Vol. 21 No. 8 (August, 2011) pp.505-507
DEGRADATION: WHAT THE HISTORY OF OBSCENITY TELLS US ABOUT HATE SPEECH, by Kevin
W. Saunders.
New York: New York University Press, 2011. 256pp. Cloth $45.00.
ISBN: 9780814741443.
Reviewed by Jeannine Bell, IU Maurer School of Law-Bloomington. Email: jeabell
[at] indiana.edu.
Professor Kevin Saunders’ book addresses two topics in of First Amendment law
not commonly associated with one another, obscenity law and hate speech.
Obscenity is viewed as primarily concerning “sex,” and hate speech is considered
to be about “race.” As Saunders
explains, obscenity law focuses on the rights of individuals to access sexually
explicit materials. Saunders
includes within his ambit several types of hate speech including racist, sexist
and homophobic speech, although some speech categories are not as developed as
others. He immediately locates the
similarities between obscenity and hate speech in his introduction to hate
speech, citing critical race theorists including Richard Delgado and Mari
Matsuda, who characterize hate speech as assaultive and note the physical injury
that such speech causes (Matsuda, et al.,1993).
The aim of Saunders’ book appears not just to demonstrate the
similarities between these two types of speech, but also to suggest how
examining the legal treatment of obscenity in the United States can guide the
sanctioning of hate speech, if at some point society wishes it.
Saunders begins the book with an extensive treatment of pornography, dating back
to the Greek and Roman eras. He
maintains that sexual obscenity is linked to the relationship between “humans
and God or gods on the one hand and humans and animals on the other” (p.75).
In tracing the acceptance of open sexuality in Greek and Roman culture,
Saunders notes the absence of sexually obscene material or even a concept of
obscenity in these societies. In
Chapter 5, “A Look at Other Cultures,” Saunders finds a similar lack of shame
concerning sex in Islamic as well as Jewish culture.
In this chapter, Saunders also explores the effect of religious culture
on attitudes towards sex in India, China, Japan and Scandinavia.
In distinguishing Western Christian civilization, Saunders gives several
reasons for the increased regulation of pornography and the creation of a
category of obscene materials. He
notes that in the West, increased regulation of obscenity occurred during the
Enlightenment and the French and Industrial Revolutions.
At these various time periods, in a wide variety of places pornography
came to be seen at least in part “as depicting humanity in a less than human
way” (p.73). Saunders distinguishes China and Japan from the Western approach.
In China and Japan, people, along with gods and animals, were engaged in
natural and enjoyable activities, “and with no shame associated with those
activities, the depictions of human sexuality can be open” (p.86).
Saunders provides a nuanced discussion of the Supreme Court's approach to [*506]
regulation of obscenity in the United States, the social disdain for obscenity
developed into law with the Supreme Court first recognizing a legitimate state
interest in government regulation of obscenity in 1957 in its decision in ROTH
v. UNITED STATES. The Court
continued its willingness to limit free expression in the context of obscenity.
Prohibition of obscenity applied in two contexts, when children may be affected
or when unwilling viewers might encounter obscene materials.
The notion that obscenity may be regulated despite the encroachment on free
speech contrasts markedly with the broad protections accorded to hate speech. As
Saunders makes clear, in a variety of different cases from fighting words to
cross burning, the Supreme Court has offered First-Amendment protection for hate
speech. This relatively unique
position of the United States
diverges from the approach of many other countries including Canada, Germany,
Austria, Belgium, Brazil, Cyprus, England, France, India, Israel, Italy, and
Netherlands all of which penalize the dissemination of hate speech.
Saunders warms to his purpose in Chapter 7, “Using Obscenity Doctrine to Address
Hate Speech.” The justification for using an obscenity-based approach to address
the regulation of hate speech may well be Saunders’ most valuable contribution
to the hate speech literature. As
Saunders indicates, obscenity may not be thrust on an unwilling recipient.
