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4.2.12
WC: 191694

prohibited. If a particularly inappropriate expression that had not been included in the
codification were then to be used, the committee could consider including it for future discipline,
but it could not be the basis for imposing discipline for speech that took place prior to its
inclusion in the codification.

The virtue of a code is that it completely occupies the area of sanctions. It leaves no room for
"common law crimes" or broad decanal discretion. The vice of a code is that it is often
underinclusive—it excludes conduct (or, in this case, speech) that is novel, or that was not
considered by the codifiers. In the area of freedom of expression, the virtue of such a limitation
trumps its vice, at least in my view. It is far better to have rules regulating speech that are
underinclusive than overinclusive.

In 2007, I taught a university-wide course with Professor Steven Pinker on the issue of Taboo.
The question posed by the course was whether there are any issues that are so delicate, sensitive,
controversial, or disgusting that they should be treated as "taboos," even on a university campus
dedicated to open dialogue and the free exchange of views. Most Americans are brought up to
believe in freedom of expression, but almost everyone has at least one type of speech that he/she
would suppress. In our course, we searched for a theory of taboo – a description or prescription
of genres of expression that lay outside the presumption of discussability and are, or should be,
subject to suppression, censorship or tabooization. Professor Pinker presented some evolutionary
and psychological arguments for the existence and utility of some taboos, while questioning many
of the taboos that currently seem to exist on university campuses. I discussed the legal and moral
arguments for and against any exceptions to the general presumption of free expression. In the
end, there was little agreement, except that there is and should be a difference between societal
taboos, enforceable only by social sanction, and official governmental censorship, enforceable by
the power of the state through the law.

We also agreed that notwithstanding the clear words of the First Amendment, Congress must
have the power to make some laws banning the disclosure of some secrets for some time. Finally,
we agreed that there will never be a perfect balance struck between the public’s need to know and
the government’s need to keep our enemies from knowing certain information. The struggle to
strike this delicate balance never stays won. What history seems to teach us is generally to err on
the side of more disclosure rather than more censorship, even when it comes to national security.

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