marketplace of ideas that takes free
speech seriously.

Let us now turn to preventative measures that might be taken with
regard to the form of television programs containing sex and violence.
It is more difficult to imagine the measures that might be recommended
in this regard than with respect to the typical viewing situation
because, as I argued in Chapter 2, the form of television programs is
inherent to the medium and not one of many equally successful or
feasible options. Put another way, we are discussing television,
which has viewers. Given the nature of the medium, then, there is a
limit to the ways in which television might address us so that those
who demand that we be addressed "as students rather than as
spectators" may be asking too much of the medium.(l9)

Indeed, I think that one of the few significant measures that can
be taken with regard to the form of television programs containing sex
and violence involves the provision of other programming of different
forms. The presentation of blatant violence and explicit sex need not

be restricted to their graphic depiction. Such matters can be

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discussed as issues of public health and policy by news programs or
talk shows, debated in Congress, or observed for their motives and
consequences in a documentary (even if such programs retain some of
the objectionable graphic depictions). Publicly subsidized networks
like the Public Broadcasting System and C-SPAN and private enterprises
such as the Cable News Network and National Empowerment Television
provide just such alternative formats. The emphasis, in this regard,
then, is not upon a variety of programming, but a variety of the forms
that programs might take. Once again, we can defend these alternative
formats without any risk of violating the principle of neutrality.

1 P r i n
Seifying Dieeppree

In Chapter 2, I argued that, in defending free speech by
appealing to the numerous benefits to be expected from its protection
and promotion, Mill's theory rested upon a particular notion of speech
or discourse as propositional in content, argumentative or expository
in form, and linear or sequential in its presentation of content. The
discourse inherent to the television program, on the other hand, is, I
claimed, image-centered rather than propositional, narrative rather
than argumentative in form, and nonlinear and, perhaps, somewhat
disorderly or chaotic in its presentation. Given the sharp contrast
between these notions of discourse, I claimed that Mill's theory of

free speech could not be used to support television programming, for

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the benefits that are, on his view, to be expected as a result of such
programming depended upon a particular sort of discourse that is
simply not exhibited by television programming.

One might contend that the theory of free and equal speech
assumes a notion of discourse similar to that presupposed by Mill's
view. The aim of the principle of neutrality, which partially
regulates the marketplace of ideas, is to insure that the truth,
worth, or merit of an idea is determined solely by the preferences and
aversions, the selections, rejections, and proposals of rational and
reasonable consumers. Yet, the truth or worth of an idea is, it might
be contended, determined by the same sort of discourse that is at the
center of Mill's view. INdeed, I said that some of the benefits of
free and open discussion for Mill include the opportunity to render
our opinions more plausible or true or correct and to affirm the
utility or value these opinions have for us and for others. My
argument, in Chapter 2, was that such benefits could only be obtained
via the propositional, argumentative, linear discourse supposed by
Mill. Thus, if the marketplace of ideas is to be a procedure for
determining the truth or worth of an idea, it, too, must rely upon a
similar form of discourse. In turn, like Mill's theory, my theory
cannot be applied to television programs, which do not exhibit the
requisite form of speech or discourse; television, in short, does not
reveal a genuine marketplace of ideas, a procedure in which the

determination of the truth or worth of an idea is achieved through

 

224

processes that cannot be facilitated by the discourse inherent to the
television program.

There is another reason to suppose that my theory of free speech
utilizes a notion of discourse similar to that at the heart of Mill's
theory. I have been describing those who, during the course of the
market procedure, propose, select, and reject ideas as rational and
reasonable consumers of ideas. Rationality and reasonableness are
powers of persons that are best exhibited in the capacities of persons
to form, revise, and pursue a determinant conception of the good and
conception of justice. Forming and revising such conceptions,
however, would be difficult (if not impossible) without the kind of
discourse that I have described as propositional and argumentative.
An extended vocabulary together with sophisticated linguistic
abilities (e.g. argumentation, analysis, etc.) are necessary in order
to prioritize ends and purposes, decide upon means to the formulated
ends, and to formulate complex principles of justice that meet the
formal constraints set upon them. The essential role of language is
acknowledged by Rawls when he refers to an individual's conception of
the good as that individual's "rational plan of life," that is, as
something to be "drawn up" or "laid out" before our eyes and
analyzed.(20) The essential role of language in the exercise of our
powers of rationality and reasonableness is explicitly understood by
David Richards when he writes, "For us, rationality itself flows from

