Free speech ought to be the “default setting” in society.

The Free Expression Policy Project (FEPP), founded in 2000, provides research and advocacy on free speech, copyright and media democracy issues. The FEPP examines the fundamental values underlying the First Amendment and asks how well our current public policies and legal rules serve those values. The project covers areas such as art censorship, media policy, Internet restrictions, violence in the media and many more.

Marjorie Heins is a civil liberties lawyer, author and teacher, and is the founding director of the Free Expression Policy Project. In her interview with Fair Observer, she discusses the legal procedures behind challenging and banning books in America, as well as issues surrounding freedom of expression in the US, starting with the first obscenity laws of the 19^th century and through to the effects of the Patriot Act and Child Internet Protection Act on the freedom of information.

Anna Pivovarchuk: You are the founder of the Free Expression Policy Project, which began as part of the National Coalition Against Censorship. What does FEPP’s work focus on?

Marjorie Heins: Censorship of all kinds, by both government and private industry, including issues of copyright/intellectual property.

Pivovarchuk: You started out as a journalist and then continued on to found the Arts Censorship Project at the American Civil Liberties Union (ACLU). What prompted that move?

Heins: Well, in between I went to law school; then worked for the ACLU in Massachusetts; then (in 1991) moved to the national ACLU office in New York to head their new Arts Censorship Project. The project was created in response to new censorship pressures in the early 1990s, including attacks on the National Endowment for the Arts and obscenity prosecutions against rap music artists, record stores and the Cincinnati Contemporary Arts Center (for exhibiting the works of Robert Mapplethorpe).

Pivovarchuk: The first obscenity law was passed in the United States in 1842, when US customs were ordered to confiscate obscene pictures. We are clearly beyond that point. What are the main points of contention today? On what grounds is freedom of expression most often challenged?

Heins: Actually, there were state laws against “obscene libel” before the first federal obscenity law in the US. Both federal and state obscenity laws are still on the books and are used selectively, from time to time, to prosecute producers or distributors of sexually explicit material. The vagueness of these laws are a continuing problem for anyone engaged in sexually oriented art or entertainment, because they can never really know what will be prosecuted.

The main points of contention today include sexual and violent content in the arts and entertainment, repression of political dissent, overly zealous enforcement of copyright laws, and domination of media communications by big businesses and, in particular, the social media sites, browsers and search engines that dominate the Internet.

Pivovarchuk: In 1973, the Supreme Court introduced a new “obscenity test,” which refers to material that lacks “serious literary, artistic, political, or scientific value.” What are the dangers of such stipulations? Doesn’t it make censorship into a subjective value judgement — the famous “I know when I see it” dilemma?

Heins: You’re absolutely right. In fact, the 1973 Miller v. California test contains three parts, all of which are overly vague and subjective: (1) whether material is “patently offensive” according to “contemporary community standards”; (2) whether it appeals to the “prurient interest” (as opposed to a “healthy” interest in sex); and (3) the “SLAPS” test (does it lack “serious literary, artistic, political, or scientific value”?). The Supreme Court would not allow such vagueness and subjectivity in any other area of censorship, but when it comes to sexually explicit expression, the Court has basically thrown its usual standards of specificity out the window.

It’s always difficult to measure the chilling effect of government surveillance. Most people probably do not know about these aspects of the “USA PATRIOT” Act. But when the government targets a particular individual because he or she has, for example, checked the Qur’an out of the local library, that investigation amounts to punishment for the exercise of First Amendment rights.

Pivovarchuk: Your foundation works with those who express concerns over such government initiatives as the Child Online Protection Act (COPA) and Child Internet Protection Act (CIPA), which forces libraries to limit access to material deemed “harmful to minors.” What are the main issues you see with CIPA and other legislation of the sort? Is the idea good in principle, but suffers from problems with implementation, or are there more serious problems at play here?

Heins: The FEPP is not a “foundation”; it’s just an organization (at this point, really just a website). COPA was a federal criminal law, eventually struck down by the courts. CIPA is not a criminal law but a federal law that requires schools and libraries receiving federal aid for Internet connections to install filters on all their computers — for adults and minors alike — to block obscenity, child pornography and material deemed “harmful to minors.”

The problems with CIPA are major. First of all, no filter can make a legal determination of what constitutes obscenity, child pornography or “harmful to minors” material — which, like obscenity, is defined with a three-part test, all three parts of which are vague and subjective, and two parts of which (patent offensiveness and prurient interest) depend on local community standards. So, filters by definition will block tens of thousands of constitutionally protected websites that may have serious value and would not meet the legal standard for obscenity or “harmful to minors” material.

Second, although CIPA contains an exception for adults who are using the Internet for “bona fide” research purposes, they have to ask the librarian to disable the filter, which many people simply will not do. Even if they make the request, there will be a delay, and the librarian may decide not to grant it. The Supreme Court recognized that CIPA interferes with the First Amendment rights of adults, but upheld the law based on the supposed “bona fide research” exemption. But that is turning the First Amendment upside down: it amounts to a government-imposed “prior restraint” on a large amount of valuable information.

Pivovarchuk: The Kids Right to Read Project documented a 53% increase in banning accidents in 2013. Currently, Captain Underpants tops the list of most frequently banned books of 2013 — far ahead of Fifty Shades of Grey. Does this make any sense?

