Copyright

by
Adria Battaglia
2010

THE DISSERTATION COMMITTEE FOR ADRIA BATTAGLIA CERTIFIES

THAT THIS IS THE APPROVED VERSION OF THE FOLLOWING
DISSERTATION:

THE RHETORIC OF <FREE SPEECH>:

REGULATING DISSENT SINCE 9/11

Committee:
Dana Cloud, Supervisor
James Aune
Barry Brummett
Richard Cherwitz
Joshua Gunn
Sanford Levinson

The Rhetoric of <Free Speech>: Regulating Dissent Since 9/11

by

ADRIA BATTAGLIA, B.A.; M.A.

DISSERTATION
Presented to the Faculty of the Graduate School of
The University of Texas at Austin
in Partial Fulfillment
of the Requirements
for the Degree of

DOCTOR OF PHILOSOPHY

THE UNIVERSITY OF TEXAS AT AUSTIN

MAY, 2010

Dedication

To my mother and my father.

Acknowledgments
Michael J. Fox once said, Since Im not sure of the address to which to send my
gratitude, I put it out there in everything I do. It is in this spirit I wish to acknowledge
those who have helped me to complete this project. There are far more addresses than I
can address here, but it is my hope that each knows that I will work tirelessly to pass
along his or her intellectual generosity, courage and compassion.
I have had the great honor and privilege of working with an incredibly rigorous
yet nurturing committee. I am grateful first and foremost for the presence of my advisor,
who also happens to be my hero, Dana Cloud. Through her mentorship, she challenged
me to find my voice; through her friendship, she supported me to use it. Barry
Brummetts patience and direction provided me, much like it continues to provide our
department, with the foundation on which to develop a stronger sense of self. Joshua
Gunn gave me as much tutelage on professional development as he did on academic
writing. I am humbled to wear the hat of his colleague. Rick Cherwitz gave me more
courage than he probably knowshis support to blaze my own trail is a constant
reminder of all the freedom and joy this line of work has to offer. I would like to thank
Sanford Levinson, who agreed to join this project in spite having never met me or taught
me in class. I was first introduced to his work when I was an undergraduate, and little did
I know then that his provocative research on freedom of expression and democracy
would inspire my career. If he ever does move to rewrite the Constitution, he has my full
support. Finally, I would like to thank James Aune for his life-long mentorship. His
guidance, reading suggestions, and own research has shaped my scholarship in
innumerable ways. His sense of justice and compassion is a constant source of
inspiration.
v

Of course, I could not have imagined a better department in which to participate.

All of the faculty in the Department of Communication Studies at the University of Texas
inspires me daily. Sharon Jarvis always left her office door open for conversations and
advice. John Daly opened more professional doors for me than I still even realize, and his
mentorship is invaluable. Anita Vaneglisti is the kind of mentor graduate students dream
to work with. I would like to extend a very special thank you to Jennifer Betancourt,
Deanna Matthews and Susan Corbin. Jennifer is the first person with whom I want to
share good news. Deanna is the first person with whom I want to eat frozen yogurt and
contemplate life. Susan Corbin is my safe place, as she is for all the graduate students.
From Susan, I have learned so much about graduate school, dissertation writing, and
myself. She is an incredible life coach, and an even more incredible human being. There
were many individuals who helped with the physical traumas of dissertation formatting.
A special note to Ruby Philipose in ITS for the laughter and expertise. I also want to
thank Jorge and Theisen who, unbeknownst to either of them when they signed up for the
midnight shift at Kinkos, would literally bring my dissertation to lifeon paper.
I am eternally grateful for the intellectually engaging conversations and
supportive friendships of my graduate student community. Special thanks go to John
McKenzie, my best buddy, and his wife, Jade, for their company through the edits, the
movie nights, and the roller girl bouts. Meredith Bagleys humor and determination (as
well as her whiteboard brainstorming sessions) saw me through this program. I am
eternally grateful to Diana Martinez Bowen, who will remain my constant companion as
we work through our dreams. Kristin Stimpsons brilliance and kindness really made this
program home for me. Roger Gatchets friendship is like your favorite blues band playing
live in your living room. Katie Feyh is quite possibly the most loving individual I know,
and being in her company is like basking in sunlight. To Brittany Peterson, I am grateful
vi

for a new but undoubtedly life-long friendship. I will always think of her when I hear
Perfect Day. I am humbled by the compassion and strength that Amanda Davis and
Bryan McCann continue to offer to all those around them, including me. Amandas
musical soundtrack to the PhD process made me laugh when I thought I would cry. For
reading my dissertation and offering constructive feedback, I am indebted to Bryan. His
ceaseless efforts to change the world remind me when its time to put down the pen (or
laptop) and take to the streets.
I would like to thank my family for their endless love, patience and
encouragement. Mom, Dad, Anthony and Cara, every time I fell down, you were right
there to pick me back up. Aunt Bobbi, your love and support knows no distance.
Cassandra, you are my best friend. And to Timothy Gaestel, for all the love and support
you have given to me, I will spend my life giving every bit and then some back to you.
Finally, to Chloe and Delilah, whose swooshing tails flying across the keyboard and
comforting purrs nudging my feet reminded me to rest between chapters.

vii

ABSTRACT
The Rhetoric of <Free Speech>:
Regulating Dissent Since 9/11
Publication No._____________

Adria Battaglia, Ph.D.

The University of Texas at Austin, 2010

Supervisor: Dana Cloud

Since the conspicuously broad and vague definition of terrorism in the USA
PATRIOT Act, signed into legislation on October 26, 2001 to increase governmental
power in domestic security procedures, legal doctrine and normative practices of free
speech have become sites of struggle over the meaning of both terrorism and freedom of
expression. In 2005, twelve cartoonists drew the Prophet Muhammad for the Danish
newspaper Jyllands-Posten. The subsequent reprints and republications led to boycotts,
protests, and riots in over 27 countries culminating in at least 139 deaths. Now known as
the Danish cartoons controversy, news and entertainment sources alike narrate a story
about protecting a fundamental characteristic of American identityfree speechin the
face of a terrorist threat. In American universities, David Horowitzs proposed
legislation, the Academic Bill of Rights, targets Left academics, who, according to
viii

Horowitz, influence, in a negative way, Americas war on terror. In August 2008,

protesters at the Republic National Convention were formally charged with conspiracy to
riot in furtherance of terrorism. In this dissertation, I explore how the rhetoric of free
speech is a naturalizing and legitimating ideology employed to organize people around
particular interests and mobilize them toward particular political ends. My research is
guided by the question: How has the ideological terrain of the First Amendment
specifically, the right to free speechchanged since September 11, 2001, and why? I
argue that rhetoricians should approach the traditional free speech narrative as part of an
instrumental political act, as opposed to a universal principle. Cast as a discursive tool in
a hegemonic struggle, the traditional free speech narrative offers the potential to open up
spaces of protest and infuse ordinary citizens with political agency. Using the method of
ideology critique, I develop and test these arguments through three case studies of free
speech since the terrorist attacks of September 11, 2001: the Danish cartoons controversy,
David Horowitzs Academic Freedom Campaign, and protests during the 2008
Republican National Convention.

ix

Table of Contents
List of Tables ....................................................................................................... xiii
Introduction: Negotiating the Free Speech Narrative: Rhetoric, Ideograph and
Hegemony .......................................................................................................1
Free Speech in Times of War..........................................................................4
<Free Speech> in the Danish Cartoons Controversy .............................6
<Free Speech> in the Academic Bill of Rights Campaign ....................7
<Free Speech> in the 2008 Republican National Convention Protests .7
Communication Studies and <Free Speech> ..................................................8
Ideology Criticism ........................................................................................13
Ideology and Free Speech ....................................................................14
<Free Speech> as an Ideograph ...........................................................17
<Free Speech> as a Contested Narrative: The Role of Gramsci &
Hegemony ...................................................................................19
Fighting for a Space to Speak: Subalterns and Counterpublics ...........21
Chapter 1: The Diachronic Structure of <Free Speech> ........................................27
The History of <Free Speech> ......................................................................30
Classical Traditions ..............................................................................32
Seventeenth and Eighteenth Century Thought ....................................34
American Legal Tradition ....................................................................38
Bad Tendency Doctrine ..............................................................43
The Clear and Present Danger Doctrine .....................................46
The Incitement Doctrine .............................................................51
Conclusion ....................................................................................................56
Chapter 2: Theoretical Approaches to <Free Speech> ..........................................62
Oppression in the Traditional Liberal Frame ................................................63
Feminist Approaches to <Free Speech> .......................................................66
Performative Approaches to <Free Speech> ................................................71
Materialist Approaches to <Free Speech> ....................................................75
x

Conclusion ....................................................................................................80
Chapter 3: Tolerance for Intolerance: The <Free Speech> Narrative in the
Danish Cartoons Controversy .......................................................................84
Cartoons in Context: The History of the Controversy ..................................87
A Caricature of <Free Speech> and Islam ....................................................92
Political Appeals in the Danish Cartoons Controversy........................93
Legal Appeals in the Danish Cartoons Controversy ..........................102
Moral Appeals in the Danish Cartoons Controversy .........................113
<Free Speech as Hegemony> .....................................................................120
Conclusion ..................................................................................................123
Chapter 4: Opportunities of Our Own Making: ...................................................134
The Struggle for <Academic Freedom> ..............................................................134
<Academic Freedom> as a Liberal Ideograph ............................................138
When Opportunity Presents Itself: David Horowitz and the Academic Bill
of Rights Campaign ...........................................................................143
The Liberal Faithful........................................................................148
The Debunkers ...............................................................................151
The Politicos ...................................................................................154
Conclusion ..................................................................................................158
Chapter 5: An Ungrounded Fiction: The Contested Spaces of <Free Speech>...164
On Space and Civility .................................................................................167
2008 Republican National Convention .......................................................175
Media Coverage of the Protests at the 2008 Republican National
Convention ................................................................................177
Conservative Media Coverage ..................................................178
Mainstream Media Coverage ....................................................181
Liberal Media Coverage ...........................................................183
Conclusion ..................................................................................................186

xi

Conclusion: <Free Speech>: Struggling for the Street ........................................194

References ............................................................................................................202
Vita...................................................................................................................226

xii

List of Tables
TABLE 1

Incidence of Free-Speech Appeals in Danish Cartoons Controversy

News Coverage in The New York Times, The Washington Post and The
Washington Times ...........................................................................126

TABLE 2

Incidence of Political Appeals alongside Free-Speech Appeals in Danish

Cartoons Controversy News Coverage in The New York Times, The
Washington Post and The Washington Times .................................127

TABLE 3

Incidence of Legal Appeals to the First Amendment alongside FreeSpeech Appeals in Danish Cartoons Controversy News Coverage in The
New York Times, The Washington Post and The Washington Times128

TABLE 4

Incidence of Moral Appeals alongside Free-Speech Appeals in Danish

Cartoons Controversy News Coverage in The New York Times, The
Washington Post and The Washington Times .................................128

xiii

Introduction: Negotiating the Free Speech Narrative:

Rhetoric, Ideograph and Hegemony
Since 1997, the First Amendment Center and the Center for Survey Research and
Analysis at the University of Connecticut have conducted a State of the First Amendment
survey to poll how Americans view the First Amendment freedoms of speech, press,
assembly, religion and petition. Between 1997 and the latest results of the 2009 survey,
only one of the five freedomsspeechcontinues to be identified by more than half of
those surveyed. As of 2009, while 55% of those surveyed named speech, only 18%
named religion, 16% named press and 14% named assembly. Less than 4% named
petition, a slight increase from the less than 1% in 2001. 39% could not name any.1 As
communication scholars, but even more broadly as citizens, we should care about these
statistics because they tell us something about the ways in which Americans navigate
their roleand pass judgment as others navigate their rolethrough our political system.
The ways in which we talk about our legal rights inform our political agency, or our
belief in the ability of our actions and practices to influence and potentially change the
political, economic and social system in which we live.2
Furthermore, the way we talk about our legal rights exposes how we likely are to
frame political, social and even economic conflicts. In her book, Rights Talk: The
Impoverishment of Political Discourse, Mary Ann Glendon writes, Legal discourse has
become the single most important tributary to political discourse.3 She explains,
The legalization of popular culture is both cause and consequence of our
increasing tendency to look to law as an expression and carrier of the few values
that are widely shared in our society: liberty, equality and the ideal of justice

under lawLegality, to a great extent has become a touchstone for legitimacy. As

a result, certain areas of law, especially constitutional, have become the terrain on
which Americans are struggling to define what kind of people they are, and what
kind of society they wish to bring into beingThere is no more telling indicator
to the extent to which legal notions have penetrated both popular and political
discourse than our increasing tendency to speak of what is most important to us in
terms of rights, and to frame nearly every social controversy as a clash of rights.4
In light of Glendons work, I believe that we can understand the State of the First
Amendment statistics as suggesting not only a privileging of speech as a dominant
signifier of American identity, but also as a view into how Americans conceptualize
speechas opposed to petition, assembly or even protestas a legitimate means of
political engagement.
My research in this dissertation began with the question, how does the traditional
liberal free speech narrative govern socially agreed upon standards for the way in which
First Amendment rights should be performed (i.e., notions of civility and decorum,
privileging of rational and deliberative debate)? However, since the terrorist attacks of
September 11, 2001, the traditional liberal free speech narrative has been used to bind
shut the mouths of some and build soapboxes for others. From political cartoons to
country music culture, Americans continue to stockpile justifications for why protest of
the Presidency and the War on Terror is not, well, American. In 2001, Attorney
General John Ashcroft stood before the Senate Judiciary Committee and made the
comment that critics of himself and of any legislation passed to help fight the War on
Terror only aid terrorists, for they erode our national unity and diminish our resolve.5

In 2003, less than two weeks before the scheduled invasion into Iraq, the country music
band Dixie Chicks lead singer Natalie Maines told a London audience, Just so you
know, were ashamed the President of the United States is from Texas.6 President Bush
seemed to caution, They shouldnt have their feelings hurt just because some people
don't want to buy their records when they speak out. You know, freedom is a two-way
street.7 In solidarity with the President, major U.S. radio stations quickly dropped the
trio from their playlists while citizens organized burning parties of Dixie Chicks
paraphernalia, and the nation dubbed the group of women as Saddams Angels.8
I believe a focus on post-9/11 case studies offers the most insight into how the
traditional liberal free speech narrative is maintained during states of national emergency
while simultaneously shifting to accommodate particular political interests. My research
in this dissertation is guided by five interrelated questions: How has the ideological
terrain of the First Amendmentspecifically, the right to free speechchanged since
September 11, 2001? How are the norms of free speech located in power? Under what
conditions is free speech oppressive? How have the changes in free speech impacted
political agency and political practice? How have the changes in free speech restrained or
opened up new sites of political agency? The answers to such questions lie in the
rhetorical discourses of the traditional liberal free speech narrative since 9/11 that frame
political and social controversies. Because, as Glendon notes, we have an increasing
tendency to speak of what is most important to us in terms of rights, and to frame nearly
every social controversy as a clash of rights, I believe that the public use of the free
speech narrative during the War on Terror enables Americans to identify perceived
terrorist threats in what would otherwise be legitimate displays of political participation.9

In this project, I argue that the traditional free speech narrative is an instrumental
political act, as opposed to a universal principle, capable of marginalizing,
delegitimizing, and ultimately silencing political dissent. However, I believe that cast as a
discursive tool in a hegemonic struggle, the traditional liberal free speech narrative offers
the potential to open up spaces of protest and infuse ordinary citizens with political
agency. Using the method of ideology critique, I develop and test these arguments
through three case studies of free speech since the terrorist attacks of September 11,
2001: the Danish cartoons controversy, David Horowitzs Academic Freedom Campaign
and the protests at the 2008 Republican National Convention.
FREE SPEECH IN TIMES OF WAR
There are distinct moments in our political history where the First Amendment is
used to accommodate particular circumstances and particular political interests, yet
maintains a public veneer of consistency and unity.10 Perhaps there is no clearer moment
to flesh out such inconsistencies than during times of war. Precedents created by
executive actions and court decisions in times of war support the notion that national
emergencies require a sacrifice of certain liberties and a bypass of certain rights. Texas
Republican Lamar Smith contends that restrictions of liberties in the face of national
security are something that has been practiced in free democracies from the golden age
of Pericles in Athens to World War II.11 American history illustrates the expansion of
government power and consequently the reduction of individual liberties in times of war.
Since the Alien and Sedition Act of 1798, America has permitted limitations of rights of
aliens in order to promote national security. During the Civil War, Lincoln suspended
previously protected writs of habeas corpus. Anti-Communist raids characterized the

1920s. In 1941, FDR exercised executive power in the internment of JapaneseAmericans. Shaugnessy v. Mezei (1953) established the notion of national emergency
and its application in the constraint of constitutional rights of aliens as a fundamental
sovereign attribute exercised by governmental departments.12 The Court ruled in favor
of government power again in 1972 in Kleindienst v. Mandel. This case permitted the
restriction of First Amendment rights, provided that there was a compelling government
interest.13
Such precedents of suspension of civil liberties echo Carl Schmitts sentiment that
by declaring a state of exception, a sovereign is created, one who is able to address
challenges to the state, restoring its integrity, stability and rule.14 Giorgio Agamben adds,
President Bushs decision to refer to himself constantly as the Commander in
Chief of the Army after September 11, 2001, must be considered in the context
of this presidential claim to sovereign powers in emergency situations. If, as we
have seen, the assumption of this title entails a direct reference to the state of
exception, then Bush is attempting to produce a situation in which the emergency
becomes the rule, and the very distinction between peace and war (and between
foreign and civil war) becomes impossible.15
While I do not agree with Schmitts and Agambens emphasis on the state as a discursive
construct, the concept of a state of exception remains important to this project.
Recognizing how a state of exception is crafted by political leaders allows us to see the
ways in which the traditional liberal free speech narrative functions as a discursive mean
to an ambiguous, on-going, perceived threat to institutional power.

Following historical precedent, on October 26, 2001, President George W. Bush

created just such a state of exception when he signed into law a new chapter of wartime
legislation in American history. Known as the USA PATRIOT Act of 2001 (an acronym
for Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism), the 342 pages of legislation vastly expanded the
governments license to conduct domestic security procedures in the name of combating
terrorism. Among many newly authorized procedures were warrant-less wire-tapping and
other electronic surveillance, increased border patrol and visa regulations, and an
expansion of the definition of terrorism to include racketeering.16 Under the PATRIOT
Act the Justice Department instructed all law enforcement agents to interview suspects
based not on any evidence that they are related to terrorist activities, but based solely on
age, gender and country of origin.17 Since the passage of this conspicuously broad and
vague piece of legislation, legal doctrine and normative practices of free speech have
become renewed sites of struggle.
<Free Speech> in the Danish Cartoons Controversy18
For example, in my first case study, I analyze the discursive spillover of the material
violence surrounding the Danish publication of the twelve cartoons of the Prophet Muhammad.
This case study differs from the subsequent two because the cartoons controversy began and
continues to evolve as an international affair. This might seem odd given my emphasis on the
American publics rights talk. However, a rhetorical analysis of the American medias use of
international media to discuss the Danish cartoons controversy as a matter of free speech, and
more broadly, of democracy, reveals the way in which the traditional liberal free speech narrative
can be used for identification of perceived threats to American democracy. My analysis explores

a sampling of the public discoursefrom scholars, journalists, protesters, and representatives of

Islamic communitiesto revel ideographic clusters: other liberal terms like democracy and
liberalism that appear alongside arguments of <free speech> in this debate. Such clusters make
it possible to explore more nuanced arguments behind the <free speech> trope, like how
retreating from reprints of the cartoons means losing <free speech>, the most fundamental right
that seems to embody a very particular political, economic, and social way of lifedemocracy.
<Free Speech> in the Academic Bill of Rights Campaign
The second case study focuses on David Horowitzs Academic Freedom
Campaign. Specifically, this chapter explores the ways in which <academic freedom>, an
ideograph that appears alongside <free speech> frequently since 9/11, can be understood
as a site of struggle, a privileged label that grants legitimacy to those controlling it. This
analysis includes public debates, interviews, and blog postings spanning the 2003 launch
of Horowitzs campaign for academic freedom, the contemporary discussions of the
proposed legislation in 2007, to his most recent publication in 2009, One Party
Classroom. By exposing the various ways in which Horowitzs campaign is framed in the
media by interested parties, I demonstrate how the link between <academic freedom> and
<free speech> becomes a rhetorical strategy by which we can gain political and economic
legitimacy.
<Free Speech> in the 2008 Republican National Convention Protests
In the final case study, I look at what is not discussed in the free speech debates
surrounding the protests during the 2008 Republican National Convention at St. Paul,
Minnesota. Contrasting media coverage of Democracy Now! host Amy Goodmans arrest
(which became symbolic for the public demand for freedom of press) with the little to no

media attention of the other activists present that week reveals the way in which the
codification of civility becomes a measure of legitimate political participation that
enables political institutions to maintain sovereignty by controlling both the literal and
metaphorical space of <free speech>.
COMMUNICATION STUDIES AND <FREE SPEECH>
At the time the PATRIOT Act was passed, sixty-six percent of Americans
supported it.19 What does such a statistic tell us about the ways in which ideological
narratives like civil libertiesin particular, that of free speechare negotiated in our
national discourse? How has the ideological terrain of the First Amendment
specifically, the right to free speechchanged since September 11, 2001, and why?
These questions and their potential answers make the traditional liberal free speech
narrative an important case study for rhetorical critics interested in ideology critique and
hopeful for opening up spaces of political agency and protest. Why rhetorical critics?
Many legal scholars theorize the ambiguous right of free speech in the legal
lexicon in the hopes of unveiling a set of rules, cleaner, clearer boundaries, and concrete
applications of abstract principles that might actually keep up with the ceaselessly
shifting terrain of communication.20 There are some legal scholars who stress the need to
return to philosophical theories on the very nature of free speech principles. Franklyn
Haiman explains, It has been my experience that some of the clearest and most
provocative writing about the law of the First Amendment has come, not from lawyers,
constrained as they too often seem to be by the precedents, technicalities, and jargon of
their field, but from philosophers like Alexander Meiklejohn, political scientists like

Walter Berns, and journalists like Alan Barth.21 Then there are those scholarslegal and
otherwisewho recognize the fundamental role of rhetoric in free speech studies.22
With a history grounded in civic participation, infused with philosophical
traditions on subjectivity and agency, and aimed at understanding, if not facilitating
social change, rhetoric has an intimate relationship with the ideal and material workings
of free speech texts. The broader legal tradition itself, James Boyd White argues, is a
social and cultural activity, something we do with our minds, with language, and with
each other. This is a way of looking at the law not as a set of rules or institutions or
structures, nor as a part of our bureaucracy or government, but as a kind of rhetorical and
literary activity.23 He explains, To characterize this activity as rhetorical, as I do, is to
claim a somewhat richer meaning for that term than is common. By it I mean not merely
the art of persuasionof making the weaker case the stronger, as the Sophists were said
to dobut that art by which culture and community and character are constituted and
transformed.24 A rhetorical perspective on the traditional liberal free speech narrative
provides the recognition that power, conflict, and social problems are never a simple
reflex of structure. They are always worked at, ground out, negotiated, and produced in
the micro moments of human experience.25 Despite differing theoretical postures,
rhetorical scholars should be interested in free speech because the phrase free speech is
a rhetorical construction capable of fostering identification, justifying political agendas,
mystifying hegemonic forces, and creating discursive (and potentially material) sites of
resistance.
Moreover, rhetorical critics should note the way in which the free speech
construct operates within the field of communication studies itself, producing a

privileging of deliberative discourse as a means of ethical civic engagement. All one has
to do is look to the National Communication Association to see the fields historic
emphasis upon the prominent role of free speech in communication studies. On the
development of ethics in the field of communication, NCA Executive Director Roger
Smitter writes of the Greek and Roman influence on the fields understanding of public
speaking as a matter of virtue, where virtue was found in the golden mean because
deliberation of public policy could not long tolerate extremes of behavior and still meet
the needs of citizens.26 He recalls,
This ideal carried forward well into the twentieth century. In the early 197O's,
the then Speech Communication Association (now NCA) published a
bibliography on ethics. In 1972 SCA approved the Credo for Free and
Responsible Communication in a Democratic Society. By 1998 a
communications ethics group decided to craft a credo which would be
aspirational in nature, apply to all forms and settings of communication and
function as a social contract in a democratic society.27
Today, Smitter and other communication scholars attempt to use free speech as a domain
providing rhetorical criteria for ethics. Mary Elizabeth Bezanson writes, I have
repeatedly argued that First Amendment protection for freedom of speech should be
considered a synecdoche for all of the elements in the process of communication,
protecting speakers, receivers and messages.28
Such a disposition governs scholarly engagement within and external to the
organization. For example, when NCA scheduled its 2008 annual convention in the
Manchester Grand Hyatt in San Diego, California, the organization quickly learned of a

10

grassroots movement of local Californians to boycott the hotel on the grounds of

exploitative and discriminatory practices at the hotel. Responding both to working
conditions of hotel employees and to Mr. Manchesters $125,000 contribution to the
passage of Proposition 8 (against marriage equality for gays and lesbians) in California,
many NCA members asked the leaders of the association to relocate the meeting. NCA
refused, citing the potentially disastrous economic consequences of doing so.
In an e-mail to NCAs members on September 16, 2008, Smitter argued, We
appreciate and respect the varied views that have been expressed and the passions
surrounding these perspectives. NCA hopes that these concerns and passions can fuel a
productive and professional debate and discussion about how associations coexist in our
society with other not-for-profit organizations involved in advocacy issues.29 Smitters
emphasis on an open exchange of ideas highlights the underlying assumption that free
speech is an integral component to ethical communication. Pointing out the problematic
nature of Smitters use of the traditional liberal free speech narrative, however, Philip
Wander writes, It would seem that the executive director of NCA is telling us we should
support the violation and exploitation and look upon an exercise of freedom of speech on
decidedly political and moral matters as some sort of personal offense.30 But Smitter
refused to back down from the principle of free speech as he understood it. He noted that
because those occupying leadership positions in NCA remain committed to the
principles of debate, discussion and dialogue as expressed in our May 2008 CRTNET
posting, NCA would respond to member concern by inviting Mr. Manchester to attend
the spotlight panels.31

11

Of course, many communication scholars recognize the contradictory nature of

the traditional free speech narrative in mainstream discourse, including the narratives
false presumptions of equality of access. Explaining sociologist Stanley Aronowitzs
comment, the public sphere is always a restricted space, communication scholar Peggy
Bowers attributes this restriction to the political model of the United States today. 32 She
argues that such a model makes free speech a competitive practice, which holds
particular consequences for the public forum and our political system. Competitions
require winners and losers, with individual competitors seeking ideological hegemony.
Consensus is not a possibility.33 She argues, The public forum, a cherished element of
civic life underlying the fundamental freedoms of the First Amendment, is vanishing.34
In her provocative article, Free Speech Zones, Silencing Political Dissent, Chris
Demaske analyzes the shift in free speech zones post September 11, 2001 and concludes,
The free speech zone restrictions in and of themselves are problematic. When political
dissidents are cordoned off away from the President, the public and the press, it creates
the illusion that there is no dissent, silencing the dissenters and leaving the general public
ignorant of alternative political opinions.35 From a communication perspective, an
interrogation of the traditional liberal free speech narrative enables critics to understand
how rhetoric works to foster behaviors and beliefs. It is my hope that this dissertation
contributes to this body of critical research to illustrate the power dynamic in the
traditional free speech narrative so that we might be able to recognize when that narrative
becomes a legitimate mode of persuasion that justifies one political activity while
condemning another.

12

IDEOLOGY CRITICISM
In order to begin to understand how the ideological terrain of the First
Amendmentspecifically, the right to free speechhas changed since September 11,
2001, and why, I must begin with the question, How does the rhetoric of free speech
function as an ideology? I am interested in how appeals to the traditional liberal free
speech narrative create norms about political agency and power during particular
historical contexts. Because I am vested in how the givens of the traditional liberal
free speech narrative work to voice and silence various perspectives, I employ ideology
criticism as my methodology.36 According to Philip Wander,
An ideological turn in modern criticism reflects the existence of crisis,
acknowledges the influence of established interests and the reality of alternative
world-views, and commends rhetorical analyses not only of the actions implied
but also of the interests represented. More than informed talk about matters of
importance, criticism carries us to the point of recognizing good reasons and
engaging in right action.37
Ideology criticism is about recognizing the play of powerful interests behind beliefs and
actions, and interrogating alternative courses of beliefs and actions. Ideology criticism
allows the rhetorician to imagine (an) alternative(s). Because I argue that rhetoricians
should engage the traditional free speech narrative as part of an instrumental political act
as opposed to a universal principle, and because I believe that cast as a discursive tool in
a hegemonic struggle, the traditional free speech narrative offers the potential to open up
spaces of protest and infuse ordinary citizens with political agency, I rely on Eagletons

13

concept of ideology, Michael McGees innovation, the ideograph, and Antonio Gramscis
concept of hegemony.
In this dissertation I examine whether (and to what extent) appeals to the
traditional liberal free speech narrative functions as a naturalizing and legitimating
ideology employed to organize people around particular interests and mobilize them
toward political ends. I explore three case studies that developed after September 11,
2001: Amy Goodwins arrest at the protests of the 2008 Republican National Convention,
and the political climate created on college campuses due to David Horowitzs proposed
legislation, Academic Bill of Rights, and the Danish cartoons controversy. I examine
these artifacts for invocations of free speech as an ideograph. Then I analyze how these
invocations are linked in the texts to other regulating norms about political agency. I
examine the trajectory of the ideograph as a controversy unfolds, and contextualize the
discourse with a description of surrounding political and historical events.
Ideology and Free Speech
Eagleton defines ideology as a text, woven of a whole tissue of different
conceptual strands and traced through by divergent histories, which serves as a
unifying, action-oriented, rationalizing, legitimating, universalizing, and naturalizing
discourse.38 According to Stuart Hall, Ideologies work by constructing for their
subjects (individual and collective) positions of identification and knowledge which
allow them to utter ideological truths as if they were their authentic authors. He writes,
Ideologies therefore work by the transformation of discourses (the disarticulation
and re-articulation of ideological elements) and the transformation (the fracturing
and recomposition) of subjects-for-action. How we see ourselves and our social

14

relations matters, because it enters into and informs out actions and practices.
Ideologies are therefore a site of a distinct type of social struggle.39
In other words, ideologies are practices around which social and political collectivity is
defined. Ideological structurespolitical, economic and socialshape how people see
themselves and their relationships to others.
The traditional liberal free speech narrative functions as an ideology to the extent
that it unifies, rationalizes, legitimizes, universalizes and naturalizes the larger,
traditional liberal narrative. In this dissertation, liberalism is understood as a set of
philosophical beliefs and political movements giving rise to practices of free speech and
free markets. Articulated by John Rawls, liberalism requires each member of the
community to agree to a set of values and rules. To foster and maintain adherence to such
rules, members must be able to have rational, deliberative debates, which requires each
member to wear a veil of ignorancea metaphor for an ideal posture of
communication in which speakers and audience members alike set aside their
preconceived notions and judgments in order to have objective and equal discussions.40
As evidenced by the role the traditional free speech narrative plays in our media,
our popular culture, and our day to day assertions, the majority of Americans hold
steadfast to a particular understanding of the traditional liberal free speech narrative as a
fundamental right, an individual right, a liberal commitment to open and equal
deliberation, and a symbol of democracy.41 Disseminated in our national discourse, the
traditional liberal free speech narrative has designated itself as a hero in the American
drama. Hollywood sells us the narrative again and again. For example, George Clooney
reenacts the 1950s struggle of Edward R. Murrow to protect the sanctity of American

15

freedoms from the hands of Joseph McCarthy. Woody Harrelson portrays the individual
struggle of pornography publisher Larry Flint to publish whatever the hell he wanted to
publish. In films like these and many other places, the First Amendment is held up as a
beacon of triumphant democracy.
As an ideological discourse of capitalist societies, liberalism uses narratives like
free speech to legitimate political ideologies while concomitantly justifying illiberal
tendencies. For example, the free speech narrative, like the liberal frame it supports,
espouses equal opportunity and meritocracy. Cass Sunstein explains, The system of
deliberative democracy is premised on and even defined by reference to the commitment
to political equalitythe identity, the resources, and the power of the speaker do not
matter.42
Free speech is an ideological discourse insofar as it naturalizes individual rights,
universalizes equality of access, rationalizes the critical-rational debate so crucial to the
traditional public sphere, and legitimates liberalism. Herbert Marcuse argues that
tolerance for the individual liberties like that of free speech fought for by the seventeenth
and eighteenth century bourgeoisie has transformed into a practice that now serves the
purpose of providing the illusion that freedom exists in society, while political power
remains in the hands of elites.43 Jennifer Petersen notes,
The fact that a set of historically contingent and malleable rights regarding
expression have been reified in popular discourse into the essence of individual
freedomsuggests the ideological nature of this popular discourse (Kairys, 1982;
Streeter, 1995; Schauer, 1995)This idea is an ideological fantasy to the extent
that it is used to shape institutions, social relations, and individual actions in a

16

way that supports the existing relations of power. It helps to understand liberal
investments in the idea of absolute freedom of expression, despite evidence to the
contrary.44
It is often in comparison to other countries attempts and frequent successes in the
removal of symbols, monuments, and resources enabling expression (i.e., Pakistan,
among other countries, banned YouTube) to (re)define and (re)shape values, beliefs and
ideas of people that our own First Amendment is held up by political leaders in triumph.45
Never mind that in an attempt to mediate language and reality, the traditional liberal free
speech narrative has been used to chill communist speech (McCarthyism) and shut down
criticism of the government (the USA PATRIOT Act). Our discourses and practices of
free speech work to unify, rationalize, legitimate, universalize and naturalize the liberal
principles of capitalism.
<Free Speech> as an Ideograph
Ideographic criticism provides a useful method for revealing the ways in which
rhetoric circulates and enforces ideology. In his influential essay, The Ideograph: A
Link Between Rhetoric and Ideology, Michael McGee summarizes the concept:
An ideograph is an ordinary-language term found in political discourse. It is a
high-order abstraction representing collective commitment to a particular but
equivocal and ill-defined normative goal. It warrants the use of power, excuses
behavior and belief which might otherwise be perceived as eccentric or antisocial,
and guides behavior and belief into channels easily recognized by a community as
acceptable and laudable.46

17

He explains that words and slogans such as free speech are basic structural elements,
the building blocks, of ideology. Thus they may be thought of as ideographs, for, like
Chinese symbols, they signify and contain a unique ideological commitment; further,
they presumptuously suggest that each member of a community will gestalt every
complex nuance in them.47
To use the method of ideographic criticism in this dissertation, I follow McGees
theoretical framework for isolating and analyzing ideographs. Beginning with the
exposure and analysis of the diachronic structure of <free speech>, I explore the
historical development of the term free speech.48 For purposes of this dissertation, both
the legal and normative reworkings of <free speech> can reveal the precedent for
contemporary use of the term: awareness of the way an ideograph can be meaningful
now is controlled in large part by what it meant then.49
Next I focus on isolating the terms use in rhetorical texts that have occurred post
September 11, 2001. In order to reveal the synchronic relationships among all the
ideographs in a particular context, I expose other ideographs that accompany <free
speech> in these texts. Eagleton poignantly notes, If ideologies are not as pure and
unitary as they would like to think themselves, this is partly because they exist only in
relation to other ideologies.50 What are the other liberal terms evoked with <free
speech>? An initial sampling reveals that <free speech> is often accompanied by other
liberal terms like democracy, liberty and equality. McGee writes, Ideograph
clusters are constantly reorganizing to accommodate specific circumstances while
maintaining fundamental convenience and unity.51 What sorts of arguments do these

18

ideographic clusters convey? How can they maintain unity while simultaneously shifting
to accommodate different political interests?
Contextualizing the traditional liberal free speech narrative as an ideograph
becomes a method that enables critics to assess how dominant social, political, and
economic ideological appeals function through the rhetoric of free speech.52 Marcuse
writes, Tolerance of free speech is the way of improvement, of progress in liberation.
And when powers are and remain unequal in a society, a laissez-faire adherence to the
liberal tradition which boasts the free speech frame merely produces and reproduces
improvement in the direction determined by the particular interests of those already in
control.53 If the traditional liberal free speech narrative protects the interests of a
dominant political ideology as it evokes the fantasies that come with the liberal tradition,
then it simultaneously discredits speech and movements challenging said fantasy. How
can ideographs become a site of struggle?
<Free Speech> as a Contested Narrative: The Role of Gramsci & Hegemony
In this dissertation, I am concerned with the ways in which the rhetoric of
traditional liberal <free speech> narrative functions as an ideograph post September 11,
2001 to reveal how the norms of free speech are located in power, and under what
conditions free speech is oppressive. Antonio Gramscis concept of hegemony describes
the ongoing struggles between the ideologies of a controlling group and the ideologies of
subaltern groups.54 For Gramsci, the means of a group gaining and maintaining control is
not limited to judicial or political force; on the contrary, a substantial means of sustaining
political and economic legitimacy derives from a controlling groups ability to gain
consent from the subaltern groups.55 Fabiana Woodfin writes, Even when a group has

19

attained power it must continue to lead the subordinate groups such that its position
appears natural, as the will of the people.56 In other words, it is not to say that
controlling groups do not use coercion and physical threat or force, because of course
they do. It is to say that the controlling group also works to achieve passive assent of
subaltern groups, through hegemony.
Hegemony takes place on the contested terrain of culture. Hemant Shah and
Michael Thorton explain, The ability to silence and prevent people from thinking and
saying things by putting certain ideas beyond the bounds of credibility and rationality is
the power of hegemony.57 Although dominant ideological structures can be challenged,
success depends upon the (in)ability of the dominant ideological structure to discredit or
co-opt the challenging discourse.
As an ideograph, the traditional liberal <free speech> narrative functions as a
hegemonic device, or a way of controlling how Americans view various kinds of speech
and behavior in accordance with the political ideology of liberalism. For example,
hegemony is the public consent manufactured when eight activists who helped organize
the protest outside of the Republican National Convention in 2008 were charged with
Conspiracy to Riot in Furtherance of Terrorism, or when Muslims protesting the
publication of depictions of the Prophet Muhammad were labeled irrational and
undemocratic.58
But Gramsci reminds us to examine not only the negative moment of the use of
persuasion to win consent to oppressive power, but also the positive moment in
which human beings use rhetoric to generate support for social change. Consequently,
this dissertation interrogates the constraints (legal and extra-legal) that have prevented

20

groups of people from finding the language for or giving expression to their experiences
and grievances. This project also explores the conditions needed to make it possible for
previously unrepresented groups to speak in public spaces about their experiences.
I am interested in the nuanced changes, if any, to the traditional liberal <free
speech> narrative that have opened or can open up new sites of political agency. Eagleton
aptly notes, There is a significant distinction between ideas which serve and which help
to legitimate social interests. Just as true ideas may prove dysfunctional for advancing
social interests, so false ones may prove functional for it; indeed for Friedrich Nietzsche
truth is just any illusion which turns out to be life-enhancing.59 In their article,
Reconstructing <Equality>: Culturetypal and Counter-Cultural Rhetorics in the
Martyred Black Vision, John Lucaites and Celeste Condit explore how ideographs are
hegemonically contested over time and in particular situations. Identifying <equality> as
one of the central ideographic commitments in the public discourse of both Malcolm X
and Dr. Martin Luther King, Jr., Lucaites and Condit demonstrate how an ideograph of
control, <equality>, can become an emancipatory concept.60 Similarly, I am interested in
how <free speech> could be used to create opportunities for competing publics.
Fighting for a Space to Speak: Subalterns and Counterpublics
A rhetorical intervention into dominant <free speech> narratives can still work
with the purported ideals of the <free speech> narrative (historical and hegemonic
baggage included) to foster a space for political agency and potential agitation.61 Such
scholars as Nancy Fraser, Linda Alcoff, and Michael Warner suggest opening up new
sites for communicative action: counterpublics.62 They argue that counterpublics and
revolutionary publics transform the limited and exclusionary practice of rational-critical

21

debate traditionally associated with <free speech> in the classical liberal model.
Catherine Squires explains, One major aim of any marginalized public sphere is to be
able to project its ideas and interests into the larger public to affect changes in dominant
opinion and policy.63 Fraser adds, Insofar as these counterpublics emerge in response to
exclusions within dominant publics, they help expand discursive space. In principle,
assumptions that were previously exempt from contestation will now have to be publicly
argued out.64 Thomas Hove argues that such spaces can serve as an alternative to
critical-rational debate by fostering strategic action culminating in a warning function,
alerting political decision-makers about widespread but privately experienced social
problems.65
Because the physical space for political dissent and confrontation is under tighter
scrutiny since September 11, 2001, the rhetoric of <free speech> might function as a
political instrument capable of engendering counterpublics from which marginalized
voices can gain momentum. Together, the ideograph and the concept of hegemony will
work together to inform my rhetorical analysis of the ways in which free speech can be
understood as a site of struggle, a privileged label that grants legitimacy to those
controlling it. The ideograph provides a critical lens for revealing how the traditional
liberal free speech narrative is dispensed to foster identification with mainstream liberal
values. The concept of hegemony infuses my analysis with the understanding of how this
narrative can be utilized by competing interests in political struggles.66
As I explore in my analysis of the three case studies, the concept of counterpublic
is a potentially fruitful resource for rhetoricians to use in an effort to imagine an

22

alternative course of action within ideograph-entrenched narratives. As the case studies

reveal, the <free speech> narrative is a story of agitation and control.
Chapter 1 begins with the historical development of <free speech>. Chapter 2 presents
the theoretical perspectives on <free speech>, from classical conceptions to contemporary
criticisms. Chapters 3, 4 and 5 explore the rhetoric of <free speech> in the Danish
cartoons controversy, David Horowitzs Academic Freedom Campaign, and the protests
at the 2008 Republican National Convention, respectively. Since the Danish cartoons
controversy erupted in 2005, critics still clamor: not publishing the cartoons is a
testament to the power of terrorism. The 2008 Republican conventions were designated
as a National Security Event under the jurisdiction of the Homeland Security
Department, prompting increased policing of peaceful protest.67 On April 16, 2009, the
Chicago-housed College of DuPage adopted as official policy a statement based on David
Horowitzs proposed legislation, the Academic Bill of Rights.68 To avoid the loss of
resources like media and physical space for collective action, navigating the <free
speech> narrative becomes worthwhile for marginalized groups. The concluding chapter
offers suggestions for such navigation in the hopes of rehabilitating protest as a legitimate
means of political engagement.
1

First Amendment Center, State of the First Amendment,

http://www.firstamendmentcenter.org/sofa_reports/index.aspx (accessed March 18, 2010).
2
On the connection between social practices and political agency, see Stuart Hall, The Whites of Their
Eyes: Racist Ideologies and the Media, in Silver Linings, ed. George Bridges and Rosalind Brunt (London:
Lawrence & Wishart, 1981). See also Marwan Kraidy, Hybridity or the Cultural Logic of Globalization
(Temple University Press, 2005).
3
Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press,
1991), 3.
4
Glendon, 3-4. (italics added for emphasis)
5
Terry Eastland, General Ashcroft: Justice Goes to War, The Weekly Standard, December 17, 2001.
6
Kelefa Sanneh, Its Dixie Chicks Vs. Country Fans, but Who's Dissing Whom? The New York Times,
May 25, 2006, http://www.nytimes.com/2006/05/25/arts/music/25sann.html (accessed March 19, 2010).

