speech and respect - College of Social Sciences and International ...

The Poverty of Civil Libertarianism
the station, which quickly terminated the talk-show. 96 Furious that
The Miami Herald was "soft" on Castro, the Cuban American
National Foundation attacked it in bus and billboard ads and
Spanish-language radio spots. The paper's executives received contemporaneous
death threats, the newspaper suffered a bomb scare
and veiled boycott warnings, and vending boxes were vandalised
with paint, glue, and faeces. 97 Hostile audiences can even put
words in a recalcitrant speaker's mouth. When every house on his
Culver City (Los Angeles) block sported yellow ribbons to support
American troops in the Persian Gulf, Steve Raikin defiantly displayed
a peace sign. In the nights that followed two ribbons were tied on his
tree, one was painted on, and his car was spattered with yellow
paint. When he called the police, they asked why he did not simply
conform. 98
I am neither endorsing nor condoning the myriad ways in which
private actions regulate speech but merely seeking to demonstrate
that such interference is pervasive and profound. Audiences
influence what speakers say, speakers limit what audiences hear,
and intermediaries do both in pursuit of their own ends. A civil
libertarian Utopia without state regulation would be a world of
constraint, not freedom. Each instance of private power must be
evaluated by criteria that are substantive, not formal. 99
VI. The Burden of Choice
By obsessing about the power of state officials to constrain speech,
civil libertarian theory paralyses them. By disregarding the power of
private actors, civil libertarian theory fails to hold them accountable.
This vision of state abstention and neutrality joined to private
irresponsibility is fatally impoverished. 1 Just as public actors cannot
avoid regulation and partisanship, so private actors cannot avoid
power. Both must shoulder the burden of choice.
Notes
1 Holmes (1897; 1918); Popper (1969); Meiklejohn (1948; 1965); Emerson
(1970); Unger (1975); Schauer (1982); Ingber (1984); Baker (1989; n.d.);
Garry (1990); Smolla (1992). For an English debate, including the absolutist
position, see Commission for Racial Equality (1988). For a comparison
of approaches in Canada and the United States, see Borovoy et al. (1988/
89). For a comprehensive world-wide survey, see Coliver (1992).
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