Cranes, Family Values, and the First Amendment
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
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."
The Marketplace of Free Ideas
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
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
"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
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
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
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."
The Grandma Test
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.
Oh, Henry! Oh, Henry!
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
"I've eaten almost every candy bar in that song," he said.
"I'll never touch a Snickers again!"
The Freedom to Listen
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
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.