American Council of Learned Societies
Occasional Paper No. 22

The Limits of Expression
in American Intellectual Life

Creeping Absolutism and Moral Impoverishment:
The Case for Limits on Free Expression

Kathryn Abrams

W.B. Carnochan

Truth or Consequences: Putting Limits on Limits
Henry Louis Gates, Jr.

Free Expression in the Academy:
Three Hard Cases That Test Easy Assumptions

Robert M. O’Neil

Art, Transgression, Shock, and the First Amendment

W. B. Carnochan
Stanford University

I had thought of beginning with an anecdote, even at risk of being thought an apostle of new historicism. But when I read an article in the Sunday Times quoting Camille Paglia on “the anecdotal, microchip manner of New Historicism,” I realized I was at greater risk than I had known: “The anecdotal, microchip manner of New Historicism is yuppie grazing, cuisine minceur in a quiche-and-fern bistro.” Having considered the danger, I decided to begin not with one anecdote but with two, hoping thus to approach somewhat closer, in 20 minutes, to the standards of haute cuisine.

In fact they aren’t exactly anecdotes but reports of two recent events: one an appearance at Stanford by the rap singer Ice-T, whose song “Cop Killer” put him in the national spotlight; the other, an interview with the visual artist Jenny Holzer published in the latest issue of The Progressive. Both Ice-T and Holzer had something to say about the First Amendment and about obscenity or, as I’d prefer, “obscenity,” which is what I will mostly talk about, leaving aside “hate speech” until the end. What interests me are the ways in which Ice-T and Holzer, taken as a contrasting pair, illustrate the ambiguous psychological climate that surrounds the exercise of First Amendment rights. No one could mistake me for an expert in jurisprudence, and with that as an excuse, I am going to speculate briefly in areas where scholars of the law seldom tread. What is it actually like, I want to ask, to live in American society under the aegis of First Amendment rights, as now interpreted, particularly as they relate to art and to the “obscene”? How important is the First Amendment, not as a measure by which speech is judged after its utterance, but as a determinant of behavior? And how does the existence of the First Amendment intersect with “the American character” — which has been nicely described (in a recent review that, with apologies to its author, I have not managed to relocate) as blending equally the prudish and the indiscreet?

A quick preview of an answer: the First Amendment has consequences that can only be called paradoxical since legitimation of dissent or of the “obscene” amounts to saying that dissent is really mainstream and obscenity isn’t really obscene. Another way to put it: the First Amendment, insofar as it has come to influence the habits of art, accepts the reality of prudishness while at the same time sponsoring adventures in the indiscreet. Thus construed, it may be thought to encourage a certain neglectfulness of consequences and to sanction the sort of naughtiness that the perpetrator believes will be treated indulgently. If so, the First Amendment — in which I hope it goes without saying that I do believe — may not be quite the unqualified good that we sometimes automatically take it to be.

With these questions in mind and with the premonition of an answer, I go on to the anecdotes. This past February, Ice-T addressed some 500 students at Stanford on subjects that the student newspaper reported as being “racism, violence, and the First Amendment.” At the start of his talk, he announced that he intended to use expletives freely because he had “yet to find anyone who can define profanity”; and using expletives freely is what he did, regularly larding his utterances with what has been helpfully called the word that won the war. Nothing very unusual or surprising about that. Rather more surprising is what he said about the First Amendment: “Ice-T said he sings controversial lyrics not because of the First Amendment, but because it is his God-given right. ‘Fuck the First Amendment,’ he said. ‘I do not need a law to tell me what I can and cannot say. . . . As soon as you have a law telling you what you can say, the same law will tell you what you cannot say.’” A summary, not altogether off the mark, of ongoing interpretation of the First Amendment; we know that we may not shout “fire” in a crowded theater. I will comment on Ice-T’s philosophical position after a look at the different case of Jenny Holzer.

