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- Pornography And Other Obscene Speech
- Debating Free Speech
Sexual HarassmentTitle VII of the Civil Rights Act of 1964 prohibits quid pro quo harassment in the workplace. That means explicit threats not protected by the first amendment as well as the creation of a hostile work environment (if a reasonable person would find the situation hostile and if it would not require the government to prohibit speech intended to contribute to debate on an issue of public concern). A hostile environment is one in which the workplace becomes so uncomfortable that the harassed individual is unable to perform their job as well as they ought be able to. This is broader than merely direct harassment. Moreover, this limitation on first amendment rights is not merely a limit on one employee saying inappropriate words to another, it is symbolic. Many of the concerns of sexual harassment law are not speech, per se. Common examples of harassment, either direct or creating a hostile environment, are posters or screen-savers displaying lewd pictures, epithets, practical jokes, and unauthorized or unwanted touching. There are many justifications that have been used for this legislation, for example: harassment is discrimination, not speech; the workplace is for work, not speech; harassment is private conversation, not public discourse; workers are a captive audience; harassment has low first amendment value. Moreover, in these cases, the employer is often held accountable for harassment by one employee against another employee because they are best able to see the larger picture, they are better able to prevent a hostile environment, and they are the only person who could be held responsible for the cumulative effect created by many harmful acts by many different employees. Title VII does not reach every oppressed group; for example, sexual orientation is excluded. In using this example in a debate, therefore, it may be less useful to point to the act itself as a situation in which values like equality and community have been held to trump free speech (although that may also be strategic), and more useful to merely explain the principle it displays. That is, it is justified to censor individuals when their speech contributes to an oppressive environment for other people. Pornography And Other Obscene SpeechThe history of the First Amendment indicates that obscenity is defined as utterly without redeeming social value. The proper test is whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. One important aspect of the academic debate on pornography is focused on inequality and subordination of women. However, restriction of obscenity has at various times been about crime, immorality, corruption, the degradation of cities, concerns about zoning concern, etc. in addition to the question of equality. Pornography is already limited to being accessible only to those over 18 or 21, which raises questions of paternalism. However, in the case of Paris Adult Theatre I v. Slaton (1973) the Supreme Court categorically rejected the theory that porn can’t be regulated simply because it is only shown to consenting adults. There are morally neutral, legitimate state interests in stemming commercialized obscenity: quality of life, the total community environment, the tone of commerce, public safety from crime, debasement of individual personality, and distortion of human relationships. Prohibiting obscenity without serious literary, artistic, political, or scientific value is excessive control over individual preference or taste. There is a state interest in promoting the emotional health of its citizens, just as the FDA promotes the physical health of citizens by restricting unhealthy products. Pornography can be addictive, may cause increased objectification of or violence against women, and degrades the moral tone of society as a whole. The question of whether or not (and how) pornography contributes to the victimization of women is a hotly debated issue. MacKinnon, for example, argues that obscenity law is intrinsically tied to masculine viewpoints of morality, which fail to take into account that the perspective is tainted by male dominance. The feminist critique of pornography is concerned with the politics of power and powerlessness from women’s point of view. She argues that laboratory research has indicated that long term exposure to pornography changes men’s attitudes and promotes violent and nonviolent discrimination. Pornography is an instrument of socialization that teaches that women are less than human, they are objects whose value is merely the sexual gratification of men. Arguments against this are varied. Some examples are: pornography is about fantasy, not intended to represent reality; counter-speech is the appropriate solution, not censorship; pornography could be seen as the liberation of female sexuality; what is oppressive or degrading is extremely variable, so standards for legal censorship would be too vague. Despite this, the issue of pornography can be an extremely persuasive example of how other values (for example, protecting children from victimization) trump free speech. Debating Free SpeechThere are several important tactics a debater should use when debating against a case with the value of free speech. First, she must force her opponent not only to define free speech, but to agree to uphold that definition in all cases. If the other debater is unable to do so, after all, it opens the door for the respondent to prove that certain other values (community, equality, safe working environment, etc.) trump free speech. Depending on the wording of the resolution, this may be sufficient in itself to win the round. In other cases, it will merely create a space within which a debater is much more likely to be able to win that their opposing value is superior to free speech. Second, the respondent must not allow the debater who advocates free speech to use constitutionality as either the explicit or implicit criterion for determining what values are important. Because the Supreme Court has tended to allow free speech to trump most other values in so many cases, this way of framing the debate is extremely biased in favor of the debater who is advocating free speech. Rather, it is the arguments made by either side in Supreme Court cases that may be useful for refuting the value of free speech. In the case of sexual harassment, for example, the court’s holding may be useful, but in other cases the dissenting opinion may be just as persuasive. Finally, specific examples of situations in which free speech ought be limited can be invaluable for a debater responding to a case based around free speech. Discussions of child pornography, racist insults, and pornographic posters hung in the workplace have an extremely useful emotional appeal in terms of their ability to demonstrate the kind of emotional damage that can be caused by an unrestricted use of free speech. While an example may not, in itself, be enough to win the round, it enables the responding debater to set up a framework that justifies the respondent’s argument that another value ought be held paramount. 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