Harmful to Minors: The Perils of Protecting Children From Sex
by Judith Levine
University of Minnesota Press, 2002
The First Amendment and Civil Liability
by Robert M. O'Neil
Indiana University Press, 2001
It's fitting that one of the two books we've chosen to inaugurate the Free Expression Policy Project Book Page has itself become a target of censorship pressures. Journalist Judith Levine's Harmful to Minors is controversial, to be sure: the author not only argues against censoring young people's access to sexual information, but she questions many of our society's attitudes about their sexual activity. All the more reason, then, that Levine's ideas should be given a fair hearing. Yet demands to suppress the book—from such groups as Concerned Women for America—began even before its May 2002 publication date. Levine's publisher, University of Minnesota Press, vigorously defended Harmful to Minors, but the university itself responded by setting up a dubious "external review" of its publishing department's policies and procedures for acquiring books.
Robert O'Neil's The First Amendment and Civil Liability has had a quieter reception, but it raises equally pressing concerns about an area of free expression that is fraught with difficulties, both legal and political. In recent years, journalists, publishers, film producers, and others in the free-expression business have been sued for damages with increasing frequency because of things they wrote, said, or did in the pursuit of creativity or news. As O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, notes, this is an ominous change from a generation ago, when—at least outside the context of defamation or invasion of privacy—such civil lawsuits were rare and almost never succeeded.
The pivotal case driving this change in the law was Rice v. Paladin Enterprises, which involved the notorious book Hit Man: A Technical Manual for Independent Contractors. Although Hit Man reads like a clumsy parody of the macho hired-killer mentality, the literal-minded could also interpret it as an actual manual for murder. After a real hit man allegedly relied on the book's instructions, the family of his victims sued the book's publisher, Paladin Press. In a strategy that later misfired badly, the publisher's lawyers admitted, for purposes only of moving to dismiss the lawsuit, that Paladin knew and intended that the book would be used by killers. A federal judge agreed with them that even if this evil intent existed, the suit had to be dismissed on First Amendment grounds. But in 1997, the Fourth Circuit Court of Appeals reversed, ruling that if indeed the publisher intended the book to be used as a manual for murder, it could be held liable to victims' families as an aider and abettor of the crime. The case later settled without trial on the issue of intent, leaving the Court of Appeals decision standing.
As O'Neil recounts, this theory of intent opened the door to other "copy cat" suits against publishers or producers of creative works. The next case—much more troubling in its implications than Rice v. Paladin—involved Oliver Stone's Natural Born Killers. The family of an armed robbery victim sued Stone, his producer (Time Warner), and a local chain of theaters in which one of the assailants had seen film. A Louisiana trial judge dismissed the suit, but the state appeals court reversed, ruling that if the plaintiffs could prove that Stone et al. intended their film to be imitated by criminals, then, on the Hit Man theory, the suit might succeed. Although the case was eventually dismissed because the plaintiffs could not find any evidence of such evil intent, the implications of the appeals court ruling are staggering. If writers, filmmakers, and other creative people can be hauled into court and subjected to bankrupting expenses and settlement demands simply on the unsupported allegation that they intended some depraved individual to imitate acts they depicted or described, free expression will be in a sorry state.
This is not to say that all lawsuits based on alleged harm from expression should be dismissed on First Amendment grounds. O'Neil's law-professor instincts lead him to examine the different factual situations carefully, making distinctions, for example, between Oliver Stone's violent cinema style and radio announcers who encouraged racing contests that predictably led to traffic accidents. Liability for negligence seems unexceptional in the case of the radio announcers; but liability for "copy cat" crimes that imitate scenes in books or movies threatens the essence of art and literature, not to mention history and news.
O'Neil also discusses such excruciatingly difficult cases as the 1999 jury trial that found the proprietors of the infamous "Nuremberg Files" Web site liable to Planned Parenthood and various doctors and nurses to the tune of $109 million. The site, as O'Neil says, listed names, addresses, and other identifying information for physicians who performed abortions; then "graphically noted" the murder of a "wanted" physician "by having a disembodied hand drawing a line through his or her name." O'Neil argues that current legal standards require a more explicit threat before even grotesque and frightening advocacy of this type can be punished or suppressed. But he reserves judgment on whether the Web site's postings actually had First Amendment protection. In March 2001, a three-judge panel of the Ninth Circuit Court of Appeals overturned the jury's verdict and ruled that the Web site was constitutionally protected; but in October, the full complement of judges on the court agreed to reconsider the case.
O'Neil explores these and other civil-liability issues with intelligence and aplomb. He rightly identifies the emotionally heated Paladin decision as the unfortunate source of much subsequent legal mischief. Along with the ever-present hot-button issue of "harm to minors," the idea of suing writers, artists, producers, and publishers for inspiring wrongful acts will provide fertile ground for censorship in the years ahead.
Which brings us back to Judith Levine's Harmful to Minors. The book actually has two distinct parts: one largely focusing on speech (censorship, sexuality education, issues in child pornography law) and the second on sexual acts. The attacks have, not surprisingly, focused on the second part and pretty much ignored the first. But in the earlier section, Levine provides a chilling description of the parlous state of America's "abstinence-only until marriage" philosophy, which has disastrously subverted sexuality education, and valuable information about saner approaches in Europe. She also takes some of the leading advocates of comprehensive sexuality education to task for caving in to "abstinence" rhetoric.
Levine clearly believes that children and adolescents—both male and female—are sexual beings, whose sexual impulses should not be denied. She tells a wonderful anecdote related by a Catholic school dean, about a sex education lecture given at the school by the headmaster, a priest. He had two glasses on the podium, she recounted. Into one he dropped an aspirin, "and it would just sit there." He would say, "This is how girls feel about sex." Into the other glass he dropped an Alka-Seltzer, "to illustrate boys' sexuality." The dean said: "After that, I'd have a stream of desperate girls in my office. They'd tell me, 'I'm the Alka-Seltzer, not the aspirin! Is there something wrong with me?'"
As Levine illustrates through this and other anecdotes, decades of sexual repression—and sexist assumptions—have not served teenagers and children well. But the hard questions remain: at what age can youngsters meaningfully consent to sexual activity? And what kind of activity? Some types of sex play among young children are harmless and healthy (Levine eschews the word "normal," since it is so culturally driven), but other acts, such as intercourse, assuredly are not. Fifteen year-olds can probably consent to sex with each other (age-of-consent laws in various states notwithstanding), but what about sex with a 30 year-old? A 21 year-old? Levine's apparent approval of such "inter-generational" sex is primarily what led Robert Knight of Concerned Women for America's Culture & Family Institute to accuse Harmful to Minors of giving "academic cover to child molestation," but the issue is certainly more complicated. In some contexts, as Levine shows, the law can be too draconian in punishing someone just over the age of majority for having an affair with a teenager.
Harmful to Minors is a courageous book, whether or not you agree with everything Levine advocates. It is entitled to close and reasoned consideration, not demagogic demands for censorship.
Judith Levine is a member of NCAC's Sex and Censorship Committee. She acknowledges NCAC's director, Joan Bertin, as well as Marjorie Heins, for assistance during the writing of her book. Levine, in turn, provided advice to Heins in the course of her research for Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth (Hill & Wang, 2001).