our capacities for speech and writing and from an appropriately

225

supported material and cultural environment for their cultivation and
exercise." He adds that rationality and reasonableness "are expressed
through speech and writing, which make possible reflection about our
ends, reasoning about our beliefs, and, in general, the imaginative
constructions of reality that in art, science, and religion are
literally our ways of world making."(21) In short, the problem of
detatching the conception of free speech (whether as described by my
view or Mill's view) from the conception of discourse that emerged
after the introduction of the printing press (e.g. propositional,
linear, consistent, argumentation and exposition) remains. In turn,
it will be difficult to maintain that the television viewer, who
"participates" in the discourse inherent to the television program,
is, in this context, a rational and reasonable consumer of ideas.
Once again, then, we see that television does not contribute to a
genuine marketplace of ideas as described by my theory and, hence,
that its programming cannot be treated by this theory as free speech.
I want to conclude this dissertation by responding to this
objection. To do so, let me first more clearly articulate the
objection at hand by expanding upon the notion of "rationality" or of
the "rational." In Chapter 3, I described the manner in which Rawls
uses this term. When we describe a person as rational, we are, in
Rawls' sense, referring to her scheme of reasoning, to reasoning that
is governed by the principles of rational choice that determine how

she will order her ends and purposes and select means for pursuing

226

these ends. For Rawls, persons are rational, for example, when they
adopt the most efficient means to their ends or when they adopt ends
that are most likely to satisfy more of their interests or desires
than other ends that might be adopted. Rational deliberation, then,
is ordered, systematic deliberation guided by principles that organize
and systematize the questions that are posed, the considerations that
are utilized, and the conclusions that are generated.

The term, 'rational', can be applied in a more general way to
other practices, practices not necessarily connected with our own
determination of our ends and purposes or of the means to these ends.
Thus, for instance, we can speak of rational diseourse, understood as
discourse "which is conducted within an agreed upon set of conventions
about what counts as a relevant contribution, what counts as answering
a question, what counts as having a good argument for that answer or a
good criticism of it."(22) In other words, rational discourse is
ordered, systematic discourse governed by certain conventions or rules
that direct and organize it. These conventions and rules, I suggest,
are precisely those that began to take hold of discourse in the
centuries that followed the invention of the printing press. Such
rules and conventions helped define clarity of exposition, validity of
argument, and legitimacy of questions and criticisms. Wholly
propositional, linear, consistent exposition or argument was not only
the form of discourse that happened to emerge after the introduction

of print (see Chapter 2), but it became the standard for discourse

227

following this innovation; how people, in fact, began to think, speak,
and write eventually became the standard for how people ought to
think, speak, and write.(23) This connection between rational and
print-centered discourse is, perhaps, what led Richards to claim that
rationality "flows from our capacities for speech and writing."

Now, one example of rational discourse is rational persuasion,
which I discussed in the previous chapter. There, I noted that
rational persuasion is a way of influencing the beliefs or behavior of
individuals by directly appealing to their capacities for
argumentation, reasoning, and judgment. In this way, rational
persuasion can be seen, I claimed, as a technique that respects
persons as equals, as beings who are capable of using such capacities
to determine and pursue their own conceptions of the good and of
justice. The question is whether or not rational persuasion (or, more
generally, rational discourse) is the only discourse in which we can
engage that respects persons in this way, that is, as equals. The
objection at hand contends that the theory of free and equal speech
must rely upon some form of rational discourse, for such discourse is
the best and only sort of discourse in which we can engage that
respects persons as equals. Moreover, rational discourse is not the
sort of discourse that is inherent to television programs, for such
programs do not respect the rules that govern rational discourse,
rules that developed as a result of the introduction of print. Hence,

the objection concludes, the theory of free and equal speech cannot

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protect television programming as free speech.

What must be shown, then, is that there is an alternative form of
discourse to rational discourse that merits protection. This form of
discourse must, when practiced, respect the status of persons as
equals and, at the same time, it must not be connected with the
propositional, linear, argumentative discourse of the medium of print.
.Also, this alternative discourse must reflect, to some degree, the
kind of discourse that I have argued is inherent to television
programs if the theory of free and equal speech is to be applied to
such programs. I believe that edifying discourse, as defined and
developed by Rorty, meets these demands. In describing and supporting
this form of discourse, I am not advocating that it replace rational
discourse (or, in particular, rational persuasion) as the form of
discourse in terms of which the theory of free and equal speech can be
understood. Rather, it is another form of discourse that can be used
by this theory in order to broaden its scope and, hence, expand its
application to other speech acts, like television programs, and to
other media, such as television.