Between Holzer and Ice-T you find antithetical aspects of ourselves, when it comes, speaking generally, to artistic expression and, more specifically, when it comes to the word that won the war: on the one hand, the absolutism of the indiscreet; on the other, the liberalism of the prudish. As you probably know, Holzer’s work consists of verbal texts, aphoristic in nature, often displayed electronically on moving screens. Some years ago she had an exhibition at the Guggenheim Museum, in which her text was displayed on the outside of the spiral walkway, moving continuously on an electronic screen, disappearing at one end and re-emerging simultaneously at the other. Some of her aphorisms are “ABUSE OF POWER SHOULD COME AS NO SURPRISE”; and “MONEY CREATES TASTE”; and “STARVATION IS NATURE’S WAY.” And so on. Ice-T she is not — though her instinct for protest is no less strong. Asked whether her work had ever been censored, she answered: “Not often. Once in a bank, and that was because of the subject, money. I suppose with the public pieces I steer clear of obscenities. I only use the occasional one, and usually that’s in a museum situation.” To which the interviewer responded — I don’t know in what tonality — “So it’s a form of self-censorship.” And Holzer answered: “Yes. A gratuitous ‘fuck’ — if it doesn’t serve any particular purpose — won’t go in the work, especially if it would prevent the work from being distributed in public. I might be prone to do it in art proper if I think the language needs to be as shocking as the subject, but usually I don’t.” From here the interviewer went on to mention Mapplethorpe, Hannah Wilke, and Andres Serrano, all of them artists who have succeeded in offending against what used to be called public decency. Should they be subject to censorship? Of course, no. But pornography? Holzer’s answer: “It’s very complicated,” although — “obviously” — “the First Amendment is extremely important and you can’t mess around with freedom of speech.” Whether you’re for it, like Holzer, or in some sense against it, like Ice-T, the First Amendment has become a kind of talisman, regarded on the one hand as having magic powers and on the other as falsely believed to have such powers. It’s up there with motherhood and apple pie as an emblem of essential American virtue, but insofar as it relates to art and obscenity I think it needs to be (as the neologism has it) anthropologized — that is, to be considered as a cultural phenomenon with psychological and social consequences rather than as merely a matter of law.

Between Ice-T and Jenny Holzer, both of whom gesture toward the First Amendment and both of whom fasten in contrasting ways on one immensely common yet still loaded word, are poles of difference from which to deduce not only certain “limits of expression in American intellectual life” but some of the ways by which the First Amendment affects us day by day. On the one hand, I think we have probably grown to believe, with Ice-T, that we have a natural right to say what we feel like, First Amendment or no First Amendment. Ice-T is thus far an exponent of natural law. He expresses, if in less formal language, the 18th-century belief, as the constitutional scholar Edward Corwin once put it, that private rights “precede the constitution” and therefore “gain nothing of authoritativeness from being enumerated in it”; Ice-T merely goes farther than this by arguing that private rights not only gain nothing by being written down, they also lose something because the inscribing of rights implies an imperative to define their limits. Thus construed, his argument is one more instance in the American tradition of anarchist thought. And, when it comes to speech, we are tempted to anarchy with at least half our hearts. Why should I not, for example, be able to say out loud whatever comes into my head? But that is the point at which convention and self-censorship usually take over. Whatever might be my right to do so, I am not addressing this gathering in the vernacular of Ice-T.

Compared to Ice-T, Holzer is decisively more prudish — and more representative, too, as her comments about shunning the gratuitous “fuck” make clear: “I might be prone to do it in art proper if I think the language needs to be as shocking as the subject, but usually I don’t.” This is a surprising statement in some ways. “I might be prone to do it in art proper” — which implies a kind of formal decorum in matching the word up with true art — “if I think the language needs to be as shocking as the subject” — which comes right out and says that the word that won the war, despite its routine frequency in everyday speech, retains its capacity to shock. As Holzer’s interviewer put it, “so it’s a form of self-censorship.”