23

Bootie Cosgrove-Mather, Dixie Chick Stirs War Pot Again: Singer Says Americans Were Misled about
War in Iraq, CBS News, November 24, 2003,
http://www.cbsnews.com/stories/2003/07/22/entertainment/main564495.shtml (accessed March 19, 2010).
8
Nigel Williams, "Free the Dixie Three," The Guardian, August 22, 2003,
http://www.guardian.co.uk/music/2003/aug/22/1 (accessed March 19, 2010).
9
Glendon, 4.
10
As will be argued in this dissertation, free speech functions as an ideograph. See Michael McGee, The
Ideograph: A Link between Rhetoric and Ideology, in Readings in Rhetorical Criticism, ed. Carl R.
Burgchardt (State College: Strata Publishing, 2000), 466.
11
Lamar Smith, Is Congress Giving Too Much Surveillance Power to Federal Law Enforcement? NO:
The Concession of Some Share of Personal Liberty in Time of War is Well Worth the Sacrifice, Insight on
the News , January 14, 2002.
12
Shaughnessy v. Mezei, 345 U.S. 206 (1953).
13
Kleindienst v. Mandel 408 U.S. 753 (1972). See James A. Aune, Can the Alien Speak? The McCarranWalter Act and the First Amendment, in Who Belongs in America?, ed. Vanessa Beasley (College Station:
Texas A&M University Press, 2006), 149-182.
14
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab
(Chicago: University of Chicago Press, 1985).
15
Girogio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005),
22.
16
David Kopel, "Dont Press the Panic Button," National Review, September 21, 2001. As outlined in
Section 309 of the bill, the definition of terrorism broadly begins with actual offenses such as homicide,
arson and assassination, includes minor offenses such as teenagers who throw rocks at post office
windows and is vague enough to be applied to protests made by human rights activists.
17
Peter Beinart, Duty Free, The New Republic, December 17, 2001, http://www.tnr.com/article/duty-free
(accessed March 18, 2010).
18
See Michael McGee, The Ideograph: A Link between Rhetoric and Ideology, in Readings in
Rhetorical Criticism, ed. Carl R. Burgchardt (State College: Strata Publishing, 2000), 456-470. McGee uses
the carrots symbol to denote an ideograph. Future references to free speech as an ideograph will be
identified by carrots, <free speech>. By placing the term inside these carrots, I am referring to all of the
ideological assumptions that are attached to the term.
19
The Daily Record, Inadequacy of Traditional Analysis, December 20, 2001.
20
For example, see Cass Sunstein, Republic.com (New Jersey: Princeton University Press,
2001) and Cass Sunstein, Infotopia (Oxford University Press, 2006). With the internet come increased
abilities to personalize information, filter information, etc. Sunstein explores what this means for
democracy, free speech and knowledge. See also Robert McChesney, Rich Media, Poor Democracy:
Communication Politics in Dubious Time (New York: New Press, 2000). It should be noted that such
attempts to clarify free speech boundaries in the legal lexicon are not restricted to legal theorists. Franklyn
Haimans work on nonverbal communication and the First Amendment seeks to fetter out the difference
between expression and speech as well. See Franklyn Haiman, The Rhetoric of the Streets: Some Legal
and Ethical Considerations, in Readings on the Rhetoric of Social Protest, ed. Charles E. Morris III and
Stephen H. Browne (State College: Strata Publishing, 2001). See also Franklyn Haiman, Nonverbal
Communication and the First Amendment: The Rhetoric of the Streets Revisited, Quarterly Journal of
Speech 68 (1992): 371-383.
21
Franklyn Haiman, review of Free Speech: A Philosophical Enquiry, by Frederick Schauer, Philosophy
and Rhetoric 17, no. 3 (Summer 1984): 176-178.
22
Schauers position is understood as pre-eminently rhetorical: If the government regulation at issues is
designed to limit the extent to which people will be influenced by a work of art, then free speech
considerations are triggered. Haiman, Review, 178.
23
James Boyd White, Heracles Bow: Essays on the Rhetoric and Poetics of the Law (University of
Wisconsin Press, 1985), x.
24
White, xi.
25
Donald O. Ellis, Crafting Society: Ethnicity, Class and Communication Theory (Mahway: Lawrence
Erlbaum, 1999), 207. Quoted in James Aune, The Dirty Little Secret, The Review of Communication 22
(April 2002):187-191.

24

26

Roger Smitter, The Development of the NCA Credo for Ethical Communication, Free Speech
Yearbook 41 (2004): 1.
27
Smitter, 1-2.
28
Mary Elizabeth Bezanson, It Doesnt Matter if You Said That or Not, Receivers Still Have Rights:
Unraveling the Constitutional Tangle of Wasson, Free Speech Yearbook 40 (2002/2003): 1-12.
29
Roger Smitter, #10554, e-mail to CRTNET mailing list, September 16, 2008.
30
Smitter, #10554.
31
Smitter, #10554.
32
Stanley Aronowitz, Is a Democracy Possible? The Decline of the Public in American Debate, in The
Phantom Public Sphere, ed. Bruce Robbins (Minneapolis: University of Minnesota Press, 1993), 75-92.
33
Peggy Bowers, Democratic Space: Mass Media Connections to Public Forum Law, Free Speech
Yearbook 41 (2004): 57.
34
Bowers, 66-67.
35
Chris Demaske, Free Speech Zones, Silencing Political Dissent, Democratic Communique 22 (Spring
2008): 52-53.
36
See McGee, 456-470.
37
Philip Wander, The Ideological Turn in Modern Criticism, in Readings in Rhetorical Criticism, ed.
Carl R. Burgchardt (State College: Strata Publishing, 2000), 122.
38
Terry Eagleton, Ideology: An Introduction (Verso, 1991), 45.
39
Hall, 32-33.
40
See John Rawls, Political Liberalism (Columbia University Press, 1995).
41
See John Durham Peters, Courting the Abyss: Free Speech and the Liberal Tradition (The University of
Chicago Press, 2005), 20. See also Adria Battaglia, "A Fighting Creed: The Free Speech Narrative in the
Danish Cartoon Controversies," Free Speech Yearbook 43 (2008-2009): 20-34.
42
Cass Sunstein, Democracy and the Problem of Free Speech (New York: The Free Press, 1993), 20.
43
James A. Aune, Rhetoric and Marxism (Boulder: Westview Press, 1994), 84.
44
Jennifer Petersen, Freedom of Expression as Liberal Fantasy: The Debate over The People v. Larry
Flynt, Media, Culture & Society 29, no. 3 (May 2007): 379.
45
See Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Durham: Duke
University Press, 1998). Interestingly, the free speech narrative is utilized in a similar, often more subtle
way.
46
McGee, 467.
47
McGee, 459-60.
48
McGee, 467.
49
McGee, 463.
50
Eagleton, Ideology, 45.
51
McGee, 466.
52
McGee, 466.
53
Herbert Marcuse, Repressive Tolerance, in A Critique of Pure Tolerance , ed. Robert Paul Wolff,
Barrington Moore Junior, and Herbert Marcuse (Boston: Beacon Press, 1969),95, 137.
54
Antonio Gramsci, Selections from the Prison Notebooks, ed. and trans. Quintin Hoare and Geoffrey
Nowell Smith (New York: International Publishers, 1971), 138. Gramsci writes, The subaltern classes, by
definition, are not unified and cannot unite until they are able to become a State. Gramsci, 52. In their
introduction to Gramscis chapter on State and Civil Society, Hoare and Smith note, Gramsci did not
succeed in finding a single, wholly satisfactory conception of civil society, or the State. Gramsci, 207.
For purposes of this project, I treat the State as the instrument for conforming civil society to the
economic structure. Gramsci, 208.
55
Gramsci explains that while the historical unity of the ruling classes is realized in the State, such unity
results not just from judicial and political, but from the organic relations between the State or political
society and civil society. Gramsci, 52.
56
Fabiana Woodfin, Lost in translation: The Distortion of Egemonia, in Marxism and Communication
Studies: The Point is to Change It, ed. Lee Artz, Steve Macek, and Dana Cloud (New York: Peter Lang
Publishing, 2006), 140.
57
Hemant Shah and Michael C. Thornton, Newspaper Coverage of Interethnic Conflict: Competing Visions
of America (California: Sage Publications, 2004), 17.

25

58

Both of these case studies will be explored in subsequent chapters. For more information, see Sam
Stoker, Framing the RNC 8: Members of Anarchist Organization Face Terrorism Charges, Nearly Eight
Years in Prison, In These Times, October 8, 2008,
http://www.inthesetimes.com/article/3962/framing_the_rnc_8/ (accessed March 18, 2010). See also Marc
Chavannes, "Cartoons and Democracy," TPM, February 7, 2006,
http://tpmcafe.talkingpointsmemo.com/2006/02/07/cartoons_and_democracy/ (accessed March 18, 2010).
59
Eagleton, Ideology, 55.
60
John Lucaites and Celeste Michelle Condit, Reconstructing <Equality>: Culturetypal and CounterCultural Rhetorics in the Martyred Black Vision, in Readings in Rhetorical Criticism, ed. Carl R.
Burgchardt (State College: Strata Publishing, 2000), 471-491.
61
Nancy Fraser, Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing in
Democracy, in Habermas and the Public Sphere, ed. Craig Calhoun (Cambridge: MIT Press, 1992), 124.
62
Although these scholars define counter publics in different ways, for purposes of this paper, I work with
the definition of Catherine Squires, A public that engages in mass actions to assert its needs would be a
counterpublic, utilizing disruptive social movement tactics to make demands on the state. Catherine
Squires, The Black Press and the State: Attracting Unwanted (?) Attention, in Counterpublics and the
State, ed. Robert Asen and Daniel Brouwer (Albany: State University of New York Press, 2001), 132.
63
Squires, 130.
64
Fraser, 124.
65
Thomas Hove, The Filter, the Alarm System, and the Sounding Board: Critical and Warning Functions
of the Public Sphere, Communication and Critical/Cultural Studies 6, no. 1 (March 2009): 19 38.
66
Gramsci writes, The subaltern classes, by definition, are not unified and cannot unite until they are able
to become a State. Gramsci, 52.
67
See Michael Winship, "St. Pauls Police Protest the Press," PBS, September 5, 2008,
http://www.pbs.org/moyers/journal/blog/2008/09/michael_winship_st_pauls_polic.html (accessed March
18, 2010).
68
Scott Jaschik, David Horowitz Wins a Round, Inside Higher Ed, April 20, 2009. See also Peter
Schmidt, College of DuPage Board Adopts Policies Said to Threaten Academic Freedom, Chronicle of
Higher Education, April 20, 2009, http://chronicle.com/article/College-of-DuPage-Board-Adopts/42770/
(accessed March 18, 2010).

26

Chapter 1: The Diachronic Structure of <Free Speech>

Since September 11, 2001, more voices have risen up in a chorus against
governmental abuses of basic civil liberties like the right to due process, to a fair trial, to
privacy, and to freedom of speech. Christopher Finan reports that by April 2002, the
federal government had already stirred the ghost of Palmer Raids by pulling more than
one thousand Muslim men off the streets and holding them incommunicado.1 The USA
PATRIOT Act undermines basic constitutional freedoms, which has resulted in the
scapegoating and harassment of Muslims and Arabs, a campaign targeting Leftist
scholars and activists, and an increasing hostility to speech critical of governmental
policies.2
Some civil rights organizations continue to speak out against explicit legislation.
For example, ACLU executive director Anthony D. Romero initiated a new campaign
called Safe and Free in Times of Crisis and began running a thirty-second television
commercial that urged people to look what John Ashcroft is doing to our Constitution.3
Yet more nuanced, implicit practices of harassment continue. For example, in 2003,
Michigan high school student and antiwar activist Bretton Barber was sent home for
wearing a t-shirt that depicted President Bush and read, International Terrorist.4 That
same year, the ACLU challenged free speech zones that kept antiwar protesters yards
away from Bush administration speakers.5 In Hamdi v. Rumsfield, Justice Sandra Day
OConner argued, We have long since made clear that a state of war is not a blank check
for the President when it comes to the rights of the Nations citizens.6 That same year,
Tariq Ramadan, a Swiss citizen who had been invited by the University of Notre Dame to

27

serve as the Henry B. Luce Professor of Religion, Conflict and Peace Building, had his
visa revoked.7 In 2005, as a group of law students at the University of Montana sought
pardons for seventy-five men and three women who were convicted during World War I
under state sedition law, the horrors of Abu Ghraib were revealed in the media.8 On July
24, 2007, Professor Ward Churchill was fired from his position at the University of
Colorado at Boulder on charges of plagiarism, discovered in an investigation initiated
after his remarks that the people who died in the towers were involved in a system
provoking attack.9 In his book, Speechless: The Erosion of Free Expression in the
American Workplace, Bruce Barry traces the erosion of free speech in the workplace, and
tells story after story of employees fired or forced to resign on account of off-hours
political activity, personal blogs, and even bumper stickers on their cars.10
Of particular interest in this dissertation is the way in which invocations of <free
speech> as a civil liberty since 9/11 have enabled or restricted political agency. Law
Professor Geoffrey Stone reflects, In the entire history of the United States, the national
government has never attempted to punish opposition to government policies except in
time of war. Of course the government routinely regulates speech in many waysit
restricts obscenity, prohibits false advertising, limits the size of billboards, and regulates
campaign contributions. But it prohibits political dissent only in wartime.11 Similarly,
Sanford Levinson writes, It is difficult to read our constitutional history without
believing that the Constitution is often reduced at best to a whisper during times of
war.12
Given that my methodology is primarily ideology criticism, in this chapter, I seek
to historically contextualize <free speech> as an ideograph. Beginning with the

28

exposure and analysis of the diachronic structure of <free speech>, I explore the
historical development of the term free speech.13 This section will explore the question:
If <free speech> is a construct, then in whose interests does it operate, and how can we
discover symptoms of this operation in rhetorical texts? To answer this question, I will
describe and theorize the way that historical conditions and events shape whose and what
kind of speech counts as free speech.14 As Gramsci notes,
A study of how these innovatory forces developed, from subaltern groups to
hegemonic and dominant groups, must therefore seek out and identify the phases
through which they acquired: 1. autonomy vis--vis the enemies they had to
defeat and, 2. support from the groups which actively or passively assisted them;
for this entire process was historically necessary before they could unite in the
form of a State.15
Consequently, if we want to understand how <free speech> is a contested terrain, we
have to understand its hegemonic history.
Using Eagletons conception of ideology as a text, woven of a whole tissue of
different conceptual strands and traced through by divergent histories, first I offer a
historical materialist perspective of the discourse of <free speech> by tracing its
historical development.16 Acknowledging what Walter Benjamin terms the
constructivist principle of historical narration, I offer a synopsis of the history of the
traditional liberal <free speech> narrative in the United States.17 Looking at the historical
development of free speech practices and beliefs will reveal how powerful interests,
shifting political ideologies, and world events all condition the meaning of <free speech>
and reveal it to be a rhetorical construct rather than an absolute, unchanging principle.

29

THE HISTORY OF <FREE SPEECH>

The principle of <free speech> has a contentious history.18 Legal scholar
Frederick Schauer notes, Principles are the currency of political philosophy. In political
argument we appeal to principles such as the principle of equality, the principle of liberty,
the principle of democracy, and principle of public interest. The principle of free speech
is yet another principle to which we frequently appeal.19 Contemporary theories of free
speech are inextricably linked with theories of other principles considered fundamental in
the Anglo-American political tradition, such as freedom of conscience, religious
tolerance, and freedom of press. As a result, the rise and fall of particular historical events
have at times fostered and at other times stunted the development of the principle of <free
speech>.
Consequently it behooves those interested in the First Amendment to explore the
historical conditions that gave rise to its prevalence in popular discourse. Cass Sunstein
notes, The current state of free speech law in America cannot really be attributed to the
Constitutions words, or even the aspirations of the people who wrote them and made
them a part of Americas founding document.If the text is ambiguous, perhaps the
history can help.20 After all, the cultural emphasis and political baggage carried by the
term free speech is rooted in not just legal dicta but in social thought and practices.
Michael Curtis asserts,
The system of freedom of expression was shaped by political and social ideas and
decisions about free speech held by a broad group of politicians, writers, and
citizen. Their ideas operated far beyond that elite institutionthe United States
Supreme Court. For a better understanding of the system of freedom of

30

expression, we should enlarge our focus to include political events and ideas
beyond court doctrines and decisions.21
Indeed, choosing a particular historical context (Athens or New York) or a particular
historical thinker (Pericles or Brandeis) in the <free speech> narrative reveals the
ambiguity and malleability of the phrase. Sunstein warns, If we are especially concerned
about the specific views of those who wrote the First Amendment, we will find many
puzzles, and we will probably end up with what everyone would consider an
unacceptably narrow understanding of the free speech principle.22
In the hopes of avoiding such narrowing, and recognizing Benjamins
constructivist principle of historical narration, I offer a synopsis of the key
developmentsboth normative and doctrinalthat gave rise to current understandings of
the principle of <free speech>.23 Beginning in ancient Greece, I trace the evolution of
<free speech> through the seventeenth and eighteenth centuries, and into the American
judicial opinion. The legal development of judicial interpretation of the First Amendment
is vast and enormously important.24 For purposes of this project, I will focus on the
development of free speech in constitutional law only as it pertains to political dissent.25
It is my intention to illustrate the way law and more normative practices of <free speech>
interact with one another, consequently summaries of judicial opinion are intermingled
with both legislative interpretations and social movement practices of <free speech>.
This synopsis will elucidate two themes that are ever-present in First Amendment studies.
First, there is the notion of the tendency of speech to incite, and subsequently the everpresent challenge of deciphering speech and conduct. Second, as John Durham Peters
observes, One reason for its hold on the imagination is that the free speech story has

31

an uncanny ability to secure itself a monopoly of righteousness.26 Touted like a sunshine

law, many assume <free speech> to be the means of sorting through all discourses to
reveal truth.
Classical Traditions
The first documented emergence of the principle of free speech in the pages of
history was in Athens during the archaic period (c. 800-400 B.C.). In one of the most
comprehensive texts on the subject, communication scholars Thomas Tedford and Dale
Herbeck write,
So outstanding was Athens reputation for personal freedom that artists,
philosophers, teachers, and statesmen were drawn from afar to the creative
ferment of this remarkable city-state. Euripides pens his admiration when he has
unhappy Phaedra, in Hippolytus (421), express her hopes for her sons by crying,
But free with tongues unfettered, flourish they, their home yon burg of glorious
Athens.27
Indeed, many great works illustrate the power of speech to be a virtue to democracy.
Pericles Funeral Oration commemorates the rationality and moral righteousness
behind a society that premises action with deliberative discourse: Instead of looking on
discussion as a stumbling block in the way of action, we think it an indispensable
preliminary to any wise action at all.28 Pericles sentiment emphasizes the philosophical
tradition of critical-rational debate inherent to public deliberation as a way to discover
knowledge through the better argument.

32

Athens was well-known for its emphasis on the principle of free speech, in part
because of the prevailing belief that such a principle fostered collective public good. John
Durham Peters summarizes this legacy:
Socrates has often been baptized as a liberal avant la lettre, and his Apology read
as the first great defense of freedom of thought and speech. More specifically the
rhetorical tradition produces many notions that either still fund or were reinvented
in modern thinking about free expression. The romance of flamboyant debates,
the sophistic contests of dissoi logoi were public entertainments of the first order
in fifth-century Athens. The thesis and antithesis form of argument and discovery,
used by both the Sophists and their chief critic Plato, continues to supply the
format fit for the liberal hope that nasty talk will call forth countervailing words
of equal force and greater wisdom.29
Greek culture continues to be romanticized as the foundational site of idealized practices
and philosophy of free speech.
From its inception, however, the principle of free speech has never been absolute,
nor implemented entirely for the benefit of public good. Peters explains, The AngloAmerican tradition of free speech arose in the shadow of self-abstracted statesmen like
Pericles, Cato and Marcus Aurelius and, to a lesser degree, self-destructive mourners like
Achilles, Antigone, and again Cato.30 Tedford and Herbeck remind us that freedom of
speech, granted only to a particular class and sex of Athenians, was not immune to laws
against slander, impious speech and sedition. Least we forget, Socrates was sentenced to
death for the seditious act of corrupting Athenian youth.31 Similarly, the Roman
Republic maintained a high degree of freedom of speech (albeit, still among a particular

33

sex and class): the Ciceronian motto, Audi alteram partem, advocated hearing out ones
opponent.32 With the shift from Roman Republic to Empire, and the rise of Augustus
Caesar in 27 B.C., as well as the emergence of rulers like Nero and Domitian, a pattern of
dissent by permission developed.33 Laura Robinson notes that Rome enforced statutes
prohibiting playwrights and actors from slandering citizens by name, as well as legal
restrictions against extreme forms of political criticism.34 Seventeen centuries later, the
Christian Church inherited Augustus imperial view of dissent and began the Inquisition.
Seventeenth and Eighteenth Century Thought
It is the Athenian privileging of the relationship between the public and
communication that fosters much of the subsequent narration of free speech. 35 This
return to the classical is marked by a wide array of historical events, the prominent are
highlighted here. The struggles between English kings and the people of England stirred
changes in understandings of sovereignty. The issues of political liberty raised by the
Magna Carta in 1215 renewed discussions of the link between public good and speech in
a democratic society. The development of habeas corpus in 1679 demanded freedom
from arbitrary arrest and persecution. The Glorious Revolution transferred power over to
the House of Commons. In 1689, the English Parliament drafted a Bill of Rights
explicitly detailing the right to freedom of speech, but only for members of Parliament,
and only during parliamentary session. Echoing Pericles rationale for deliberative
discourse, influential English jurist Sir William Blackstone wrote, Liberty of the press is
indeed essential to the nature of a free state.36 Protestant reformers revived classical
sophistic teachings and emphasized in utramque partem, highlighting the private and
public importance of arguing both sides of an issue.37

34

Similarly, the transformation of the modern state in the seventeenth- and

eighteenth-centuries gave rise to what Jrgen Habermas terms the bourgeois public
sphere. In his work, Structural Transformation of the Public Sphere, Habermas traces
this historical development. Representative publicity, which operated in the feudal states
of medieval and early modern Europe, consisted of the King or the nobility representing
their political power before the people. Political power was more of a display than a
discussion. A civil society emerged in the seventeenth century. Originating in the works
of Hegel, the concept of the civil society marks the economic transformation of the
modern state.
By the eighteenth century, however, court societies disappeared, and in their
place, literary public spheres emerged. A new class, the bourgeois class, could meet and
discuss literature, culture and eventually, politics. Habermas asks, What are the social
conditions for a rational-critical debate about political issues conducted by private
persons willing to let arguments and not statuses determine decisions?38 The
development of the political public sphere was his answer. 39 Habermas writes,
This space was the scene of a psychological emancipation that corresponded to
the political-economic one To the degree that they were emancipated from
governmental directives and controls, they made decisions freely in accord with
standards of profitability. In this regard they owed obedience to no one and were
subject only to the anonymous laws functioning in accord with an economic
rationality immanent, so it appeared, in the market. These laws were backed up by
the ideological guarantee of a notion that market exchange was just, and they
were altogether supposed to enable justice to triumph over force40

35

Unlike the Greek system of polis and oikos in which there existed strong distinctions
between the public and private realms, and freedom was found in the former, Habermass
public sphere was the public of private individuals who join in debate of issues bearing
on state authority.41 The moment when the bourgeois began meeting in a space
separate from the statebore a moment in which public opinion, via better argument,
could hold moral pretensions about what is right and what is wrong.
Critics of Habermas have noted that if there was a moment of relative equality in
the bourgeois public sphere, it was fleeting. Yet despite fallaciously presuming the
equality of participants in spheres of public deliberation, Habermas set forth a standard
for democratic deliberative practice in a liberal frame. In his book The Aesthetics of Free
Speech, John Michael Roberts explains,
Habermas observes that this moment of rationality in the bourgeois public
sphere was complemented by a number of liberal rights First a set of rights
safeguarded the characteristics integral to rational-critical debate (e.g. freedom of
speech, of press, of opinion) Second, a set of rights safeguarded the
individuals status as a free human being grounded within the patriarchal family
(e.g. personal freedom).42
Habermas conceptualizes speech as a collective public good in civil society, and free
speech in particular at the nexus of discussion of the public.
The influence of this philosophical tradition in which the self-risk of free speech
is a descriptive characteristic unique to argumentation and crucial for democracy is not
limited to the works of Habermas. Peters writes, Most of the themes of the free speech
story are well rooted in seventeenth- and eighteenth-century thought, though confidence

36

in truths ultimate triumph over error was a distinctive feature of both the biblical and the
philosophical tradition.43 According to this history, explains Peters, The intellectual
hall of fame includes such figures as Milton, Locke, the authors of Catos Letters, Adam
Smith, Thomas Jefferson, Mill, Holmes, and Louis Brandeis, among many others.44
John Trenchard and Thomas Gordon, the men behind the Roman stoic pen name Cato,
proclaim, Freedom of Speech is the great Bulwark of Liberty!45 Peters writes that such
sentiment mobilizes all the righteousness on the side of publication, for only those who
are at enmity with the truth fear free speech.46
Miltons Aeropagitica is commonly referenced as the foundational essay of the
free speech tradition. 47 Milton gives readers reasons to celebrate tolerance of
expression: Let her [Truth] and Falsehood grapple; who ever knew Truth put to the
worse, in a free and open encounter.48 Stanley Fish reflects on this reasoning, The more
information the better we are we able to choose wisely; the more information the better
are we able to exercise our intellects so that they become refined and perceptive.When
something is repressed, it does not go away. It just takes on a romantic underground life
and flourishes rather than being brought to the light of day where it might be refuted.49
Peters adds, Censorship is wicked; the truth will win out; the public is best left to its
own devices; even (or especially) vile people and doctrines deserve to be heard; the free
market and the free press go hand in hand; and defenders of liberty can justifiably
fraternize with extremists.50 Such beliefs eventually led to the capitalistic sentiment of a
marketplace of ideas in America in the twentieth century.51

37

American Legal Tradition

Such philosophies saw the emergence of free speech onto the American legal
landscape. Part of the Bill of Rights added to the Constitution in 1791, the First
Amendment reflected the fear of citizens of governmental abuses of individual liberties.52
The First Amendment did not apply to all the states until 1925, when the Supreme Court
ruled in Gitlow v. New York that the 14th Amendment extended the First Amendment
rights, most notably that of freedom of speech and of press, to the states. 53 Rodney
Smolla explains the text of the Amendment:
It is customary to place the initial burden of persuasion on speech. Since speech
is contending for uniquely favorable treatment, it seems fair to force speech to
justify its distinctive importance. In the United States, however, the text of the
First Amendment arguably places the burden on government to justify its
encroachments on free expression, rather than placing the burden on speech to
justify itself. As its most general level, freedom of speech in the United States
needs no functional theories like the marketplace of ideas or the selffulfillment of the speaker to support it, but rather is justified by the elegantly
simple rationale that what speakers say or journalists print should be decided by
speakers and journalists, and not by governments.54
Likewise, for decades, most scholars of 20th century accepted legal scholar Zechariah
Chafee Jr.s assertion that the framers had created the First Amendment to wipe out the
common law of sedition, and make further prosecutions for criticism of the government,
without incitement to law-breaking, impossible in U.S.55 He argued that until World

38

War I, judges did not weigh in on free speech issues, and therefore lacked sufficient
guidance to protect politically dissenting speech.
In Legacy of Suppression, Leonard Levy attacked Chafees claims.56 Levy
concluded that the framers had not intended the First Amendment to eliminate the
common law of seditious libel. Tracing through extensive historical evidence, Levy
laments that Chafees research conformed to the American rhetorical tradition idealizing
freedom. In Emergence of a Free Press, Levy argues that all the First Amendment did
was to reinstate the legal scholarship of English jurist William Blackstone: freedom of
press meant the right to publish but not necessarily with impunity.57
Levys work, legal scholar David Rabban argues, presents an anachronistic view
of history.58 Although Levy is correct in his assertion that the First Amendment did not
abolish seditious libel, there was plenty of meaningful protection of freedom of
expression. By exploring the relationship between theory, law and practice, Rabban
maintains, a different view of the First Amendment emerges, one that supports the
restrictions of the law while acknowledging the various theoretical and practical
developments for a uniquely American understanding of freedom of expression. He
argues that a specific sequence of historical events illustrates how freedom of political
expression is intimately connected to the changing conception of sovereignty and to the
related emergence of republican theory.59
In 18th Century England, because the power of the government rested in
Parliament, there was thought to be no need for the general people to have protection of
expression. Setting itself apart from England, America transferred the power of
government to the hands of the people. This change in the conception of popular

39

sovereignty eventually led to a change in the conception of freedom of expression.

