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Justice Potter Stewart’s pornography principle should apply to speech
From:
Patrick Asare -- Author of 'The Boy from Boadua' Patrick Asare -- Author of 'The Boy from Boadua'
For Immediate Release:
Dateline: Wyomissing, PA
Monday, February 5, 2024

 

In the 1964 U.S. Supreme Court case Jacobellis v. Ohio, the justices attempted to classify the kinds of materials that could broadly be considered obscene or pornographic. In trying to define what constituted “hard-core pornography,” Justice Potter Stewart partly wrote: “I could never succeed in intelligibly doing so. But I know it when I see it.”

Justice Stewart’s wise principle should be applied to speech in today’s America. Over the last decade or so, America has tied itself in knots trying to decide what constitutes offensive or harmful speech. That discussion has unfortunately been hijacked by people on the extreme wings of the nation’s two major political parties. There is an extensive catalogue of issues that are seemingly no longer open for debate for people on the far left, while those on the far right want to limit the teaching of certain historical facts and access to some literary works.

I was always fascinated by the conversations I had with taxi drivers in the Soviet Union during my time there as a student in the 1980s. Back then, there were few avenues for ordinary Soviet citizens to express their opinions, especially on political matters. Living for so long under totalitarian regimes seemed to have cowed the vast majority of average Soviets into silence, but within the confines of their taxi cabs, drivers were often animatedly vocal.

I particularly enjoyed the many long rides I took from city centers to airports. They offered me opportunities to get a detailed sense of what people really felt about their society. Knowing that it was unlikely a foreigner like me would have the means to reveal thoughts they shared with me to some government authorities, drivers freely expressed their views about their rulers in Moscow and provincial capitals.

American society is becoming eerily similar to the one that I observed in the Soviet Union nearly four decades ago. There are no state agencies that intimidate Americans into silence, but increasing numbers of people in this country say they are afraid to express their views openly on a long list of subjects, for fear of losing their jobs or being ostracized in their communities. Just like the Soviet taxi drivers, nowadays, many Americans freely say what is on their minds only when they are in “safe” company.

In her recent essay in The New Yorker Daily, Jeannie Suk Gerson, a professor at Harvard Law School, wrote: “Students across the political spectrum, but largely liberals, have told me that they felt it would be foolish to volunteer their opinions in class discussions, or even that they routinely lied about their views when asked.” She listed several examples of taboo subjects that students actively avoid talking about. Gerson went on to say that “In this climate, it [has become] increasingly difficult to elicit robust discussions because students [are] so scared of one another.”

Those are rather shocking revelations by someone who teaches at the nation’s leading research university. America’s global economic dominance largely derives from the country’s preeminent innovative powers. Clearly, innovation cannot occur without rigorous inquiry and robust exchange of ideas. And with the inextricable link between the academic and business worlds, this limitation of speech on college campuses should be extremely worrisome for every American.

The innovative workforce that makes American corporations world-beaters emanates primarily from the nation’s institutions of higher learning, which are considered the very best in the world. America will lose its competitive edge over time, if its future workers are hesitant to engage in inquiry on university campuses. If these students’ appetite for fierce debate is killed at this stage of their lives, there is no “on-switch” that could revive it after they enter the workforce.

In societies without feedback loops, mistakes are compounded over time, until problems get so big that they become unmanageable. In part, the Soviet Union collapsed due to the absence of social debate. A small group of people—mostly men—ruled by fiat for decades. Because humans have limited knowledge, restricting the number of people who participate in decision-making necessarily shrinks the supply of good ideas that make societies flourish. America should be careful not to fall into that trap. We don’t have to have tyrants in Washington to make this country look, feel, and function like a dictatorship.

Due to extreme political polarization, Americans now seem unable to agree even on some very basic facts. Appealing to reason anywhere in America nowadays would therefore appear to be a fool’s errand. Nonetheless, it is the only way that this nation can steer itself away from the destructive path that it is on. We should use Justice Stewart’s “I-know-it-when-I-see-it” principle as guidance to get out of this national quandary.

It shouldn’t be difficult for anyone to agree that incitement to violence is speech that should not be tolerated. Broadly speaking, speech should be considered harmful, and thus curtailed, only when it carries threat of bodily injury to others, or, is so outrageous that any reasonable person would know it when they hear it.

It is never pleasant to be the target of offensive speech. But people should not be ostracized or severely punished for simply using an inappropriate word. Unless someone willfully makes a complete fool of themselves by repeatedly directing offensive language at another person, we should all be a bit more tolerant than we are now. Given the enormous benefits of free speech to society, allowance of some less-than-pleasant language occasionally is, in my view, a relatively small price to pay for the chance to live in a prosperous country.

We should also keep in mind that in a multicultural society like America’s, it is quite easy for anyone to say something that others might find offensive. Because I am a non-native American, in the three decades that I have lived in this country, I have sometimes done or said culturally inappropriate things. Perhaps I unwittingly continue to. I always regret making those mistakes when I become aware of them, and learn not to repeat them. Sometimes, what we find offensive could very well be innocent mistakes by others.

Degrading America’s capacity for innovation will have profoundly negative implications for everyone. It will limit not only America’s economic growth, but also vital scientific and medical discoveries. As a nation, we should be championing free speech and rigorous debate, not silencing people.

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