We might begin to understand Rorty's notion of egigyipg_eieeeg;ee
by contrasting its aim with that of rational discourse and,
especially, of rational persuasion. The primary purpose of rational
persuasion, as it is typically understood and employed, is to convert
another to a point of view or belief, to bring one around or convince

one of the truth, value, or correctness of a belief. The aim of

 

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edifying discourse, on the other hand, is, more generally, to educate
or improve another; its purpose is to build another up, not to bring
one around, to contribute to the ways in which persons form or create
their own identity rather than to convince them of the rightness or
wrongness of their identity. Put more generally, we might say that
the purpose of speech, when understood as edifying rather than as
rational discourse,i8 not to be persuasive, but to "find new, better,
more interesting, more fruitful ways of speaking."(24) Hence, while
the aim of rational persuasion (and, perhaps, of rational discourse
generally) might be seen as to close off routes of conversation based
upon their wrongness or falsity, the aim of edifying discourse is to
point to new avenues of conversation or channels of communication.

We can also contrast edifying and rational discourse with regard
to their form or the manner in which they proceed. As just noted, the
chief aim of edifying discourse is to offer new and interesting ways
of speaking and, hence, to provide us with novel and interesting ways
of describing ourselves and our world. Thus, edifying discourse must
be reactive or revolutionary in that it must continuously move beyond
the conventions and rules that govern rational discourse. Those who
participate in edifying discourse are always suspicious of such
conventions, always questioning their legitimacy, appropriateness, and
utility. Yet, the aim of such persons is not to replace such
conventions with others, but merely to warn us or to keep our guard up

against taking these conventions too seriously.

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Given these features of edifying discourse and the aims of those
who engage in it, it should come as no surprise that some of the
primary tools of such discourse include satire, parity, and metaphor.
Furthermore, edifying discourse need not be linguistic or
propositional discourse; indeed, it is likely to be more interesting
and novel if it is not propositional. The work of sculptors,
painters, and musicians can, then, be as edifying as that of poets and
novelists. Such persons, once again, strive to reconstruct, remake,
or redescribe us and our world and, in doing so, question the
traditional standards or conventions of construction, creation, and
description.(25) This is not to say that edifying discourse is
superior to or more appropriate than rational discourse. The point is
only that it is an alternative form of discourse, another way of
seeing, fashioning, and constructing ourselves. (I shall return to
this point later in this section.)

It is very important to stress the reactive or revolutionary
character of edifying discourse, which is not unconventional simply
for the sake of being unconventional. Edifying discourse is a
response and, in fact, a particular kind of response, an educated,
reflective, self-conscious response to rational discourse. "The
caution amounts to saying," Rorty writes, "that abnormal or
existential [or edifying] discourse is always parasitic upon normal
[i.e. rational] discourse...and that edification always employs

materials provided by the culture of the day."(26) In other words,

231

the fact that discourse is unconventional or nonconforming does not,
in itself, make it edifying. One who, say, murders another and claims
that such an act constitutes edifying discourse because he is reacting
to the victim's way of life is asserting as ridiculous a claim as one
who, upon engaging in a single scientific experiment that demonstrates
a particular anomaly, claims to have brought about a scientific
revolution.(27) We must always bear in mind the sort of response
given and that to which one is responding in edifying discourse.
Persons who engage in edifying discourse can certainly respect
each other as equals. Edifying discourse, after all, strives to
redescribe, reconstruct, and, therefore, to remake us and our ways of
life. It reflects a view of persons that Rawls would certainly find
compatible with his own theory. This view of persons, at bottom, is
that, as rational and reasonable agents, we are made, not found; we
are created, not assumed or given from the outset. It is this
conception of persons, in fact, that leads Rawls to focus upon the
basic structure of society as the primary subject of his theory of
justice. The basic structure includes those social institutions and
practices that profoundly and persistently effect us from birth. He
writes, "Taken together as one scheme, the major institutions define
men's rights and duties and influence their life prospects, what they
can expect to be and how well they can hope to do. The basic
structure is the primary subject of justice because its effects are so

profound and present from the start."(28)

