Whooping Cranes, Family Values, and the First Amendment

an essay by Mark Willis (1994)

Whenever I hear a sanctimonious debate about censorship and family values, I think of Whooping cranes. In my family, the gawky, audacious, elusive and endangered birds are synonymous with the First Amendment.

This came to pass when I was ten years old, a nascent bird-watcher, and I tried to check out a book on Whooping cranes at the Dayton Public Library. I found it in the science and technology department, my favorite room in the library. But my age and status required me to go to the children's department to borrow it.

The librarian there refused to let me check it out. "You can't read a book like this," she said. "You have no business getting books from other parts of the library."

I tried to explain my interest in birding -- and the fact that other librarians had allowed me to borrow books from science and technology. My humiliation deepened when she told me she was a member of the Audubon Society. She knew all about Whooping cranes. The book I wanted was not appropriate for ten-year-olds. End of discussion.

But it didn't end there. The next day my mother went with me to the library, furious at the injustice. "He can read this book and understand it," she said. "He can read any book in this library. I don't care if he wants to borrow Peyton Place -- he has the right to read it!"

When I left the library that day, I felt like Patrick Henry emboldened by the defense of liberty. I had my book on Whooping cranes and a brand new library card. Typed in red capital letters across its top were the magic words, ADULT PRIVILEGES.

My father commemorated this victory with a sardonic opinion that burnished it indelibly in the family tradition. "Those cranes must have been whooping about something to ban that book."

My parents never heard of Oliver Wendell Holmes, Jr. and Louis Brandeis. They never read the eloquent Supreme Court opinions that Holmes and Brandeis wrote on freedom of thought and expression, minority opinions that eventually prevailed as cornerstones of modern constitutional thought about the First Amendment. My parents believed in the First Amendment freedoms, though, and the Great Dissenters would have found a welcome place at our dinner table.

Justice Holmes argued in the 1919 case of Abrams v. United States that government must not ban or punish seditious speech for fear of its consequences. The fate of such speech, no matter how extreme, must be trusted to the marketplace of free ideas. "The ultimate good desired is better reached by free trade in ideas," Holmes wrote; "the best test of truth is the power of thought to get itself accepted in the competition of the market."

Justice Brandeis equated free speech with civic duty and courage in the 1927 case of Whitney v. California. Anthony Lewis called Brandeis's dissent in Whitney "the most profound statement ever made about the premises of the First Amendment" (Make No Law: The Sullivan Case and the First Amendment, Random House, 1991). Brandeis placed his faith in the exercise of human reason, which required freedom of thought and expression. He wrote:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government...

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

The remedy applied in my family was more speech, not restrictive silence. The kitchen table was my first experience with the marketplace of free ideas. Sitting there day by day, I learned about Joe McCarthy, Richard Nixon, the Holocaust, the hydrogen bomb, racial injustice, and the Ku Klux Klan. I joined the debates as the civil rights movement spread in the 1960s, and I came of age as a free thinker and speaker during protests of the Vietnam War. The only rule my parents enforced was tolerance for the rights of others. I could read whatever I wanted, believe whatever I thought, and express it freely without censor. My folks took one of Harry Truman's maxim to heart -- if you can't stand the heat of public debate, stay out of the kitchen.

"Read the best books first," Henry Thoreau said, "or you may never get the chance." Eight years after my row at the Dayton Public Library, the truth of Thoreau's words hit home for me. I was diagnosed with a rare retina disease. My voracious reading regimen contracted from several hours a day to several minutes, and that was a tenuous, arduous task. What I could manage with a powerful magnifying glass amounted to "survival" reading -- my bills, my mail, package labels at the grocery store. Books were impossibly beyond my reach. For several years, until I found the Library of Congress's Talking Book program for blind readers, I read no books at all.

When I look back now at this difficult time, I am deeply grateful to my parents for giving me the opportunity to read widely, without bounds. If I had had to wait until the arbitrary age of 18 for adult privileges, I may never have had the chance. My early reading was necessary, fertile ground for my growth as a writer. I worked as a newspaper reporter for two years before my eyesight changed. I stopped reading for a time, but I never stopped writing.

I wince when I recall how once I failed my mother's First Amendment courage in those years. She called me on the carpet one day and demanded to know why I had not invited her to one of my public poetry performances.

"Gee, Mom," I gulped. "My poetry talks about sex and drugs and things I'd be embarrassed to say in public in front of my mother."