During the French Revolution, the debate between Federalists and DemocraticRepublicans over freedom of expression came to a head with the Whiskey Rebellion in
1794. Rabban argues that the repressive experience under the Sedition Act of 1798,
which prohibited seditious libel, forced people to think about the incompatibility between
popular sovereignty and seditious libel. Influenced by the philosophical works of English
Radical Whigs and the emergence of republican political theory, freedom of expression
was touted the most effective means for people to guard their sovereignty and liberties
against government abuses.60 Rabban states, Famous Radical Whigs in England, from
John Trenchard and Thomas Gordon in the 1720s to Joseph Priestly and Richard Price in
the generation that lived through the American Revolution, stressed that freedom of
political expression provided the most effective way for the people to guard their
sovereignty and their liberties against governmental aggrandizement.61
Indeed, fervent commitment to such philosophy and theory can be seen in social
practices even before the letter of the law. Perhaps the most important colonial case to
illustrate this point is the Zenger Case. In his essay, The Zenger Case: Prototype of a
Political Trial, Paul Finkelman details the events leading up to the indictment of New
York printer John Peter Zenger on charges of seditious libel.62 Finkelman writes,
William Cosby was appointed governor of New York in July 1731, but did not
arrive in the colony until August 1732. In the intervening period a prominent New
York politician, Rip Van Dam, served as acting governor. Soon after Cosby
arrived, he demanded that Van Dam relinquish half the salary that Van Dam had
collected while serving as acting governor. When Van Dam refused to turn over

40

the money in question, Cosby decided to sure for it.When Cosby brought his
case before the New York Supreme Court he was quickly rebuffed. Cosby
retaliated by removing the chief justice from his position and replacing him.63
The former chief justice formed an anti-Cosby faction, and took to publishing articles
filled with innuendos and satires about Cosbys administration.64 According to
Finkelman, these publications focused on three major themes: attacked Cosbys
administration, introduced its readers to the Whig ideology by stressing the necessity
of constitutional restraints on arbitrary rulers and the virtues of representative
government, and offered a philosophical defense of freedom of the press.65 The
publishing outlet for such material was none other than New York Weekly Journal,
printed by Zenger.
After nine months of jail-time, and a disbarred defense team, Zenger found a new
attorney, Andrew Hamilton. Hamilton utilized the changing conception of sovereignty
and the related emergence of republican theory to argue that American society and
politics were different than those of their British ancestors, from whose law the
Americans still upheld in their own land. In America, Hamilton proclaimed, truth should
be a defense against the charge of libel. Furthermore, the jury should have the right to
determine both the facts and the law of a given case. Unlike British law, which gave the
power to decide a case solely to a judge, and did not consider truth a reasonable defense
in a case of seditious libel, Hamilton warned that American law should put the power into
the hands of the jury, and that truth should always be a defense: If the attorney general
were free to bring an information against anyone who said something that could be

41

construed as a libel, then no one was secure.66 The jury was persuaded. Zenger was
found not guilty.
The political precedent set by the Zenger trial can be seen in the myriad of
subsequent publications about the case. In 1736, for example, James Alexander reflected
on the political and social significance of the Zenger case: THE FREEDOM OF
SPEECH is a principal pillar in a free government: when this support is taken away the
constitution is dissolved, and tyranny is erected on its ruins.67 Finkelman asserts,
The many reprintings of this work suggest that the Zenger trial had a lasting
impact on the development of a libertarian ideology in both England and
America, even if it did not bring an immediate change in the law of libel. What
is most important about the Zenger legacy is not that it failed to bring an
immediate and total change in the law of libel, but rather that in the revolutionary
period it was always there as a guiding light for those who were gradually
developing an ideology of freedom of expression.68
Consequently, the Zenger case furthers Rabbans argument that the principle of free
speech developed with the struggle to define a distinctly unique American conception of
sovereignty.
Similarly, Americans struggled to create a distinct version of the English
Common Law that so heavily influenced American legal practices.69 American law
professor Henry George Tucker edited Blackstones legal commentaries (used by every
American legal professional) by adding his own appendices when he felt American law
had changed or needed to change from what Blackstone asserted. Blackstone argued that
libels are dangerous because they incite breaches of the peace. Consequently, truth should

42

not be a defense to criminal libel. Furthermore, he argued that only prior restraints
violate freedom of the press: The liberty of the press is indeed essential to the nature of a
free state; but this consists in laying no previous restraints upon publications, and not in
freedom from censure for criminal matter when published. 70 In this way, a thought was
not punished unless it was printed. Then, a person could get in trouble for dissemination
of criminal matter.
The first American editor of Blackstones commentaries, Tucker distanced
himself from Blackstone and asserted that if speech can be punished for its bad or
pernicious tendencies, there could be no free speech. Historically, all speech has been
punished for alleged bad tendencies. Tucker argues,
Liberty of speech and of discussion in all speculative matters, consists in the
absolute and uncontrollable right of speaking, writing, and publishing, our
opinions concerning any subject, whether religious, philosophical, or political;
and of inquiring into and examining the nature of truth, whether moral or
metaphysical; the expediency or inexpediency of all public measures, with their
tendency and probably effect; the conduct of public men, and generally every
other subject, without restraint, except as to the injury of any other individual, in
his person, property or good name.71
Conceding a narrow version of libel as consistent with the First Amendment, Tucker
notes, The only adequate supplementary aid for these defects, is the absolute freedom of
the press.72 Tucker adheres to the ideal of an impartial, truthful press as the chaste nurse
of genuine liberty. Tuckers Appendices did not become the law in the U.S. in the 1800s,
perhaps because there was too much reliance on Blackstones commentaries, or perhaps

43

because those making the law thought Tucker gave too much power to the people.
Regardless, Tuckers Appendices demonstrate the evolving ideological commitment to
freedom of expression.
The first meaningful legal protection of free speech came in the 1804 case, People
v. Croswell.73 Fighting Federalist propaganda, Thomas Jefferson utilized the Sedition Act
to target any press that published anti-administrative sentiments.74 Leonard Levy asserts
that in the early republic, politics dictated ones opinion on matters of free speech: when
out of power, Jeffersons Republicans were critical of those in power, and consequently
advocates of free speech. This position was abandoned quickly once Jefferson came to
power.75
The case begins with Harry Croswell of Hudson New York. Croswell was
indicted after he ran a story in his paper, The Wasp, stating that Jefferson had paid
another publisher to print stories attacking Washingtons administration. Alexander
Hamilton, the same attorney from the Zenger case, came to Croswells defense. Hamilton
used the same arguments from Zenger: truth should be a reasonable defense to libel,
provided that the matter was published with good motives and for justifiable ends; and
the jury should be judge of law and facts.76 The case itself did not win, but Hamiltons
arguments became known as The Croswell Rule, and became law in 24 states. People
v. Croswell is an important reminder that principles often have less to do with principle,
and everything to do with politics.
Public debates over freedom of expression were not limited to encounters with the
courtrooms. In his article, The Curious History of Attempts to Suppress Antislavery
Speech, Press and Petition in 1835-37, Michael Kent Curtis explores the controversies

44

over free speech that took place well before WWI, most notably those that took place in
the legislature.77 He writes, The years 1835-57 provide a defining moment for American
conceptions of freedom of expression. But the debate did not merely focus on the
musty precedents of the common law. Legislative and community notions of free
expression defined the limits of government suppression.78 Northern abolitionists began
sending abolitionist pamphlets to Southern elites. Andrew Jacksons Postmaster General
grew concerned: he had neither legal authority to exclude newspapers form the mail,
nor prohibit their carriage or delivery on account of their character or tendency. Still, he
said, the Post Office was to serve the states. It should not produce their destruction.79
The Postmasters concern grew quickly, when he became convinced that the materials
graphic images and language tend directly to produce evils surpassing those usually
resulting from insurrection.80
President Jackson proposed Congress with a federal law to prohibit the circulation
of literature intended to incite insurrection. Senators, uneasy with the potential slippery
slope of federal power over the press and publications in general, debated the option to
give individual states the right to decide for themselves which literature was permissible
and which was not.81 In a pamphlet attacking the Senators proposed legislation, one
author protested:
Freedom of speech and of the presseternally belong to the people. They never
had and never would be surrendered into the hands of their Rulers. The day they
should do that, would number the days of their freedom. The Southern press and
foreign despots should be free to pour out their most violent and incendiary

45

publications so long as we may be free to repel the attack by truth and manly
argument through the press and the mail.82
The proposed legislation was defeated, and the Post Office Act of 1836 made it criminal
for a postmaster unlawfully to detain mail.83 Yet federal postmasters decided not to
deliver abolitionist literature in states that had passed laws forbidding such publications.
So in practice, postmasters did what the failed bill would have required of them.
By 1873, however, the government finally weighed in with the passage of a
federal obscenity law known as the Comstock Act. Outraged by the obscenity
occurring in salons and literature, the religious Anthony Comstock lobbied for a federal
statute, An Act for the Suppression of Trade in, and Circulation of, obscene Literature
and Articles of immoral Use.84 The Act itself never defined obscenity explicitly, though
Comstock interpreted it to encompass a broad range of materials including those
discussing abortion, anti-religious sentiment, or free love. The pinnacle case under the
Comstock Act was Ezra Heywoods pamphlet on free love entitled Cupids Yokes.
Heywood used his pamphlet on sexual self-government, arguing that marriage was the
legalization of the slavery of women, to target what he called the National Gag Law.85
After he was found guilty in trial court, Heywood and his attorneys took their First
Amendment claim to the appellate court. At the same time, the Supreme Court weighed
in on Ex parte Jackson, a First Amendment challenge to federal law prohibiting the
mailing of lottery ads.86 The Supreme Court ruled that the post office may exclude from
the mail matters deemed injurious to the public morals.87 In turn, the appellate court
rejected Heywoods argument. He was sentenced to two years in prison.
The Bad Tendency Doctrine

46

Heywoods imprisonment became precedent. According to Rabban, before WWI,

justices responded to free speech claims with hostility, citing the bad tendency of
speech.88 Until 1958, the prevailing definition of obscene speech came from Blackstone
and the English common law, and focused on determining whether the tendency of the
matter charged as obscene was to deprave and corrupt those whose minds are open to
such immoral influences.89 In response, a small group of people began fighting for free
speech, not because of any inherent political value, but rather because of its association
with individual autonomy. Rabban explains, Libertarian radicalism defended the
primary value of individual autonomy against the power of church and state.
[originating in] individualist anarchism, in freethought, in radical abolitionism, and in
struggles for labor reform and womens rights.90
For example, when his medical treatise, which included information on obtaining
oral contraceptives, was prosecuted under the Comstock Act, Dr. Edward Bliss Foote
founded the National Defense Association in 1878. The Court rejected his defense that
obscenity should not include medical treatises.91 Fourteen years later, Foote saw the need
to expand the National Defense Association, which was based solely on fighting the
Comstock Act. After President McKinneys assassination in 1901, any and all anarchist
speech was targeted for prosecution. Foote created the Free Speech League, committed to
ensuring protection for a broad range of political viewpoints. The League included
members like Lincoln Steffens, Emma Goldman, and Margaret Sanger. It became the
first organization in American history to demonstrate a principled commitment to free
expression for all viewpoints on all subjects and recognize that government repression
of speech was a common problem shared by them all.92

47

Unfortunately, Rabban remarks, Americans generally needed to experience

repression of views they shared before formulating a theory of free speech that extended
to ideas they opposed.93 When members of the Industrial Workers of the World,
commonly referred to as Wobbles, espoused anti-capitalist speech in public streets, they
received little support from free speech organizations.94 Ironically, the founders of the
American Civil Liberties Union, an organization that limited its defense of free speech to
the democratic value of political expression, did not become involved in the Wobblies
controversies until much later when the Espionage Act brought the threat of censorship
and imprisonment to other types of politically dissenting speech.95 For instance, the first
ACLU president, Roger Baldwin, was a bystander during the IWW debates. When he
was sentenced to prison for being a conscientious war objector, he joined the IWW.96
Considered an improvement over the Sedition Act, which criminalized speech
that was seditious (a broad category), the Espionage Act of 1917 was purportedly more
limited in scope. Three clauses defined the limits of free speech: the falsity clause
targeted speech that willfully made or conveyed false reports or false statements with
intent to interfere with U.S. military operations; the insubordination clause targeted
speech that willfully caused or attempted to cause insubordination in U.S. military forces;
and the obstruction clause targeted speech that willfully obstructed recruitment. Most
progressive intellectuals of the twentieth century agreed with such clauses. Interested in
social harmony, they considered speech that threatened public well-being to be criminal.
John Dewey, typically considered to be one of the twentieth century thinkers more
sympathetic to free speech claims, mocked the invocation of First Amendment speech
rights by pacifists against the countrys involvement in WWI.97

48

The Espionage Act left the Supreme Court with the unresolved question of the
relationship between speech and action. Throughout judicial opinions, this effort to
distinguish between the two is seen. Justice Learned Hand first attempted to answer such
a question in his majority opinion on Masses Publishing Co. v. Patten (1917).98 Max
Eastman, who had written his dissertation under Dewey, published a revolutionary
magazine called The Masses. The Postmaster refused to delivery the magazine, and
accused Eastman of publishing cartoons that fell under the reach of the Espionage Act
false, insubordinate, and obstructing of military efforts. Justice Hand conceded that while
advocating insubordination can be done indirectly, not expressly, he would not construe
the Act to punish indirect incitement to violate the law. In an attempt to make the
traditional bad tendency argument more objective, Hand shifted judicial focus to the
content of the speech: the simple fact that the speech has a tendency to arouse emulation
in others is not enough; the speech must directly counsel violation of the law.
The Clear and Present Danger Doctrine
When the Secretary of the Socialist Party, Charles T. Schenck, was prosecuted
under the Espionage Act for sending anti-war leaflets to soldiers registered for the draft,
Justice Oliver Wendell Holmes sought to clarify Hands ruling. In Schenck v. United
States (1919) Holmes rejected the First Amendment claim on grounds that there was no
other effect the pamphlets could have had besides insubordination. He writes,
The most stringent protection of free speech would not protect a man in falsely
shouting fire in a theater, and causing a panic. The question in every case is
whether the words are used in such circumstances and are of such a nature as to

49

create a clear and present danger that they will bring about the substantive evils
that Congress has a right to prevent. It is a question of proximity and degree.99
A few weeks later, Eugene Debs was convicted under the Sedition Act and sentenced to
serve ten years in prison for statements made protesting the war.100 Justice Holmes noted
the case did not even deserve much attention, as it was just like Schenck v. United States.
Language of a clear and present danger, Rabban observes, was meant as an
extension of the original bad tendency argument.101 In his dissent in Abrams v. United
States (1919), Holmes began to use language absent from earlier opinions that
emphasized the speechs imminence of a violation of the law.102 Stressing the importance
of free trade in ideas in a democracy, Holmes argued that instead of letting intent be
inferred from the probable consequences of the speech, the aim to violate the law should
be the proximate motive of the specific speech act. Although Holmes clear and
present danger test was never endorsed by a full majority as the constitutional test for
free speech, the language would take a surprising turn in support of free speech as the
years progressed.
As the Supreme Court rulings reflected a judicial hostility to free speech
arguments, a general public sentiment supportive of First Amendment principles
developed. People quickly became disillusioned by the Versailles Treaty, which allowed
war profiteering. War supporters were put off by the jailing of dissenters. Typical of their
responses was Dewey, once critical of pacifists, now shocked by the extent to which
antiwar speech was punished. By the 1920s, the civil libertarian movement of the people
had infiltrated judicial opinion.

50

While many of the justices remained restrictive of First Amendment claims,

Holmes and Justice Louis Brandeis developed justifications, albeit different ones, for
protecting speech. In Gitlow v. New York (1925), Holmes dissented from the majority
opinion upholding the conviction of Benjamin Gitlow, a radical socialist, who was
arrested under New Yorks criminal anarchy statute for distributing a pamphlet calling
for strikes. The majority had argued that a single revolutionary spark may kindle a fire
that, smoldering for a time, may burst into a sweeping and destructive conflagration.
Holmes responded, Every idea is an incitement. Eloquence may set fire to reason,
but this pamphlet had no chance of starting a present conflagration.103 Holmess
perspective is best understood through his famous economic metaphor, there should be a
free market for ideas, just like for goods.104
Brandeis, on the other hand, stressed the role of free speech in developing a type
of character necessary for individuals in a democracy.105 Before WWI, Brandeis was
interested not in free speech issues but in protecting competition against economic
concentration. After WWI, his equation of economic freedom with political freedom
translated into his views on First Amendment Issues. Brandeis articulated one of the
greatest legal defenses of free speech in his concurrent opinion in Whitney v. California
(1927).106 Seeking to define imminent danger, Brandeis asserted,
This court has not yet fixed the standard by which to determine when a danger
shall be deemed clear; how remote the danger may be and yet be deemed present;
and what degree of evil shall be deemed sufficiently substantial to justify resort to
abridgment of free speech and assembly as the means of protection fear of
serious injury cannot alone justify suppression of free speech and assembly. Men

51

feared witches and burnt women There must be reasonable ground to believe
that the danger apprehended is imminent. There must be reasonable ground to
believe that the evil to be prevented is a serious one.107
Brandeis concluded, Freedom to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth. Van Alstyne remarks at the
similarities between Brandeiss reasoning and that of Thomas Jefferson, who in his first
Inaugural Address declared, If there be any among us who would wish to dissolve this
union or change its republican form, let them stand undisturbed as monuments of the
safety with which error or opinion may be tolerated where reason is left to combat it.108
From late 1930s-1950s, the Court began to use the clear and present danger test to protect
speech.109
The threat of communism brought a revival of the clear and present danger back
to legal doctrine.110 In Dennis v. United States (1951), which upheld the conviction of
eleven Communist Party leaders, Justice Hand argued that the gravity of evil in a
speech could justify a clear and present danger. 111 Although Rabban notes that the
Dennis case marked both the apex and the turning point of the Supreme Courts reliance
on the clear and present danger test. The phrase could no longer bear the pressure of the
inconsistent interpretations placed on it by different justices. subsequent Supreme
Court opinions occasionally cited this test, [but] it never again recaptured prominence,
the concern over speechs likelihood to incite violent conduct never dissipated. 112
By the 1960s, college campuses began to struggle with the boundaries of student
speech. Perhaps most famous, the Berkley creation of the Free Speech Movement in 1964
served as a starting place for asserting student rights to free speech, and a jumping off

52

point for political dissent in the Vietnam War. In a time when loyalty oaths were still
required of faculty, the University shut down student tables on University property. In
response, leaders from the student organizations, ranging from radical students who were
holding anti-racism students, to the more powerful right-wing business students, joined
together in what would become known as the Free Speech Movement to contest the
Universitys decision. After a meeting among University representatives, students were
assured that they could table on the condition that they did not distribute information or
discuss stuff of politics.113 When five students were cited for violating these
regulations, over four hundred students claimed to be responsible, as well, and requested
that they too be given disciplinary hearings.
For months, the debate between the University and the students continued.
Despite police involvement, students held overnight vigils, set up tables in protest, and
resorted to two sit-ins inside Sproul Hall (the Berkley administration building). When
police tried to arrest protester Jack Weinberg, students swarmed the police vehicles,
climbed on top of them, and used them as a platform from which to deliver rousing
speeches.114 By January, the Faculty Senate voted to restore the tables. Years later, Mario
Savio reflected back on the events and said that free speech represents the very dignity
of what a human being isThats what marks us off from the stones and the stars. You
can speak freelyIt is the thing that marks us as just below the angels.115 Cohen and
Zelink point out that while students contextualized free speech in terms of individual
dignity, they often went beyond themselves and saw it as connected to the freedom and
dignity of others, most notably those who were disenfranchised in the South and others
who were suffering racial discrimination in the Bay Area.116 The power felt in the Free

53

Speech Movement led to student-involvement in Civil Rights issues as well as in anti-war

demonstrations.
The ideograph <free speech> is not necessarily settled in favor of established
ideology or power. On the contrary, movements can unsettle sedimented meanings. One
year after the Berkley Free Speech Movement, high school students in Iowa were
suspended for wearing black armbands to protest the Vietnam War.117 In his opinion
reversing the conviction, Justice Fortas famously writes, In our system, undifferentiated
fear or apprehension of disturbance is not enough to overcome the right to freedom of
expression.118 Meanwhile, a Vietnam War protester was convicted for burning his draft
card. Because the draft card was governmental property, Justice Warren wrote, When
speech and non-speech elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the non-speech element can
justify incidental limitations on First Amendment freedoms.119
The Incitement Doctrine
In1969, the Court confronted another type of protest for a very different kind of
war when a Cincinnati news station televised Clarence Brandenburgs speech at a KKK
rally.120 Rabban notes that Brandenburg v. Ohio (1969) provides the best statement of the
Supreme Courts current approach to free speech claims to date, arguably combining the
best of Hands approach with the best of a combined Holmes-Brandeis approach:
The constitutional guarantees of free speech do not permit a State to forbid advocacy of
the use of force or of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such action.121

54

In Texas v. Johnson (1989), when a man burned a flag outside a Republican

National Convention in Dallas to object to policies of the Reagan Administration, the
Supreme Court found in favor of Gregory Lee Johnsons First Amendment interests.122
The Court argued that to persecute Johnsons symbolic speech was to make a contentbased distinction, or a restriction on political speech based on the content of the
speech.123 Justice Brennan, writing on behalf of the majority, asserted if theres a
bedrock principle underlying the First Amendment, it is that Government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable.124 Rather than put the issue to rest however, Michael Welch points out,
the courts ruling in Johnson triggered rage among politicians and their constituents.
This collective burst of emotion contributed to the rise of moral panic over flag
desecration, prompting legislative action to criminalize that particular gesture of
dissent.125 Indeed, there are many means of silencing dissent, in times of war as well as
times of rest. While the emphasis on political dissent may trigger reflection on judicial
doctrine, it also provokes normative responses from social institutions.
In this scene of contradictory judicial opinions and muddled legislative measures,
various social actors and institutions struggle to capture the logistics of a system of free
speech. In his book, Written in Stone, Levinson explores the controversies over the public
display of flags and monuments, from Hungary to Alabama to the University of Texas.126
For instance, in 1990, the NAACP challenged the display of the Confederate flag atop the
capitol dome in Montgomery, Alabama, and charged that the presence of a flag in such a
place chilled the speech of citizens.127 Despite such efforts, many try to find coping
mechanisms of their own. Adam Wyatt, a thirty-seven year old black dentist, lives in

55

Virginia neighborhood where the Confederate flag hangs alongside the American flag on
just about everyones porch. In response, Wyatt created a line of flags called
Blackflagz, which promote unity, culture and experience and highlight everything
from a black Jesus and Mary to a black couple jumping the broom.128 For many, then,
public outcry against the contemporary use of the Confederate flag is the equivalent to
actually flying it.
CONCLUSION
Who gets to decide who has free speech? In 2001 David Horowitz founded
Students for Academic Freedom (SAF), purportedly to protect students from a perceived
liberal bias in American colleges and universities. Many faculty and staff of these
colleges and universities have publicly responded, calling SAF part of a conservative
political campaign that threatens to chill intellectual diversity and thereby undermine
the very purpose of academic institutions.129 In 2005, anti-war activist Cindy Sheehan
was arrested for wearing a t-shirt that read, 2,245 Dead. How Many More? into the
White House Gallery.130 And as recently as 2008, while reporting on anti-war protest,
Amy Goodman and several other members of DemocracyNow! were arrested outside of
the Republican National Convention for likelihood to incite a riot. It is precisely these
events that lead to the next chapter outlining the various theoretical approaches to free
speech that can help us answer such a question.
1

Christopher Finan, From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in
America (Boston: Beacon Press, 2007), 269.
2
On the one month anniversary of September 11, 2001, the Senate approved a 342-page bill, 98 to 1, titled
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act. Two weeks later, President George W. Bush signed it into law.
3
Finan, 281.
4
Bretton Barber v. Dearborn Public Schools, 286 F. Supp. 2d 847 (ED Mich. 2003).
5
Finan, 292.

56

Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The Court reversed the dismissal of a habeas corpus petition
brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an illegal enemy
combatant.
7
Beshara Doumani, ed. Academic Freedom after September 11 (New York: Zone Books, 2006), 20-21.
Luce is now a chaired theologian at Oxford.
8
Jim Robbins, Pardons Granted 88 Years After Crimes of Sedition, The New York Times, May 3, 2006.
See also Finan, 303.
9
Ward Churchill, On the Justice of Roosting Chickens: Reflections on the Consequences of U.S. Imperial
Arrogance and Criminality (AK Press, 2003).
10
For example, see Bruce Barry, Speechless: The Erosion of Free Expression in the American Workplace
(California: Berrett-Koehler Publishers, 2007).
11
Geoffrey R. Stone, Perilous Times: Free Speech in Wartime (New York: W.W. Norton & Company,
2004), 5.
12
Sanford Levinson, What is the Constitutions Role in Wartime?: Why Free Speech And Other Rights
Are Not As Safe As You Might Think, Findlaw (October 2001):
http://writ.news.findlaw.com/commentary/20011017_levinson.html (accessed March 18, 2010).
13
Michael McGee, The Ideograph: A Link between Rhetoric and Ideology, in Readings in Rhetorical
Criticism, ed. Carl R. Burgchardt (State College: Strata Publishing, 2000), 467. McGee uses the carrots
symbol to denote an ideograph. Future references to free speech as an ideograph will implement the
carrots.
14
On the length of this historical criticism, I am reminded of Stephan Lucas words, The boundary
between history and criticism is usually so fluid and indistinct that to insist upon a firm partition is fruitless.
Consequently, we may conclude with Evertt Hunt, who once dismissed quarrels between history and
criticism as akin to the bitter complaints of Jason, who, in denouncing Medea, wished that men could get
children without women. See Stephen Lucas, The Schism in Rhetorical Scholarship, in Readings in
Rhetorical Criticism, ed. Carl R. Burgchardt (State College: Strata Publishing, 2000), 101.
15
Antonio Gramsci, Selections from the Prison Notebooks, ed. and trans. Quintin Hoare and Geoffrey
Nowell Smith (New York: International Publishers, 1971), 53.
16
Terry Eagleton, Ideology: An Introduction (Verso, 1991), 1.
17
In choosing to highlight certain historical events over others to explain current conditions of the
ontological status of free speech, I am engaging in what Walter Benjamin terms the constructivist
principle in historical narration. See Walter Benjamin, Theses on the Philosophy of History, in
Illuminations, ed. Hannah Arendt, trans. Harry Zohn (New York: Schocken, 1969), and John Durham
Peters, Speaking Into the Air: A History of the Idea of Communication (Chicago: University of Chicago
Press, 1999), 3.
18
For purposes of this project, I assess speech as roughly outlined by the Supreme Courts interpretation
of the First Amendment. In this context, as Philippa Strum observes, speech can be the communication of
ideas without anyone actually speaking. See Philippa Strum, When the Nazis Came to Skokie: Freedom for
the Speech We Hate (Lawrence: University Press of Kansas, 1999), 46. In general, the Supreme Court has
held the First Amendment to consist of more than just words. In West Virginia State Board of Ed. v.
Barnette, 319 U.S. 624 (1943), the Court finds in favor of a Jehovah Witness threatened with expulsion for
violating a resolution requiring them to salute the Flag at the beginning of each school day. The Court
argued that just as the First Amendment grants an individual the right to speak her own mind, it cannot
compel her to utter something that is not in her mind. In Tinker v. Des Moines, 393 U.S. 503 (1969), the
Court found the black armbands worn by elementary school children in protest of the war to be symbolic
speech. And in Cohen v. California (1971), the Court famously ruled that the amendment protects not just
speech but communication. Cohen was convicted under a breach-of-peace law for wearing a jacket
reading Fuck the Draft into the L.A. County Courthouse. Justice Harlan reversed Cohens conviction and
said, Words are often chosen as much for their emotive as their cognitive force. Cohen v. California, 403
U.S. 15 (1971). As FIRE points out in their guide to free speech on campuses, Speech has been broadly
defined as an expression that includes, but is not limited to, what you wear, read, say, paint, perform,
believe, protest, or even silently resist. See David A. French, Greg Lukianoff, and Harvey A. Silverglate,
FIREs Guide to Free Speech on Campus (Philadelphia: Foundation for Individual Rights in Education,
2005), 24.

57

19

Frederick Schauer, The First Amendment as Ideology, in Freeing the First Amendment: Critical
Perspectives on Freedom of Expression, ed. David S. Allen and Robert Jensen (New York: New York
University, 1995), 3.
20
Cass Sunstein, Democracy and the Problem of Free Speech (New York: The Free Press, 1993), xii.
21
Michael Kent Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press and
Petition in 1835-37, Northwestern University Law Review 89, no. 3 (1995): 788-789.
22
Sunstein, Democracy and the Problem of Free Speech, xii.
23
Benjamin, 3.
24
There is a wealth of information on the First Amendment that deals with tort law, the government as
employer, the governments management of public property, access to the mass media, obscenity and
indecency, and commercial speech. See William W. Van Alstyne, The American First Amendment in the
Twenty-First Century, 3rd ed. (New York: Foundation Press, 2002). For a comprehensive history on the
Supreme Court, see David OBrien, Storm Center: The Supreme Court in American Politics, 6th ed.
(University of Virginia, 2003). OBrien writes, As a political institution, the Court wields an
antidemocratic power and is rarely held directly accountable for its decisions. Instead of leaving the
world of politics behind, the justices form a small political elite that may wield potentially enormous
power. OBrien, xiv-xv.
25
I am deeply indebted to Communications Professor James Arnt Aune and Law Professor David Rabban.
Much of my understanding of the development of the First Amendment is influenced by a course I took
with Professor Aune at Texas A&M University in the Spring of 2003, Contemporary Issues and the First
Amendment, and a course I took with Professor Rabban at the University of Texas in the Spring of 2007,
Constitutional Law Class: A History of Free Speech. The majority of my understanding of the
philosophical development is from Professor Aunes course. The majority of my knowledge and
interpretation of the court cases discussed here are drawn from my notes in Professor Rabbans class.
26
John Durham Peters, Courting the Abyss: Free Speech and the Liberal Tradition (n.p.: The University of
Chicago Press, 2005), 20.
27
Thomas Tedford and Dale Herbeck, Freedom of Speech in the United States, 5th ed. (State College:
Strata Publishing, 2005), 4. See also Max Radin, "Freedom of Speech in Ancient Athens," American
Journal of Philology 43 (1927): 215-230.
28
Thucydides, "Pericles' Funeral Oration," in The Landmark Thucydides: A Comprehensive Guide to the
Peloponnesian War, ed. Robert Strassler and Richard Crawley (Free Press, 1998).
29
Peters, Courting the Abyss, 64.
30
Peters, Courting the Abyss, 22.
31
Teford and Herbeck, 4.
32
See Peters, Courting the Abyss, 130.
33
Teford and Herbeck, 4.
34
See Laura Robinson, Freedom of Speech in the Roman Republic (PhD diss., John Hopkins University,
1940, 1940), 1-11, quoted in Tedford and Herbeck, 4.
35
Peters, Courting the Abyss, 14.
36
William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 17651769 (1769; repr., Chicago: University Of Chicago Press, 1979), 151, quoted in Tedford and Herbeck, 5.
The legal procedures and guidelines of England were booked by William Blackstone and used in America,
influencing American development of key free speech issues, such as seditious libel. For an assessment of
the changes made in American law from English Common Law, see George Tucker, Blackstones
Commentaries with Appendices (Philadelphia, 1803).
37
For information on Protestant nations and the printing press, see Peters, Courting the Abyss, 15.
38
Craig Calhoun, ed. Habermas and the Public Sphere (Cambridge: MIT Press, 1997), 1.
39
Calhoun, 1.
40
Jrgen Habermas, Structural Transformation of the Public Sphere, trans. Thomas Burger (Cambridge:
MIT Press, 1989), 46.
41
Calhoun, 6-7.
42
John Michael Roberts, The Aesthetics of Free Speech: Rethinking the Public Sphere (New York:
Palgrave MacMillan, 2003), 126.
43
Peters, Courting the Abyss, 15.
44
Peters, Courting the Abyss, 15.

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45

Cato's Letters No. 15: Freedom of Speech is the great Bulwark of Liberty; they prosper and die
together: And it is the Terror of Traytors and Oppressors, and a Barrier against them. It produces excellent
Writers, and encourages men of fine Genius. Tacitus tells us, that the Ro man Commonwealth bred great
and numerous Authors, who writ with equal Boldness and Eloquence: But when it was enslaved, those
great Wits were no more.
46
Peters, Courting the Abyss, 16.
47
Peters, Courting the Abyss, 68.
48
John Milton, Aeropagitica: A Speech for the Liberty of Unlicensed Printing, to the Parliament of
England (1644), in John Milton: Complete Poems and Major Prose, ed. Merritt Y. Hughes (New York:
Odyssey Press, 1957), 746.
49
Peter Lowe and Annemarie Jonson, There is No Such Thing as Free Speech: An Interview with
Stanley Fish, Australian Humanities Review 9 (February 1998).
50
Peters, Courting the Abyss, 19.
51
See Peters, Courting the Abyss, 70: Though notions of tolerance, truth triumphant, and press freedom
circulated widely in the eighteenth century, there was no such notion as the marketplace of ideas at that
time.
52
Strum, 23.
53
Gitlow v. New York, 268 U.S. 652 (1925).
54
Rodney Smolla, Free Speech in an Open Society (New York: Vintage Books, 1992), 5.
55
Zechariah Chafee Jr., Free Speech in the United States (Harvard University Press, 1969). Libel: any
words or pictures of an immoral or illegal tendency. According to William Blackstone, libels are
malicious defamations of any person (especially magistrate) made public by either printing, writing, signs
or pictures in order to provoke him to wrath or expose him to public hatred, contempt and ridicule.
Sedition, an act of resistance or insurrection against the government. See Michael Welch, Flag Burning:
Moral Panic and the Criminalization of Protest (New York: Walter de Gruyter, 2000), 19.
56
Leonard Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History
(Cambridge: Harvard University Press, 1960).
57
Leonard Levy, Emergence of a Free Press (New York: Oxford University Press, 1985).
58
David Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American
History, Stanford Law Review (February 1985): 795-855.
59
See Rabban, The Ahistorical Historian, 37.
60
For a thorough historical account of free speech in America, see David Rabban, Free Speech in Its
Forgotten Years: 1870-1920 (Cambridge University Press, 1997).
61
Rabban, The Ahistorical Historian, 824.
62
Paul Finkelman, The Zenger Case: Prototype of a Political Trial, in American Political Trials, ed.
Michal R. Belknap (Connecticut: Greenwood Press, 1981), 21-42.
63
Finkelman, 24-25.
64
Finkelman, 26.
65
Finkelman, 26.
66
Finkelman, 35.
67
Finkelman, 37.
68
Finkelman, 37, 40.
69
There is no federal common law: the American Government did not adopt English Common Law. Yet
Blackstones Commentaries were the most widely used legal guidelines. It should be reminded here, as
well, that the First Amendment did not apply to all the states. In Gitlow v. New York, 268 U.S. 652 (1925),
the Supreme Court ruled that the 14th Amendment (which had been ratified on July 9, 1868), extended the
First Amendment to the states.
70
Blackstone, 151.
71
Tucker, 11.
72
Tucker, 17.
73
People v. Croswell. 3 Johns. Cas. 337 N.Y. 1804.
74
During the XYZ Affair, the Federalists want to go to war with France, arguing that France wants to
divide the American people from their government. The Republicans refuse to cooperate. The Federalists
controlled Congress and passed 4 laws, known as the Alien and Sedition Acts of 1798. These laws: 1)
Raised the residency requirement 5-14 years (this impacts voting privileges, and harms Republicans); 2)

59

Authorized the President to deport aliens; 3) Permitted the arrest/imprisonment/deportation of aliens during
wartime; 4) Criminalized Seditious Libel. These acts were allowed to expire when the Federalists were
defeated in election of 1800.
75
See Levy, Emergence of a Free Press.
76
Donald Roper, James Kent and the Emergence of New Yorks Libel Law, The American Journal of
Legal History 17, no. 3 (1973): 226.
77
Curtis, 785-849.
78
Curtis, 786.
79
Curtis, 818.
80
Curtis, 819.
81
Curtis explains, The federal system and the pre-Civil War idea that the federal government had no broad
power to suppress abolitionist ideas meant that the issue of suppression was decided state by state. Curtis.
787.
82
Curtis, 830.
83
The Washington Globe, Post Office Law, July 13, 1836, quoted in Curtis, 835-36.
84
Rabban, Free Speech in Its Forgotten Years, 30.
85
Rabban, Free Speech in Its Forgotten Years, 33-35.
86
EX PARTE JACKSON, 96 U.S. 727 (1878)
87
Rabban, Free Speech in Its Forgotten Years, 36.
88
For examples of the bad tendency ruling in judicial decisions: Patterson v. Colorado (1907), which
adhered to Blackstones belief that there should be no previous restraints on speech, leaving it up to the
legislature to punish subsequent publication for its criminality. In Turner v. Williams (1904), the Supreme
Court held that alien anarchists can be deported, on the grounds that anarchist speech, even if made without
evil intent, tends to incite violence. As briefly mentioned in this paper, in Ex parte Jackson (1877) the
Court ruled that lottery ads can be excluded from the mail because of their demoralizing influence on the
public. In Fox v Washington (1915), a state law punished publications having the tendency to encourage
commission of any crime, breach of peace, act of violence. Fox was prosecuted for an article encouraging
a boycott of local businesses opposed to anarchists who engaged in nude bathing. Justice Holmes argued
that the article indirectly but unmistakably encourages a breach of the states indecent exposure law. See
Rabban, Free Speech in Its Forgotten Years, 132-146.
89
See Rabban, Free Speech in Its Forgotten Years.
90
Rabban, Free Speech in Its Forgotten Years, 23.
91
Rabban, Free Speech in Its Forgotten Years, 24-25.
92
Rabban, Free Speech in Its Forgotten Years, 76.
93
Rabban, Free Speech in Its Forgotten Years, 75.
94
Wobblies are members of the Industrial Workers of the World. For a more comprehensive history of the
IWWs, see Melvyn Dubofsky, We Shall Be All: A History of the Industrial Workers of the World (Urbana:
University of Illinois Press, 2000), and Philip S. Foner, History of the Labor Movement in the United
States: The Industrial Workers of the World 1905-1917 (International Publishers, 1965).
95
The ACLU and the Free Speech League would severe their relationship during the war. The Free Speech
League wanted to address court cases like a play being censored in New York, while the ACLU thought
that times of war demanded a more narrowed focus on cases of political speech.
96
Rabban, Free Speech in Its Forgotten Years, 76. This would not be the last time ACLU seemed to
impose its own restrictions on particular types of free speech. During the 1950s, members on the board of
ACLU were divided in support of Communist speech. See Finan, 156-160.
97
Rabban, Free Speech in Its Forgotten Years, 243-247.
98
Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917)
99
Schenck v. United States 249 U.S. 47 (1919).
100
Holmes writes, The main theme of the speech was socialism, its growth, and a prophecy of its ultimate
success. With that we have nothing to do, but if a part of the manifest intent of the more general utterances
was to encourage those present to obstruct the recruiting service and if in passages such encouragement
was directly given, the immunity of the general theme may not be enough to protect the speech. Debs v.
United States, 249 U.S. 211 (1919).
101
Rabban, Free Speech in Its Forgotten Years, 248. For evidence that the language of clear and present
danger might imply, on its own terms, a much closer connection between the speech and the illegal actions

60

than the bad tendency test, see Holmess decisions in Frohwerk v. United States, 249 U.S. 204 (1919) and
Debs v. United States, 249 U.S. 211 (1919).
102
Abrams v. United States, 250 U.S. 616 (1919).
103
Gitlow v. New York, 268 U.S. 652 (1925).
104
Holmes marketplace of ideas metaphor first occurs in Abrams v. United States (1919).
105
Rabban, Free Speech in Its Forgotten Years, 343.
106
Whitney v. California, 274 U.S. 357 (1927). Anita Whitney was convicted under the state of Californias
1919 Criminal Syndicalism Act for allegedly helping to establish the Communist Labor Party, a group the
state charged was devoted to teaching the violent overthrow of government. Whitney claimed that it had
not been her intention that the Party become an instrument of violence. In fact, at the convention she
actually advocated reform through ballot measures. The Court, by a 9-0 vote, upheld the conviction. Justice
Sanford wrote for the seven-justice majority opinion, and invoked the Holmes test of "clear and present
danger" but went further. He argued that if words have a "bad tendency" they can be punished.
107
Van Alstyne, 72.
108
Van Alstyne, 73.
109
Rabban, Free Speech in Its Forgotten Years, 376.
110
Rabban, Free Speech in Its Forgotten Years, 377.
111
Dennis v. United States, 341 U.S. 494 (1951).
112
Rabban, Free Speech in Its Forgotten Years, 377.
113
Michael V. Miller and Susan Gilmore, eds. Revolution at Berkley: The Crisis in American Education
(University of California Press, 2002).
114
See Robert Cohen and Reginald E. Zelink, eds. The Free Speech Movement: Reflections on Berkeley in
the 1960s (Berkeley and Los Angeles: University of California Press, 2002).
115
Cohen and Zelink, 35.
116
Cohen and Zelink, 7.
117
John W. Johnson, The Struggle for Student Rights: Tinker v. Des Moines and the 1960s (University
Press of Kansas, 1997).
118
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
119
United States v. O'Brien, 391 U.S. 367 (1968). This decision led to the development of a four-part test
for symbolic speech: 1) Is the regulation within a constitutional grant of power to Congress?; 2) Does the
regulation further an important or substantial governmental interest? 3) Is the governments interest
unrelated to the suppression of free expression, judging by the text of the statute, and not its legislative
history? 4) Is the incidental restriction on 1A freedoms no greater than necessary to further the government
interest?
120
Brandenburg v. Ohio, 395 U.S. 444 (1969).
121
Brandenburg v. Ohio, 395 U.S. 444 (1969). It should be noted that Brandenburg overthrew Whitney.
122
Texas v. Johnson, 491 U.S. 397 (1989). See also Robert Justin Goldstein, Flag Burning & Free Speech:
The Case of Texas v. Johnson (University Press of Kansas, 2000),
123
See United States v. O'Brien.
124
Van Alstyne, 285.
125
Welch, 7.
126
See Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Durham: Duke
University Press, 1998).
127
NAACP v. Hunt, 891 F.2d 1555 (11th Cir.1990).
128
Katrice Franklin, Afrocentric Flag Vendor Expecting Banner Days, The Record , November 22,
2001).
129
For example, see Stanley Aronowitz, The Horowitz 101 Speak Out: What is Really Dangerous in This
Country? The Socialist Worker, February 24, 2006. See also Dana Cloud, Return of the Campus Witch
Hunts: David Horowitz and the Thought Police, Counterpunch, March 8, 2007,
http://www.counterpunch.org/cloud03082007.html (accessed March 18, 2010).
130
Eliot McLaughlin, Activist Cindy Sheehan Arrested in House Gallery, CNN, February 1, 2006.