Heins: First, you have to define what you mean by “banning.” Most challenges to books in the US arise in schools and libraries. If the challenge is successful, the book is removed, but it is not totally banned; it still might be available in a bookstore or via the Internet. That said, you can understand why Captain Underpants would be more frequently challenged than Fifty Shades of Grey. Fifty Shades, I would guess, is not generally available in school libraries or on school reading lists.

Pivovarchuk: Similarly, Harry Potter has topped the American Libraries Association Top 100 Banned Books list for years, on the basis of advocating witchcraft and violence. If someone can win a case on the basis that “magic isn’t real,” where does this stop?

Heins: For the most part, we’re not talking about “winning a case” against Harry Potter or any other challenged book. Most of these challenges don’t get to court. If they are successful, it is because of the susceptibility of local school boards and school administrators to community pressure. Book challenges are such a big problem in the US educational system because the system is highly decentralized and politicized.

In the case of the Harry Potter books, fundamentalist religious groups object to any “glorification” of witchcraft. School boards and administrators ought to resist such pressures but they don’t always manage to do so. Other groups in the community need to organize better support for the educators and librarians who make choices for school libraries and reading lists.

Pivovarchuk: What is the legal procedure behind challenging a book? How does it go from a complaint to the book being taken off library shelves?

Heins: Smart school administrators and libraries have a complaint process in place for evaluating and deciding whether to honor a complaint about a book or other educational material. Such a process gives the complaining parties (often just one or a few parents) an opportunity to air their grievances but also gives the educators, and the larger community, an opportunity to explain the value of the book. Often, the complainants have not even read the entire book but only highlighted a few words or passages they find personally offensive.

Sometimes, as in the case of classics like Huckleberry Finn, the process can result in educating the entire community about the value of a book and about ways to teach it as a critique of racism.

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Pivovarchuk: You have worked as an advocate for free speech for decades. What case outraged you most?

Heins: Undoubtedly, Urofsky v. Allen, a challenge by six Virginia professors to a state law that banned them from accessing any “sexually explicit” content on their computers without prior permission from their department head. These professors specialized in law, psychology, literature and gay/lesbian studies. We (the ACLU, representing the professors) won the case in the trial court, which found that the law violated the right of academic freedom protected by the First Amendment, but the federal court of appeals reversed in a split opinion; six of the judges concluded that the First Amendment does not protect the research and writing of professors at all. I talk at length about this in my latest book, Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge.

Pivovarchuk: The controversial PATRIOT Act, introduced by the Bush administration, allows for access to individuals’ library logs and bookstore records. How does that affect not only basic liberties, but also our reading habits?

Heins: It’s always difficult to measure the chilling effect of government surveillance. Most people probably do not know about these aspects of the “USA PATRIOT” Act. But when the government targets a particular individual because he or she has, for example, checked the Qur’an out of the local library, that investigation amounts to punishment for the exercise of First Amendment rights. And to the extent that such investigations, or demands for library and bookstore records, do become known, people will undoubtedly feel chilled and will alter their reading habits.

Because of the “gag order” provisions of the law, moreover, librarians and bookstores cannot disclose what the government has demanded or even that it has made a demand. This amounts to direct censorship of important information about what the government is doing.

Pivovarchuk: It has been said that Internet censorship today is like book burning of the past. Do you agree, and do you think the Internet has served as a major tool to overcome censorship by giving wider access to materials online?

Heins: I suppose you could say that any form of censorship is “like” book burning. Slapping a provocative label on a form of government or private activity doesn’t really advance reasoned analysis or debate.

Internet censorship comes in many forms, most of them — at least in the US and the UK — practiced by private companies, not by government. (Of course, in countries like China, it is quite a different story.) Certainly, in the US, we have massive school and library censorship through filters under CIPA, but not all school districts and library boards accept federal aid with the strings of CIPA attached, and there are many other opportunities to access the unfiltered Internet.

Private corporate censorship by the companies that operate social media sites, by web browsers and by search engines, is in some ways more insidious than government censorship because the First Amendment does not apply to the actions of private entities. The terms of service of sites like Facebook are broad and vague, and ban material that someone may decide is offensive or violent, but that is clearly constitutionally protected.

Google’s search engine uses the SafeSearch filter, but people rarely know what is being blocked from search results. Efforts to secure net neutrality — that is, to bar Internet service providers from blocking or slowing down certain sites in favor of other sites in which they have a financial interest — have stalled in the US. These are just a few examples of the wide range of threats to free speech on the Internet, but it is also true, as you say, that the Internet overcomes censorship by giving wide access to materials online.

Pivovarchuk: There is an argument that can be made regarding banning books such as Mein Kampf, or Mao’s Red Book, on the grounds that the ideas they carry have caused incredible suffering. But using “contemporary community standards” to judge what is right and wrong can be highly problematic, especially given how diverse and multiple these communities have become today. Where do you stand on this?

Heins: The “contemporary community standards” test for obscenity has no application to other forms of censorship, such as efforts to suppress hate speech or material that is considered politically subversive.

As you probably know, hate speech is banned in many European countries, but not in the US. Which is the better approach, in terms of the social goal of wiping out racism, anti-Semitism, etc? That’s a policy question that different societies will answer in different ways.

My view is that freedom of expression is a good idea; it’s essential to a healthy democracy. But there are many exceptions, based on specific, tangible harm that can be traced to expression. Direct threats, harassment specifically aimed at an individual or group, defamation, invasion of privacy and direct incitement are some examples of exceptions to the First Amendment that are recognized in the US. But absent a specific showing of direct, tangible harm, I would argue the “default setting” ought to be free speech.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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