What does all this tell us about how the First Amendment functions at present — which could be defined as the time of “post-Lenny Bruce” — as a cultural influence? Again, it functions paradoxically. In the first place, it affords Ice-T, in its liberalism, a standard against which he proposes an alternative absolutism, in this case an absolutism of God-given rights. It assures him freedom to attack as coercive and in whatever language he pleases the version of freedom that it assures — and thus traps him within its benign, protective coils. In the second place, the First Amendment encourages and legitimates what is accepted as trangressive and shocking — the hypothetical “fuck” that Holzer regards as more appropriate to museum settings, the arena of (her words again) “art proper,” than, say, to Times Square, where some of her work has been shown. This official license, as now given by the First Amendment, effectively announces that the transgressive and the shocking aren’t really so transgressive or shocking at all, that they are just legitimate expressions of one’s freedom to say what one wants, even if in Holzer’s view constrained by the boundaries of museums and “genuine” art. For art and for the artist, this is no doubt a valuable yet also a mixed blessing. It must be satisfying to be applauded as bold, brave, visionary, and so forth, but boldness under these conditions is a relative thing, the boldness of someone who can be fairly certain that retribution will not follow. In this light one can understand the sense of loss that has sometimes been expressed by artists and writers of the former Soviet Union. If you are no longer threatened by incarceration or exile as a result of what you say, the stakes have been decisively lowered. In this country, art that aims for boldness and bravery is, in fact, a comparatively low stakes game.

Contrariwise, art’s need to transgress has grown very strong. Thus the artist — and there are many more than Mapplethorpe, Wilke, and Serrano — who aims at such a result has his or her work cut out. To what extent may the friendly presence of the First Amendment, ever more tolerant, contribute to more and more strenuous efforts to transgress? Art everywhere in the West, both where there is and where there is not formal protection of speech, has found itself increasingly hard pressed to make the sort of dramatic — or melodramatic — impact that has become a normal desideratum. By now urinals, aesthetically considered, are very tame. Measuring the shock quotient of any word or visual artifact is not easy; but it seems fair to think that the art of a culture in which have been recently produced, among the many other available examples, Mapplethorpe’s studio-glossy images of homoerotic sadism, Hannah Wilke’s small-scale replicas of female genitalia that adorn her body in self-portraits (recalling Man Ray’s famous photograph of a woman’s face adorned with tears), or Andres Serrano’s “Piss Christ” has exhausted its easy ways to transgress — even if it has not, at least in the cases of Wilke and Serrano, altogether lost its sense of humor.

Intersecting with art’s need indiscreetly to transgress is the more prudish criterion, not always explicit, of redeeming social merit as a condition of intellectual and certainly of public acceptance. This criterion generates much of the pious critical talk that regularly attaches to commentary on art. Would it not be refreshingly different to read in an exhibition catalog, “this artist above all wants to shock. Of course he [we’ll suppose it’s he] knows that under the current logic of the First Amendment, it’s almost impossible completely to succeed short of outright criminality — but the claims of art require giving it a good try. That is what art is all about. At least we know we can count on Jesse Helms.”? Frankly I don’t ever expect to read an exhibition catalog that says exactly that, though one can count on intermittent throw-away appearances of the adjective “shocking” — as in, for example, “so-and-so’s work is both powerful and shocking.”

To summarize: the First Amendment has enhanced benign conditions that probably no one here, least of all myself, would choose to abrogate; yet its consequences in the world of art may not be uncontestably positive — for reasons somewhat other than those that conservative viewers might have for reaching the same conclusion. Perhaps what one might look forward to, whether gladly or apprehensively, is a day when, every transgression having been tried; the First Amendment will no longer intrude in every conversation about art, and Jenny Holzer and Ice-T can go about their business, whatever it may turn out to be, without so much looking over their shoulders. Perhaps, in this scenario, the imprint of the First Amendment on our thinking, at least as it concerns obscenity and art, might just fade away.

But what about “hate speech”? However different the problems of transgressive art and hate speech, the two are not entirely separable, for one reason because art can be inspired by hate; in his talk, Ice-T said, “I didn’t think ‘Cop Killer’ was controversial because I thought everyone hated the police.” To prohibit one form of speech may be to endanger another. Stanford has a speech code but one that is quite narrowly drawn, so much so that in its more than two years of existence, not a single case has been brought. If there needs to be such a code (debatable, of course), then I think its purpose best served if it never has to be invoked, functioning less as an article of law but as the quiet codification of social values that all law is in a sense designed to be. In a commentary on the Mapplethorpe controversy, no less a social arbiter than Judith Martin, a. k. a. Miss Manners, spoke of her preference, which is also mine, to set limits “through social disapproval” rather than through “official limitations.” “But,” she went on, and it is a substantial “but,” “it requires the citizens to do their part by admitting to being shocked.” If in some imaginable future, art and representation lose their power to shock, we need to hope that irrational hate won’t do the same.