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Chapter 2: Theoretical Approaches to <Free Speech>

As evidenced by the previous chapter, legal scholars have attempted to define
<free speech> in legal doctrine across many decades. The historical development of <free
speech> practices and beliefs reveal how powerful interests, shifting political ideologies,
and world events all condition the meaning of <free speech> and reveal it to be a
rhetorical construct rather than an absolute, unchanging principle. Consequently, many
political and social scholars continue to theorize the normative construct of the traditional
liberal <free speech> narrative in an effort to discern the material effects of the discourse
and the possibility of responsibility therein.
In order to frame the traditional liberal <free speech> narrative as an instrumental
act, I revisit the traditional liberal frame in which the traditional liberal <free speech>
narrative is housed, and the Enlightenment subject is described as an autonomous force
capable of participating in public deliberation. As I discuss, this understanding of agency
functions in such a way that puts at a disadvantage the majority of people in favor of a
select elite, who in turn reproduce the ideologies behind the ideal public sphere (the
myths of equality of access, separation of the state and from the social realm, etc).
Consequently, I describe how several key feminist, performative and historical materialist
approaches highlight the traditional liberal <free speech> narrative as oppressive, as these
perspectives offer scholars and activists alternatives to looking to the state for a redress of
grievances. Ultimately, I argue that the combination of performative and materialist
approaches revive the traditional <free speech> narrative with the ability to foster spaces
of political agency and agitation.

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OPPRESSION IN THE TRADITIONAL LIBERAL FRAME

As discussed in the previous chapter, the conceptualization of <free speech> as a
distinct right emerged with the evolution of bourgeois subjectivity in the eighteenthcentury. In the liberal tradition, the bourgeois subject is conceptualized as transcending
the private and public spheres, particularly capable of ascertaining a true sense of self
through discourse (and critique) of her cultural field(s). Historical and contemporary
readings of the First Amendment privilege both a liberal commitment to rational-critical
debate and the rights, or agency, of the subject-citizen. This Habermasian subject-citizen
implies an individuals ability to know her own interests and act autonomously.1
In the second half of The Structural Transformation of the Public Sphere,
Habermas acknowledges the central contradiction of the bourgeois public sphere: the
promise of a democratic space for deliberation depends upon the material equality of its
participants. He laments the impossibility of the public sphere and the ceaseless slippage
of bourgeois self-understanding into a manipulative form of publicity (i.e.,
refeudalization). He notes that through the conjugal family and cultural productions, we
continue to reap and sow the institutional criteria for, and operate under the ideology of
this ideal public sphere. Hannah Arendt explains that a citizen as a property owner was an
ideological conflation necessary to maintaining the public, in which only those with
property and the ability to transcend self-interest could participate.2
Numerous scholars have illustrated the discrepancies between the promises of
emancipatory communication in a liberal tradition (rational-critical debate presuming
access to deliberative spaces and leading to voluntarily informed consent) and the
realities of communicative processes in a liberal tradition (manufactured consent,

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coercion, manipulation, unequal access, etc). For example, some argue that counter
publics and revolutionary publics transform the limited and exclusionary practice of
rational-critical debate traditionally associated with classical rhetoric.3 Others use the
cultural turn of postmodern theory to deconstruct traditional epistemological and
ontological assertions of rhetoric (and the promises of rational-critical debate), and offer
a more performative response.4 Holding up the First Amendment as a beacon of light in
democracy as fundamental to the emancipatory potential of communicative processes,
they argue, fits nicely into the utopian vision of the traditional liberal frame of the public
sphere. In such a frame, people are able to gather together for the free exchange of ideas,
ideas outside of those expressed by a political power. Importantly, regardless of how
these scholars view the construct of the <free speech>, none deny the persuasive power
of the traditional liberal <free speech> narrative.
The discrepancies between the promises of a liberal tradition and the realities of a
liberal tradition abound. Milan Kundera writes in his novel Immortality that liberals are
the willing ally of [their] own gravediggers.5 Peters writes, The charge that
liberalismthe name for the set of philosophical doctrines and political movements that
have forged ideas about <free speech>--has illiberal tendencies is of course not news.6
He reminds us, As the Canadian philosopher Charles Taylor points out, liberalism is not
a neutral position; it is a fighting creed.7
Stanley Fish points out the discriminatory practices in place when those
intellectual forbearers of the First Amendment wrote about the idyllic practice of free
expression. Referring once again to Miltons Areopagitica, Fish states,

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There is one part that is rarely noticed in [free speech discussions] and when
noticed is noticed with some embarrassment. About three quarters of the way
through the tract Milton says, Now you understand of course that when I
speak of toleration and free expression I dont mean Catholics. Them we
extirpate. Miltons admirers attempt to explain it away by saying that Milton,
because of the limitation of his own historical period, was not able to see what we
are able to see. The idea is that our conception of free speech is more capacious,
more truly free, than this because we do not have an exclusion up our sleeves
But the difference between Milton and us is a difference in what we would
exclude from the zone of free speech, not a difference between exclusion and
inclusion.8
Similar to Marcuses observations cited in the methods section, Fishs analysis illustrates
the contradictory character of a <free speech> tradition as well as the democratic system
that it purportedly maintains. Such critiques of intolerance lurking in the promise of
tolerance, Aune writes, problematize political communication in democratic systems.9
Aune explains that while Marcuse does not preach violence, he argues that the
emergence of a free and sovereign majority can come only through the action of
minorities intolerant, militantly intolerant, and disobedient to the rules of behavior which
tolerate destruction and oppression.10
There are many theoretical approaches that have addressed such limits, and called
for a reworking of the doctrinal and normative practices of the <free speech> narrative. I
focus on three such approaches: feminism, performative studies, and historical
materialism. For each approach, I contextualize the role of speech, its limitations and

65

possibilities, and how each approach engages in the hegemonic struggle over <free
speech>.
FEMINIST APPROACHES TO <FREE SPEECH>
The feminist debate over speech focuses on the objectification of women and the
simultaneous denial of the subjectivity of women.11 These themes most often play out
over pornography and obscenity, two dominant issues often contested in <free speech>
cases. Jaggar explains,
In the 1960s and early 1970s, feminists complained that glamorized, sexualized
and infantilized images of women perpetuated the view that women were the
sexual playthings of men. In the 1970s and early 1980s, the focus has shifted to
images of violence against women. Feminists complain that these make the rape,
torture and even murder of women appear to be legitimate and even erotic.
Pornography presents a special problem for liberal feminists because of
liberalisms historic commitment to freedom of expression and the right to
privacy. Liberal feminists may be personally or privately revolted or titillated
by pornography, but they have no political grounds for opposing it unless it can
be shown to have a direct causal connection with the violation of womens
rights.12
Such a direct causal connection was attempted by Catherine MacKinnon and Andrea
Dworkin. MacKinnon and Dworkin drafted an Indianapolis anti-porn law after their
collaborative research attempted to establish a relationship between sexually explicit
images and violence towards women.

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MacKinnon and Dworkins law criminalized the graphic sexually explicit

subordination of women, in pictures or words.13 In American Booksellers v. Hudnut
(1985), this law was declared unconstitutional. Despite the failure to keep the law on the
books, MacKinnon and Dworkin remained feminist activists against pornography, as well
as against racial and sexual harassment and hate speech. In 1993, MacKinnons book,
Only Words indicted the First Amendment with charges of promoting the very
inequalities the Fourteenth Amendment is supposed to end.14 More recently, Robert
Jensen and Elvia Arriola have argued that a liberal system of free expression silences
more than it gives voice to.15
Anti-pornography feminists often align themselves with the theory that patriarchy
is the source of womens oppression, and this most clearly manifests itself in the
patriarchal control of womens sphere of reproductionfrom sexuality to
childbearing.16 This means that anti-pornography feminists organize politically around
sexual issues, rather than organizing around conventional political or economic
issues.17 In contrast, liberal and the subsequent emergence of sex-positive feminism
have articulated a version of womens liberation that entails anti-censorship.
Whereas anti-pornography feminists attempt to reify sex as a part of patriarchal
oppression that must be stopped through obscenity laws, anti-censorship feminists
attempt to reify sex as a commodity that must be protected through the First
Amendment. Arguably, such a move started in 1963 with Betty Friedans The Feminine
Mystique, which called into question the health and happiness of white, middle class
suburban housewives. Other works, like Anne Koedts 1970 book, The Myth of the
Vaginal Orgasm, and the 1976 Hite Report followed suit and offered liberation to the

67

sexually repressed and misunderstood American woman. The very personal nature of sex
suddenly became a public platform on which to advocate womens liberation,
encouraging women to engage in a) traditionally masculine characteristics (sexuality,
aggression, pure physical pleasure, domination, power), b) a critique and refuse of
feminine characteristics (romance, softness, niceness, ladylike, emotion), and c) entry
into the workforce to become financially independent.
The critique of anti-pornography feminism by anti-censorship feminists was that
the former feminisms blanketing of all types of sex as oppressive was simply another
way of oppressing womenboth in their ability to be sexually expressive and in their
opportunity to better her life through a career. Ellen Kay Trimberger explains the
emerging dichotomy between the two feminist camps: Sexual expression versus
repression and inhibition, psychological openness versus personal distance and
autonomy, equality versus domination and submissionthese are the polarities of the
debate about the desirable and possible combinations of sexuality, intimacy, and power in
modern love.18 Anti-censorship feminists feared the arguments emerging from the antipornography camp. They worried that such claims placed a woman in a double bind in
which, should she choose to stay in the sex industry, she would be labeled a whore; but
should she be prohibited sexual opportunities, she would fall back into a helpless, silent
housewife. Jaggar notes, Liberals do not conceive ones body to be an essential part of
oneself, so there seems to be no reason why ones sexual services may not just as well be
sold as ones other abilities.19 In other words, anti-censorship feminists can argue both
the rights of <free speech> and expression, as well as the right for a woman to utilize her
sexuality as a career opportunity. Consequently, the personal becomes political as

68

feminists attempt to challenge the way sex is understood by the larger culturebe it as
sexual exploitation, sexual expression, or sexual commodification.
It is interesting to note that both the anti-censorship/sexual expression camp and
the anti-pornography camp articulate the familiar feminist slogan, The personal is
political. Originally touted as a slogan characteristic of radical feminism, this phrase
corresponds with sexual consciousness-raisingwhether that consciousness-raising is an
awakening to sexual exploration or to the reality of sexual exploitation. The similarity
between the groups attempts to line their ideology with the private and the political is
not that surprising, however. Campbell writes, Womens liberation rhetoric is
characterized by the use of confrontational, refusals designed to violate the reality
structure. These strategies not only attack the psycho-social reality of the culture, but
violate the norms of decorum, morality and femininity of the women addressed.20
Because womens liberation is so fraught with the personal (reproductive rights,
sexuality, etc), the strategies employed are forced to confront deeply ingrained social
constructs of the personal in the public consciousness. Campbell explains,
Rhetoric is usually defined as dealing with public issues, structural analyses, and
social action, yet womens liberation emphasizes acts concerned with personal
exigencies and private, concrete experience, and its goal is frequently limited to
particular, autonomous action by individuals A public exigence is, of course,
present, but what is unavoidable and characteristic of this rhetoric is the
accompanying and conflicting personal exigence.21
With sex so intimately linked to feminism, it is not surprising that both camps ignite
rhetorical strategies at a personal level in the hopes of sparking political action.

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Each in their own way, anti-censorship and anti-pornography arguments attempt

to confront socially constructed ideas of sex and sexuality, and to violate the reality of
this structure; the former by providing women the opportunity to embody traditionally
male characteristics such as sexual aggression and pure physical pleasure, the latter by
connecting the male gaze with sexual violence. Both camps have been quick to denounce
one another for mistaking the source of womens subordination and oppression, and
thereby losing sight of true liberation.22 Dierdre English wrote, To improve the lot of
Americas women, the pressing need is not an ever greater focus on the self.23
The dichotomy of this traditional debate over pornography as hate speech is
problematic primarily in two ways. First, anti-pornography feminists ignore the
performative potential of using sexually explicit speech in subversive and empowering
ways. Ellen Willis argues that anyone who thinks women are simply indifferent to
pornography has never watched a bunch of adolescent girls pass around a trashy novel.24
She concludes,
The basic purpose of obscenity laws is and always has been to reinforce cultural
taboos on sexuality and suppress feminism, homosexuality, and other forms of
sexual dissidence. No pornographer has ever been punished for being a womanhater, but not too long ago information about female sexuality, contraception, and
abortion was assumed to be obscene. In a male supremacist society the only
obscenity law that will not be used against women is no law at all.25
In short, on this argument, anti-pornography is not merely censorship of nonviolent,
potentially artistic pornography, but it is also censorship of womens sexuality. What the
anti-pornography feminists advocate for the silent victims of sexual violence, the anti-

70

censorship feminists see the call for censorship as another form of silencethis time a
silence of womens power of desire.
However, anti-censorship feminists far too often fall into the trap of the traditional
liberal frame of <free speech> : the myth of equality of access to idealized notions of
critical rational debate. Assuming that anti-censorship feminists are able to deconstruct
and challenge sexual constructs through speech presumes that speech is not hindered by
the same ideological constructs that restricts sexuality and womens liberation. In the
idealized liberal public sphere, the Enlightenment subject ostensibly has equal
opportunity both in terms of access to <free speech> and choice of participation in the
sex industry. However, this bourgeois image of liberation not only excludes the majority
of women working in the sex industry, but also ignores a much needed comprehensive
political strategy. Perhaps there will always be room for sexual consciousness-raising
within the feminist movement, but if we allow our struggle to end at the liberal
individual level, the movement cannot hope to gain support for a larger redress of
grievancesgrievances that extend well beyond sexual oppression. Iris Young explains
that feminist struggle and organizing should make explicit connections between the
oppression of women and other forms of oppression.26 Butler picks up this political
feminist project in an effort to understand the materiality of discourse and the possibility
of responsibility therein.
PERFORMATIVE APPROACHES TO <FREE SPEECH>
Judith Butler argues that speech can be returned to its speaker in a different
form, that it can be cited against its originary purposes, and perform a reversal of
effects.27 She locates agency in the only place she thinks possible: not in paternal law,

71

maternal law, or a pre-discursive libidinal multiplicity, but in a discursive gap between

the name and the act of being named.28 She writes,
This suggests that the changeable power of such terms marks a kind of discursive
performativity that is not a discrete series of speech acts, but a ritual chain of
resignifications whose origin and end remain unfixed and unfixable. In this sense,
an act is not a momentary happening, but a certain nexus of temporal horizons,
the condensation of an iterability that exceeds the moment it occasions. The
possibility for a speech act to resignify a prior context depends, in part, upon the
gap between the originating context or intention by which an utterance is
animated and the effects it produces Thus the gap that separates the speech act
form its future effects has its auspicious implications: it begins a theory of
linguistic agency that provides an alternative to the relentless search for legal
remedy.29
Whereas for Austin, the subject who speaks precedes the speech in question and for
Althusser, the speech act that brings the subject into linguistic existence precedes the
subject in question, Butler situates subjectivity in the iterability of discourse.30 In other
words, we find political agency in speechthe words we use, how we use others words
for our own purposesin a context not entirely under our control.
Revising Althussers view of interpellation, Butler argues, Thus, the gap that
separates the speech act from its future effects has its auspicious implications: it begins a
theory of linguistic agency that provides an alternative to the relentless search for legal
remedy.31 Such agency is found by understanding speech as repetition, not as
origination.32 In other words, while I cannot avoid being interpellated, once I am in

72

linguistic life, I might construct an agency in which I use repetition of subordination for
an altogether different purpose.33
It is because Butler enables us to find linguistic agency between the hailing and
the being hailed that we can renew <free speech> as a practice. Some scholars argue that
Butlers attempt to find an agency outside of legal recourse aligns her with the traditional
liberal project. For example, James Aune argues, Butlers work is a creative revisiona
reterritorializing, to use Butlers languageof 19th-century liberalism. Butler rejects
state action to control hate speech, emphasizes the role of non-state self-help groups in
reducing the harm of such speech, and insists upon drawing a bright line between speech
and conduct.34 Indeed, Butlers insistence on the gap between speech and conduct as
lending support for the role of nonjuridical forms of opposition, ways of restaging and
resignifying speech in contexts that exceed those determined by the courts echoes the
liberal conception of <free speech> discourse as advocating more speech as opposed to
legal recourse.35
However, Butler goes beyond a nineteenth-century liberal privileging of <free
speech>. It is with the abandonment of the sovereign subject in the rational-critical public
sphere that <free speech> can be reconceptualized as a practice of responsibility. If we
are but enfoldments of the cultural (and legal) scripts into which we were hailed, then all
we have to fight with is the materiality of discourse itself. Butler echoes Ronell: Words
are bodies that can be hurled at the other.36 Butler writes, I wish to question for the
moment the presumption that hate speech always works, not to minimize the pain that is
suffered as a consequence of hate speech, but to leave open the possibility that its failure
is the condition of a critical response.37 This critical response urges us to pick up <free

73

speech> as opposed to various hate codes as the means of change, as responsibility does
not lie in the structure of (paternal) law.
Butlers conceptualization of <free speech> is compelling because it answers
traumatic experiences with a theory of linguistic agency that provides an alternative to
the relentless search for legal remedy.38 As Alcoff and Gray point out, At various times
and in different locations survivor speech has been absolutely prohibited, categorized as
mad or untrue, or rendered inconceivable: presuming objects (such as a rapist father) that
were not stable and there could not exist within the dominant discourse.39 Consequently,
Butler writes, there is no way to work through trauma except through the arduous effort
it takes to direct the course of its inception.40 How else can one redirect the course of the
signifiers inception than through speech? Reading Elaine Scarrys The Body in Pain,
Butler summarizes,
[Scarry] makes the point that the threat of violence is a threat to language, its
world-making and sense-making possibilities. Her formulation tends to set
violence and language in opposition, as the inverse of each otherOne of the
injurious consequences of torture, in her view, is that the one tortured loses the
ability to document in language the event of torture; thus, one of the effects of
torture is to efface its own witness.41
In other words, absent the voice enabled by a trauma culture, then, what returns to haunt
the victim is not only the reality of the violent event but also the reality of the way that its
violence has not yet been fully known.42 To contradict the naturalized effacement
perpetuated by torture, catastrophic trauma, or, as will become more evident below, the
everyday traumas of paternal law, speech is needed to give voice to affective experience.

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MATERIALIST APPROACHES TO <FREE SPEECH>

Ann Cvetkovich attempts to take up this theory of linguistic agency in the
performative nature of trauma cultures.43 As the enunciator of feeling, speech enables the
formation of what Cvetkovich terms trauma cultures, or public cultures that form in
and around trauma.44 She writes, One of the persistent values of grassroots and
community-based archives is their capacity to keep the emotional need for archives as the
forefront of their mission. Her work infused with the historical materialist approach of
Marxism, Cvetkovich emphasizes the need for public articulations of trauma that dont
look to either identity or the state as a means for the resolution of trauma.45
According to Karl Marx, self-consciousness is a product of human labor:
In direct contrast to German philosophy which descends from heaven to earth,
here we ascend from earth to heaven. That is to say, we do not set out from what
men say, imagine, conceive, nor from men as narrated, thought of, imagined,
conceived, in order to arrive at men in the flesh. We set out from real, active men,
and on the basis of their real-life process we demonstrate the development of the
ideological reflexes and echoes of this life-process. The phantoms formed in the
human brain are also, necessarily, sublimates of their material life-process, which
is empirically verifiable and bound to material premisesMen, developing their
material production and their material intercourse, alter, along with this their real
existence, their thinking and the products of their thinking. Life is not determined
by consciousness, but consciousness by life.46
In other words, the essence of human being is not mind or thought but labor. Teresa Ebert
explains, A materialist critique disrupts what is to explain how social differences

75

specifically gender, race, sexuality, and classhave been systematically produced and
continue to operate within regimes of exploitation, so that we can change them.47
In criticizing the autonomous subject purportedly associated with the traditional
liberal <free speech> narrative, Marxism draws attention to the ways in which the <free
speech> narrative is utilized to perpetuate an ideology that defines freedom in economic
terms. John Durham Peters explains, Marx, of course, saw talk of rights as a cover for
class interest, and the coexistence of slavery, patriarchy, and class oppression with liberal
philosophies as a badge of shame.48 The <free speech> narrative functions as a means of
mystifying the ideological constraints of the economic system by providing a false sense
of legal, political and social agency.
Several scholars illustrate this. In his book on <free speech> in a commercial
culture, law professor R. George Wright discusses how the legal application of <free
speech> law to commercial speech has raised issues of commodity fetishism: current
<free speech> law tends to overprotect non-misleading commercial speech from the
standpoint of all the basic reasons for protecting <free speech> in the first place,
including considerations of personal self-realization and personal autonomy.49 Marxist
feminist scholars like Sharon Smith critique the notion that sexuality and gender are
autonomous from economics.50 Phil Gasper notes,
Formal freedom and democracy might exist in such a society, but they would be
subverted in the interests of those who controlled the wealth. Real freedom was
impossible in a society divided into exploiters and exploited. What was needed,
Marx concluded, was not formal equality before the law, but a society of genuine
equality in which economic power was not in the hands of a privileged minority.51

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Habermas himself acknowledged this critique of the liberal public sphere. Like Marx,
Habermas understood that the demise of the public sphere would occur with the
increasing demand of working people for the fulfillment of the promises of liberalism.
This critique extends to liberal consciousness itself. Any claims for any civil
liberties within the liberal frame narrates agency via reform through the system. By
attempting to situate claims for recognition within existing public discourse, many civil
rights appeals appear to generate success within a society only to be left with an even
more troubling, implicit denial of recognition and consequently even less space for
agency. Artz explains, Although social movements and class struggles have modified
the political landscape in the United States, the judicial dispensing of structurally
available material and political benefits to oppositional classes and groups has allowed
capitalist class representatives to maintain the legitimacy of capitalism.52 For example,
Holt contextualizes this problem among black experiences: Even as publicity of a kind
has expanded, increasing visibility of Blacks in U.S. and globally, there has been at the
same time an ongoing assault on programs benefiting Blacks, spaces for vernacular
critical political conversation, and on many Black Americans standard of living.
However, I do not mean to say that <free speech> cannot serve other roles and
interests in the Marxist frame. While there is a danger that speech focused solely on
recognition can fail to achieve material gains, speech can be focused on redistribution.
Marx and Engels argue against the dichotomy often created between recognition and
redistribution. Such flawed reasoning, they write, depreciates every revolutionary
movement in the eyes of the working class by showing that no mere political reform, but
only a change in the material conditions of existence, in economic relations, could be of

77

any advantage to them.53 Portnoy writes, One of discourses most powerful functions is
the constitution of political agency.54 Greater political freedom has the potential to make
it easier to win economic changes.55
Similarly, Cvetkovich seeks to use speech to constitute political agency for those
traumatized by the everyday experiences of capitalism. Not limited to the speech of those
who survived catastrophic traumas like the Holocaust, Cvetkovichs very definition of
trauma embraces the everyday experiences and, borrowing Raymond Williams
definition, structures of feeling that characterize the lived experience of capitalism.56
She explains, I want to place moments of extreme trauma alongside moments of
everyday emotional distress that are often the only sign that traumas effects are still
being felt.57 Locating trauma cultures in the everyday, Cvetkovich searches for the
performative of affective experiences that can constitute public cultures.
For example, the discipline of queer studies illustrates how trauma is affectively
negotiated in culturally specific ways.58 Cvetkovich explains, Forced to draw on
memory and personal experience to construct an archive in the wake of a dominant
culture that provides either silence or homophobic representations of their lives, queers
have solo performance as a forum for personal histories that are also social and cultural
ones.59 In her discussion of the trauma of heteronormativity, Rosemary Hennessy
comments, Claiming a queer identity is an effort to speak from and to the differences
that have been suppressed both by heteronorms and the homo-hetero binary: the
transsexual, bisexual, and any other ways of experiencing and expressing sensuality and
affect that do not conform to the prevailing organisation of sexuality.60

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I do not mean to say that we can end physical acts of violence such as genocide,
rape, or oppression of sexual minorities through speech. It is to say, however, that the
nexus between speech and violence offers the potential for a therapeutic working
through.61 Yet many feminists, materialists and other critical cultural scholars warn that
the affective discourse of a therapeutic rhetoric accomplishes little more than
consciousness-raising: Feminists themselves have also maintained that one of the
hazards of the recovery movement has been a shift from movement politics toward
therapeutic culture as the means to a transformation that has become personal rather than
social.62 Cloud argues, The rhetoric of therapy dislocates political anger that might be
directed toward structural social change onto the individual and family, framing
responses to crisis in terms of private life.63
The personal must become political, rather than the political being rendered as
only personal. Judith Herman argues, Attention to trauma has only been achieved when
accompanied by a social movement, such as feminism or the antiwar movement.64 She
writes, In the task of healing, therefore, each survivor must find her own way to restore
her sense of connection with the wider communitybut we do know that the women
who recover most successfully are those who discover some meaning in their experience
that transcends the limits of personal tragedy. Most commonly, women find this meaning
by joining with others in social action.65 Similarly, Alcoff and Gray argue, A project of
social change does not need to get beyond the personal narrative or the confessional to
become political but rather needs to analyze the various effects of the confessional in
different contexts and struggle to create discursive spaces in which we can maximize its
disruptive effects.66 Herman adds,

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The systematic study of psychological trauma therefore depends on the support of

a political movementThe study of trauma in sexual and domestic life becomes
legitimate only in a context that challenges the subordination of women and
children. Advances in the field occur only when they are supported by a political
movement powerful enough to legitimate an alliance between investigators and
patients and to counteract the ordinary social processes of silencing and denial. In
the absence of strong political movements for human rights, the active process of
bearing a witness inevitably gives way to the active process of forgetting.
The production of the voice of the disempowered provides the space in which to create
not just a trauma culture, but a space for resources for collective action.
For Cvetkovich, trauma cultures are not merely about the therapeutic expression
of affective experiences. Advocating a depathologizing perspective, Cvetkovichs view
of trauma as part of the affective language that describes life under capitalism solicits
the study of trauma as a collective experience that generates collective responses.67 In
this sense, trauma becomes an invention, a performative that utilizes speech to express
affect without moving away from it.68
CONCLUSION
Although <free speech> is a limited trope of liberalism and is thus ideological and
risky to embrace, critical rhetoricians should do so because the term is malleable and can
be appropriated by different groups to garner political agency and spaces of agitation.
Consequently, in the case studies to follow, I hope to contribute to the theoretical work of
feminist, performative and historical materialist scholars to conceptualize the practice of
the traditional <liberal free> speech narrative as constitutive of counterpublics wherein

80

political agency and agitation can occur. The next chapter introduces a case study on the
Danish cartoons controversy, and provides a working-through of how <free speech> is
used as both agitation and control in the War on Terror.
1

Noelle McAfee, Habermas, Kristeva, and Citizenship (Cornell University Press, 2000).
See Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1998).
3
For a comprehensive overview of such perspectives, see Robert Asen and Daniel Brouwer, eds.
Counterpublics and the State (New York: State University of New York, 2001). For specific examples, see
Fraser; Michael Warner, Publics and Counterpublics (New York: Zone Books, 2002); Oskar Negt and
Alexander Kluge, Public Sphere and Experience: Toward an Analysis of the Bourgeois and Proletarian
Public Sphere (University of Minnesota Press, 1993),
4
For a discussion of such theorists, see Richard Cherwitz and Thomas J. Darwin, Why the Epistemic in
Epistemic Rhetoric? The Paradox of Rhetoric as Performance, Text and Performance Quarterly 15
(1995): 190-191.
5
John Durham Peters, Courting the Abyss: Free Speech and the Liberal Tradition (The University of
Chicago Press, 2005), 86.
6
John Durham Peters, Det ironiske ved dagens ytringsfrihet [The Ironies of <free speech> Today] . . .
en saklig og fri informasjons- og opinionsformiddling: Redaktrinstituttets status 2006, Aarbok fra Norsk
Redaktrforening (Olso: IJ forlaget, 2006), 135-143.
7
Peters, Det ironiske ved dagens ytringsfrihet [The Ironies of <free speech> Today].
8
Peter Lowe and Annemarie Jonson, There is No Such Thing as Free Speech: An Interview with Stanley
Fish, Australian Humanities Review 9 (February 1998):
9
The problem, Aune explains, [of] how to reconcile the need for a rhetorically powerful indictment of
the status quo to motivate radical change with the need to reach the majority damaged by the status quo. .
. is a problem we have seen in Marx, Engles, Bernstein, Lukacs, and Gramsci. James A. Aune, Rhetoric
and Marxism (Boulder: Westview Press, 1994), 86.
10
Marcuse, 123, qtd. in Aune, Rhetoric and Marxism, 85.
11
I do not mean to refer to an essentialist category of woman. As Linda Alcoff writes, The concept of
woman is a problem. Linda Alcoff, Cultural Feminism versus Post-Structuralism: The Identity Crisis in
Feminist Theory, Signs 13, no. 3 (Spring 1988): 405. Tracing the historical development of the diversity
of feminist thinking, Rosemaria Tong and Alison Jagger point out, it is difficult to point out a consistent
definition of woman. See Alison Jagger, Feminist Politics and Human Nature (Rowman & Littlefield
Publishers, 1988). See also Rosemarie Putnam Tong, Feminist Thought: A More Comprehensive
Introduction (Colorado: Westview Press, 1988).
12
Jaggar, 180.
13
American Booksellers Association v. Hudnut. 771 F. 2d 323 (7 Circ. 1985).
14
Catherine MacKinnon, Only Words (Harvard University Press, 1993).
15
Robert Jensen and Elvia Arriola, Feminism and Free Expression: Silence and Voice, in Freeing the
First Amendment: Critical Perspectives on Freedom of Expression, ed. David S. Allen and Robert Jensen
(New York: New York University, 1995), 195-223.
16
Jaggar points out that this term sphere of reproduction is what the Marxists defined as something to do
with sexuality, childbearing and childrearing, 105.
17
Jaggar, 105
18
Ellen Kay Trimberger, Feminism, Men, and Modern Love: Greenwich Village, 1900-1925, in Powers
of Desire: The Politics of Sexuality, ed. Ann Snitow, Christine Stansell, and Sharon Thompson (New York:
Monthly Review Press, 1983), 149.
19
Jaggar, 180.
20
Karlyn Kohrs Campbell, The Rhetoric of Womens Liberation: An Oxymoron, The Quarterly Journal
of Speech 59 (1973): 81.
21
Campbell, 84-85.
2

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22

For examples, see MacKinnon. See also Mari Matsuda et al., Words that Wound: Critical Race Theory,
Assaultive Speech, and the First Amendment (Colorado: Westview, 1993). For similar, critical scholarship,
see David S. Allen and Robert Jensen, eds. Freeing the First Amendment: Critical Perspectives on
Freedom of Expression (New York: New York University Press, 1995).
23
Dierdre English, Shes Her Weakness Now, The New York Times, February 2, 1992, quoted in Dana
Cloud, Control and Consolation in American Culture and Politics: Rhetorics of Therapy (California: Sage
Publications, 1998), 114.
24
Ellen Willis, Feminism, Moralism, and Pornography, in Powers of Desire: The Politics of Sexuality,
ed. Ann Snitow, Christine Stansell, and Sharon Thompson (New York: Monthly Review Press, 1983), 462.
25
Willis, 466.
26
Iris Young, Socialist Feminism and the Limits of Dual Systems Theory, in Materialist Feminism: A
Reader in Class, Difference and Womens Lives, ed. Rosemary Hennessy and Chrys Ingraham (New York:
Routledge, 1997), 95.
27
Judith Butler, Excitable Speech: A Politics of the Performative (New York: Routledge, 1997), 14.
28
Judith Butler, Gender Trouble (New York: Routledge, 1990), 131.
29
Butler, Excitable Speech, 14-15.
30
Butler, Excitable Speech, 24.
31
Butler, Excitable Speech, 15. Eagleton writes, For Althusser, it is ideology alone which lends the human
subject enough illusory, provisional coherence for it to become a practical social agent. From the bleak
standpoint of theory, the subject has no such autonomy or consistency at all: it is merely the
overdetermined product of this or that social structure. Eagleton, Ideology, 141.
32
Butler, Excitable Speech, 39.
33
Butler, Excitable Speech, 38.
34
James A. Aune, Judith Butler and Incitable Speech (paper presentation, American Forensics
Association, Alta, Utah, Summer 2005), 1-2.
35
Butler, Excitable Speech, 23.
36
Avital Ronell, Finitudes Score: Essays for the End of the Millennium (University of Nebraska Press,
1989).
37
Butler, Excitable Speech, 19.
38
Butler, Excitable Speech, 14-15.
39
Linda Alcoff and Laura Gray, Survivor Discourse: Transgression or Recuperation? Signs 18, no. 2
(Winter 1993):265.
40
Butler, Excitable Speech, 38.
41
Butler, Excitable Speech, 6.
42
Cathy Caruth, Unclaimed Experience: Trauma, Narrative, and History (Baltimore: John Hopkins
University Press, 1996), 6.
43
Ann Cvetkovich, An Archive of Feelings: Trauma, Sexuality, and Lesbian Public Cultures (Durham:
Duke University Press, 2003).
44
Cvetkovich defines public culture: In using the term public culture, I keep as open as possible the
definition of what constitutes a public in order to remain alert to forms of affective life that have not
solidified into institutions, organizations, or identities. Like Lauren Berlant and Micahel Warner, I would
like to support forms of affective, erotic, and personal living that are public in the sense of accessible,
available to memory, and sustained through collective activity... Cvetkovich, 9.
45
Cvetkovich, 16.
46
CJ Arthur, The German Ideology (New York: International Publishers, 1970), 46-47, quoted in Karl
Marx and Frederick Engels, The Communist Manifesto: A Road Map to Historys Most Important Political
Document, ed. Phil Gasper (Chicago: Haymarket Books, 2005), 15-16.
47
Dana Cloud, Null Persona: Race and the Rhetoric of Silence in the Uprising of 34, Rhetoric and
Public Affairs 2, no. 2 (1999): 179.
48
Peters, Courting the Abyss, 101.
49
R. George Wright, Selling Words: <free speech> in Commercial Culture (New York University Press,
1997), 7.
50
See Sharon Smith, Women and Socialism: Essays on Womens Liberation (Chicago: Haymarket Books,
2005).
51
Marx and Engels, 12.

82

52

Lee Artz, On the Material and the Dialectic: Toward a Class Analysis of Communication, in Marxism
and Communication Studies: The Point Is to Change It, ed. Lee Artz, Steve Macek, and Dana Cloud (New
York: Peter Lang Publishing, 2006),31.
53
Karl Marx and Frederick Engels, The Communist Manifesto: A Road Map to Historys Most Important
Political Document, ed. Phil Gasper (Chicago: Haymarket Books, 2005), 81.
54
Alisse Portnoy, Their Right to Speak: Womens Activism in the Indian and Slave Debates
(Massachusetts: Harvard University Press, 2005), 55.
55
Marx and Engles, 81.
56
Cvetkovich, 17.Emphasis added.
57
Cvetkovich, 3.
58
Cvetkovich, 26.
59
Cvetkovich, 26.
60
Rosemary Hennessy, Profit and Pleasure: Sexual Identities in Late Capitalism (Routledge, 2000), 52.
61
See Caruth on narrative labor.
62
Cvetkovich, 33.
63
Cloud, Control and Consolation, vii.
64
Cvetkovich, 30.
65
Judith Lewis Herman, Trauma and Recovery (New York: Columbia University Press, 1985), 72.
66
Alcoff and Gray, 283.
67
Cvetkovich, 19. Emphasis added.
68
Cvetkovich, 31
.