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This view of the person as made and not found is also supported
by noting that Rawls emphasizes what he calls a political conception
of the person rather than, say, a metaphysical conception. A
political conception of the person does not focus upon the "essence"
of persons or upon what, ultimately, gives intrinsic value to the life
of each individual. Rather, such a conception stresses persons'
"public" or "institutional" identity (their identity from the
perspective of the basic structure), the fact that persons can and do
make "self- authenticating" claims upon the institutions that comprise
the basic structure, and the responsibility persons can take for their
own ends, the fact that "they can adjust their ends so that those ends
can be pursued by the means they can reasonably expect to acquire in
return for what they can reasonably expect to contribute."(29) These
three aspects of the political conception of the person describe our
freedom as it is formed, acknowledged, and realized within the basic
structure of a given society and not, for example, as an aspect of a
transcendental ego or as a component of the soul. This freedom is
represented by (but not ultimately grounded in or reduced to) the
portrayal of the parties in the original position as rational agents
deliberating under reasonable constraints.

Given that we can engage in edifying discourse and, at the same
time, respect one another as equals, my theory of free and equal
speech, a theory that explains and justifies the right to free speech

in terms of the fundamental right to equal concern and respect, can

 

233

consistently and legitimately employ this notion of discourse. A
neutral and equitable marketplace of ideas, whether its participants
practice rational or edifying discourse (or both), acknowledges the
individual right to equal concern and respect and can thus serve as a
model for a theory that takes free speech seriously. Moreover, the
inclusion of edifying discourse in this model permits it to more
adequately accommodate poetry, novels, paintings, musical works,
political satire, and a host of other forms of conversation that might
not be as easily included by a model that is understood only in terms
of rational discourse. Such works are capable of contributing to the
determination of the truth or worth of an idea.(30)

There is no doubt, then, that the discourse inherent to
television programs can be accommodated by a marketplace model that
incorporates both rational and edifying discourse. The image-
centered, narrative, nonlinear discourse of television programming
can, it seems, be seen as edifying in the sense under consideration.
Indeed, it will be difficult, as I have tried to make evident, for a
theory of free speech that does not make room for a notion like
edifying discourse to purport to protect television programming.
Traditional theories of free speech are too firmly grounded in
rational discourse, a discourse that is tightly connected to print-
centered discourse, to have any hope of protecting television
programming as free speech.

There is, however, one serious difficulty with this approach to

234

television. I said that edifying discourse must be seen as an
educated, reflective response to rational discourse. It is hard to
imagine most television programs as revealing this sort of response.
They are, at best, responding to other television programs or,
perhaps, to the tastes and desires of television viewers. Such
programs have the form of edifying discourse but lack its reactive or
revolutionary character.

What this problem shows, I think, is that television programs do
not enjoy the significant protection enjoyed by other forms of
discourse. We might, in fact, consider classifying television
programs according to the degree of protection that seems appropriate
given the theory of free speech I have offered. Three classes seem in
order: 1) those programs that are almost wholly propositional and
argumentative (e.g. political debates, conferences, in depth news
analyses) and, hence, most likely to be strongly protected by more
traditional theories of free speech, 2) those "semi-propositional"
programs such as typical newscasts, some talk shows, and some
documentaries, and 3) those programs that might be seen as reflective
responses to rational discourse (e.g. documentaries, political
cartoons and satire, and many films or movies). Other programs that
cannot be defended in one of the ways described (e.g. game shows,
soaps, situation comedies, etc.) may remain without protection but
need not be censored or restricted so long as controversy is not

sparked by them. Moreover, if questions about such programs do arise,

 

235

proposed restrictions must conform to one of the four conditions laid

out at the beginning of this chapter.

 

236

EQEQQ

1. Thus, in referring to the marketplace model in the future, I shall
be referring to the expanded model of the marketplace of ideas, which
includes both the principle of neutrality and that of equity.

2. For fuller discussion of such arguments, see "Liberal Constraints
On Private Power: Reflections On the Origins and Rationale of Access
Regulation" by Stephen Holmes in pempepegy_epg_ppe_fleee_fiegie edited
by Judith Lichtenberg, Cambridge University Press, c. 1989, pp. 22-55.
Some of the arguments discussed by Holmes are also given in Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367, 1969. I discuss this opinion
in Chapter 3 as well.

