HOUSE_OVERSIGHT_017181.jpg

4.2.12
WC: 191694

Chapter 6 Offensiveness- Pornography: I Am Curious Yellow and Deep Throat

Freedom of speech is not free. The right to say, show or publish often carries a heavy price tag.
As kids, we recited the following ditty: “Sticks and stones may break my bones, but names will
never harm me.” Before too long we learned, often from painful experiences, how wrong it was.
Names—such as “kike,” “fag,” “wop,” “nigger,” “retard,” “sissy,” “fatso”—could harm far more
than sticks and stones. Lies, rumors, gossip, slurs, insults, caricatures could all be painful. Even
the truth can hurt.³¹ That’s why we learn to be “polite”—to self-censor. That’s why families,
schools, groups and other institutions have rules, sometimes explicit, more often implicit,
regulating speech. “We just don’t say that kind of thing around here,” is a common, if informal,
limitation on freedom of expression.

It is a far cry, however, from an informal family understanding to formal government legislation
and enforcement of formal restrictions on expression. I would never use —or allow anyone I love
to use—the kind of epithets listed in the prior paragraph, but nor would I want the government to
prohibit, under threat of criminal punishment or prior restraint, the use of those or other hurtful or
offensive words.

You may remember that in the 1970s, the comedian George Carlin listed the seven words that
could never be uttered on radio or television. The list included such innocent words as “piss” and
“tits.” (Use your imagination for the other 5!)

Although the list was never officially promulgated by the Federal Communications Commission,
the uttering of the prohibited words on a Pacifica radio station that broadcast Carlin’s routine led
to a Supreme Court decision setting out standards for what could and could not be said during
certain hours of the day and night.

Carlin’s routine also became fodder for other comedians and led to the widespread mocking of
any attempts to create lists of approved and unapproved words.

Nonetheless, governments have understandably sought to protect some adult citizens³² from being
“offended” by the words or expressions of other citizens. Nudists are not free to bare their
privates in public, since most people are offended by the sight of other people’s naked bodies,
thought they may be free to do so in special areas set aside for those who are not so offended.³³ I

³¹ At common law, truth was not a defense to defamation because a “truthful defamation was deemed more harmful
than a false one.” See Alan Dershowitz, Finding Jefferson (Wiley 2008 pages 104-05).

³² The exposure of such material raises separate issues but the Supreme Court has ruled that the potential exposure
of children does not by itself justify censoring adults. See _______.
³³ See Dershowitz, The Best Defense, Chapter 5.

In any event, the issue of pornography illustrates at least two distinct types of harm that have the alleged basis for
prohibiting expression. A related harm grows out of the expectation that certain people who are offended by
certain kind of speech will react violently to the offending person. Thus, if a white person confronts a black person
and calls him by the “N word,” the black person may well respond by striking the offender. Similarly if a Jewish,
Muslim, Italian, Irish, Polish or gay person is confronted with a word or name deeply offensive to him or his

94

HOUSE_OVERSIGHT_017181