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Chapter 3: Tolerance for Intolerance:

The <Free Speech> Narrative in the Danish Cartoons Controversy
On August 13, 2009, almost four years after the initial publication of the twelve
controversial cartoons of the Prophet Muhammad that resulted in 200 deaths and more
than 800 injuries, American Association of University Professors (AAUP) President Cary
Nelson released a press statement: We do not negotiate with terrorists. We just accede to
their anticipated demands.1 Nelsons sarcasm was directed at Yale University Press.
After consulting two dozen authorities, including diplomats and experts on Islam and
counterterrorism, Yale Press unanimously decided not to print any depictions of the
Prophet Muhammad (cartoon or otherwise) in an upcoming academic book, The
Cartoons That Shook the World.2 According to Nelson, Yale Presss action parallels
prior restraint on speechWhat is to stop publishers from suppressing an authors words
if it appears they may offend religious fundamentalists or groups threatening violence?
We deplore this decision and its potential consequences.3 The books author, Brandeis
University political professor Jytte Klausen, said the decision was a gag order, adding
that Muslim friends, leaders and activists thought that the incident was misunderstood,
so the cartoons needed to be reprinted so we could have a discussion about it.4
This chapter is an attempt to contribute to a discussion about the Danish cartoons
controversy beyond the frames of <free speech> or simple misunderstanding. In the
Danish cartoons controversy, there were two issues at stake. First, as argued elsewhere by
Deepa Kumar, the cartoons controversy is symptomatic of larger issues of racism and
Islamophobia.5 Second, related to Kumars argument and the focus of this chapter, the
cartoons controversy is symptomatic of how <free speech> functions as a hegemonic

84

device. Although not always a monolith of control, the <free speech> narrative was
deployed in the case of the cartoons controversy as a way of controlling how Americans
view various kinds of speech and behavior in accordance with the political ideology of
liberalism.
This chapter begins with the following question: Under what conditions is the
traditional liberal <free speech> narrative oppressive? The Danish cartoons controversy
is a fecund site for understanding how the reproductions of a dominant American
discoursethe traditional liberal <free speech> tropedisplaces attention from real
relations of power. It is not my intention to reject free speech; rather I seek to highlight
how (and to what extent) the <free speech> narrative becomes a trump card in the debate,
leaving us with a tolerance for intolerance. By framing the responsive anger of
Muslimsas well as the censorship of subsequent publications of the cartoonsas a
rejection of the liberal commitment to free speech and consequently undemocratic,
irrational and illegitimate, the <free speech> narrative can be understood as an
establishment oppressing without seeming to oppress. In other words, the <free speech>
narrative condemns Arabs and Muslims as outside of the Enlightenment and the
commitments of the West to a certain, limited notion of democracy. Ultimately, this
chapter demonstrates how a liberal commitment to <free speech> is employed in the
cartoons controversy to discredit political dissent.
In their initial appearance in a Danish newspaper in 2005, the cartoons received
only minor public attention. Reprints of the cartoons occurred from November 2005
through January 2006. Protests and riots erupted at the end of January 2006. In this
chapter I will examine media coverage of the controversy from the following sources:

85

The New York Times, The Washington Post and The Washington Times. I have chosen
these sources primarily because The New York Times and The Washington Post are two
of the most widely circulated newspapers in the U.S. (The New York Times having a
circulation of 1,683,855 and The Washington Post having a circulation of 960,684).6
Similarly, these two sourcesThe New York Times and The Washington Postwere
explicitly referenced by the Jyllands-Posten in the debate. While many U.S. news outlets
refrained from reprints of the cartoons, in an interview with Klausen, Rose noted that he
was disappointed that the New York Times and the Washington Post did not reprint the
cartoons, because, he says, once people see them, they see that they are not as bad as their
reputation would indicate.7 Roses frustration with these two specific papers suggests
that they both serve as iconic U.S. news sources.
Finally, I have chosen these three sources because they comprise the U.S. media
outlets that had the most frequent coverage of the Danish cartoons controversy. My
rhetorical analysis reveals the ways in which the U.S. media quotes and paraphrases
international media to justify international allegiance to the principle of <free speech>,
and consequently, to the ideals of Western, free-market democracy. I have limited my
selection to the dates between September 30, 2005 (the initial publication of the cartoons)
through January 20, 2007 (when the Denmark national library secured several of the
cartoons for preservation purposes); ending in August 2009 (the most recent
resurfacing of the cartoons controversy with Yale University Presss decision not to
publish images of the Prophet in Klausens academic book). This sample will allow me to
get a sense of the whole of the debate from various points of view. I will supplement this

86

analysis with observations about outlying texts such as comedic discourse and discourse
within the top 100 political blogs.8
My analysis explores a sampling of the public discoursefrom scholars,
journalists, protesters, and representatives of Islamic communities to reveal
ideographic clusters: other liberal terms like democracy and liberalism that appear
alongside arguments of <free speech> in this debate. Such clusters make it possible to
explore more nuanced arguments behind the <free speech> trope, like how retreating
from reprints of the cartoons means losing <free speech>, the most fundamental right that
seems to embody a very particular political, economic, and social way of life
democracy. Consequently, I cast the debate into three rhetorical frames within the <free
speech> narrative: the political, legal and moral justifications. By analyzing the
discursive spillover of the visual representation of Islam, I hope to expose how the <free
speech> narrative is manipulated to accommodate particular political interests. I argue
that the construction of the controversy as an issue of <free speech> is employed as a
strategy of control, positioning protesters of racism as backward, irrational and
antagonistic to Enlightenment values.
CARTOONS IN CONTEXT: THE HISTORY OF THE CONTROVERSY
Kre Bluitgen decided to write a childrens story about the Prophet Muhammad.
The only catch was that he could not find anyone to illustrate it. Every artist Bluitgen
approached cited incidents in which people, particularly non-Muslims, were harmed or
killed for speaking critically of Islam.9 On September 17, 2005, the Danish newspaper
Politiken detailed Bluitgens experience and labeled the artists self-censorship as the
consqeuence of a profound fear of criticism of Islam.10 Carsten Juste, editor of the

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Danish newspaper Jyllands-Posten (The Jutland Post), wondered if the threat of

Islamic terrorism had limited the freedom of expression in Denmark. Juste decided to test
his hypothesis. Together with the papers cultural editor Flemming Rose, forty Danish
cartoonists were solicited: Draw Muhammad as you see him.11 Twelve responded.
On Septmeber 30, 2005, the Jyllands-Posten published twelve cartoons,
collectively entitled, The Face of Muhammad.12 In her book detailing the historical
event, Klausen wrties,
The twelve cartoons were printed on one page. The page was placed in the
newspapers culture section and printed along with an essay by Flemming Rose,
the culture and book review editor, who argued that Jyllands-Posten was striking
for a blow for freedom of speech and against self-censorship motivated by
political correctness. The choice of headline proclaimed the newspapers intention
to violate the Muslim taboo against the pictorial representation of Muhammad.13
In her efforts to unveil the cartoonists intentions, Klausen describes each cartoon,
insisting that the illustrators did not think they did anything wrong or different from
what they usually did when they drew cartoons.14 Because her historical analysis of the
cartoons and the cartoonists is so complete, but even more importantly because several of
the cartoons rely on Danish anecdotes, I rely on Klausens explanations of the cartoons
here.
Several of the cartoons focus on the author Kre Bluitgen. One shows Bluitgen
wearing a turban and holding a stick figure drawing of the Prophet Muhammad. Inside
Bluitgens turban is an orange with the words PR Stunt written on it. Klausen explains
that an orange dropping into your turban/lap is the Danish expression for undeserved

88

good luck.15 Similarly, another cartoon depicts a line-up of religious figuresfrom Jesus
to Muhammad, to Pia Kjaersgaard, the leader of the Danish Peoples Party, to Bluitgen
himself. A Muslim stares through the window, unable to recognize his attacker. These
cartoons are not providing critical commentary on the newspapers call for instances of
Islamic intimidation of free speech, but instead poke fun at the original author who stirred
up so much trouble.
Some of the cartoonists poked fun at the newspaper, Jyllands-Posten. One drew
Muhammad as a young boy, standing before a chalkboard in a classroom. He is dressed
in a soccer shirt. According to Klausen, the colors of the boys shirt and the league name
scrawled across the front of his shirt allude to a multi-ethnic socialist labor movement.
The boy has written on the chalkboard, The journalists at Jyllands-Posten are a bunch of
reactionaries.16 In another, illustrator Franz Fchsel depicts the Muhammad holding
back menacing-looking Muslims with swords. The Prophet tells them, Take it easy,
friends: it is just a drawing made by an infidel from southern Jutland. Klausen explains
that people from this part of Jutland are known in Danish folklore as jokers.17
Two cartoonists tackled the problematic nature of drawing a depiction of the
Prophet Muhammad. Klausen explains that such cartoons reveal sentiments of selfrighteousness. She describes the cartoon by Arne Srensen: He drew a cartoon of
himself hunched over the drawing board, with the window blinds down, shaking his head
as he draws an angry-looking man with bushy eyebrows, a beard, and a kaffiyeh, the
scarf worn by some Arab men, as a symbol of Muslim or pro-Islam identity.18 In a
second cartoon, another artist roughly sketches veiled women and writes the haiku:
Prophet! Daft and dumbKeeping women under thumb.19

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Then there are the cartoons that focus on characterizations of the Prophet. One
depicts the Prophet walking a donkey through a desert. Another is an image of the
Prophet with horns, as opposed to a halo. One cartoonist, Jens Julius Hansen, drew
Muhammad in heaven, crying out to a rush of suicide-bombers, Stop, stop, we have run
out of virgins! Another shows Muhammad with a black censor bar across his eyes. He
stands with a sword, holding back two veiled women. Klausen describes the meaning:
The black bar employs a graphic gag to suggest that the women can see but not be seen,
while the Prophet is altogether blinded.20 The image of a green crescent and star on a
face suggests, according to Klausen, an anti-Semitic style [which] exaggerates what
supposedly are the physiognomic features of an Arab or a Jew to produce a decidedly
racialist caricature.21 The final and most controversial cartoon, drawn by Kurt
Westergaard, is of the Prophet with a bomb in his turban and the Shahadathe Muslim
declaration of faith: There is no god but God, Muhammad is the Messenger of God.22
In her interview with Westergaard, Klausen notes that Westergaard intended his drawing
to show that radical Muslims use the Prophets name to justify violence and that he did
not for a minute consider that Muslims would interpret his drawings any other way.23
In response, the Council of American-Islamic Relations issued a statement
detailing the Islamic prohibition of visual depictions of the Prophet as part of the
Qurans opposition to idolatry.24 By October 27, 2005, various Muslim leaders had
organized to file criminal complaint against Jyllands-Posten, and sought a redress of
grievences under a Danish blasphemy law.25 The case was struck down when the
cartoons were found to have committed no criminal offense.

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Between the end of October 2005 and January 2006, there were reprints of the
cartoons in over fifty different countries. As the reprints spread, so did the riots. Protests,
boycotts and riots occured in over twenty-seven countries. Although the cartoonists
received death threats, those who succumbed to such an ill-fate were those caught in the
chaos at the scenes of protests and riots.26 On February 19, 2006, Rose explained his
actions:
The cartoonists treated Islam the same way they treat Christianity, Buddhism,
Hinduism and other religions. And by treating Muslims in Denmark as equals
they made a point: We are integrating you into the Danish tradition of satire
because you are part of our society, not strangers. The cartoons are including,
rather than excluding, Muslims.27
It is worth point out that there are a number of religions and cultures with prohibitions or
limitations of representation as a matter of respect (there are Christian prohibitions
against idolatry, and in Judaism, there are prohibitions against saying the actual name of
God or writing it), yet it is Islam in particular that is singled out as unenlightened and
undemocratic.28 Roses policy for inclusion ignited a debate in Europe, and fanned the
flames for the rest of the world.
That the widespread violence resulting from the (re)publication of these cartoons
is tragic is hardly a controversial characterization. To date, at least 200 people have
died.29 At least 823 more people have been injured.30 In September of that year, after
Pope Benedict XVIs public statement of Islam in his lecture on Faith, Reason and the
University at the University of Regensburg, two churches in the West Bank were
firebombed and a radical Islamic group issued a death threat on the Pope.31 Many Iranian

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newspapers continue to advocate violence in the face of anti-Islamic sentiments.32

Indeed, the revival of Salman Rushdies fatwa contextualizes the cartoons in a history of
the perseverance of violence in the name of religious piety.33
A CARICATURE OF <FREE SPEECH> AND ISLAM
[on the front of a t-shirt:]
Theres a picture of the Prophet Muhammad on the back of this shirt.
[on the back of the t-shirt:]
Just kidding, Praise Allah (Please dont kill me)! (tshirthell.com)
Since the cartoons have been published, reprinted and disseminated, news and
entertainment sources alike have rallied around Denmark, framing the controversy not in
terms of a set of racist images but as an instance of irrational, Muslim reaction and
rejection of the basic ideals of democracymost notably, that of free speech. The
familiar, traditional liberal <free speech> narrative lies at the discursive heart of the
Danish cartoons controversy. The positioning of the cartoons by Rose and many others as
an exercise in free speech has drawn a debate among media critics, critical culturalists,
and free speech scholars. Much of this debate highlights the issue of whether or not the
cartoons should be censored, and the political, legal and moral justifications for reprinting
the cartoons. The critics that clamored for censorship of the cartoons do so either by
hailing hate speech codes and pushing prosecution of Jyllands-Posten, or by drawing on
the exceptions to the First Amendment historically recognized by the Supreme Court.
And still others, like Rose, advocate absolutism, sliding down slippery slopes as they
suggest that an Islamic fundamentalism threatens Americas most fundamental
freedomfreedom of speech. In what follows, I examine the political, legal and moral
frames developed in the media discourse surrounding the cartoons controversy and chart

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the <free speech> narrative across all three domains. My analysis reveals the way in
which the <free speech> appeals work to put Islam in an antagonistic relationship to
modernity and the Enlightenment, creating a double bindeither live with the racism of
the images or live with the racism underneath accusations of intolerance and censorship.
Political Appeals in the Danish Cartoons Controversy
From their inception, the Danish cartoons were cast as symptomatic of the
political struggle for liberal democracy. When Carsten Juste issued an apology for the
publication of the cartoons, Roger Koppel, editor of the Berlin newspaper Die Welt,
baulked, [The apology is] an alarming defeat for Europes tradition of free speech:
This has now become a huge political story. In a secular society, a prime minister and a
newspaper had to apologize for exercising their right to satire.34 Kroppel is not alone in
his characterization of the Danish cartoons controversy as a political one.
Between the 30 September 2005 and the 30 August 2009, The New York Times,
The Washington Post, and The Washington Times were littered with op-eds creating
political appeals to liberal democracy amidst the clamor of the cartoons controversy.35
When keyword searches were limited to articles containing Danish cartoons
controversy, free speech and war, the incidence of political appeals in the media
coverage of these three major news outlets revealed 13, 14 and 14 articles, respectively.
War was chosen as a key word illustrative of political appeals because such articles
were likely to discuss the cartoons role in the political relations between the West and
Islam, as well as more thematic sentiments about the role of <free speech> in the larger
cry for democratic governments. Interestingly, when keyword searches were refined to
Danish cartoons controversy, free speech and democracy or liberalism, the

93

incidence of political appeals was reduced to one or two articles in each of the three
newspapers. Analysis of the articles reveals that war became a way for discourse about
democracy in the cartoons controversy to happen.36
Not surprisingly, this frame dominates accounts of journalists themselves who
value freedom of press. All 41 articles either quoted or exhibited similar sentiments to
those attributed to Benjamin Franklin: They that can give up essential liberty to obtain a
little temporary safety deserve neither liberty nor safety. Most of the op-ed pieces
argued that the reprints of the cartoonseven if hurtfulcontributed to the broader fight
for the right of the most precious civil liberty in a liberal democracyfree speechin the
face of an unimaginable terrorism that is threatening to take it away. The Washington
Times Helle Dale summarized the protests and boycotts resulting from the publication of
the cartoons as the wakeup call that Europe has been waiting for since September 11A
cherished European principle and a fundamental aspect of liberal democracy are under
attack, and Europeans have finally found a voice.37 Dale applauds European newspapers
like one in Brussels who proclaimed, We are all Danes now. Good for them, Dale
writes, and as for those who respect freedom of the press and expression, but note that it
must be coupled with press responsibility, Dale chastises, This is not the way to stand
by a good ally under fire.38
The evocations of phrases like September 11, liberal democracy, attack and
ally under fire in Dales article suggest that the cartoons controversy is to be
understood as part of a larger war against a terrorism threatening to take away democratic
values. The appeal to September 11 conjures memories of watching the symbol of
Americas economic center falling to its knees before radical religious fundamentalists.

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The congratulatory backslapping of Europeans who are finding their voice through the
reprints of the cartoons is set in contrast with those who advocate press responsibility.
The implication is that the press has a responsibility to adhere to the notion of freedom
of press, since freedom of press is part of the traditional liberal narrative of <free
speech>, core to liberal democracy. Those seeking restrictions or limitations on such a
narrative are not allies to the wounded American political system; on the contrary, the
article suggests, such voices are part of the enemys battle cry. This choosing of sides in
war became increasingly prominent: When Bush condemned the violence resulting from
the cartoons, Danish Prime Minister Anders Fogh Rasmussen commented, We consider
ourselves a faithful and loyal ally of the United States, and we appreciate very much to
see this reciprocated in the support from the United States.39
Despite discourse focusing on radicals, much of the media coverage crafted
subtle, implicit connections between radical fundamentalists and the general Muslim
population, asserting the general incompatibility of the Islamic faith with liberal
democracy. Rose argues, When Muslims say you are not showing respect, I would say:
you are not asking for my respect, you are asking for my submission.40 In that same New
York Times article, Rainer Mion, a 44-year-old German insurance agent in Berlin,
cautions, The radicals dont want an agreement, they dont want a round table. What
they want is to spread their Islamic beliefs all over the world.41 Patrick Gonman, the
owner of a wine bar in Antwerp, told The New York Times, You saw what happened
with the pope. He said Islam is an aggressive religion. And the next day they kill a nun
somewhere and make his point. Rationality is gone. 42 Mr. Gonmans ambiguous they
coupled with the Popes statement that Islam is an aggressive religion reveals the subtle

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slippage in distinctions among radical Islamists and the rest of the Muslim population.
This becomes incredibly apparent in the way in which The New York Times framed Mr.
Gonmans opinion. New York Times writers Dan Bilefsky and Ian Fisher write,
Mr. Gonman is hardly an extremist. In fact, he organized a protest last week in
which 20 bars and restaurants closed on the night when a far-right party with an
anti-Muslim message held a rally nearbySo strong is the fear that Dutch values
of tolerance are under siege that the government last winter introduced a primer
on those values for prospective newcomers to Dutch life: a DVD briefly showing
topless women and two men kissing. The film does not explicitly mention
Muslims, but its target audience is as clear as its message: embrace our culture or
leave.43
Bilefskys and Fishers reference to such a DVD is an attempt to contrast a stereotyped
sexually repressive Islam with the free spirited culture of the Dutch. Bilefsky and Fisher
are trying to inoculate readers against the assumption that Mr. Gonman is being
unreasonable in his characterization of Islam as an aggressive religion. How? Mr.
Gonman organized a protest against those fundamentalist right-wingers. Those rightwingers are the perpetuators of anti-Muslim sentiment; Mr. Gonman is an equal rights
advocate. In the same breath, however, Bilefsky and Fisher warn that such important
Dutch values, such as the value of tolerance exhibited by Mr. Gonman, are being eroded
by none other than Muslim immigrants.
Such concern over the assimilation of Muslim culture to liberal democratic values
is common in media discourse surrounding the cartoons controversy. In an attempt to
debunk the comparison between the caricatures of Islam and artistic attacks on

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Christianityfrom the Dung Virgin to the Piss ChristThe Washington Times columnist
Diana West argues,
Christianity and Islam are not interchangeable belief systems inspired by a
generic divinity. One relevant distinction is the way they operate in relation to
their societies. Christianity abides by the separation of church and state; Islam
knows no separation whatsoeverWhat is offensive here, then, is not the
extremely mild caricature, but rather those theological underpinnings of holy war
and suicide bombingsThe valiant Dutch parliamentarian and ex-Muslim Ayaan
Hirsi Ali put it this way: You cannot liberalize Islam without criticizing the
Prophet and the Koran You cannot redecorate a house without entering
inside.44
West evaluates Christianity and Islam in terms of which religion is capable of separating
church and state. Wests lack of discussion or even mention of the religion-infused
politics of public space and political culture in liberal democracies (not to mention the
conflation of religious identity and citizenship in Israel) is disheartening. From the
current battle in America to keep a Confederate flag flying over South Carolinas
statehouse to the struggle over the presence of a Ten Commandments monument outside
an Alabama courthouse, America is riddled with instances of muddled conflicts between
church and state.45 Yet Diana West congratulates Denmark for their separation of church
and state, and for keeping the light of liberty burning. Denmarks Prime Minister
Rasmussen, referencing Matthew 25:31-46, comments on those seeking restrictions on
freedom of speech: Now we see who are the sheep and who are the goats.46 Apparently

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the struggle over free speech is a righteous war tethered to the war against terrorism.
Freedom of speech is absolute, Rasmussen touted. It is not negotiable.47
Perhaps even more disturbing in Wests article is the underlying theological
assumptions that Islam is inherently associated with holy wars and suicide bombings. Her
reference to the valiant Dutch parliamentarian and ex-Muslim Avaan Hirsi Ali suggests
both a privileging of liberal democratic politics over her hypothesized political system
within the Islamic faith. The valiant defender of liberal democracy, Ali, advocates the
need to liberalize Islam. What better way, West argues, than through the critiques of
the Islamic faith which occur in the cartoons controversy? Wests use of Alis quote
allows her to summarize her concern over assimilating all Muslims: they need an
extreme home makeover. Unlike the popular U.S. television series, however, West will
not be interviewing the occupants to understand what type of home they desire.
Unlike a makeover, media discourse surrounding the cartoons controversy
repeatedly makes political appeals to the reprints of the cartoons being ammunition in
war. The Washington Posts Eugene Robinson argues that the cartoons controversy is
really a war of ideas:
The widespread hair-trigger outrage, I think, grows out of a sense that the world
of Islam has been used and abused for many years by a powerful and evil entity
called the Westand that this mistreatment is getting worse, not better. Which
is precisely the kind of paranoia that jihadists such as bin Laden and radical
fundamentalists such as [Iranian leader] Ahmadinejad love to cultivateThose
Danish cartoonists and their editor set out to teach Muslims a lesson about free
speech. They ended up giving the rest of us a startling illustration that while Bush

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and his allies speak of a post-Sept. 11 global war against terrorism, terrorism is
nothing but a tactic.48
Indeed, the Bush Administration, initially dancing around the need to balance freedom of
speech with press responsibility, quickly changed step:
[The Bush Administration] condemned the violent response to European cartoons
mocking Islam and accused Iran and Syria of exploiting the international
controversy to incite unrest and protests in the Middle East. I have no doubt that
Iran and Syria have gone out of their way to inflame sentiments and have used
this for their own purposes, Secretary of State Condoleezza Rice told reporters
yesterday. The world ought to call them on it.49
Rices suggestion that the cartoons are being used by Iran and Syria and Robinsons
claim that bin Laden is using the cartoons to cultivate paranoia shifts public attention
from any political strategies in the publication of the cartoons to the hijacking of a
simple exercise in freedom of press by terrorists looking to divide and conquer.
Rices implicit message that terrorists are threatening to hijack <free speech>
echoed across the nation. Several articles create analogies to Hitler to advocate the
political equivalence between fighting for <free speech> and fighting for democracy. For
instance, The Washington Times columnist Suanne Fields writes,
Like Hitler and those who followed him, Hamas thrives on humiliation and
blames others for its failures. Hamas understands that Muslims in the rest of the
world have done almost nothing to alleviate their situation, but they blame the
Jews (and occasionally the Christians), anyway. They keep it simpleYou dont
have to believe in the clash of civilizations to understand that a militant Hamas

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is a force greater than its numbers. Democracies that show weakness when
confronted by contempt for their freedoms inevitably pay dearlyFree speech,
even offensive free speech, is prized in the West. Tyrants understand that until
free speech is successfully suppressed they cannot get on with suppressing
everything else. The Islamic fanatics understand this as tyrants in the recent past
understood it. Johannes Gross, a German television commentator, observed that
resistance to Hitler and his kind would ebb, the further the Third Reich receded
into the past.50
In this instance, Fields argument exercises the traditional liberal <free speech> narrative
as central to the survival of liberal democracy. She is clear: <Free speech> is the prize to
be won or lost in this war. If it is won, liberal democracy triumphs over tyrants and
terrorism. If it is lost, everything else important to democracies will be lost. In this
argument by slippery slope, <free speech> encompasses the heart of liberal democracy.
Similarly, The Washington Times writes about controversial anti-Islam member
of the Danish Parliament, Geert Wilder, who routinely equates the Koran with Hitlers
Mein Kampf, saying it should be banned in the Netherlands, and he declared in an
interview that the Prophet Muhammad could be compared to the German dictator. 51 His
film, Fitna, Arabic for civil strife, was made to show that Islam and the Koran are
part of a fascist ideology that wants to kill everything we stand for in a modern Western
democracy.52 Diana West rejoins the discussion to challenge readers, But who besides
courageous Mr. Wilders will act to uphold Dutch law against Islamic-style censorship?53
The repeated comparison between Hitler and Muhammad, Mein Kampf and the Quran

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casts the cartoons controversy in a political war: the struggle for free speech is a struggle
for a liberal democratic way of life.
Political references to war and divergent ways of life echoed from the White
House across mainstream news outlets like The Washington Post, and even landed in
outlets like the Left newsletter Counterpunch. Counterpunch author Christopher Fons
writes,
Another way of looking at the issue is through the lens of immigration. Lets say
there is a small Scandinavian country with a functioning social democratic system
and you want to do your internationalist duty and allow millions of people to
come into your country from all over the world where people are fleeing
economic and political despotism. If said immigrants bring with them backward
ideas, like sexism, religious superstition, belief in inequality, etcwhat will be
the result for your good deed? It could transform the place into a backward place
not because said immigrants are inferior human beings but because their cultural
traditions have been respected. Should we thus sacrifice equality and social
democracy on the altar of tolerance for oppressed groups?54
Fons analogy between the cartoons controversy and immigration implies that the <free
speech> narrative is part of a political culture that, as Diana West might argue, valiantly
permits political and economic asylum to disadvantaged people. Like the Danish DVD
seeking to assimilate Muslims into Danish culture, Fons, West and others implicitly argue
the political superiority of liberal democracy.
The belief is that once assimilatednamely, through adherence to the <free
speech> narrativethe liberal democratic way of life will be preserved. In the realm of

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political appeals in media discourse surrounding the cartoons controversy, retreating

means losing free speech, the most fundamental right, the right that seems to embody a
way of lifedemocracy. Religion scholar Reza Aslan writes, There were people who
were annoyed, and what kind of publishing house doesnt publish something that annoys
some people?55 Across news outlets, media coverage cast a strict either-or caricature of
free speech that ignores the historical ambiguity of <free speech> and fosters an implicit
sense of political superiority during a distinct moment in world relations. Of course, the
hypocrisy abounds. Flemming Rose notes, Muslims should be allowed to burn the
Danish flag in a public square if thats within the boundaries of the law, he said, though
I think this would be a strange signal to the Danish people who have hosted them. 56
This double standard reveals the ways in which this is not really about the right to publish
anything, since those who initiated the publication of the cartoons caution potential acts
of what would otherwise be legally protected <free speech> among Muslims.
Legal Appeals in the Danish Cartoons Controversy
Inextricably woven to political appeals in the media coverage of the Danish
cartoons controversy are legal appeals. Recall Mary Ann Glendons sentiment, discussed
in this projects introduction: Legal discourse has become the single most important
tributary to political discourse.57 Indeed, the legal appeals to freedom of press and
freedom of speech litter the Danish cartoons controversy. From the moment the cartoons
were reprinted to the latest debate over Yale University Presss decision not to reprint the
cartoons in an academic book, the traditional liberal <free speech> narrative has been
used to tout both neutrality and universality of the important legal protection against

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prior restraint and freedom of press. Implicit in legal appeals against prior restraint are
political appeals to a way of life.
Between the 30 September 2005 and the 30 August 2009, The New York Times,
The Washington Post, and The Washington Times were prominently featured op-eds
creating legal appeals to liberal democracy amidst the clamor of the cartoons
controversy.58 When I limited keyword searches to articles containing Danish cartoons
controversy, free speech and First Amendment, the incidence of political appeals in
the media coverage of these three major news outlets was limited to 1, 1 and 0 articles,
respectively. When keyword searches were refined to Danish cartoons controversy,
free speech and censorship the incidence of legal appeals revealed 3, 7 and 3 articles,
respectively. Analysis of these few but influential articles reveals that censorship
became a way for discourse about prior restraint to justify the legal significance of the
First Amendment. More importantly, however, analysis reveals that discussion of the
legal significance of the First Amendment serves as a pulpit from which to preach
political superiority of the liberal, democratic system.
The heroic self-risk attributed to journalists is a descriptive characteristic of the
traditional liberal <free speech> narrative, considered priceless for healthy argumentation
and consequently crucial for democracy. On February 3, 2006, Jennifer Harper with The
Washington Times wrote, Twelve Danish editorial cartoons are challenging American
journalism ethics.59 Front Page Mag and syndicated columnist Michelle Malkin
published the cartoons, arguing,
This is a moment of global, historical importance. Anybody paying attention to
the Islamic sensitivity police knows there is enormous pressure to self-censor. I

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am extremely disappointed in the cowardice among mainstream media outlets for

declining to publish the cartoons, as if they were pornography. Free speech
preachers should walk the walkallowing the American public to see for
themselves what the controversy is all about.60
Setting journalism (and subsequently, freedom of press) at the center of this debate
frames the controversy in legal terms while enforcing political ideology. Malkins
dismissal of the cartoons as not pornographic reveals her adherence to First Amendment
law, particularly that pertaining to obscenity. Her argument that Americans should walk
the talk echoes the Roman rhetor Quintillians ethical call to practice what one preaches.
Yet it is her appeal to allowing the American public to see that most clearly illustrates
the privileging of a free press. Suzanne Fields with The Washington Times writes, Free
speech liberates the truth.61 As Justice Hugo Black wrote in New York Times Company
v. United States, Only a free and unrestricted press can effectively expose deception in
government.62 Such sentiments mobilize all the righteousness on the side of
publication, for only those who are at enmity with the truth fear free speech.63 Of
course, such sentiments also suggest that resisting prior restraint becomes a journalists
patriotic duty.
To forsake reprinting the cartoons becomes an indicator of a lack of patriotism,
and any newspaper, publishing house, or author who engages in such behavior is publicly
shamed. For example, when Random House cancelled publication of a Sherry Jones
romance novel, The Jewel of Medina, for fear that the appearance of Muhammad and his
wife Aisha would fuel Muslim fanatics in the cartoons controversy, constitutional lawyer
Bruce Fein remarked, Socrates spoke volumes by choosing the hemlock over ending his

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sleepless questioning of moral orthodoxies fervently held by his Athenian peers. Random
House should be ashamed by dishonoring them all.64 Feins analogy of journalists to
Socrates suggests that, like the famous philosopher, journalists have an obligation to ask
the tough questions, even if it results in public persecution. Likewise, an editorial on
Yales refusal to print the cartoons in one of its authors academic books chastises, In
effect, Yale University Press is allowing violent extremists to set the terms of free speech.
As an academic press that embraces the Universitys motto of Lux et Veritas, it should
be ashamed.65 The legal appeal to freedom of press repeatedly reinforces the connection
between <free speech> and light and truth. Consequently, readers applaud the four
editors at the alternative Observer newspaper who quit after managers refused to publish
the cartoons.66
Legal appeals in media discourse suggest that the good of the public depends on
such journalism. The Society of Professional Journalists Code of Ethics states,
Members of the Society of Professional Journalists believe that public enlightenment is
the forerunner of justice and the foundation of democracy. The duty of the journalist is to
further those ends by seeking truth. In a letter to the editor, Matthew Stiles McDonald
casts himself as a member of the general population who relies on the dedicated work of
journalists who are free from fear. He writes, I find it ironic that [The New York Times]
claims solidarity with moderate Muslim journalists who have been silencedUnlike
those courageous proponents for free speech, many of whom have received death threats
for publishing these images, The Times has yet to print any of the notorious
caricatures.67 When the University of Illinois dismissed students responsible for
publishing the cartoons in a student-run campus newspaper, student Cody Kay said, I

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was absolutely crushed to see that the editors were removed. What happened to freedom
of speech? If we start saying we cant look at things, whats next? Our books?68
Similarly, when the University of Wisconsins student paper The Badger Herald ran the
cartoons, editor-in-chief Mac VerStandig said, Universally we found the cartoons to be
repugnant. But we believe that there was a certain endangerment of free speech here,
especially given the general prudishness of the American press. We believe our readers
are mature enough to look at these images.69 There is a connection between the freedom
of press and the right of the American people to make their own minds. The appeals to
banned books and the general maturity of audiences cast censorship as paternalistic
threat, undermining individual autonomy.
Moreover, such appeals suggest that the traditional liberal <free speech> narrative
is a legal right that should be modeled by the U.S. for other countries. In his Washington
Post editorial, Thomas Kleine-Brockhoff wrote, News people make judgments about
taste all the time. We do not show sexually explicit pictures or body parts after a terrorist
attack. We try to keep racism and anti-Semitism out of the paper. Freedom of press
comes with a responsibility. But the criteria change when material that is seen as
offensive becomes newsworthy. 70 Kleine-Brockhoff references the images of bodies
falling out of towers, photos from Abu Ghraib and repeated snapshots of Janet Jacksons
breast. He says,
It seems odd that most U.S. papers patronize their readers by withholding
cartoons that the whole world talks about. To publish does not mean to
endorseIn this jihad over humor, tolerance is disdained by people who demand
it of othersIt is a peculiar moment when the government of the United States,

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which likes to see itself as the home of free speech, suggests to European
journalists what not to print.71
With great power comes great responsibility, Kleine-Brockhoff seems to argue. But hes
not talking about journalist responsibility to not publish the cartoons. He is implying that
the U.S. legal systema powerful world leaderhas a great responsibility in
perpetuating such legal doctrine and adherence throughout other countries. The idea of
free speech, Suzanne Fields writes in The Washington Times, is Americas most
important export. Our First Amendment is unique in the world; even our English cousins
tolerate prior restraint in certain circumstances.72
Media discourse surrounding the debate suggests that to publish the cartoons is
not only a legal right, but a legal responsibility. When Jyllands editor-in-chief, Juste,
apologized, We are sorry if Muslims have been offended, [but the newspapers actions]
were within the constitution, the Danish penal code and international conventionIt is
not a dictatorship like Saudi Arabia that is going to dictate our editorial line here in
Denmark. Aarhus University Professor Medhi Mozaffari scoffed, Its unthinkable that
the prime minister would make an apology. This is Islamists putting democracies on trial
to see how far they can be pressured.73 Mozaffaris use of the word trial suggests that
the liberal democratic way of life is on trial. Will journalists uphold the law no matter
how difficult? Or will truth be damned?
Running with the trial metaphor, when asked if he had any regrets about
publishing the cartoons, Rose responded, Asking me that is like asking a rape victim if
she regrets wearing a short skirt at the discoteque on Friday night.74 In a shocking
rhetorical move, Rose attempts to turn the tables on his opponents by arguing that

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journalists are the victimsdisplaying something provocative and then being raped. In a
different interview, Rose states, If we talk of freedom of speech, even if it was a
provocation, that does not make our right to do it any less legitimate before the law.75
Creating legal appeals to his right to be provocative, Roses analogy to a rape victim
casts the protesters with radical fundamentalists as attackers of libertys chastity.
Moreover, implicit in Roses analogy is the argument that he as the journalist has less
power than those who found the caricatures offensive but lack the same resources for
refutations.
The problem with contextualizing the cartoons controversy as a courtroom trial
about free speech is that the <free speech> narrative then operates under the guise of the
legal systems supposed neutrality: As long as we are all subjects of a joke at some point
or another, theres no harm. We would have done exactly the same thing if it had been a
pope, rabbi or priest caricature, wrote France Soirs edtior-in-chief Serge Faubert, We
had no desire to add oil to the fire as some may think. A fundamental principle of
democracy and secularism is being threatened.76 Deputy Director of the New Yorkbased Committee to Protect Journalists, Joel Simon, notes, We defend unpopular speech
around the world all the time. We dont make judgments whether we agree or disagree.
Sometimes we sort of have to hold our nose, but theyve got the right to say that, and we
defend their right.77 Several news articles make the comparison between the Danish
cartoons and a Washington Post publication of a cartoon showing an armless and legless
soldier. Defense Secretary Donald Rumsfeld told the soldier, Im listing your condition
as battle hardened. Six members of the Joint Chiefs of Staff wrote a letter of protest,
which The Post printed.78 The message behind the comparison is clear: the cure for bad

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speech is more speech. If we can abide by these rules, even when we are upset with what
someone says or draws, there is something wrong with you for not playing by our rules.
Enforcing the legitimacy of the traditional liberal <free speech> narrative through
legal appeals is reinforced by popular culture. The decision of entertainment shows like
Jay Leno, David Letterman, and South Park, for example, to poke fun at the controversy
illustrates this shared liberal fantasy behind the commonly evoked <free speech>
narrative. In the heat of the controversy, the creators of Comedy Centrals South Park
wrote an episode in which a caricature of the Prophet Muhammad appeared with the
other usual characters of the cartoon sitcom. The network, airing on the side of caution,
refused to permit this artistic license. The artists retaliated by producing an episode in
which they poked fun at Christ, President Bush, and the American flag. Columnist David
Bauder writes,
The creators of South Park skewered their own network for hypocrisy in the
cartoon's most recent episode. The comedy - in an episode aired during Holy
Week for Christians - instead featured an image of Jesus Christ defecating on
President Bush and the American flag . . . Only last week, South Park won
broadcasting's prestigious Peabody. Awards director Horace Newcomb said at the
time that by its offensiveness, the show reminds us of the need for being
tolerant.79
By choosing to portray what could be construed by some as offensive images of Christ, a
U.S. President and the American flag, the creators of South Park furthered the argument
that we are all equal in the eyes of the First Amendment. The artists tried yet again in
April 2009 but were met with the same response from the network. Political commentator