3. 315 U. S. 568, 1942

4. ibid., @571-572

5. The words at issue in Chaplinsky were "damned racketeer" and
"damned fascist," which hardly seem insulting today.’

6. ibid., @572

7. It is just such considerations that lead Neil Postman to consider
the ways in which the current conception of truth is being shaped by
television and image-centered discourse. See Amusing Ourselves to

Death; Public Discourse in the Age of Show Business by Neil Postman,

Penguin Books, New York, c. 1985, especially Chapter 2. Particular

 

implications of the formation of truth through the use of
image-centered discourse are considered in the context of the

television newscast.(pp. 99-105)

237

8. Examples seem to abound. Persons regularly refer to the
individuals, events, or circumstances depicted on talk shows and
tabloid journalism programs to support a claim they wish to make.
Newscasts are regularly identified as indisputable fountains of
truthful and reliable information and even advertise themselves in
this way. Finally, as if to make a mockery of the more sophisticated
methods of gathering evidence, the slow-speed chase of former football
star, 0. J. Simpson, on June 17, 1994, which was shown throughout the
nation on television, gave rise to nearly every American playing juror
and judge in the subsequent trial.

9. "We define pornography as the graphic, sexually explicit
subordination of women through pictures or words that also includes
women dehumanized as sexual objects, things, or commodities, enjoying
pain or humiliation or rape, being tied up, out up, mutilated,
bruised, or physically hurt, in postures of sexual submission or
servility or display, reduced to body parts, penetrated by objects or
animals, or presented in scenarios of degradation, injury, torture,
shown as filthy or inferior, bleeding, bruised, or hurt in a context
that makes these conditions sexual." Femipiem Unmpgifieg; Dieeppreee
Qn Life eng Lew by Catharine MacKinnon, Harvard University Press, c.
1987, p. 176. The specific content requirements are echoed by
MacKinnon. She writes, "The definition does not include all sexually
explicit depictions of the subordination of women....To capture what

pornography does, the definition adds a list of what it must also

238

contain. This list, from our analysis, is an exhaustive description
of what must be in the pornography for it to do what it does
behaviorally."

10. I include film, here, because pornographic videos are most
frequently viewed on a television set and, hence, all of the features
I have discussed that enhance the technological power of speech apply
to these videos as well as to television programs. As noted in
Chapter 1, however, television is not without its own brand of
pornography as illustrated by Home Box Office's "Real Sex" and by
cable channels such as Escapades and The Playboy Channel. With the
use of satellite dishes and the promise of hundreds of cable channels
via fiber optic technology, such channels are likely to proliferate in

the future.

 

Movement by Joseph Shapiro, Times Books, New York, c. 1993, p. 21.

The discussion of the MDA Labor Day Telethon offered by Shapiro (which
I shall be considering momentarily) has been quite useful throughout
this dissertation.(pp. 21-25)

12. An example of when this reasoning might be applicable to
television today is the extensive use made of this medium by so many
persons seeking public office. Substantial portions of H. Ross
Perot's $60 million campaign for the 1992 Presidency and of Michael
Huffington's $23 million campaign for a U. S. Senate seat were used

for television air time. This access to television, no doubt, gave the

239

speech of these candidates immense technological power and such speech
likely silenced the participation of other candidates.

13. "Speech Acts and Unspeakable Acts" by Rae Langton, Philosophy and
Public Affairs, Vbl. 22, 1993, pp. 321-322.

14. If it is not pornography that is responsible for this kind of
silencing in Marchiano's case, it is difficult to think of an
alternative. I admit that pornography might be seen as only one of a
host of institutions and practices that, when taken together, silence
women in this way. However, I will not deal here with the
implications of this admission.

15. The list given is, of course, incomplete. If we turn to Austin, a
more thorough account of the speech acts that might be protected by
the speech and press clauses of the First Amendment might be made. We
would, I believe, want to include those acts that Austin classifies a8
egpgsitives, which "are used in acts of exposition involving the
expounding of views, the conducting of arguments, and the clarifying
of usages and of references." We might also include what he calls
pehevieivee. "Behavitives," Austin writes, "include the notion of
reaction to other people's behavior and fortunes and of attitudes and
expressions of attitudes to someone else's past conduct or imminent
conduct." For discussion of both groups, see his How To Do Things
With Werds, Oxford University Press, 2nd ed., c. 1975, pp. 160-163.
16. Imitation is one of the first ways in which we learn new behavior.

As Dr. Brandon Centerwall points out, "Neonates are born with a

240

instinctive capacity and desire to imitate adult human behavior." He
cites studies in which new-borns, within a few hours of their birth,
imitate facial expressions (without, of course, cognitive awareness of
their actions). He adds, "Whereas infants have an instinctive desire
to imitate observed human behavior, they do not possess any instinct
for gauging a priori whether a behavior ought to be imitated. They
will imitate anything, including behaviors that most adults would
regard as destructive and anti-social." See "Television Violence: The
Scale of the Problem and Where to Go From Here," Journal of the
American Medical Association, vol. 267, 1992, p. 3059.