She fixed me with a stare reminding me that I could go all around the world and never leave her motherly domain. "I wasn't born yesterday, you know. I knew enough about things to have you, didn't I?" For emphasis she added, "Put that in your pipe and smoke it."

Now our roles are sadly reversed. She has Alzheimer's disease and lives in a nursing home; I am her advocate and guardian. She still reads trashy pulp novels like Peyton Place, but a psychologist told me that cognitive testing indicates that she does not understand or remember what she reads. She can see the printed page, but something in her visual cortex garbles the cognitive processing.

"There must be something in those books vivid enough to hold her attention, even if it's only for half a minute," I said to the psychologist. Even if it is only a ruse, if all she does is hold the book calmly in her hands, reading is still my mother's solace, her dignity.

This rumination about reading, family values, and the marketplace of ideas came to mind recently when I thought, for the first time in 28 years, that my reading somehow had been censored.
I had walked into my university's tape center, which provides the invaluable service of taping textbooks for blind and visually impaired students. I was looking for the final chapter of John D. Zelezny's Communications Law: Liberties, Restraints, and the Modern Media (Wadsworth, 1993), a text I was reading for a media law ourse. The final chapter was about obscenity.

The tape center staff seemed anxious to see me. There had been some problems with the last chapter. The regular reader refused to utter George Carlin's infamous "Seven Dirty Words" but a substitute reader was found who dubbed them in. Zelezny's Exhibit 12.2, which contained the lyrics to a rap song, was omitted -- the implication was that it was too offensive to read out loud in front of a tape recorder -- but it could be added at the end of the tape if I really needed it.

I didn't climb on my First Amendment soapbox at that moment. I didn't want to embarrass anyone. But I may have startled them anyway with my solution to the situation.

"Well, I'll get my ten-year-old son to read it to me."

It was not a flippant answer.

My son Brendan is my most dependable and willing reader. His reading ability accelerated at a young age because I needed his help with the survival reading. His reading acumen now far outpaces my ability at the same age. He enjoys the same liberties of thought and expression that I had as a child, and more so.

There is absolute freedom of speech in our house. No words - not George Carlin's nor anyone else's -- are forbidden. In my public relations job I choose words carefully all day long because I am always "on the record." At home I need a safe harbor where I can say anything I want. I talk like a stevedore instead of a diplomat. Seditious speech, it is, but seldom is it said in anger or prurience. Most of the time it is boundless commentary on the absurdity of life, and without it I would have been locked up years ago.

It would be unfair, it would cut against the grain of our family's most cherished values, to deny Brendan the same free speech. This freedom was not automatic; it evolved over time in our day-to-day conversations at the kitchen table. I told him how speech can be devastatingly powerful, but the words are only words. What matters is how you say them, where you say them, and why. Eventually, we developed what we call the Grandma test for determining the appropriateness of various words in different situations. It is similar in purpose to the Miller test for obscenity (established as a constitutional precedent by the 1973 Supreme Court case, Miller v. California), but it is simpler to remember.

According to the Grandma test, "if you would feel weird saying it in front of Grandma at the nursing home, you shouldn't say it in public in front of strangers." This test may be less than fair to Grandma, given her First Amendment antecedents, but it works.

The Supreme Court delivered a landmark decision in 1978 regarding the exposure of children to indecent speech. In the case of Federal Communications Commission v. Pacifica Foundation, the Court upheld an FCC action reprimanding WBAI-FM in New York for broadcasting George Carlin's "Filthy Words" monologue at a time when children were likely to hear it. The 5-4 majority opinion argued that broadcasting indecent language over the public airwaves confronted listeners with it in the privacy of their homes, where their right to be let alone outweighs the First Amendment. Furthermore, Justice John Paul Stephens wrote, "Pacifica's broadcast could have enlarged a child's vocabulary in an instant."

With due respect, Justice Stephens should have spent half an hour at a day-care center playground. Kids don't need a radio station to enlarge their vocabulary, and no amount of enforced silence will prevent them from hearing "filthy words" somewhere. Wrapping such words in taboo only adds to the words' allure. I believe it is the parent's active responsibility -- and not the courts' or the regulators' -- to shape the child's understanding of socially appropriate speech.

So what was offensive in Exhibit 12.2 of my textbook?

The bulk of it was the text of a 1992 letter from the Federal Communications Commission to the radio station KGB-FM in San Diego. "This letter constitutes a Notice of Apparent Liability for a forfeiture pursuant to Section 503(b) of the Communications Act of 1934, as amended," it began. My son groaned under the weight of the bureaucratic language but dutifully read on. The letter explained the whereas's and wherefor's of a $25,000 fine levied against KGB-FM for broadcasting a song called "Candy Wrapper," which the FCC previously had declared indecent and not fit for broadcast over the public airwaves. Turgid prose, to be sure, but hardly indecent.