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Andrew Sullivan echoes a similar argument for the need to combat intolerance of equal
mockery,
Any actual depiction, as in 2001, was covered with a block of black with the
word censored on it. In some ways, this act of censorship wasnt too big of a
deal. It actually helped illuminate the unique intolerance of Sunni IslamSouth
Park has long had Jesus and Satan, they have ridiculed Mormonism, eviscerated
Scientology, mocked Catholicism and showed the Buddha actually doing lines of
coke. None of the adherents of these other faiths have threatened to kill Matt and
Trey, but, of course, some Sunni Islamists did so.80
Supreme Court Justice Roberts articulated the people of a good society must be
toleranteven if tolerance is equated with intolerance, exemplified by ridicule and
mockeryfor the greater good of the community. Similarly, the South Park writers
evoke a <free speech> narrative in which the legal individual right of expression is
equated with public good. Bauders words illustrate the traditional liberal <free speech>
narrative well: heroes of democracy are those who are tolerant.
The First Amendment Centers senior scholar Charles C. Haynes acknowledges,
Censoring speech offensive to religion, it turns out, is a popular idea in the land of the
free. In a poll taken by the First Amendment Center in 2004, nearly half of Americans
don't think people should be allowed to say things in public that might be offensive to
religious groups.81 However, he continues,
The right to offend is, in fact, at the heart of religious freedom in America. The
landmark case defining the free exercise of religion in the United States, Cantwell
v. Connecticut (1940), was all about the right of one faith to offend anotherThe

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U.S. Supreme Court overturned Cantwell's conviction, ruling that religious liberty
and free speech protect the right to offend. Writing for the court, Justice Owen J.
Roberts put the issue this way: In the realm of religious faith, and in that of
political belief, sharp differences arise. In both fields the tenets of one man may
seem the rankest error to his neighbor. To persuade others to his own point of
view, the pleader, as we know, at times, resorts to exaggeration, to vilification ...
But the people of this nation have ordained in the light of history, that, in spite of
the probability of excesses and abuses, these liberties are, in the long view,
essential to enlightened opinion and right conduct on the part of citizens of a
democracy. Justice Roberts had it right. It is always messy and often painful, but
only a society that protects the right of all voices to be heard however offensive
or unpopular can call itself a free nation.82
Couching <free speech> in the legal right to offend, Haynes creates an argument
parallel to those circulated in the news medias arguments in favor of the publication of
the cartoons. Referencing the authority and power of the judicial branch, Haynes conjures
the age-old narrative of <free speech>s role in the formulation and preservation of
democracy. Without exaggerations and vilifications, there can be no enlightened
opinion. Through Haynes evocation of Supreme Court Justice Roberts, free speech is
conceived as not just a fundamental right, but a fundamental tool of democracy, of
freedom itself.
As critics of censorship emerged in the press and on the television, they
repeatedly propagated the notion that any group or person against the publication of the
cartoons was, very simply, breaking the law. Of course, behind this claim, the

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ideographic clusters are hard at work. By continually appealing to the legal right to <free
speech>, terms like liberty, democracy and freedom of press created a mock
courtroom, and cast those who protested the publications as plaintiffs, while the free
speech absolutists were the defense, jury and judge. Rose argued, The modern, secular
society is rejected by some Muslims. They demand a special position, insisting on special
consideration of their own religious feelings. It is incompatible with contemporary
democracy and freedom of speech, where you must be ready to put up with insults,
mockery and ridicule.83 Roses phrase incompatible with contemporary democracy
privileges a characteristic of neutrality in American law: in a democracy, we are all equal.
We are all the same before the lawsuspect to the same ridicule, capable of accessing
the same economic and social resources, and beneficiaries of the same political powers.
Those who demand a special position are consequently not tolerant, which means they
are not good members of a liberal, democratic society.
While the First Amendment tells us that the government cannot restrict speech
simply because it is offensive, US society continues to struggle with hate speech codes
from the Left (like the work of Catherine MacKinnon and Andrea Dworkin) and attempts
from the Right to ban art work (see Robert Mapplethorpe's The Perfect Moment). Even
our own judicial branch has wrestled through bad tendency doctrines and clear and
present danger tests, toggling the need to keep speech free from prior restraints with the
societal interest in punishing speech regardless of whether its true or false because of its
propensity to cause harm or have bad tendencies. However, the traditional liberal <free
speech> narrative is touted as a suicide pact: It is a universal law that, despite how trying

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and painful it might seem at times, must be enforced and adhered to in the name of a
healthy democracy.
Moral Appeals in the Danish Cartoons Controversy
The argument of legal universality behind the <free speech> narrative is
intimately connected to the moral righteousness of the liberal ideology the ideograph
perpetuates. There is something almost religious in the way the media talks about <free
speech>. Stanley Fish persuasively argues that we all adhere to a religion of letting it all
hang out, the religion we call liberalism.84 Accordingly, there are many followers of this
religion that live by the tenet, let him without sin cast the first stone. Peters writes, The
real grip on the public and legal imagination is held by the idea that we are righteous in
proportion to our refusal to judge.85 Peters notes that in the last three or four decades, the
Supreme Court has remained agnostic on First Amendment issues, enacting an attitude
of abstention from judgment about political, social and moral values.86 But in our
refusal to judge, we are making judgments.
To understand this irony in media appeals to the morality of the <free speech>
narrative, I turn to Scholar Frederick Schauer. In his article, The First Amendment as
Ideology, Schauer quotes Learned Hand, who wrote,
The interest, which [the First amendment] guards, and which gives it its
importance, presupposes that there are no orthodoxiesreligious, political,
economic, or scientificwhich are immune from debate and dispute. Back of that
is the assumptionitself an orthodoxy, and the one permissible exceptionthat
truth will be most likely to emerge, if no limitations are imposed upon utterances

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that can with any plausibility be regarded as efforts to present grounds for
accepting or rejecting propositions whose truth the utterer asserts, or denies.87
Schauer wrestles with Hands paradox, acknowledging that the view that a broadly
protective understanding of the First Amendment is taken as an orthodoxyor ideology
as I prefer to call it, but argues, that this is a phenomenon to be bemoaned and resisted
rather than accepted or celebrated.88 The strict adherence to the First Amendment is not
a refusal to judge. On the contrary, it is a commitment to judgments of all persuasions.
The cartoon controversy reflects this argument.
Between the 30 September 2005 and the 30 August 2009, The New York Times,
The Washington Post, and The Washington Times, behind the political and legal
arguments, media discourse wove moral appeals into argument after argument in favor of
(re)printing the cartoons.89 When keyword searches were limited to articles containing
Danish cartoons controversy, free speech and moral, the incidence of moral
appeals in the media coverage of these three major news outlets was limited to 1, 2 and 1
articles, respectively. When keyword searches were refined to Danish cartoons
controversy, free speech and truth the incidence of moral appeals was still limited to
1, 3 and 0 articles, respectively. Analysis of these articles reveals moral indignation in the
<free speech> narrative as the key tenet in the religion called liberalism, and that there is
only one means of political engagement: discussion.
Even the World Council of Churches described freedom of expression as a
fundamental right, and noted that it must be used responsibly. While they denounced
the publications of the cartoons, they also join with the voices of many Muslim leaders
in deploring the violent reactions to the publications.90 Under strict adherence to the

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<free speech> narrative, even a concession that the publication of the cartoons may be in
bad taste is outweighed by a judgment that the only way to protest such cartoons is
through more speech. Fish writes, The belief in the therapeutic and redemptive force of
dialogue depends on the assumption (central to liberalisms theology) that, after all, no
idea is worth fighting over to the death and that we can always reach a position of
accommodation if only we sit down and talk it out.91 Of course, a quick glance at the
media discourse surrounding the controversy and it becomes increasingly obvious that
while nearly all parties argue that the cartoons are not worth fighting over, the <free
speech> narrative is.
Regardless of whether one identifies as a Democrat or Republican, the <free
speech> narrative functions as a necessary evil. The narrative reads that while offenses
may occur with speech, we can only find moral liberation through robust and rigorous
debate. Counterpunch columnist Christopher Fons writes,
As a leftist I thought that our goal was liberation through thorough and robust
debate and confronting irrational ideas and superstition in particular? This means
that if someone is offended because we say that the world is round then too bad.
The truth hurts. If we are constantly weary of offending, then truth, yes I believe
in such a thing, will never over come the backward state of affairs today that
allows gays to be treated like second class citizens, intelligent design to be taught
in schools and people in the US and Britain to believe that the war in Iraq is being
prosecuted for humanitarian ends.92
Fons refers to the <free speech> narrative as the means by which we can cast out
discriminatory thoughts and practices against gays, and challenge the fallacious reasoning

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behind a war purportedly helping, as opposed to harming, others. Yet Fons argues for
<free speech> as a means of confronting irrational ideas. Consequently, those offended
by the publication of the cartoons become equated with people who hold irrational
thoughts: in Fons own words, like those who are offended by the idea that the world is
round, or the idea that gays deserve equal protection and rights under the law, or the
notion of intelligent design as a legitimate school of thought. When even progressives
see protest against racism and indignity as backwards, we have a serious problem.
Casting the petulant practice of the <free speech> narrative as necessary implies a
moral obligation to discovering Truth (yes, with a capital T). Brooklyn Law Professor
Emeritus Henry Mark Holzer embraces this ideology when he writes,
The issue is not that the press has a right to publish the cartoons. That's
undeniable. It's Constitutional Law 101. No, the issue is the duty of the American
press to publish the Muhammad cartoons. It's not a social or political duty, but
rather a moral duty, rooted in the legacy of the Founders and the self-generated
principle the press has wrapped itself in for more than 200 years: the public's
right to knowIndeed, it was the perceived moral duty of the press in service of
the public's right to know that brought us editorial cartoons such as Joe McCarthy
climbing out of a sewer carrying a bucket overflowing with slime, and of Richard
Nixon dressed like a plumber. Now, in the matter of the Muhammad cartoons,
virtually all of the American press has suddenly done an about face in the name
of restraint, sensitivity, respect, tolerance and other out-of-context
bromides.93

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Here we see that it is not just a legal right; it is a moral obligation to print the cartoons.
Those who advocate otherwise, Holzer sarcastically states, are putting us all to sleep
wearing political correctness to the bone. Holzer analogizes the printing of caricatures of
Muhammad to cartoons revealing the truth about McCarthyism and Watergate. Like
Fons, Holzer seems to cast the mockery within the cartoons as not just mockery, but as a
glimpse into the Truth about Islamic religion. This is a departure from the pure legal
argument, in which the cartoons are seen as simply perhaps an inappropriate but
nonetheless harmless consequence of free speech. With Holzer and others who advocate
the morality of free speech, contestations over the public has a right to know treats this
doctrine as a religion.
Yet, few are willing to talk about the truth behind the liberal religion. Fish writes,
A firm adherent of a comprehensive religion doesnt want dialogue about his beliefs; he
wants those beliefs to prevail. Dialogue is not a tenet of his creed, and invoking it is
unlikely to do anything but further persuade him that you have missed the pointas,
indeed, you are pledged to do, so long as liberalism is the name of your faith94 A firm
adherent of the <free speech> narrative does not want to dialogue about her belief that
discourse is the only means (and is accessible as a strategy by all) because it is her Truth.
These common moral appeals serve as a defense of the cartoons, and concoct a belief in a
particular type of political ideologythat of liberal democracyin which the public
sphere is marked by equality of access, identity and power. Sunstein explains this belief,
The system of deliberative democracy is premised on and even defined by reference to
the commitment to political equality . . . the identity, the resources, and the power of the
speaker do not matter.95 In other words, in the terrain of free speech, the playing field is

117

level, so choosing discourse over protest becomes about ones ability to identify and
choose the proper moral action.
Those who interfere with free speech, though occasionally referred to as those
with good intentions, are labeled as irrational (according to Fons) and against the public
good (according to Holzer). Such moral appeals to the <free speech> narrative are not
limited to American media discourse. Janet Albrechtsen, with The Australian, complains,
In an especially neat twist, leaders in Arab and Muslim countries began ululating
about human rights. In this case, the right not to be offended. But pointing the
finger at Western insults, while you go in for state and judicially sanctioned Bible
burning, eye-gouging, maiming, flogging and the execution of children is not a
convincing look. Muslim hypocrisy aside, the reaction of many in the West to the
Danish cartoons is also short of the mark. While newspapers across Europe
reprinted the cartoons in a show of support for free speech, the response by many
Europeans has been decidedly Europeany -- one tentative step forward and two
sissy steps back in defending Western values. If inciting feelings has become the
new benchmark for free speech, we only have ourselves to blame for that
misunderstanding. So many of the incursions on free speech in the West are
driven by a well-meaning desire to create a world free of offence. A universal
nanny state where all is peace and love, and never a cross word is spoken. If
freedom of speech means anything, it means the right to offend the sensibilities of
others. Standing up for the right to express namby-pamby, inoffensive opinions is
the easy part. It's defending the confronting, offensive and insulting stuff that tests
our commitment to free speech. . . When we're talking about ideas -- and religion

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is, after all, just an idea -- the touchstone of free speech should be that old nursery
rhyme: Sticks and stones may break my bones, but words will never hurt me.96
Albrechtsen passes broad judgment under the guise of the <free speech> narratives
neutrality. Referencing the old nursery rhyme of only words, Albrechtsen falls back on
her adherence to the moral superiority in the <free speech> narrative: at least our religion,
she quips, does not support state sanctioned Bible burning, eye-gouging, maiming,
flogging and the execution of children. The problem is that we are not just talking
about ideas. This passage exudes the problematic nature of a dogmatic worldviewnot
fundamental Islam, but rather fundamental liberalism. Peters writes, Insisting on one
virtue at the expense of other virtues is sophomoric.97
I believe that this dogmatic adherence to liberalism is a rhetorical strategy used to
demonize a particular perspective. Resonating with Holzer, Albrechtsen writes argues
that there is something inherently immoral about the protests of Muslims over the
cartoon, and something inherently moral in the <free speech> narrative:
The narrative is like a sunshine law, reveling in its blunt and often offensive honesty, and
reckoning with its appraisal of morality in the public sphere, scarlet lettering those
opposed to freedom of expression which is so tightly woven with liberal democracy. In
Albrechtsens statement, we return to Roses test: evoking the <free speech> narrative,
reprinting the cartoons becomes a badge of honor, a defense of American ideals, and a
rite of passage to earn American democracy and liberty. Furthermore, it is understood as
a fail-safe test in identifying the enemy: the enemy who must not be tolerated in open
deliberation, let alone in society.

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<FREE SPEECH> AS HEGEMONY

When Flemming Rose, the editor of Jyllands-Posten, claimed that he was testing
the boundaries of censorship in a time of war, his rhetoric tapped into our fondest
mythos, or cultural references, and evoked American history from McCarthyism to the
PATRIOT Act. Given the political, legal, and moral appeals within the media discourse
surrounding this debate, it becomes clear that dissenters are figured as undemocratic
censor who are illegitimate in their claim to legal recourse and immoral in their attack on
a public good. Protests by Muslims, on this argument, do not adhere to more civilized
means of free speech; protesters refused to engage in friendly banter or robust and
rigorous dialogue. Thus, the demonstrations became a well-intentioned but slippery slope
to losing not just free speech but the liberal democratic way of life. Symbolic rhetoric
surrounding the reprints of the cartoons seem to marginalizes their critics whose public
confrontations meet criticism for not abiding by the gentlemanly rules of deliberative
discourse in the public sphere. Protesters are unenlightened threats to a democratic way
of life.
In this way, the use of the <free speech> frame functions as a double bind to pin
down defenders of Islam and critics of the cartoons. As people around the world protest,
boycott and riot in response to racist caricatures during the War on Terror, the <free
speech> narrative generates the production of a clash of civilizations. The latter
constructs an all or nothing, us vs. them dichotomy, and draws a line in the sand,
positioning a generic, unenlightened Islam on one side and a righteous, modern U.S. on
the other. Cloud explains that such an argument refers to the idea that the United States
and its people face an incontrovertible conflict with Others, particularly Islamic Others,

120

whose civilizations are inferior and hostile to Western capitalism.98 Through the <free
speech> narrative, the clash of civilizations argument emerges to explain why the Other
cannot seem to deliberate rationally with us, and why the Other does not understand
or like free speech and consequently democracy. The controversy becomes understood
as a battle between the good and the evil, the colonizer and the colonized, the West and
the East. Media and politicians frame the subsequent rioting and violence as irrational
and undemocratic, which then becomes fuel for the fiery clash of civilizations argument.
As a social movement, protests and riots of the cartoons are being framed not only
as a sort of childish tantrum, and as a betrayal to the Western ideals of democracy, but as
on the malign work of Islamic extremists.99 The Philadelphia Inquirer writes,
The whole drama has been stage-managed by radical Islamists who want to
provoke a clash of civilizations. Without such intervention this minor tiff wouldn't
have grown into a worldwide conflagrationSome will say the Danish paper
handed the Islamists their opportunity. That's much too glib. Jyllands-Posten was
responding to a real issue in Europe: media self-censorship because of fear of
Islamist violence. The paper may have offended, but the violent reaction confirms
the problem it meant to expose. The issue is not simply one of anti-Muslim
prejudice. It reflects the broader threat posed by a small Muslim minority to wider
European publics. This minority also endangers moderate European Muslims who
will be the victims of any anti-immigrant backlash provoked by Islamist violence.
In addition, the cartoon flap reveals the self-defeating behavior of secular Arab
countries. In an effort to divert European pressure for better behavior, some

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leaders are willing to encourage Islamist outrages that could boomerang against
them.100
Similarly, Ms. Klausen, the author of the book Yale published without the images, argued
that the cartoon protests were not spontaneous but rather orchestrated demonstrations by
extremists in Denmark and Egypt who were trying to influence elections there and by
others hoping to destabilize governments in Pakistan, Lebanon, Libya and Nigeria. The
cartoons, she maintained, were a pretext, a way to mobilize dissent in the Muslim
world.101 The narrative thus becomes a hegemonic device, or a way of controlling how
Americans view the debate as an issue of protecting our freedoms, not recognizing that
our freedoms are not equally distributed among all people.
But while the <free speech> trope works in this particular instance as a powerful
trump card for the proponents of the War on Terror, its celebrants forget that the struggle
is for power and agency, which can be a two-sided struggle. Without endorsing the
violence of many of the Islamic protests over the Danish cartoon controversy, I wish to
draw attention to the possibility that beneath the weight of the fantasy of the <free
speech> narrative, perhaps there is little else one can do besides push back. While in this
case, the <free speech> narrative operates to displace attention from the inequalities and
contradictions within the liberal tradition by discrediting a movements attempt to
challenge such inequalities (and violence), the <free speech> trope is entrenched in our
culture. It becomes difficult for those wishing to intervene in this debate to abandon the
trope altogether. However, the <free speech> narrative is not just a tool of social control.
Todd Gitlin writes, The more closely the concerns and values of social movements
coincide with the concerns and values of elites in politics and in media, the more likely

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they are to become incorporated in the prevailing news frames.102 Consequently, it

behooves those interested in fostering change to embrace the <free speech> narrative, but
from a different angle. What is needed is the return of assembly and petition to
popular understandings of <free speech>. If the boycotts and protests could be framed by
the media as actions of free speech, perhaps some cultural ground could be gained on
which to build discussions of the limitations of <free speech>.
CONCLUSION
As critics from across the political spectrum have rallied behind Denmarks right
to freedom of press, there is white noise behind Jay Lenos jokes and the South Park
episodenoise that says behind Bluitgens book, and behind the <free speech> narrative,
there is another story of agitation and control. Since the controversy erupted in 2005,
critics still clamor: not publishing the cartoons is a testament to the power of terrorism.
When the Denmark national library secured several of the cartoons for preservation
purposes on 30 January 2007, library spokespeople maintained that the collection is not
intended to be controversial.103 Ervin Nielsen, the director of the Danish media museum
in Odense, said, We do not want to provoke, but inform.104 Yet one might ask given the
free speech frame in which information has been dispensed, what version of history will
be on display? Antiwar.com columnist Justin Raimondo argues,
The kind of hate exhibited in those cartoons, which dramatize the neoconservative
view of the Muslim world as inherently terroristic [is] a view that the
perpetrators of this provocation were hoping would be demonstrated in the
Muslim reaction. The publication of the 12 cartoons, and the reaction on both
sides, is a classic case of how propaganda of the crudest sort is utilized to mold

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mass attitudes and whip up entire populations into a state of hysteria. Hate and
fear are created out of thin air by the most skillful means, and stereotypes take the
place of reality as the world prepares for war. Thats what this is all about: the
hate propaganda emanating from certain quarters in Europe and the U.S. amounts
to preparations for war just as much as the manufacture of arms and the
mobilization of armies at the border. We are being psychologically prepared for
another world war, and the first shots are being fired from the pages of JyllandsPosten. I have the sinking feeling that they won't be the last.105
In other words, the <free speech> narrative has become a hegemonic strategy of restoring
order in a situation of unrest. As Peters reminds us, The ideal of free speech today often
serves less as a means to create a public life where ideas jostle openly than to create a
monopoly of righteousness for its defenders.106
The <free speech narrative> is alive and well, and tells a story about a public
sphere where there is no difference in power, identity, or access to the public sphere.
Least we not forgot that this liberal commitment to <free speech> is interdependently
connected with the democratic way of life. So as the Islamic world still wrestles to figure
out how to be heard, they continue to be discredited as illegitimate, immoral and
undemocratic. The threat of our First Amendment rights, the <free speech> story
narrateseven if not everyone can access themtells us that that is reason enough and
then some to go to war. This chapter explored how a liberal commitment to <free
speech> is employed in the Danish cartoons controversy to discredit political dissent. In
the next chapter, I explore how we struggle over a similar commitment, that to <academic
freedom>, to control political engagement in university settings.

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125

TABLE 1
Incidence of Free-Speech Appeals in Danish Cartoons Controversy News Coverage in
The New York Times, The Washington Post, and The Washington Times
Newspaper
Keyword Search
Number of Articles
Danish cartoons
27
controversy
The New York Times
Danish cartoons
controversy + free-speech
OR free speech
Danish cartoons
controversy

11

Danish cartoons
controversy + free-speech
OR free speech
Danish cartoons
controversy

16

Danish cartoons
controversy + free-speech
OR free speech

44

The Washington Post

22

The Washington Times

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TABLE 2
Incidence of Political Appeals alongside Free-Speech Appeals in Danish Cartoons
Controversy News Coverage in The New York Times, The Washington Post, and The
Washington Times
Newspaper
Keyword Search
Number of Articles
Danish cartoons
13
controversy + free-speech
The New York Times
OR free speech + war

The Washington Post

The Washington Times

Danish cartoons
controversy + free-speech
OR free speech +
democracy

Danish cartoons
controversy + free-speech
OR free speech +
liberalism
Danish cartoons
controversy + free-speech
OR free speech + war

14

Danish cartoons
controversy + free-speech
OR free speech +
democracy

Danish cartoons
controversy + free-speech
OR free speech +
liberalism
Danish cartoons
controversy + free-speech
OR free speech + war

14

Danish cartoons
controversy + free-speech
OR free speech +
democracy

Danish cartoons
controversy + free-speech
OR free speech +
liberalism

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TABLE 3
Incidence of Legal Appeals to the First Amendment alongside Free-Speech Appeals in
Danish Cartoons Controversy News Coverage in The New York Times,
The Washington Post, and The Washington Times
Newspaper
Keyword Search
Number of Articles
Danish cartoons
1
The New York Times
controversy + free speech
+ First Amendment

The Washington Post

The Washington Times

Danish cartoons
controversy + free speech
+ Censorship
Danish cartoons
controversy + free speech
+ First Amendment

Danish cartoons
controversy + free speech
+ Censorship
Danish cartoons
controversy + free speech
+ First Amendment

Danish cartoons
controversy + free speech
+ Censorship

TABLE 4
Incidence of Moral Appeals alongside Free-Speech Appeals in Danish Cartoons
Controversy News Coverage in The New York Times, The Washington Post, and The
Washington Times
Newspaper
Keyword Search
Number of Articles
Danish cartoons
1
The New York Times
controversy + free speech
+ moral
Danish cartoons
2
The Washington Post
controversy + free speech
+ moral
Danish cartoons
2
The Washington Times
controversy + free speech
+ moral

128

Cary Nelson, Academic Freedom Abridged at Yale Press, AAUP, August 13, 2009,
http://www.aaup.org/AAUP/about/pres/let/YalePress.htm (accessed March 27, 2010).
2
Patricia Cohen, Yale Press Bans Images of Muhammad in New Book, The New York Times, August 12,
2009.
3
Nelson.
4
Cohen.
5
Deep Kumar, Danish Cartoons: Racism Has No Place on the Left, MRZine, February 21, 2006,
http://mrzine.monthlyreview.org/kumar210206.html (accessed March 27, 2010).
6
By the largest reported circulation, as of March 31, 2006. See Audit Bureau Circulation, Top 100
Newspapers in the United States, ed. Pearson Education, http://www.infoplease.com/ipea/A0004420.html
(accessed March 27, 2010).
7
Jytte Klausen, The Cartoons That Shook the World (New Haven: Yale University Press, 2009), 26. It
should be noted that in researching her book, Klausen carried along to her interviews with Muslim leaders
and diplomats a copy of a dossier produced by the protesting Danish imams with the cartoons and other
material they had included to document their complaints. In her experience, Muslims generally say they
are more affronted when they see all the cartoons than they were when they were following a second-hand
discussion in the media coverage. Klausen concluded that Roses observations about the cartoons not
being as bad when you see them as they appeared in the newspaper is probably true in the case of nonMuslims, who tend to wonder what the fuss was about once they see them fully.
8
Methodological note: A foray into world news coverage (via targeted LexisNexis searches) reveals nearly
995 articles published between September 2005 and August 2009 describing the Danish cartoons
controversy. A search of online historical archives for news coverage containing the search term Danish
cartoons controversy in New York Times, Washington Post, and Washington Times between 30 September
2005 (the initial publication) and 30 August 2009 (the most recent resurfacing of the cartoons controversy
with Yale University Presss decision not to publish images of the Prophet in Klausens academic book)
yielded 93 documents (with 27 appearing in The New York Times, 44 appearing in The Washington Post,
and 22 appearing in The Washington Times).8 When the terms free-speech and free speech were added
to the original searches, documents appearing in The New York Times were limited to 11, documents in The
Washington Post were limited to 16, and documents in The Washington Times were limited to 7. The
following set of tables represents the results of these focused key word searches in Newspaper Source and
in Lexis/Nexis.
9
Critical must not be conflated with demeaning. Bluitgen had no intention of writing a story degrading the
Prophet Muhammad or the Islamic faith. He had in fact already written a biography of the Prophet, and was
seeking to make the knowledge children-friendly. The artists who declined the offer to illustrate Bluitgens
book cited examples of harm incurred by others who one way or another spoke critically of Muslims in
public. For instance, in October 2004, a lecturer at the Niebuhr institute at the University of Copenhagen
was attacked by five men claiming to be Muslim. He was accused of having read the Qur'an to nonMuslims during a lecture. Also, Dutch film director Theo Van Gogh, outspoken against organized religion,
targeted Islam in the nineties as his next topic of criticism. He called Muslims goat-fuckers. A Muslim by
the name of Mohammad Bouyer shot Van Gogh eight times, slit Van Goghs throat and left two knives in
his chest.
10
Politiken, Dyb angst for kritik af islam [Profound Fear of Criticism of Islam], September 17, 2005.
11
Flemming Rose, Why I Published Those Cartoons, The Washington Post, February 19, 2006, B01.
12
Flemming Rose, Muhammeds ansigt [The Face of Muhammed], Jyllands-Posten, September 30, 2005.
13
Klausen, 13-14.
14
Klausen, 25.
15
Klausen, 21.
16
Klausen, 21.
17
Klausen, 24.
18
Klausen, 24.
19
For more about the function of vilifying Muslims under the pretext of rescuing women, see Dana Cloud,
To Veil the Threat of Terror': Afghan Women and the <Clash of Civilizations> In the Imagery of the U.S.
War on Terrorism, Quarterly Journal of Speech 90 no. 3 (2004): 285-306.
20
Klausen, 24.

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21

Klausen, 22. Klausen comments that the use of physiognomy to portray the Prophets violent or
treacherous inner qualities is unpleasantly similar to the racialist Rassenschander of Nazi iconography.
22
Klausen, 21.
23
Klausen, 22.
24
Council for American-Islamic Relations, Islam Declares Depictions of Prophets a Sin: Reason: Quran
forbids any hint of idolatry (February 13, 2006). It should be noted that Muslim tradition is an aniconistic,
not an iconoclastic religion. The representation of figurative images like the Prophet is not prohibited. The
Quran prohibits idolatry, and is more concerned with adoration or insult than with mere pictures of the
Prophet.
25
See the Danish Criminal Code, Sections 140 and 266b. See Ministry of Foreign Affairs of Denmark,
Official Response by the Danish Government to the UN Special Rapporteurs, January 24, 2006,
http://www.um.dk/NR/rdonlyres/00D9E6F7-32DC-4C5A-8E24-F0C96E813C06/0/060123final.pdf
(accessed March 27, 2010).
26
Although we should be able to have a discussion of this controversy with the common sense
understanding that Islam is a diverse religion with various sects and diversity within each, unfortunately
much of the world has contextualized the cartoons and subsequent responses as symptomatic of the very
root of the Islamic faith itself. Therefore, it is important to offer a reminder that although most Muslims
were troubled by the cartoons, and many protested, it is the radical fringe Muslim groups, like Salafi, who
believe in death as the price for insulting the Prophet, and consequently, who are responsible for most of
the violence in the riots. Second, it seems worth mentioning that, as in most protests, some violence was on
the side of the police reacting to mobs. For stories surrounding deaths in violent protests, see Middle East
Times, Protesters Killed as Global Furor Over Cartoons Escalates, February 6, 2006. See also Times
Online, 70,000 Gather for Violent Pakistan Cartoons Protest, February 15, 2006,
http://www.timesonline.co.uk/tol/news/world/asia/article731005.ece (accessed March 18, 2010).
27
Rose, Why I Published Those Cartoons.
28
For example, Most Amish consider posing for photographs to be an unacceptable act of pride and do not
allow pictures of themselves. See Albrecht Powell, Visiting the Amish: Amish Etiquette Dos and
Donts, About.com, http://pittsburgh.about.com/cs/pennsylvania/a/amish_country.htm (accessed March
27, 2010). See also Navajo Tourism, Frequently Asked Questions, Discover Navajo,
http://discovernavajo.com/faq.html (accessed March 27, 2010).
29
Cohen.
30
Cartoon Body Count, Commotion Media Publishing,
http://web.archive.org/web/20060301215407/www.cartoonbodycount.com/stats (accessed March 18,
2010).
31
According to a BBC report, the Popes speech explored the historical and philosophical differences
between Islam and Christianity and the relationship between violence and faith. He quoted Emperor
Manual II Paleologos of the Byzantine Empire, Show me just what Muhammad brought that was new and
there you will find things only evil and inhuman, such as his command to spread by the sword the faith he
preached. See BBC, Popes Speech Stirs Muslim Anger, September 14, 2006,
http://news.bbc.co.uk/2/hi/europe/5346480.stm (accessed March 27, 2010). For incidents of violence
ensuing after the Popes remarks, see Associated Press, West Bank Churches Struck After Popes
Remarks: Violent Protests Erupt as Islamic World Condemns Potiffs Comments, September 16, 2006,
http://www.msnbc.msn.com/id/14846353/ (accessed March 27, 2010).
32
Prominent cleric Hojatoleslam Ahmad Khatami declared, In the Islamic Iran that revolutionary fatwa. . .
is still alive and cannot be changed. . . The old and decrepit government of Great Britain should know that
the era of their empire is over and today they are a valet in the service of the United States. See Turkish
Weekly, Iranian Cleric: Fatwa Against Rushdie is Still Alive, June 22, 2007,
http://www.turkishweekly.net/news.php?id=46317 (accessed March 27, 2010). The Jomhuri Eslami
newspaper wrote, The question is what the old British crone sought by knighting Rushdie: to help him?
Well, her act only shortens Rushdie's pathetic life. See Tom Hundley, Rushdie, Britain Stir Muslim
Worlds Fury, Chicago Tribune, June 20, 2007.
33
In June 2007, Queen Elizabeth II knighted novelist Salman Rushdie, who still lives under an irrevocable
fatwa that came with burning bookstores and world violence after he published The Satantic Verses. Upon
hearing of the knighting, Tehran's substitute Friday Prayers Leader Ayatollah Ahmad Jannati said he hoped
the 1988 fatwa would go into effect and asked the Iraqi and Lebanese nations to be vigilant against the

130

arrogant powers' divisive plots. Islamic Republic News Agency, Ayatollah Jannati blasts UK's knighthood
award to Rushdie, June 29, 2007, http://www2.irna.ir/en/news/view/line-17/0706297382152356.htm
(accessed March 27, 2010).
34
Anthony Shadid and Kevin Sullivan, Anatomy of the Cartoon Protest Movement: Opposing Certainties
Widen Gap Between West and Muslim World, The Washington Post, February 16, 2006, A01. Italics
added for emphasis.
35
See Table 2.
36
Samuel Huntingtons popularization of the clash of civilizations frame is used by some critics to argue
the visual imagery of the cartoons and subsequent dialogue about the cartoons creates a revival of the WestEast dichotomy. These critics argue that such a frame is a hegemonic strategy to justify war and U.S.
occupation. For more on the clash of civilizations, see Samuel Huntington, The Clash of Civilizations
and the Remaking of World Order (Simon & Schuster, 1998).
37
Helle Dale, Clash of the Titans: Civilization Must Prevail by All Means, The Washington Times,
February 8, 2006, A19.
38
Dale, A19.
39
Kevin Sullivan, Danish Premier Faults Iran, Syria: Governments Using Cartoon Controversy as
Distraction From Their Own Crises, He Says, The Washington Post , February 10, 2006, A12.
40
Alan Cowell, West Coming to Grasp Wide Islamic Protests as Sign of Deep Gulf, The New York
Times, February 8, 2006, 10.
41
Cowell, 10.
42
Dan Bilefsky and Ian Fisher, Across Europe, Worries on Islam Spread to Center, The New York Times,
October 11, 2006, 1.
43
Bilefsky and Fisher, 1.
44
Diane West, "Cartoon Network: Why Islam is Different," The Washington Times, February 17, 2006,
A21.
45
Peter Hamby, Confederate Flag Again at Issue in South Carolina, CNN, September 23, 2009.
46
Diane West, European Muzzlers: War on Terror Sidetracked by Danes, Others, The Washington Times,
December 30, 2005, A23. Matthew 25:31-46 states: "When the Son of Man comes in his glory, and all the
angels with him, he will sit on his throne in heavenly glory. All the nations will be gathered before him, and
he will separate the people one from another as a shepherd separates the sheep from the goats. He will put
the sheep on his right and the goats on his left. Then the King will say to those on his right, 'Come, you
who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the
world. Then he will say to those on his left, 'Depart from me, you who are cursed, into the eternal fire
prepared for the devil and his angels.
47
John Ward Anderson, Cartoons of Prophet Met With Outrage: Depictions of Muhammad in
Scandinavian Papers Provoke Anger, Protest Across the Muslim World, The Washington Post, January 31,
2006, A12.
48
Eugene Robinson, Prophetic Provocation, The Washington Post, February 7, 2006, A21.
49
Jim VandeHei, Bush Shifts on Muslim Protests: Violence is Criticized, Not the Cartoons, The
Washington Post, February 9 2006, A01.
50
Suzanne Fields, From Hitler to Hamas: When Democracies Show Weakness, They Pay Dearly, The
Washington Times, February 6, 2006, A17.
51
Gregory Crouch, A Dutch Antagonist of Islam Waits for His Premiere, The New York Times, March
22, 2008, Section A, Column O, 4.
52
Crouch.
53
Diana West, Pre-emptive Rage: Protestations of Dutch Film, The Washington Times, March 28, 2008,
A21.
54
Christopher Fons, Chill Out Jihads: They're Just Cartoons, Counterpunch, February 8, 2006,
http://www.counterpunch.com/fons02082006.html (accessed March 27, 2010).
55
Cohen.
56
Dan Bilefsky, Denmark is Unlikely Front in Islam-West Culture War, The New York Times, January 8,
2006, 3.
57
Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press,
1991), 3.
58
See Table 3.

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59

Jennifer Harper, Danish Drawings of Prophet Trigger Ethics Debate: Controversy Stirs Issue of Press
Freedom, Sentiments of Muslims, The Washington Times, February 3, 2006, A15.
60
Harper, A15.
61
Suzanne Fields, The Best Disinfectant: Even Odious Speech Must Not Be Suppressed, The Washington
Times, February 23, 2006, A17.
62
New York Times Company v. United States 403 U.S. 713 (1971).
63
John Durham Peters, Courting the Abyss: Free Speech and the Liberal Tradition (The University of
Chicago Press, 2005), 16.
64
Bruce Fein, A New Index Librorum Prohibitorum, The Washington Times, August 26, 2008, A15.
65
The Washington Post, Self-Muzzled at Yale: A University Publisher Allows the Possibility of Muslim
Reaction to Alter an Academic Work, editorial, August 23, 2009, http://www.washingtonpost.com/wpdyn/content/article/2009/08/22/AR2009082201988.html (accessed March 27, 2010), A20.
66
VandeHei, A01.
67
Letter to the editor, The New York Times, February 8, 2006, Section A, Column 6, 18.
68
Monica Davey, Student Paper Prints Muhammad Cartoons, and Reaction is Swift, The New York
Times, February 17, 2006, Section A, Column 1, 14.
69
Davey, 14.
70
Thomas Kleine-Brockhoff, Tolerance Toward Intolerance, The Washington Post, February 7, 2006,
A21.
71
Kleine-Brockhoff, A21.
72
Fields, The Best Disinfectant: Even Odious Speech Must Not Be Suppressed, A17.
73
John Ward Anderson, A12.
74
Kevin Sullivan, Turmoil Over Cartoons Began Quietly Among Danes, The Washington Post, February
8, 2006, A15.
75
Bilefsky, 3.
76
Molly Moore and Faiza Saleh Ambah, Tension Rises Over Cartoons of Muhammad: Publication
Widens in Europe as Protests Grow in Islamic World, The Washington Post, February 3, 2006, A01.
77
Moore and Ambah, A01.
78
Harper, A15.
79
David Bauder, South Park Creators Skewer Own Network, The Associated Press, April 13, 2006.
80
Andrew Sullivan, Puss-TV vs Non-Puss TV, The Atlantic, April 22, 2010,
http://andrewsullivan.theatlantic.com/the_daily_dish/2010/04/comedy-centrals-cowardice.html (accessed
April 27, 2010).
81
Charles C. Haynes, Inside the First Amendment: Americans Must Defend the Right to Offend, Gannett
News Service, February 17, 2006, ARC.
82
Haynes. Haynes explains the case, Jesse Cantwell, a Jehovah's Witness, was convicted of a crime
because he played a phonograph record on the street that offended two Catholic men (the record had some
especially nasty things to say about the Roman Catholic Church).
83
Flemming Rose, Jyllands-Posten's culture editor, published his editorial alongside the 12 cartoons on
Spetember 30, 2005.
84
Stanley Fish, Our Faith in Letting It All Hang Out, The New York Times, February 12, 2006, Section 4,
Column 1, 15.
85
Peters, Courting the Abyss, 143.
86
Peters, Courting the Abyss, 143.
87
Quoted in Frederick Schauer, The First Amendment as Ideology, in Freeing the First Amendment:
Critical Perspectives on Freedom of Expression, ed. David S. Allen and Robert Jensen (New York: New
York University, 1995), 10.
88
Schauer, 10.
89
See Table 4.
90
Brian Murphy, World Council of Churches Slaps Prophet Muhammad Cartoons, U.S.-Led War on
Terrorism, Associated Press Worldstream, February 23, 2006.
91
Fish, Our Faith in Letting It All Hang Out, 15.
92
Fons.
93
Henry Mark Holzer, Media Cowardice on Display in Debate Over Cartoons, Chattanooga Times Free
Press (Tennessee), February 26, 2006, F1.