Hate speech, however, is so harmful, Saunders notes, precisely because it
is thrust on to unwilling recipients. “It is the racist invective hurled at a
member of an ethnic or racial minority that causes the psychic, and even
physiological, damage. There is no consent to receive that speech in society's
interest in shielding this victim is stronger than shielding from obscenity the
willing viewer” (pp.128-129).
Saunders offers a straightforward doctrinal analysis of the ways that the MILLER
test for obscenity, created by the court in 1973 in MILLER v. CALIFORNIA, may be
adapted to the regulation of hate speech. As Saunders notes, given the current
doctrinal landscape, it would be an uphill battle for US courts to accept bans
on hate speech. He spend a fair amount of time engaging with hard cases — such
as how to deal with various forms of sexist and racist speech on campus. This
allows readers to get some idea of how his theory works “on the ground.”
In Chapter 8, one of the main hard cases he has selected involves a
well-meaning basketball coach who has used the word, “nigger” to motivate his
players. Because the coach is clearly well-meaning, all of the players
themselves understood his meaning and any offense taken seems slightly
ridiculous, Saunders’ example does not particularly showcase his obscenity-based
approach. A case involving
intention to harm or demean would have been representative of hate speech
generally and would have provided a more interesting test of his approach.
Though it is not spelled out explicitly in the book, Saunders’ framework clearly
has broad application to a variety of empirical factors that concern hate speech
— particularly who is targeted, and who uses hate speech.
Saunders is to be commended for his focus in Chapter 9 on the impact of
hate speech [*507] on children. This is as crucial in light of the targeting of
children by extremists on the right and the vulnerability of children to hate
speech. Saunders describes in detail the marketing of hate speech to children by
neo-Nazis and other extremist groups.
He also discusses children's First-Amendment rights and their
developmental vulnerabilities, which make hate speech so harmful.
Saunders’ remedy would be especially useful in preventing the harms and
dangers that children may face from hate speech.
Finally, a related issue that Saunders does not address is the issue of
youth as perpetrators. Large
numbers of hate crimes -- crimes motivated by bias on the basis of race,
religion, ethnicity or protected category — are committed by juveniles (Bell,
2002). Frequently these crimes
involve speech. By focusing on
injury in particular cases Saunders’ theory helps break through the confusing
thicket of defenses offered by users of hate speech.
In the unlikely event that his theory could be legally applied, it might
actually offer some relief to individuals targeted.
Saunders seems aware of some of the limits of his approach.
In the conclusion he notes that he does not explicitly address issues of
race relations. In failing to say
very much about race relations, Saunders’ approach is distinct from both
critical race theorists who discuss hate speech and most First-Amendment
scholars. In leaving entirely aside
the issues of race relations that lead some individuals to employ hate speech,
and others to be targeted by it, Saunders may be missing more than he realizes.
Even a brief discussion of the race relations and use of hate speech
would provide much-needed insight regarding power, and strengthen his argument
regarding the destructive nature of hate speech. The book might have also
benefited from a much more full discussion of sexist and homophobic speech.
Though Saunders indicates that the theory is intended to apply these types of
speech as well, sexist and homophobic speech received very little theoretical
treatment in the book and decidedly little application. Both of these are minor
concerns however, since overall the book makes a substantial contribution to
this decidedly thorny area of First Amendment law.
REFERENCES:
Bell, Jeannine. 2002.
POLICING HATRED: LAW ENFORCEMENT, CIVIL RIGHTS AND HATE CRIME. New York: New
York University Press.
Matsuda, Mari J., Charles R. Lawrence III, Richard Delgado, and Kimberle
Williams Crenshaw. 1993. WORDS THE
WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT.
Boulder, CA: Westview Press.
CASE REFERENCES:
MILLER v. CALIFORNIA 413 U.S. 15 (1973).
ROTH v. UNITED STATES 354 U.S. 476 (1957).
*********************
© Copyright 2011 by the author, Jeannine Bell.