Attached to the FCC letter were the lyrics to "Candy Wrapper." The lyrics did not include any of George Carlin's seven words, or any other patently offensive language. Instead, the song used the brand name of almost every candy bar on the market in a lewd and suggestive manner. Quoting just a taste -- "and then she screamed, Oh, Henry! Oh, Henry!" -- gives the flavor of the song.

We had to laugh, and I seized the teachable moment to underscore my moral lesson about words as words and the ways we use them. Then Brendan brought the reading to a close with his own comment befitting the family tradition.

"I've eaten almost every candy bar in that song," he said. "I'll never touch a Snickers again!"

I was prepared to write a new Areopagitica, linking John Milton to Justice Holmes and the Americans with Disabilities Act, to protest censorship in a book taped for blind readers. Before I did so, however, I called the tape center director to hear her perspective on the omission of Exhibit 12.2. It was dropped in order to complete the tape in time for me to use it, she explained. The omission was a logistical decision, not censorship.

"I'm an old librarian," she said earnestly. "I'd never do something like that."

I felt like Patrick Henry after the soap box had been jerked out from under him.

But only for a moment. Even if I misconstrued the motives, the tape center episode led me to reflect on my prized rights to read, think, and speak as I will. Here are my conclusions:

The first argument against censorship of a textbook taped for blind readers is based on the concept of reasonable accommodation set forth in the Americans with Disabilities Act of 1990 and its predecessor, the Rehabilitation Act of 1973. Generally speaking, these laws require public entities to provide reasonable accommodations that would enable persons with disabilities to participate equally in activities at the public entity. The accommodation must be readily attainable, however. The entity is not required to provide an accommodation that would cause an "undue burden" on the entity providing it.

A university taping a textbook for a blind reader constitutes a reasonable accommodation. Although audio reader services are specifically cited in both laws as examples of a reasonable accommodation, no interpretation of the laws to date requires public universities to tape books for blind students. Some provide the service, some do not. However, if a university provided the taping service, and if it censored a taped book containing patently offensive language that was otherwise available or required for university students, the censorship would constitute discrimination against blind students who used the taping service for their reading.

My initial reaction to what I perceived as censorship was to avoid embarrassing others. It took a week of pondering to identify why this reaction was wrong. I turned to an analogy using a different accommodation for a different disability. It would be completely unacceptable in the United States today for a university professor to deny access to the front of a classroom to a student who used a wheelchair because seeing the student would embarrass other students in the class and affect their ability to concentrate. A blind student's access to a taped textbook is no different. Concern about embarrassment has no place in the realm of reasonable accommodation for people with disabilities.

My final argument against censorship of taped books rests on a broader interpretation of the First Amendment, although there is no clear?cut precedent for it. The evolution of First Amendment law in this century is based on a fundamental belief first articulated by Holmes and Brandeis. To ensure the vigor of our democratic institutions, citizens must have access to the broadest range of ideas freely exchanged in public discourse. Access to information is clearly important in the process of free thought and expression, but no Supreme Court decision has upheld access to public information as a right guaranteed by the First Amendment. The closest the Court has come to this conclusion is the 1980 case of Richmond Newspapers, Inc. v. Virginia. That decision required access for the news media to criminal trials because the public traditionally has had access to trials, and the news media play a vital "surrogate" role in informing the public about the workings of the American justice system. Chief Justice Warren Burger added another compelling reason for access. "Free speech carries with it some freedom to listen."

The Constitution and Bill of Rights were written with "spacious phrases," Anthony Lewis has written, "that do not give self-evident answers to concrete questions." The Supreme Court preserves such phrases by continually defining and breathing new life into them. Along the way, the Court creates new spacious phrases, and "freedom to listen" is one of them. It is my fervent hope that future courts will place this concept firmly in the First Amendment tradition established by similar phrases such as "free trade in ideas" and "the power of thought to get itself accepted in the competition of the market." As our society progresses in what we now call the Information Age, access to information will become ever more crucial to preserving the First Amendment's "vitalizing forces." The emerging "information superhighway" cannot be left to control by technological elites. It must be accessible to all people, including those with disabilities, for it is the newest heir of Holmes's marketplace of free ideas. Many years after the Whooping cranes taught me how precious was my freedom to read, I invest my hopes in the freedom to listen.