132

94

Fish, Our Faith in Letting It All Hang Out,15.

Cass Sunstein, Democracy and the Problem of Free Speech (New York: The Free Press, 1993), 20.
96
Janet Albrechtsen, Free Speech has Liberals Tongue-Tied, The Australian, February 8, 2006.
97
John Durham Peters, Det ironiske ved dagens ytringsfrihet [The Ironies of Free Speech Today]. . . .
en saklig og fri informasjons- og opinionsformiddling: Redaktrinstituttets status 2006, Aarbok fra Norsk
Redaktrforening (Olso: IJ forlaget, 2006): 135-143.
98
Dana Cloud, To Veil the Threat of Terror: Afghan Women and the <Clash of Civilizations> in the
Imagery of the U.S. War on Terror, Quarterly Journal of Speech 9, no. 3 (August 2004):285-306.
99
For more on the juvenilization of protesters, see Todd Gitlin, The Media in the Unmaking of the New
Left, in The Social Movements Reader: Cases and Concepts, ed. Jeff Goodwin and James M. Jasper
(Blackwell Publishing, 2003), 301-311.
100
Trudy Rubin, Reaction confirms problem paper meant to expose with cartoons, The Philadelphia
Inquirer, February 8, 2006.
101
Cohen.
102
Gitlin, 309.
103
Robert Tait, Danish Library Plans to House Cartoons of Prophet Muhammad, Guardian Unlimited,
January 30, 2008.
104
Tait.
105
Justin Raimondo, Rotten in Denmark: Flemming Rose and Clash of the Civilizations, Antiwar.com,
February 8, 2006.
106
Peters, The Ironies of Free Speech Today.
95

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Chapter 4: Opportunities of Our Own Making:

The Struggle for <Academic Freedom>
A recent Harvard study indicates that many young people have yet to become
involved in politics not because they are uninterested, but because they have yet
to be given the opportunity. The 15th Biannual Youth Survey on Politics and
Public Service, Institute of Politics at Harvard University, 2008.1
On March 4, 2010, young people were given an opportunity. After months of
organizing, hundreds of thousands took part in what was the largest day of coordinated
student protest in years.2 College and university campuses across the U.S. became sites
of marches, strikes, teach-ins and walkouts. The Day of Action was organized by the
California Coordinating Committee in the hopes of becoming an historic turning point in
the struggle against the cuts, layoffs, fee hikes, and the re-segregation of public
education.3 Democracy Now! host Amy Goodman describes the scenes across the
nation:
At the University of Wisconsin, Milwaukee, police used pepper spray to break up
a student protest organized by Students for a Democratic Society. Fifteen students
were arrested. At SUNY Purchase in New York protesters took over the Student
Services Building. Students at the University of North Carolina-Chapel Hill
staged a sit-in at the chancellors office. In Washington State, the Olympia
Coalition for a Fair Budget held a mock funeral for public education and
healthcare and brought a coffin to the state Capitol building. And in New York
City, students and teachers at the City University of New York rallied outside
Governor David Patersons office.4

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The demonstrations seemed to awaken a new generation to the power of youth harnessed
by students of previous decades, like those in the Free Speech Movement and the civil
rights protests of the sixties, those leading antiwar demonstrations of the seventies, and
those marching against South Africas discriminatory policy of apartheid in the eighties.
History reveals the myriad ways in which students have organized to demand civil
rights.5 The word revolution fell easily off the lips of students past. Max Elbaum
explained,
For several years after 1968, additional upheavals increased the numbers and the
resolve of the young revolutionaries. Richard Nixon's doomed efforts to win the
war in Southeast Asia led directly to the debacle of his May 1970 invasion of
Cambodia, which resulted in the biggest explosion on US college campuses in
history. A few months afterwards, the New York Times reported that four out of
ten college students - nearly three million people - thought a revolution was
necessary in the US.6
While present-day student political engagement might seem to have petered out, one need
only look to the recent student-led demonstrations across the countryfrom the 2009
cafeteria sit-in at NYU to the 2010 nationwide, California-initiated, walk-outto realize
that is far from true.7
College campuses remain an important site of political and ideological struggle.8
Students have provided and can continue to provide political organizations and
movements with significant members, resources and leaders both before and long after
graduation. So how might rhetoric be used to facilitate or obstruct student participation in
political and social affairs? I explore this question by focusing on one particular discourse

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I believe is central to the quality of university life (and consequently student life), that of
academic freedom. This chapter is an attempt to understand how the struggle to control
the discourse of academic freedom is a struggle over the rhetorical disciplining of
political engagement on college campuses. Specifically, in this chapter I focus on the
fight to frame public perception of academic freedom, a term that, at least since 9/11,
appears frequently with <free speech>. I believe that <academic freedom> functions as a
contextualized iteration of <free speech> to chill faculty and student speech while
simultaneously discrediting university and college campuses as legitimate spaces for
political engagement. Ultimately I argue that the capacity of a rhetor like David Horowitz
to use <academic freedom> in such a way as to make the concept mean its oppositethe
policing of free thought on campusesreveals the malleability of the term and becomes
the ultimate example of the ideological nature of the <free speech> trope.
To make this argument, this chapter will begin with a diachronic analysis of
<academic freedom> by tracing the terms historical development and its eventual merge
with <free speech>. Next, I will offer a textual analysis of the modern conception of
<academic freedom> in the contemporary discursive debate between David Horowitz, the
founder of the legislative campaign, Academic Bill of Rights, and his critics. This
analysis will include public debates, interviews, and blog postings spanning the 2003
launch of Horowitzs campaign for <academic freedom>, the contemporary discussions
of the proposed legislation in 2007, to his most recent co-authored publication in 2009,
One Party Classroom.9 While I will include textual analysis of Horowitzs rhetoric, my
primary interest is the political climate he is capable of fostering because of the rhetorical
connection between <academic freedom> and <free speech>. Consequently, I will

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include an analysis of how Horowitz is framed in public debates by other interested

partieshow do academics, administrators, parents, students and politicians ignore,
refute, or confront Horowitzs Academic Bill of Rights?
The cost of efforts like Horowitzs, as will be explored in this chapter, is the
chilling of the university as a space not just for the free exploration of ideas, but also for
the prospect of faculty and student political engagement. National and international
university and college professors are already fighting this threat. Legal scholar Van
Alstyne explains, Gradually, the phrase [academic freedom] slipped away from a close
association with protection of the academic in his professional endeavors and assumed a
new synonymy with the general civil liberties of academics (and especially their general
political liberties).10 Professor Fritz Machlup reports the situation in the new
Encyclopedia of Higher Education: Academic freedom (in its modern conception,
though not in the past) includes the right of the academic to engage in political
activity.11 Although this might initially seem a desirable inclusion for most faculty, Van
Alstyne notes the problems that arise because of the union between <academic freedom>
and <free speech>:
The wooden insistence that academic freedom is at the heart of an academics
right to engage in political activity has repeatedly drawn the sharp riposte that,
given this rationale, the political liberties of academics must be correspondingly
reviewed by a higher standard (i.e., a professional standard) than the like activities
of others.12
As I will discuss, because the concept was originally created before the First Amendment
applied to all the states, <academic freedom> was designed to protect facultyconceived

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of by many in professional and legal organizations as the vanguards of democracyto be

critical of public policy and opinion. In other words, <academic freedom> was a
rhetorical strategy designed to protect faculty in their critical pursuits by keeping the
concept separate and distinct from <free speech>. However, Van Alsytne argues that as
First Amendment rights evolved in the judicial system, the political engagement of
faculty members are judged with increasing scrutiny and more hostility than the political
engagement of non-academic citizens. Although there were challenges in determining the
meaning of <academic freedom>, conflating the concept with <free speech> has saddled
<academic freedom> with the same ambiguity, malleability and historical turmoil
inherent in <free speech>. As <academic freedom> becomes a contextualized iteration of
<free speech>, academics are suspect to persecution under one category when engaging
in the other.
<ACADEMIC FREEDOM> AS A LIBERAL IDEOGRAPH
The goals of academic freedom are:
A. To promote inquiry and advance the sum of human knowledge.
B. To provide general instruction to the students.
C. To develop experts for various branches of the public service.
AAUP13
Originating in Germany, <academic freedom> evolved from three interrelated principles:
Lehrfreiheit, Lernfreiheit, and Freiheit der Wissenschaft. These German roots are important
because they have developed and evolved into our contemporary understanding of <academic
freedom>. Roughly translated, these terms provided professors with the freedom to teach,
students with the freedom to learn, and the academy with the freedom to govern itself.14 In an

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attempt to insulate itself from the influence and control of both the state and church, German
educational institutions fashioned a partnership between state and professoriate in which the
latter held the stronger hand.15 Professor Emeritus and historian Walter Metzger explains,
The German full professors could elect their own administrators, appoint instructors
supported by student fees, and submit short lists of nominees for vacant chairs to the
ministers of education. But the power to establish new professorships, fix the scale of
faculty compensation, reject faculty nominees for high appointments, or even act against
junior faculty members charged with political radicalism rested with the distant
ministerial authority.16
Metzger writes, The idea that institutional autonomy was indispensable to academic freedom
would be widely disseminated under the German label and would survive increasingly realistic
accounts of how that system really worked.17 Consequently, the extent to which contemporary
understandings of <academic freedom> actually ever existed in the historical context from which
it originated is arguably quite little.
Regardless, in the late nineteenth century, American graduates returned from postgraduate work at German institutions with the promising narrative of <academic freedom> on
their lips.18 So seemingly natural was this narrative that when the 1915 Committee on Academic
Freedom and Academic Tenure was formed, the American Association of University Professors
(hereafter, AAUP) President John Dewey commented, The defense of academic freedom and
tenure being already a concern of the existing learned societies will not, I am confident, be more
than an incident in the activities of the Association in developing professional standards.19
Within the year of its first American defining, eleven complaints of academic freedom

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infringements were filed with the Association. Considering it an anomaly, Dewey reasoned,
Investigations of particular cases were literally thrust upon us.
Between 1925 and 1940, the AAUP initiated a series of conferences with the Association
American Colleges (hereafter, AAC) in efforts to accommodate the continual development of
unanticipated historical and cultural thrusts. In their joint 1940 Statement on academic
freedom and tenure, the AAUP and AAC reiterated what they considered to be the natural and
legitimate place of academic freedom in institutions of higher education: Academic freedom is
essential to these purposes and applies to both teaching and research. Freedom in research is
fundamental to the advancement of truth.20 Dewey assured members that while conditions
shape themselves for us, those who had labored on the cases of academic freedom had
enhanced the security and dignity of the scholars calling throughout our country.21
Deweys confidence in the attainment of a stable understanding of <academic freedom>
reflects the belief in the university as the natural and legitimate vanguard of democracy. The
cloistered walls of the university are naturally analogous to the liberal privileging of the
marketplace of ideas. The AAUP explains,
The tendency of modern democracy is for men to think alike, to feel alike, and to speak
alike. Any departure from the conventional standards is apt to be regarded with suspicion.
Public opinion is at once the chief safeguard of a democracy, and the chief menace to the
real liberty of the individualOne of its most characteristic functions in a democratic
society is to help make public opinion more self-critical and more circumspect, to check
the more hasty and unconsidered impulses of popular feeling, to train the democracy to
the habit of looking before and after.22

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A true university, the AAUP states, should be an intellectual experiment station, where new
ideas may germinate and where their fruit, though still distasteful to the community as a whole,
may be allowed to ripen until finally, perchance, it may become part of the accepted intellectual
food of the nation or of the world.23
Such sentiment took hold in legal dicta over the next few decades. When the Supreme
Court first addressed <academic freedom> in 1952, it arose following a rash of accusations of
professors belonging to the Communist Party.24 In 1952, the New York Teachers Union filed
suit challenging the constitutionality of New Yorks Feiberg Law, instituted in 1949 to fire any
teacher who belonged to a subversive organization. In his dissent from the Supreme Courts
ruling against the teachers, Justice Douglas expressed concern that such a law raises havoc with
academic freedom. It produces standardized thought not the pursuit of truth.25 The majority
would not agree with Douglas until five years later, when it recognized <academic freedom> as
part of the First Amendment.26
Importantly, when the Court first recognized <academic freedom> as protected by the
First Amendment, it drew its opinion from a statement of a conference of senior scholars from
the University of Cape Town and the University of the Witwatersrand in South Africa. The
statement, issued in response to apartheid policy, reads:
In a university, knowledge is its own end, not merely a means to an end. A university
ceases to be true to its own nature if it becomes the tool of Church or State or any
sectional interest. A university is characterized by the spirit of free inquiry, its ideal being
the ideal of Socrates to follow the argument where it leads. This implies the right to
examine, question, modify or reject traditional ideas and beliefs. Dogma and hypothesis
are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a

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university. The concern of its scholars is not merely to add and revise facts in relation to
an accepted framework, but to be ever examining and modifying the framework itself.27
The Open Universities in South Africa were fighting the political oppression of legalized racial
segregation. This statement was crafted as recognition that the university could be a space of
resistance from such oppression. The statement reveals the political power within both the
concept of <academic freedom> and the concept of the university as a potential revolutionary
site. Whether the Supreme Court knew it or not, choosing to cite this passage set up a broad
conception of <academic freedom> that included the protection of the university as a politicized
space.
In spite of such radical implications, the idea of <academic freedom> continues to be tied
to a more restricted version of liberal democracy in the US. By 1967, Justice Brennan solidified
the legal importance of <academic freedom> in Keyishian: Our nation is deeply committed to
safeguarding academic freedom, which is of transcendental value to all of us and not merely to
the teachers concerned. That freedom is therefore a special concern of the First Amendment,
which does not tolerate laws that cast a pall of orthodoxy over the classroom. . . .The classroom
is peculiarly the marketplace of ideas. 28 Like those who first penned the American
professions definition of <academic freedom>, the efforts of the legal institution to shape both
the identity of the university as well as that of the nation sought stability and legitimacy in the
comforts of larger liberal narratives. As <academic freedom> became subsumed by the
traditional liberal <free speech> narrative, faculty became increasingly susceptible to the
problem <academic freedom> had originally sought to prevent; the legal disciplining of political
speech and the heightened policing of campus grounds as a space in which to combat political
oppression.

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WHEN OPPORTUNITY PRESENTS ITSELF: DAVID HOROWITZ AND THE

ACADEMIC BILL OF RIGHTS CAMPAIGN
Contemporary political and economic leaders recognize the potential power of
student activists, and historically have sought ways of dividing, delegitimizing, or
dissuading political participation that questions institutional legitimacy.29 David
Horowitz is just such a political strategist. In 2006, Horowitz renamed his 1988
foundation, the Center for the Study of Popular Culture, to the David Horowitz Freedom
Center. Freedom Center Board Chairman Jess Morgan explained the name change,
First, when the Center began, just as the Cold War was ending, we thought that
the significant issue of our time would be the political radicalization of popular
culture. The culture is still a battleground, but after 9/11, it is clear that freedom
itself was under assault from the new totalitarianism of terror. Secondly, David
Horowitz, the Centers founder, has become increasingly identified with issues of
freedom at home and abroad. We wanted to honor him and also support the
efforts he has undertaken. The name change does this and rededicates us to the
mission at hand.30
Why not? This strategy to rename his foundation enables Horowitz to mobilize a political
campaign in a cultural war.
For Horowitz, <academic freedom> is the Trojan horse in that war.31 Horowitz
offers a different one: Lapsed radicals like ourselves are always condemned to regard
the left as their Great White Whale. This book is a record of our sighting of the beast. We
may not yet have set the final harpoon, but we have given chase.32 Horowitzs plan of
attack: One has to stigmatize the left and segregate it.33 Regardless of whether one

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interprets him as an Epeius, a Captain Ahab, or a Governor Wallace, the author of The
Art of Political War: And Other Radical Pursuits undoubtedly is at war and is garnering
governmental support as well as funds.
Although he maintains that his campaign for an Academic Bill of Rights is not a
political project, Horowitz stigmatizes higher education as Indoctrination U.34 In his
book The Professors: The 101 Most Dangerous Academics in America, Horowitz argues,
It is not intended as a text about left-wing bias in the university.35 He adds, But the
clear (and limited) purpose is to demonstrate that the individuals are political activists
before they are scholars.36 In his 1998 book The Politics of Bad Faith: The Radical
Assault on Americas Future, Horowitz writes, A specter is haunting the American
University, the last refuge of the Marxist left.37 And in 2007, he published
Indoctrination U: The Lefts War Against Academic Freedom.38 Later, in an interview
with National Review Onlines Kathryn Jean Lopez, Horowitz says, Of course I have
made serious charges against the Left, in particular that it has blacklisted conservatives in
the academy and politicized its educational missions.39
Horowitz sets up camp on the contested terrain of <academic freedom> not out of
concern for any ideal marketplace of ideas in the university setting, but as part of a
cultural war. Horowitzs influential pamphlet-turned-book offers step by step instructions
to the Republican Party on how to engage in political warfare where you do not fight
just to prevail in an argument, but to destroy the enemys fighting ability.40 By attacking
the very discourse that defines institutions of higher education and the identity of those
within that space, Horowitz aims to discredit and dismantle the instrumentality of the use
of campus space as faculty and student involvement in any politics (other than his own).

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In order to be successful, Horowitz calculates a rhetorical strategy that embraces

pre-existing frameworks of liberal ideologies. His goal is to set the terms of the debate
within naturalized, legitimized and democratic narratives, and thereby position all
opponents as unnatural, illegitimate, and undemocratic. He is quite clear in his tactics.
Under Position is defined by fear and hope, he writes, It is important to work away
from the negative image your opponent wants to pin on you. If you know youre going to
be attacked as morally imperious, it is a good idea to lead with a position that is inclusive
and tolerant.41 Hence Horowitzs appeal to the neutrality and universality of <academic
freedom> in education is an effort to launch a political cruise missile at Indoctrination
U.42 After all, what sort of American is opposed to the neutrality and universality of
healthy controversy in the all-access pass to a legitimate education? Who would want to
witness the brainwashing of American youth by a particular political persuasion?
And yet, Horowitz has no trouble propositioning his political persuasion as the
guidelines for which syllabi and tenure should reflect. When confronted with his books
comparison to McCarthys backlists, Horowitzs fiery rhetoric continues to reap and sow
ideological identifications. He charges,
The Chronicle of Higher Education, which has fallen into the hands of a leftist
editor, ran a cover feature about Daniel Pipes, Martin Kramer, and me called
Worse than McCarthy. The piece was written by a well-known Communist
apologist Professor Ellen Schrecker who has recently become an apologist for
Islamic terrorists like Sami al Arian as well.43
The sound bites abound.44 According to Horowitz, the comparison to McCarthyism is a
red herring in the radical project to undermine democracy: The story of the campaign

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against academic freedom can also be read as a study in the methods of the radical project
itself.45 Horowitzs argument depends upon a vision of intellectuals as traitors in hiding:
It is true that the Left is rhetorically in retreat and for the moment has adopted more
moderate self-descriptions. But that is hardly the same as surrendering its agendas or
vacating the field of battle. It is more like adopting a political camouflage on entering
hostile terrain.46 Yet interestingly, Horowitz adopts the camouflage of freedom in
order to make headway among academic administrators and legislators.
Horowitzs appeal to <academic freedom> has taken root precisely because of his
ability to mediate a naturalizing and legitimating ideology of democracy with a
naturalizing and legitimating rhetoric of <free speech>. Horowitz argues, The purpose
of an education in a democracy is to teach students how to think, not what to think.47
Tapping into the rhetoric of <academic freedom>s role in the larger ideological
framework of a liberal democracy, Horowitz attempts to appear apolitical and highminded.
His proposed legislations name reflects this strategic discursive move: By
adopting the Academic Bill of Rights, an institution would recognize scholarship rather
than ideology as an appropriate academic enterprise.48 Horowitz use of <academic
freedom> functions as doublespeak, enabling him to project his own political strategies
onto his opponents. For example, Horowitzs campaign targets only intellectuals on the
Left, in particular those scholars of feminist, critical cultural and Marxist studies. In fact,
in Indoctrination U, of Horowitzs list of the 150 worst courses in America, 59 are in
women's studies. This number, taken from Scott Jaschiks count in an article from Inside
Higher Ed, may not be precise, as there are a fair number of courses in the book that

146

combine women's studies and ethnic studies, or women's studies and black studies, or
queer studies and women's studies, so some might count in different ways, but no other
category comes close.49 Although Horowitz admits he has not attended one class from
his list, he maintains that any course reflecting in its focus the identity politicsthe
politics of radical feminism, queer revolution, and Afro-centrismwhich is the basis of
academic multiculturalismis a form of intellectual fascism and, insofar as it has any
politics, of political fascism as well.50 In his assessment of courses dealing with any
politics, notice that he does not mention any business school class, which is embedded
with free market ideology and the politics of capitalism. As Jaschik notes, This kind of
overstatement of confirmation of foundational theories is a serious problem in economics
departments and business schools. Yet, no one is calling for the abolition of economics
departments.51 Quite the contrary, like General Ashcrofts warning to critics of
administrative policy post-9/11, Horowitz positions cultural critics as a threat to
democracy. In Indoctrination U, he writes,
The [American] consensus, in short, is the common cultural bond of the
democracy of which all Americans are a part: out of many, one. It is this bond that
is now under assault from radicals who have entrenched themselves in university
culture. Side by side with this American consensusand reflecting its values
there has been until recently a common understanding of the function of education
in a democracy.52
Like the Bill of Rights, the Academic Bill of Rights appeals to a set of idealized,
universal rights, somehow free from political ideology. Such doublespeak, however,
reveals an insidious political ploy to cast Leftist intellectuals as antidemocratic, thereby

147

disciplining the space in which scholars and students alike are free to explore more than
just the Westernized worlds economic philosophy.
FRAMING OF THE CAMPAIGN BY INTERESTED PARTIES
Beyond the political and financial support of members of the Republican Party,
numerous professors, students, political and social commentators alike have met
Horowitz on this ground while others charge Horowitzs appeal to democracy as a
reification of historically contingent and malleable rights regarding expression and
consequently a rearticulation of existing relations of power. I have summarized the
perspectives across this spectrum, organizing them in categories I have termed the
liberal faithful, the debunkers and the politicos. Examples of each of these positions
follow.
The Liberal Faithful
First, there are those who comprise what I believe to be the most pervasive group, the
liberal faithful. By liberal, I do not mean to suggest that all who comprise this group are
politically liberal. I do mean to suggest that they adhere to the traditional liberal <free speech>
narrative. The fact that the liberal faithful are as likely to be conservative as they are to be
liberal reveals just how malleable <free speech> can be. The liberal faithful understand
<academic freedom> as <free speech>, a moral principle that is universal and natural, only this
time in the setting of the university. Like the Supreme Court, liberal faithful view the
university as a microcosm of democracy, thriving only under the proper conditions of rational,
deliberate debate. More often than not, they take Horowitzs argument at face value. While they
might disagree among themselves over which direction the threat to <academic freedom>

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comes, they tend to concur that there is indeed a threat, and that such a threat is external to David
Horowitz.
The popularity of such a response is seen in the emergence of offshoot organizations to
Horowitzs Freedom Center, like Students for Academic Freedom and Parents Students for
Academic Freedom (K-12).53 The SAF mobilizes students against a perceived Leftist
indoctrination within the universities. Both SAF and PSAF describe their organizations as
clearing houses and communications centers for a national coalition of student organizations
whose goal is to end the political abuse of the university and to restore integrity to the academic
mission as a disinterested pursuit of knowledge.54 Orchestrated by Horowitz, these
organizations become a voice for his political agenda under the guise of political neutrality. But
the liberal faithful are not restricted to students and parents.
For example, President of the University of Colorado System Elizabeth Hoffman is part
of a group who feels that the only serious opposition to the Academic Bill of Rights is that,
although its principles are valid, it duplicates academic-freedom guidelines that already exist.55
Such passive commentary on Horowitz suggests little doubt of any ulterior motives in the
campaign for <academic freedom>. She suggests that such natural and legitimate guidelines
already exist. Her intervention in the debate on Horowitzs terms reflects Horowitzs success
in his strategic use of <academic freedom> to simply mediate an ideology without calling
attention to discrepancies and existing relations of power.
Others share Hoffmans faith in Horowitzs motivation, but believe that the campaign for
<academic freedom> is indeed needed. President of the American Council on Education David
Ward writes, What was happening was that individuals who were critics of higher education
were making, to my mind, perfectly reasonable statements that universities should be places of

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intellectual pluralism, civility and fairness. I might quibble about details, but I found myself
saying, They have a point.56 Ward, like supporters of Students for Academic Freedom, adopts
Horowitzs argument and furthers it, claiming that current campus conditions have created yet
another demand for the revision of <academic freedom> in the strive toward depoliticizing
academic studies in pursuit of some objective course of study. Although this position suggests a
concern for potential power inequalities on college campuses, it nevertheless fails to identify
where this power inequality resides, remaining vulnerable to Horowtizs persuasive appeals that
critical cultural studies (i.e., gender studies, race studies, etc) are the culprits.
In perhaps the most notoriously liberal faithful move, some criticize Horowitzs
campaign procedurally but not substantively. For example, instead of confronting Horowitz
directly, some question the legal infringement on the self-government of academic institutions.
President of the Council for Christian Colleges and Universities Robert C. Andringa states,
Horowitzs legislation is wrong because it is inappropriate for legislative bodies to get involved
in academic freedom issues.57 In their identification of wrong doing in the proposed stateinterference, Andringa and many members of the AAUP unknowingly contribute to the sanctity
of <academic freedom> as the locus of debate.
Others like Stanley Fish add a complicated component to the liberal faithful. Fish
voices a fundamental, as opposed to merely procedural, disagreement with Horowitz:
The strong suggestion is that academic freedom and intellectual diversity go together, but
in fact they pull in opposite directions. Academic freedom is the freedom to go wherever
an intellectual inquiry takes you without regard to directives proclaimed in advance by a
regime of prior restraint. Intellectual diversity is a prior restraint; it tells you where to
look and what you must look atyou must take into account every point of view

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independently of whether you think it is worth consideringand it tells you what

materials you must include in your syllabus.58
Similarly, Graham Larkin adds, This monitoring would deprive people of fundamental liberties
of expression, and legislating it would lead to an ethical and administrative quagmire.59
However, it is Fishs belief in the legitimacy of Horowitzs argument, as well as in the ability of
<academic freedom> to be apolitical that Fish embodies the liberal faithful camp. Fish writes,
I believe [Horowitz], and I believe him in part, because much of the Academic Bill of Rights is
as apolitical and principled as he says it is.60
The liberal faithful do not question the value and neutrality of <academic freedom>.
They may point to discrepancies in the legal definition of the term or to state interventions into
campus administrative business, but they never question Horowitzs ostensibly neutral attempts
to restore <academic freedom>. By refusing to question the terrain on which Horowitzs
campaign stands, the liberal faithful fail to gain any ground. As a consequence, they
unknowingly welcome the Trojan horse of <academic freedom> into their classrooms and
offices, and leave the battleground vulnerable to a lopsided political fight.
The Debunkers
The second category of interlocutors in this debate fall into what I call the debunkers.
The aim of the debunker is to discredit Horowitz on the basis of his inaccuracy and
foolishness, as if he were a crank. The debunkers use either a) humorous communication to
downplay or belittle the threat of Horowitzs campaign, or b) the claim to expertise to discredit
Horowitzs argument.
There is no better exemplar of the debunker who uses humorous communication to
belittle Horowitz than Michael Brub. Representing the more conservative side of the AAUP,

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Brub, who often refers to Horowitz as D. Ho, Horrorwitz, or on occasion, He Who Shall
Not Be Designated By His First Initial and a Drastic Truncation of His Surname, engages the
field through a war of words. On his personal blog entry entitled, Warning! Warning! Danger!
Danger, Brub responds to queries as to how he feels about his inclusion on Horowitzs
blacklist:
Truth be told, this 101 most dangerous professors thing is a complete sham. Its a
travesty. Its an outrage, I say, an utter outrage. First of all, Horowitz didnt even bother
to rank usAnd according to my contacts at the American Association of University
Professors, only 23 of the 101 are members of the AAUP. What the hell is the matter
with the other 78 of you? Consider this your wakeup call, people!61
Brub uses comedic discourse to convey disapproval of Horowitz. However, he hedges: I have
always been struck that Horowitz has no sense of humor whatsoever, and Im afraid I have used
that against him rather mercilessly.62 Brubs sentiment that Horowitz cannot take a joke
reveals how in the end, at least for Brub, this is all just a verbal game rather than an actual
struggle over the autonomy of intellectuals and their institutions. Brubs debunking of
Horowitz through comedic discourse and puns have become a widely utilized method for coping
with personal attacks and reclaiming public ethos. For example, Roger Bowen, general secretary
of the AAUP, described Horowitzs proposals as an academic bill of wrongs.63
Other debunkers are a bit less comedic in their commentary. Coping with the personal
nature of the attacks, some debunkers respond through their respective academic lenses. More
often than not, such debunkers rely on their education to reveal Horowitzs
misrepresentations of facts and people. For example, Maurice Isserman of the AAUP notes,
One way to fight back against contemporary assaults on the values of the American academy is

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to expose lies when we hear them.64 Jeffery Klein spends his air time documenting with expert
precision the instances of plagiarism in Horowitzs work.65 Robert Jensen works through
Horowitzs misconceptions of him, writing, Im glad Horowitz got my name right (people often
misspell it Jenson). But everything else is distortion, and that one sentence teaches much about
the reactionary rights disingenuous rhetorical strategy.66 In a similar attempt to undermine
Horowitzs academic prowess, Kurt Smith turns the tables: Mr. Horowitz should follow his own
advice about professors sticking to their subject areas. Since he has no experience in higher
education, he should not offer to solve higher educations problems.67 Jensen and Smith seem to
critique Horowitzs team for not playing by the rules.
The rhetorical short-coming with the strategies of the debunkers lies in their inability to
confront anything other than Horowitzs research practices. Moreover, the use of comedic
discourse has serious limitations in its ability to offer social change. There is a danger, as Lisa
Perks reminds us in her work on the empowering and disempowering features of humorous
communication, of humor leading to complacency. Quoting Kenneth Burke, Perks explains,
Burke condemns the impotence of humor. In opposition to the comic strategy of
empowering a heroic figure and encouraging others to identify with that figure, Burke
claims that humor emphasizes the feebleness of those in the situation by dwarfing the
situation provokes an attitude of happy stupidity and diminishes individuals
perceptions of their capacity for social change. Burke further notes that mocking another
person (through humor) generally involves identification between the amused party and
the victim of laughter, thus lowering the character of both.68
Consequently, debunkers often fall short in their attempts to discredit Horowitzs argument.
After all, if we chuckle as we walk by one of Horowitzs lectures on a college campus,

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dismissing him as a crank who doesnt have any expertise, his campaign rages onward,
unthwarted.
The Politicos
What I believe to be the third major category of response to Horowitz I call the
politicos. In Virgils The Aeneid, which tells the story of the Greek siege of the city of Troy, a
priest named Laocon and the Trojan soothsayer, Cassandra, tried to warn the Trojans that the
Greek gift of the gigantic wooden horse was nothing other than a war plot.69 The Trojans
dismissed both Laocon and Cassandra. Similarly, I believe in the struggle over <academic
freedom>, the politicos are the critics who recognize the Trojan horse for what it hides: a
cultural war waging across Americas college campuses. Although not always united in an
instrumental or even constitutive response, many scholars step forth in an attempt to critique
Horowitzs intentions, finding his abuse of facts less important to challenge than his political
agenda. The recognition of Horowitzs use of <academic freedom> in a hegemonic struggle is
key to the politico position.
Politicos point out the political agenda within Horowitzs campaign. For example,
Ellen Schrecker writes,
Despite its heavy reliance on the traditional rhetoric of academic freedom, the academic
bill of rights seriously undermines that freedom. By injecting extraneous political
considerations into personnel and curricular decisions, the measure not only interferes
with those areas of educational policy that are traditional responsibility of the faculty, it
also disregards the professional standards that guarantee the quality of American higher
education.70

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Schreckers criticisms of Horowitzs political considerations and their potential impact on

academic freedom and the subsequent role of the university in promoting healthy citizenry fails
to call out the ways in which larger liberal discourses are used to foster identification with
political positions. However, Schrekcker does recognizes that Horowitzs gift horse is harboring
more than hes letting on.
In an effort to reveal this threat, several politicos attempt to draw historical analogies to
previous war efforts. Aligning Horowitzs campaign with that of McCarthyism, Dana Cloud, like
the U.S. Army's chief legal representative, Joseph Nye Welch, who stood up to McCarthys
antics, asserts, Horowitzs theatrics and demagoguery mask a very serious agenda: to discredit,
harass and censor critical intellectuals and activists on our campuses. He knows that universities
have historically been organizing against the war and against the greed and hypocrisy of the
right, and he would like nothing more than to hound us from our jobs.71 Cloud warns, In this
atmosphere, antiwar professors arent safe, and a growing number of outspoken critical
intellectuals are facing university firing squads.72 Cloud raises public scrutiny of Horowitz
agenda, and points out that new faculty guidelines (such as the Horowitz-inspired guidelines now
governing faculty codes of conduct on both Temple University and Penn State) mimic loyalty
oaths required of government employees in the fifties, and have resulted in actual loss of
employment. Cloud posits, He must be confronted wherever he appears, and whenever he
launches his attacksor down the road, we may be remembering the Horowitz years as we do
the devastation wrought on the left by Joseph McCarthy.73
According to those who understand the campaign for academic freedom as part of a
larger cultural war, what is to be done is nothing short of the organizing, agitating, and
confronting of a retaliatory movement. Sunsara Taylor states, David Horowitz has a long and

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scurrilous track record of blatant racism, politically-driven witch-hunts in academia, and

constantly spewing out bald-faced liesTo let the lies of [Islamo-Fascism Awareness Week]
stand unexposed and unopposed would be a grave mistake with lasting consequences.74
Alexander Cockburn suggests,
The reaction of the left has been mixed. In some ways it always takes Horowitzs antics
far too seriously, though the latters effect on timid college administrations cannot be
entirely gainsaid. On the other hand, Awareness week is having a galvanizing effect.
Coalitions have formed to combat Horowitzs version of Awareness with superior
Progressive Awareness about what is good or not so good about IslamHorowitz is
probably the best organizer the left has these days.75
Recognizing that one option in the cultural war is for the Left to consider Horowitz an invaluable
flanking tool, politicos hope to alienate and ostracize Horowitzs campaign, so that even the
right might begin to consider him more of a liability than an advocate.
Frequently, however, politicos wage war under the burden of incredulity. Moreover,
modern day Horowitz doublespeak serves to shift attention away from his role as culture warrior
by charging those who recognize his purposes as violators of <academic freedom> and the
principle <free speech>. He claims,
I do her the courtesy she tried to deny me by letting her talkWhen Ms. Cloud finished,
I pointed out that organizing mobs to scream epithets at invited speakers fit the category
of McCarthyite a lot more snugly than my support for a pluralism of views in university
classroomsI don't know of a single leftist speaker among the thousands who visit
campuses every term who has been obstructed or attacked by conservative students, who
are too decent and too tolerant to do that. The entire evening in Texas reminded me of the

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late Orianna Fallaci's observation that what we are facing in the post-9/11 world is not a
clash of civilizations, but a clash of civilization versus barbarism.76
In one breath, Horowitz strips Cloud of her expertise (referring to her as Ms. instead of Dr.),
turns the tables on her use of a reference to McCarthyism (arguing that unlike Mr. Welch, Cloud
does not follow rules of decency and rationality), and reminds his audience that he does
indeed what pluralistic classrooms. Using the <clash of civilizations> trope that Cloud herself
has written about, Horowitz casts Cloud as a terrorist, threatening not just American democracy,
but the youth of American democracy.
The success of Horowitzs rhetorical dislocation of the political critique of Cloud and
other critics is evident to the extent that even the liberal faithful begin to attack those who
challenge Horowitz challengers. One liberal faithful scholar writes,
A liberal democracy depends on the norm of reciprocity. Minority views survive and
someday become majorities (or not) because they know what happens to me can happen
to you. Such reciprocity breeds trust; we both know that we can count on a free
expression of our views. Thus, we do not fear the results of a policy disagreement or an
election. When that norm is violatedwhen the minority insists it doesnt have to abide
by an election in 1860 or when suits riot in 2000, preventing a fair and accurate count of
an electionthen the trust essential to democracy disappears. This is a bad thing. Its
better for Horowitz to have his podium and for Dana to have her classroom than for both
to engage in a mutually assured escalation of shouting down. Thats a different kind of
reciprocity and the trajectory, again, is not a good one.77

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And just like that, we are returned to square one: a circular argument over who decides who gets
<free speech>, and a privileging of <free speech> as the moral absolute needed to co-exist with
others.
CONCLUSION
Thanks to the liberal faithful, with no help from the debunkers and despite the
warning cries from the politicos, Horowitzs Trojan horse has made it through the
university gates. There is little else one can do now, besides engage or disengage
Horowitzs cultural war. If one chooses engagement, perhaps the best one can do is to
break away from the discourse of <academic freedom>. This does not mean the concept
is not important, nor does it mean the ideograph should not be engaged for other
purposes. It does mean, however, that a continued emphasis on <academic freedom>
inevitably results in a return to <free speech>, which in turn means a constant barrage of
arguments about civility, decorum, and neutrality. The legal codification of <academic
freedom> is just as ambiguous, and can be just as malleable and contradictory, as the
laws of <free speech.>
Until we break away from<academic freedom>, Van Alstynes warning becomes
an imminent threat: As <academic freedom> becomes a contextualized reiteration of
<free speech>, Horowitzs attack on Leftist intellectuals becomes yet another example of
the deployment of the <free speech> trope to discipline the site of college campuses and
make academics suspect to persecution under one category when engaging in the other.
Consequently, standing up for ones artistic license in the creation of a syllabus suddenly
becomes inappropriate speech in the workplace. Engaging in legitimate, legally protected
protest suddenly becomes a means to attack ones job credentials. If professors are

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vulnerable because of the disciplinary force of the term <academic freedom>, the climate
on campus becomes chilled and campus is discredited overall as a political space.
In this chapter I explored how <free speech> functions through <academic
freedom>. Analyzing David Horowitzs Academic Bill of Rights campaign, I
demonstrated that savvy rhetors are capable of manipulating <academic freedom> by
evoking the malleable abstraction, <free speech>. Horowitz is able to garner political
legitimacy by appearing neutral and objective, while projecting his own political
maneuvers onto his opponents, Leftist intellectuals. By exploring three major responses
to Horowitzs effortswhat I have termed the liberal faithful, the debunkers and the
politicosI have argued that current responses to Horowitz fall short of the type of
intervention needed.
Leftist responses to the Rights intervention in campus politics in the name of
<academic freedom> have accepted this term and argued over definitions, created witty
repertoire in attempts to diminish the threat of Horowitzs campaign, or left themselves
exposed to an attack for not engaging in civil discourse. In this chapter, I attempted to
show that there simply is no political neutrality to <academic freedom>; on the contrary,
intellectuals Left and Right are all always engaged in politics.78 Instead of accepting the
pretense that there is some sort of ideal neutrality possible in the classroom, we must
recreate the opportunity for <academic freedom> to protect academics who serve not just
as educators, but as critics and as activists, as well. In the next chapter, I explore the ways
in which <free speech> constrains or opens up possibilities of protest as political
engagement.
1

Quoted in AFL-CIO, Young Workers: A Lost Decade, 40,

http://www.aflcio.org/aboutus/laborday/upload/laborday2009_report.pdf (accessed March 24, 2010).