17. This option, as noted in Chapter 2, is not feasible because, like
many restrictions proposed for television sex and violence, it is far
too broad or vague.

18. See Centerwall, pp. 3063-3064.

19. This is a suggestion made, for example, by Robert Hughes in his
"Why Watch It Anyway?" New York Review of Books, Feb. 16, 1995, p. 42.
20. A.Theopy of Justice by John Rawls, Harvard University Press, c.
1971, pp. 408-411.

21. Telepepipp_epg_ppe_§ppepipppipp by David A. J. Richards, Oxford
University Press, New York, c. 1986, p. 167.

22. Philosophy and the Mirror of Nature by Richard Rorty, Princeton
University Press, c. 1979, p. 320. This is actually Rorty's
definition of what he calls "normal discourse." The term stems from

its relation to Thomas Kuhn's conception of "normal science," which,

241

in Rorty's words, "is the practice of solving problems against the
background of a consensus about what counts as a good explanation of
the phenomena and about what it would take for a problem to be
solved." Normal science, then, is an instance of normal discourse,
for both are practices guided by conventions that direct discussion
and interaction. (Compare Ihe_Spppepppe_p§_Seieptifie_geyelppiep by
Thomas Kuhn, University of Chicago Press, 2nd ed., c. 1970, p. 10.)

I am equating "normal" and "rational" discourse, though Rorty
does not use the terms in this fashion. For him, rational discourse
is discourse that assures certain and indisputable agreement among
everyone about everything. It does so by assuming that all discourse
is commensurable, that is, "able to be brought under a set of rules
which will tell us how rational agreement can be reached on what would
settle the issue on every point where statement seem to conflict."
For Rorty, commensurability is the chief assumption of epistemology
and rational discourse is the discourse of epistemology that attempts
to reflect and exploit this assumption. Rorty employs the notion of
normal discourse in order to show how interesting, important, and
useful agreement can be reached without the epistemological baggage
carried by rational discourse. Thus, for example, he contrasts the
"rational" and the "normal" when he writes, "Normal science is as
close as real life comes to the epistemologist's notion of what it is
to be rational." I think that I am safe in equating normal and

rational discourse so long as the assumption of commensurability (and

242

other epistemological baggage) is avoided. For general discussion,
see Philpeephy end ehe Mirrpr ef Neppre, pp. 316-322.

23. In this way, rational discourse, as I have described it here,
might turn out to be the normal discourse that emerged from a print-
centered culture (if we continue with the parallels between normal
science and normal discourse began in note 22).

24. ibid., p. 360

25. The contrasts that have been made here between edifying and
rational discourse are taken from Rorty's distinction between the
"systematic" and "edifying" philosopher.(pp. 369-370)

26. ibid., pp. 365-366

27. I choose this analogy because it reflects some of the chief
concerns about objectivity that, Rorty notes, were leveled against
Kuhn's work. One of Kuhn's chief contentions was that no algorithm
for choosing between scientific theories is available and that
scientific theories are, at best, the codification of the rules and
conventions that govern some particular period of normal science.
Rorty writes, "This led his critics to claim that he was licensing
every scientist to set up his own paradigm and then define objectivity
and rationality in terms of that paradigm..."(pp. 325-326)
Revolutionary science, for Kuhn, must be understood in terms of (and
achieved through) a response to the intractable problems of normal
science. In the same way, edifying discourse must be seen as a

response to the lingering limitations of rational discourse, as a

 

243

self-conscious reflection or response to such discourse and its
problems and limitations.

28. Theopy of Justice, p. 7

29. Political Liberalism by John Rawls, Columbia University Press, New
York, c. 1993, pp. 30-34.

30. One might object that the discourse of poetry or novels, say, is
not the kind of discourse most likely to reveal truth. It is the
epistemological assumptions underlying such a view that Rorty wants to
reject. He writes, "The contrast between the desire for edification
and the desire for truth is...not an expression of a tension which
needs to be resolved or compromised. If there is a conflict, it is
between the Platonic-Aristotelian view that the only way to be edified
is to know what is out there, to reflect the facts accurately, to
realize our essence by knowing essences and the view that the quest
for truth is just one among many ways in which we might be

edified."(p. 360) I will not, of course, defend this claim here.

          

   

“mmmlill‘lil‘

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