159

Democracy Now!, Hundreds of Thousands Take Part in National Day of Action to Defend Public
Education, Past Shows, entry, http://www.democracynow.org/2010/3/5/students (accessed March 24,
2010).
3
March 4th Strike and Day of Action, National Call, March 4 Day of Action and Strike in Defense of
Public Education, entry, http://defendcapubliceducation.wordpress.com/2009/12/14/national-call/ (accessed
March 24, 2010).
4
Democracy Now!, Hundreds of Thousands Take Part in National Day of Action to Defend Public
Education.
5
See Hal Draper, The Student Movement of the Thirties: A Political History, in As We Saw the Thirties,
ed. Rita James Simon (Chicago: University of Illinois Press, 1967). Draper notes, For the next couple of
decades at least, wherever anything was stirring in the labor movement or in liberal campaigns, wherever
there was action for progressive causes or voices were raised in dissent from the Establishment, there one
was sure to find alumni of the student movement, who had gotten their political education and
organizational training and experience in the American Student Union or the Student League for Industrial
Democracy or the National Student League.
6
Max Elbaum, Revolution in the Air: Sixties Radicals Turn to Lenin, Mao and Che (Verso, 2002), 18.
7
Both events were connected to protests over funding cuts. See Terence Chea, Day Of Action UPDATE:
At March 4 Protests Rowdy CA Students, Reportedly Armed, Block Campus , The Huffington Post,
March 4, 2010, http://www.huffingtonpost.com/2010/03/04/day-of-action-update-rowd_n_486276.html
(accessed March 24, 2010). See also Kit Gallant, Take Back NYU!: Change We Can Believe In? The
Huffington Post, February 20, 2009, http://www.huffingtonpost.com/kit-gallant/take-back-nyu-change-wec_b_168560.html (accessed March 24, 2010).
8
Tony Cliff points out, Nowhere else in capitalist society are young people separated off and pooled
together in the same way. See Tony Cliff, A World to Win: Life of a Revolutionary (Bookmarks, 2000).
9
See David Horowitz and Jacob Laskin, One Party Classroom: How Radical Professors at America's Top Colleges
Indoctrinate Students and Undermine Our Democracy (New York: Crown Publishing, 2009).
10
William W. Van Alstyne, The American First Amendment in the Twenty-First Century, 3rd ed. (New York:
Foundation Press, 2002), 62.
11
Van Alstyne, 63.
12
Van Alstyne, 69. The crux of Van Alstynes concern originates in the 1940 Statement: As a man of learning and
an educational officer, he should remember that the public may judge his profession and his institution by his
utterances. Hence he should at all times be accurate, should exercise appropriate restraint, should show respect for
the opinions of others, and should make every effort to indicate that he is not an institutional spokesman. American
Association of University Professors and American Association of Colleges, 1940 Statement of Principles on
Academic Freedom and Tenure, http://www.aaup.org/AAUP/pubsres/policydocs/contents/1940statement.htm
(accessed March 24, 2010).
13
American Association of University Professors, 1915 Declaration of Principles, in Academic Freedom and
Tenure: A Handbook of the American Association of University Professors, ed. Louis Joughin (December 12, 1915;
repr., Madison: University of Wisconsin Press, 1969), 163.
14
Walter P. Metzger, Profession and Constitution: Two Definitions of Academic Freedom in America, Texas Law
Review 66 (June 1988): 1269-70.
15
Metzger, 1271.
16
Metzger, 1271.
17
Metzger, 1271.
18
Interestingly, the AAUPs definition of academic freedom abandoned its German heritage of Lernfreiheit, or any
sentiment articulating the academic freedom of the student. Although they did not offer reasoning for this
amputation, Metzger suggests that it was assumed that academic freedom of a professor would naturally produce
academic freedom of a student. See Metzger, 1267-85.
19
American Association of University Professors, 156.
20
American Association of University Professors and American Association of Colleges.
21
American Association of University Professors, 156.
22
American Association of University Professors, 167-8.
23
American Association of University Professors, 167-8.

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24

For a contextual analysis, see Sidney Hook, Should Communists Be Permitted to Teach? The New York
Times, February 27, 1949, 7-29. See also Alexander Meiklejohn, "Should Communists Be Allowed to Teach?" The
New York Times, March 27, 1949, 10, 64-66.
25
See Adler v. Board of Educ. of City of New York, 342 U.S. 485 (1952). Interestingly, Douglas was a professor
before holding the title of Supreme Court Justice.
26
Sweezy v. New Hampshire, 354 U.S. 234 (1957). Majority opinion recognized, The four essential freedoms of a
universityto determine for itself on academic grounds who may teach, what may be taught, how it shall be taught,
and who may be admitted to study.
27
The Open Universities in South Africa, "Statement" (a conference of senior scholars from the University
of Cape Town and the University of the Witwatersrand, including A. v. d. S. Centlivres and Richard
Feetham, as Chancellors of the respective universities), 10-12.
28
Keyishian v. Board of Regents, 385 U.S. 589 (1967).
29
For example, consider the methodological manner in which the University of Berkeley administration
worked to end the protest by the Free Speech Movement in 1964. See Fact-Finding Committee of Graduate
Political Scientists, The Berkeley Free Speech Controversy, page #s, http://www.fsm-a.org/stacks/
FSM_gradchronology.html (accessed March 24, 2010).
30
FrontPage Magazine, A New Birth of Freedom, FrontPage Magazine, July 7, 2006,
http://97.74.65.51/readArticle.aspx?ARTID=3669 (accessed March 26, 2010).
31
Stanley Fish, Intellectual Diversity: The Trojan Horse of a Dark Design, The Chronicle of Higher Education
50, 23 (13 February 2004): B13. Fish describes Horowitzs appeals to intellectual diversity as a Trojan horse.
32
Peter Collier and David Horowitz, Deconstructing the Left (University Press of America, 1991).
33
Scott Sherman, David Horowitzs Long March, The Nation, 3 July 2000.
http://www.thenation.com/doc/20000703/sherman.
34
David Horowitz, Indoctrination U: The Lefts War Against Academic Freedom. New York: Encounter Books,
2007.
35
David Horowitz, The Professors: The 101 Most Dangerous Academics in America. Washington, D.C.: Regnery
Publishing, 2006. 1. Least we be tempted to follow the red herring of Horowitzs difference between liberals and
leftists, in The Politics of Bad Faith, Horowitz writes, On the Left, the conflicts between radicals and liberals are
far less fundamental, concerning means rather than ends. David Horowitz, The Politics of Bad Faith: The Radical
Assault on Americas Future . New York: Touchstone, 1998. 12.
36
Horowitz, The Professors, xx.
37
Horowitz, The Politics of Bad Faith, 155.
38
Horowitz, Indoctrination U.
39
Kathryn Jean Lopez, The Professors: David Horowitz Writes Up Faculty, National Review Online, March 13,
2006, http://www.nationalreview.com/
interrogatory/qa200603130909.asp (accessed March 24, 2010).
40
David Horowitz, The Art of Political War: And Other Radical Pursuits (Texas: Spence Publishing, 2000), 10.
41
Horowitz, The Art of Political War, 13.
42
The first new weapon Republicans need in their arsenal is a sound bite, he states, a political cruise missile.
Horowitz, The Art of Political War, 18.
43
Lopez. Italicized for emphasis.
44
In the war-machine of sound bites, Horowitz compiles ammunition as he organizes professors scholarship,
political activity, and organizational affiliations alongside terms such as jihad, terrorists, anti-patriotic, etc. his
Professors list, under each name are bulleted-points of dangerous characteristics. Some of these include Derrick
Bell, pioneer of critical race theory; Noam Chomsky, prolific pamphleteer and academias most influential
leftist; Dana Cloud, a member of the Internationalist Socialist Organization; Suzanne Toton, who promotes
libertarian theology, a form of Marxism disguised as Christianity; and Howard Zinn, who although is now
deceased, is still considered dangerous for the popularity of his pedestrian Marxism history book, A Peoples
History of the United States. See Horowitz, The Professors, 56, 84, 92, 355-356. Horowitz writes, Well, as I argue
in my book, this is the tip of an iceberg that probably includes between 30,000 and 60,000 faculty activists whose
agendas are political and radical. See Lopez.
45
Horowitz, Indoctrination U, xvi.
46
Horowitz, The Politics of Bad Faith, 3.
47
David Horowitz and Kurt Smith, Does the Academic Bill of Rights Protect or Threaten Academic Freedom? A
Debate between David Horowitz and Kurt Smith, interview by Jessica S. Kozloff, September 19, 2006, Front Page

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Magazine, http://97.74.65.51/readStatic.aspx?area=Debate_between_David_Horowitz_and_Kurt_Smith (accessed

March 24, 2010).
48
David Horowitz, In Defense of Intellectual Diversity, The Chronicle of Higher Education 50, no. 23 (February
2004): B12, http://chronicle.com/article/In-Defense-of-Intellectual/10135/ (accessed March 24, 2010).
49
Scott Jaschik, David Horowitz vs. Womens Studies, Inside Higher Ed, February 25, 2009.
50
David Horowitz, Mussolini and Neo-Fascist Tribalism: Up From Multiculturalism, Heterodoxy,
January 1998, http://www.fiu.edu/ ~yaf/multigarbage.html (accessed April 8, 2010).
51
Jaschik, David Horowitz vs. Womens Studies.
52
Horowitz, Indoctrination U, xiii.
53
This chapter does not address the complexities of pro-Horowitz organizations like Students for Academic
Freedom and Parents for Academic Freedom. Horowitz actually founded SAF in 2001, long before he
changed the name of the mother organization, Freedom Center.
54
See Students for Academic Freedom, "About SAF," Students for Academic Freedom,
http://www.studentsforacademicfreedom.org/about/ (accessed March 26, 2010). See also Parents and
Students for Academic Freedom, About Us, Parents and Students for Academic Freedom,
http://www.psaf.org/ (accessed March 26, 2010).
55
Horowitz, In Defense of Intellectual Diversity.
56
Scott Jaschik, "David Horowitz Wins a Round," Inside Higher Ed, April 20, 2009.
57
Jaschik.
58
Stanley Fish, Think Again.
59
Larkin, Graham. "Whats Not to Like About the Academic Bill of Rights." CA-AAUP. http://www.aaupca.org/Larkin_abor.html (accessed March 24, 2010).
60
Stanley Fish, Think Again, The New York Times, May 2, 2006.
61
Michael Brub, "Warning! Warning! Danger! Danger!" Michael Brub, entry posted February 6,
2006, http://www.michaelberube.com/index.php/weblog/warning_warning_danger_danger/ (accessed
March 24, 2010).
62
Bartlett.
63
Thomas Bartlett, Breaking Bread: Horowitz v. Brub, The Chronicle of Higher Education 53, no. 16
(December 8, 2006): A8.
64
Maurice Isserman, "Fighting Back: Whose Truth?" Academe Online 91, no. 5 (September-October
2005): page #s, http://www.aaup.org/AAUP/pubsres/academe/2005/SO/Feat/isse.htm (accessed March 24,
2010).
65
Jeffery Klein, You Have Our Permission to Put Your Names on Our Press Release: Right-Wing
Academic Values, Counterpunch, March 14, 2007.
66
Robert Jensen, Take a Class From One of the CounterPunch 16: Horowitzs Academic Hit List,
Counterpunch, February 8, 2006. It should be noted that in a later article, Jensen turns from correcting
Horowitz to articulating the danger in conflating goals and strategies as the liberals and the left unite
against Horowitz. Robert Jensen, You Cant Rely on Them Politically: Why Leftists Mistrust Liberals,
Counterpunch, April 27, 2006.
67
Dave Lindorff, This Mouth for Hire: Horowitz on Campus, Counterpunch, September 25, 2006.
68
Lisa Perks, "A Sketch Comedy of Errors: Chappelles Show, Stereotypes, and Viewers" (PhD diss.,
University of Texas at Austin, 2008), 50-51,
http://www.lib.utexas.edu/etd/d/2008/perksl17856/perksl17856.pdf#page=3 (accessed April 8, 2010). See
also, Kenneth Burke, Attitudes toward History, 3rd ed. (Berkeley: University of California Press, 1984), 20,
43. See also, Kenneth Buurke, A Rhetoric of Motives (Berkeley: University of California Press, 1969), 226.
69
See Virgil, Book II, in Aeneid, trans. A. S. Kline (repr., 2002),
http://www.poetryintranslation.com/PITBR/Latin/Virgilhome.htm (accessed March 26, 2010). Laocon
says, I fear Greeks even those bearing gifts.
70
Ellen Schrecker, Point of View: Worse than McCarthy, The Chronicle of Higher Education 52, no. 23
(February 10, 2006): B20.
71
Dana Cloud, Return of the Campus Witch Hunts: David Horowitz and the Thought Police,
Counterpunch, March 8, 2007, http://www.counterpunch.org/cloud03082007.html (accessed March 18,
2010).

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72

Cloud writes, The University of Colorado has moved to dismiss American Indian scholar Ward
Churchill in the wake of Horowitzs attacks. Other targets include Douglas Giles. . .Kevin Barrett. . . Juan
Cole. . . Nancy Rabinowitz. . . Nicholas De. Genova. . . Timothy Shortell. . . Joel Beinin. Cloud, Return
of the Campus Witch Hunts: David Horowitz and the Thought Police.
73
Cloud, Return of the Campus Witch Hunts: David Horowitz and the Thought Police.
74
Sunsara Taylor, Exposing Islamo-Fascism Awareness Week: David Horowitz Cant Handle the
Truth, Counterpunch, October 22, 2007.
75
Alexander Cockburn, Thank You, David Horowitz: So Much for Islamo-Fascism Awareness,
Counterpunch, October 27/28, 2007.
76
David Horowitz, Campus Leftists Don't Believe in Free Speech , The Wall Street Journal, April 19,
2009, http://online.wsj.com/article/SB124000847769030489.html (accessed March 26, 2010).
77
John Murphy, I am that Liberal Dana Cloud Dislikes, Oratorical Animal,
http://oratoricalanimal.typepad.com/oratorical_animal/2009/04/i-am-that-liberal-dana-cloud-dislikes.html
(accessed March 26, 2010).
78
After all, just this year, the Texas State Board of Education approved a curriculum change to social
science studies in secondary schools: Teachers in Texas will be required to cover the Judeo-Christian
influences of the nation's Founding Fathers, but not highlight the philosophical rationale for the separation
of church and state. See April Castro, Texas Education Board Approves Conservative Curriculum
Changes By Far-Right, The Huffington Post, March 12, 2010,
http://www.huffingtonpost.com/2010/03/12/texas-education-board-app_n_497440.html (accessed March
26, 2010).

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Chapter 5: An Ungrounded Fiction:

The Contested Spaces of <Free Speech>
Wednesday, August 28th, 1968 lives in political history as the Battle of Michigan
Avenue.1 Over ten thousand activists from over a hundred different anti-war
organizations had gathered in Chicago to protest Hubert Humphreys nominationso
closely associated with the Johnson Administrations war policies.2 Richard Daley, then
mayor of Chicago, denied the demonstrators petition for permits to hold a YIPpie
festival (Youth International Party), sleep in Lincoln Park, and march down Michigan
Avenue to the site of the Democratic National Convention.3 Daley justified the
preemptive presence of over twenty thousand police and Illinois National Guardsmen
(along with a thousand secret service agents) by invoking public fear of further political
assassinations.4
The Battle of Michigan Avenue started with a rally at Grant Park, the only
activity for which the City had issued a permit.5 When a young boy lowered an
American flag to half-mast, police charged through the crowd and began beating him. In
response, onlookers pelted the officers with epithets, rocks and bags of human waste.6
But it wasnt until Reverend Ralph David Abernathy and his Mule trainthe Mississippi
contribution to Dr. Kings Poor Peoples Campaign march to Washington for an
economic bill of rightsthat the meaning behind the slogan the whole world is
watching took shape.7 As it passed the Hilton, Abernathys train brought the police and
the attention of the media. The police cornered the masses into enclosed spaces. For
example, the police herded many activists into Grant Park, closed it off, and began to tear
gas and beat anyone and everyone.8

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As rally participants attempted to escape from the park down Michigan Avenue,
the tear gas police officers used was in such excess that it infiltrated businesses, including
the Hilton Hotel where the congressmen were housed. News reporters like Dan Rather
were assaulted by police as they attempted to record the events.9 When the crowds had
gathered outside the Hilton, the police tried to disperse [the protesters who] had no
place to go.10 Freeman explains, The crowd was blocked on one side by the hotel, on
another by wooden barricades and officers protecting the entrance to the hotel, and on the
third by a line of National Guardsmen with fixed bayonets to keep the streets cleared.11
In the end, almost 600 demonstrators were arrested and more than 200 were
injured. Former radio journalist for Chicagos WBBM-AM John Calloway remembers,
Most Americans approved of how Daley and his police handled the demonstrations, not
to mention Chicagoans who returned him to office by a landslide in the next election.12
Despite a governmentally-funded report on the events outside the 1968 Democratic
National Convention (known as the Walker Report, after Daniel Walker) finding the
police primarily at fault for the majority of the violence, Daley issued the police a pay
raise.13 Although the police were criticized for their impulsive response and lack of
leadership, public opinion erred on their side, most likely because the protesters could be
framed as outside agitators who only wanted to destroy, not change, democratic
institutions.14
The conflagration of 1968 offers insight into the ways in which public space is
occupied, contested, and denied for the expression or silencing of political dissent. The
purposeful and strategic manipulation of accessibility of public spaces for free speech has
become increasingly common since the anti-war movements of the sixties and seventies.

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The story of these evolving free speech zones is a classic story of agitation and control.
The consequences of threatened, denied or hijacked public spaces for speech are
symptomatic of a political institution struggling to control public perceptions of dissent as
well as private bodies engaged in dissent. This chapter explores the importance of actual
space to political expression, and how circumscribing space renders that right an
ungrounded (literally) fiction.
How have the changes in <free speech> affected on-the-ground political agency
and practice? How have the changes in <free speech> restrained or opened up new sites
of political agency? To explore these questions, this chapter focuses on the contestation
of space for protest, or free speech zones, since 9/11. This chapter contributes to the
larger argument that <free speech> is a hegemonic strategy by analyzing the increasing
surveillance of decreasing spaces for protest. In particular, I argue that political protest is
marginalized, delegitimized, and ultimately silenced by two strategies: First, the
codification of civility in the name of <free speech> enables governmental institutions
purportedly to protect civil liberties while simultaneously denying them to agitators of
change; and second, such a task is fostered by the construction of what Carl Schmitt and
then Giorgio Agamben call a state of exception, in which the rule of law can be
suspended and contradicted in the name of a national emergency.15
To make this argument, first I describe how forces of control both rhetorically and
physically shape the spaces of dissent; the appeal to civility is key to this process.
Second, I contextualize this construction in terms of the War on Terror, or what political
leaders like George W. Bush deemed a state of exception in which civil liberties would
be suspended. Finally, I explore the rhetoric surrounding the right to claim space in a case

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study of the protests and arrests outside of the 2008 Republican National Convention.
Ultimately, I argue that the codification of civility as a measure of legitimate political
participation enables political institutions to maintain sovereignty by controlling both the
literal and metaphorical space of <free speech>.
ON SPACE AND CIVILITY
Imagine that you have written a book. You send your book to a group of editors
for review. When the editors return your book, you find that a substantial portion of your
story has been removed from the main text. This portion is now fragmented: some of it is
now in endnotes, some of it is in appendices, and the rest of it is in an authors note at the
end of the book. You are concerned that these changes in location of content have altered
radically the narrative of the story being told. You contact the editors, who assure you
that they have no problem with the content; they merely think the content is more
appropriate in the margins of the text.
Like a writer carefully guards each sentence, painfully aware of the subtle change
in tone that the presence or absence of a particular word might cause, so too have we
wrestled to protect public spaces for the presence of dissenting voices, under the
presumption that it is in such voices that our political story is told. In turbulent times, we
are most aware of the manipulation of physical space, and consequently, the manipulation
of our story. Moments of economic, political and social upheaval reveal the myriad ways
in which public officials use the rhetoric of civil liberties to marginalize dissent.
The <free speech> trope carries with it a particular concept of public space, of
who can use what location to say what when. Henri Lefebvre poses the question, What
is an ideology without a space to which it refers, a space which it describes, whose

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vocabulary and links it makes use of, and whose code it embodies?16 From the ideology
of Habermas public sphere to the U.S. Supreme Courts rhetoric of the First Amendment
as the breathing space for speech, the spatial metaphor for public space has a material
life.17 Peggy Bowers writes,
As difficult as it might seem to define a public, we in a society live according to
some conception of a public, realistic or not, organize our social values and ideals
around it, and indeed distinguish it from the private realm which is the purview of
the interpersonal. Realistically, then, various notions of the public compete for
dominance to organize our conventions and rules for how people may address one
another.18
To a large extent, we organize our understanding of the publicand rules for
engagement within that spaceaccording to our notions of <free speech>. Bowers lays
out two popular models of speech in contemporary society that heavily influence our
engagement with public spacesthe marketplace model (an economic metaphor
emphasizing competition, winners and losers of public space) and the civic republican
model (emphasizing the romantic belief in shared ideas and consensus).19
As discussed in previous chapters, both models are laden with a liberal ideology
with illiberal tendencies. As potent as the promise of <free speech> is, there is no
genuinely equal access to that promise in conditions of economic and political inequality.
It is important to recognize that property ownership and the literal colonization of oncepublic spaces by commercial enterprises and police have made the right to speak
irrelevant if there is no place to speak. Yi-Fun Tuan remarks, What begins as
undifferentiated space becomes place as we get to know it better and endow it with

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value.From the security and stability of place we are aware of the openness, freedom,
and threat of space, and vice versa.20 Historically, we have witnessed the use of the
<free speech> to govern not just speech, but the bodies that utter speech, and the spaces
in which those bodies gather.
As Lefebvre observes, Space is becoming the principal stake of goal-directed
actions and struggles.21 Rutgers University Geography Professor Don Mitchell
persuasively argues,
[One] way of understanding locational conflict is to see it as a fundamental fight
over how rightsespecially the rights of subordinated peoples in capitalist
societyare defined and structured through struggle and conflictLocational
conflict is a conflict over the legitimacy of various strategies for asserting rights
by those disenfranchised by a presumably objective and legitimate process of
claims mediationSocial struggle is masked by the very landscapes that are
produced by it. Indeed, as concepts of public space became possible with the
development of private property, and as bourgeois conceptions of inalienable
rights for all men gained ascendancy in Western social formations, the
contradictions and conflicts implicit in such an historical movement brought to
the fore issues of social control within public space. The development of
universal rights which were more apparent than real implied a constant struggle
on the part of subordinate groups to win for themselves access to the rights that
they had been guaranteed. 22
Indeed, revisions to the legal definition of types of spacesfrom traditional public
forums (e.g., public streets and public parks), to state-created public forums (e.g., an

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atrium in a public university), to state-created limited public forums (e.g., a room

designated for a school business meeting) and finally everything else (e.g., all other
public property)contribute to the justification for state-sanctioned extension or
suppression of the recognition of bodies and the speech they utter.23 Legal configurations
of appropriate time, place and manner restrictions can be to define which voices are in
and which voices are out of bounds.
This is evidenced by perhaps one of the greatest challenges to <free speech>, the
emphasis on, and codification of, civility, which is, according to Merriam Websters
Dictionary, behavior which conforms to social conventions of propriety. All too often,
bodies in the act of protest are criticized (if not arrested) for engaging a First Amendment
right (assembly) other than rational, deliberative debate. For instance, recall Chapter 3, in
which U.S. and international media bemoaned Muslim boycotts and protests of Danish
products, wondering why protesters of racism could not just write a letter to the editor.
Likewise, when David Horowitz chastised the presence of protesters like Dana Cloud. He
argued that the very presence of protesters was denying him the same courtesy he was
extended to them during the Q&A portion of his presentation even as his presentation
advanced a political agenda to eradicate the very livelihood of such protesters.
In such instances, we find ourselves engaging in the normative governance of
what it means to (il)legitimately engage in political participation. Because <free speech>
is a political tool, the ideograph can be understood as governed largely by an ideology of
political decorum, or civility: silencing dissent under the guise that one has not followed
the proper channels or accessed the appropriate outlet for such complaints. In his analysis
of the classical theory of decorum, Robert Hariman writes,

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Decorum marks both a principle of social order and the complex of

communicative habits within which all principles of order are advanced, resisted,
or accepted. For example, as with our ordinary understanding of etiquette,
decorum can be seen both as the rule that one should always behave in certain
ways and the means by which people negotiate how they should behave in
response to new and troubling circumstances. As with any troublesome matter in
etiquette, decorum marks the tension between public display and personal nuance
that is central to all social experience and to important elements of political
meaning.24
As an implicit theory of political decorum, the history of the First Amendment reveals the
ways in which our society has struggled to codify social order to assess the
appropriateness of various types of public behavior. As Hariman notes, a code of
decorum denotes specific but impersonal rules for correct behavior in familiar situations,
is predicated for all people in those situations and it implies predictable judgments of
approval or disapproval.25
For instance, when Senator Joe Wilson shouted out, You lie! during President
Obamas nationally-televised health care speech, Senator John McCain said that Wilson's
outburst was totally disrespectfultheres no place for it in that setting or any other and
he should apologize immediately.26 Similarly, The New York Times called the outburst
a rare breach of the protocol that governs ritualistic events in the Capitol.27 When
Wilsons office issued a statement of apology, the closing line read: I extend sincere
apologies to the President for this lack of civility.28 Wilson does not say he is sorry for
the content, only the lack of civility. Whereas some critics like Maureen Dowd attempt to

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stimulate dialogue about the racist underpinnings of Wilsons cry, the majority of the
social and political uproar over Wilsons emotional outburst targeted not the content of
Wilsons speech but the space in which the content was presented. What Wilson was
chastised for, and the only thing for which he apologized, was his lack of perceived
propriety in this particular political space.29
Such codes of decorum within the narrative <free speech> pose rhetorical and
material challenges to collective public expression; marginalized groups negotiate these
constraining codes but with different degrees of success. Such codes of decorum make it
increasingly difficult for more holistic critiques of what is defined as acceptable and what
is defined as out of bounds, for example, with regard to racist speech (i.e., current
critiques of Wilson center on the fact that he chose the wrong time and place to speak, but
his motivation and agenda are left unchecked). Norms of decorum gives those wanting to
define the appropriateness of political engagement in terms of time and place a great deal
of rhetorical power.
When leaders declare states of exception, reconfiguring space and civility
becomes a battlefield. From the Alien and Sedition Acts of 1798, to the Espionage Act of
1917, to the 1940 Smith Act, to the 2001 USA PATRIOT Act, legal, political and
communication scholars reveal that during times of war, there returns a structure of
increased censorship of traditionally protected political speech.30 Even beyond the reach
of these particular laws, confrontational strategies of protest have consistently prompted
accusations of incivility
For example, in 1967, Frank Haiman addressed the criticism of certain protest
tactics used by Vietnam War dissenters, the civil rights movement, and college

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students.31 He described a particular type of rhetoric, a rhetoric of the streets, which

exceeds the bounds of rational discourse which teachers of rhetoric value so highly and
are dedicated to promote: the new rhetoric is persuasion by a strategy of power and
coercion rather than by reason and democratic decision-making.32 Lozano-Reich and
Cloud point out,
Historically, dominant groups have repeatedly enacted civilizing strategies to
effectively silence and punish marginalized groups (e.g., labor; women and
people of color; the poor; and lesbian, gay, bisexual, and transgendered
peoplePolitical confrontations up to and including violence have been perennial
resources in struggles for justice (Kirkpatrick, 2008). The civility standard is
detrimental to this project. When measured by standards of civility, protesters are
framed as wild and riotous by dominant media, rendering their struggles
illegitimate (Gitlin, 2003).33
As the above excerpt from Lozano-Reich and Cloud illustrates 42 years after Haimans
research, our culture continues to struggle with practices of <free speech>, granting it
space for normative conceptions of civility, and denying it the space for another form of
speechthat of protest.34
It has become easier for establishments to simply create a quarantined space in
which protesters can organize without being contagious. An ACLU press release recounts
the events from the 1999 World Trade Organization meeting in Seattle, when then-Seattle
Mayor Paul Schell issued a Civil Emergency Order creating a militarized zone in an area
of two dozen blocks in the core of downtown Seattle. In practice, police prevented

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anyone who sought to express anti-WTO views from entering or remaining in the zone,
even if they lived or worked there.35
In 2004, during the Republican National Convention, the New York Police
Department mapped out the protesters path. According to Nonviolent Activist author
Mike McGuire, as the protesters marched, police emerged from hiding areas to corral
the dissenters with orange netting that read POLICE LINE -- DO NOT CROSS,
establishing areas they ironically called ad-hoc free speech zones. One by one,
protesters were arrested and detainedsome for nearly two days.36 Boston had prepared
for the 2004 Democratic National Convention by constructing concrete protest zones, or
protest pens (as they were known to their critics). When the pens were challenged in
district court, Judge Douglas Woodlock sympathized: One cannot conceive of what
other design elements could be put into a space to create a more symbolic affront to the
role of free expression.37 Regardless, Woodlock rejected requests to alter the citys
security plan.38 How do Woodluck and other political officials continue to justify affronts
to civil liberties?
Since the terrorist acts of 2001, political leaders have crafted a permanent state of
exception, in which the ambiguous threat of terrorism demands a suspension of
traditionally protected civil liberties. On November 27th, 2006, former House Speaker
Newt Gingrich argued that free speech should not receive the same level of protection in
the post 9/11 world.39 This strategy of painting the establishment as the protector of law
and order, and the activists as lawless and irrational has become dramatically more
pronounced since 9/11. 40 In her 2002 book Silencing Political Dissent, Nancy Chang
argues,

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Because this crime [domestic terrorism in the USA Patriot Act] is couched in such
vague and expansive terms, it is likely to be read by federal law enforcement
agencies as licensing the investigation and surveillance of political activists and
organizations that protest government policies and by prosecutors licensing the
criminalization of legitimate political dissent. Confrontational protest activities,
by their very nature are acts `that appear to be intended...to influence the policy of
a government by intimidation or coercion. In addition, clashes between
demonstrators and police offices and acts of civil disobedienceeven those that
do not result in injuries and are entirely nonviolentcould be construed asin
violation of the criminal laws.41
Lozano-Reich and Cloud note, In a post-9/11 climate, uncivil protesters are equated
with terrorists (and terrorists cannot be ascribed any rationality whatsoever).42 As a
consequence, public use of space becomes scrutinized under codes of decorum and
civility, dictated by political leaders.
2008 REPUBLICAN NATIONAL CONVENTION
It is well known by all Conservitives [sic] that good manors [sic] start with a red
butt and a mouth shut. --John, comment posted in response to an article in Los
Angeles Times (2 September 2008)43
The weekend before demonstrators planned protest outside the 2008 Republican
National Convention in St. Paul, Minnesota, St. Paul police preemptively raided several
homes of suspected demonstration organizers and at the meeting place for the RNC
Welcoming Committee, an umbrella organization of dozens of activist groups and
individuals from around the country, which has been planning demonstrations for the

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2008 RNC for over a year.44 According to the San Francisco Chronicles Joe Garofoli,
Police seized several laptop computers, digital cameras, schedules and 7,000
welcoming guides organizers planned to distribute to people coming to the Twin Cities
for demonstrations.45 These inflammatory raids did not stop the planned protests.
Almost 10,000 activists gathered in St. Paul during the RNC.46 Granted a permit,
protesters marched from the capitol to the Xcel Energy Center (the location of the RNC),
passing down twenty blocks lined with over 2,000 police in riot gear.47 More police
patrolled the area in Hummers, others in a helicopter, and still others looked down from
sniper-positions atop business buildings. Garofoli observes, In addition to the smattering
of Socialists and supporters of a variety of left-wing causes, the majority of participants
were local families and college students spending their Labor Day holiday protesting the
GOP and the Iraq war.48
But soon splinter groups of protesters broke from the march, setting a fire in a
garbage dumpster, damaging five police squad cars and smashing three giant display
windows at a Macy's department store.49 Some activists used the flaming garbage
dumpsters to block traffic while others linked arms and cornered members of the
Connecticut Republican delegation as they were walking to a security check-point to
enter the Xcel Energy Center.50 Some protesters threw rocks and bottles full of water
and bleach; others spit on delegates. Police indiscriminately used pepper spray, rubber
bullets, concussion grenades and excessive force.51 The riots continued into the night
and into the next day. In the end, more than 250 individuals were arrested.52
Of those arrested were reporters attempting to cover the events, including four
University of Kentucky photojournalism students, Matt Rourke (a photographer from

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Associated Press), and Democracy Now! producers Sharif Abdel Kouddous and Nicole
Salazar.53 Despite attempts to show police their press badges, the reporters were charged
with felony and suspicion of intent to riot.54 When Democracy Now! host Amy Goodman
heard that two of her producers had been arrested, she ran to the police line, requesting to
speak to a commanding officer about the illegal detention of members of the press.
Within seconds, when she did not back away from the police line as instructed by
surrounding officers, she was grabbed, thrown against a car, and arrested on charges of
obstruction of legal process/interfering with a peace officer.55 Charges against Goodman
and the other members of the press were dropped on September 19, 2008 when St. Paul
Mayor Chris Coleman released a statement: This decision reflects the values we have in
St. Paul to protect and promote our First Amendment rights to freedom of the press.56
Media Coverage of the Protests at the 2008 Republican National Convention
However, subsequent media attention did not drop the issue. Continued coverage
of the arrests of journalists framed the actions of St. Paul officials as a threat to free press,
and more broadly, of democracy in general. A Lexis-Nexis search for news covering
Republican National Convention OR RNC AND protesters OR demonstrators
OR arrest OR arrested between August 25, 2008 (a week before the RNC, during
which time police held preemptive raids) and the end of September 2008 revealed 1541
articles. Most of these articles focused on John McCain, Sarah Palin, and the reports from
inside the Xcel Center, and made little mention of the RNC protests, typically only in
passing.
The absence of substantial coverage of the 2008 RNC protests is not unusual. On
the coverage of leftist social movements in the media, Todd Gitlin explains, Some of

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this treatment descends from norms for the coverage of deviance in general: the
archetypical news story is a crime story, and an opposition movement is ordinarily,
routinely, and unthinkingly treated as a sort of crime.57 Because there is little coverage
of the actual protests, I focus my textual analysis on a sampling of media discourse
representative of news coverage across the political spectrum. I categorize this discourse
into conservative, mainstream and liberal news coverage to reveal how media editors
and reporters adapt and reproduce the dominant ideological assumptions prevailing in the
wider society.58 In this case, the dominant ideological assumption of <free speech> was
utilized again and again to deny legitimacy to the protesters regardless of a media outlets
espoused political affiliation. For each category, I chose to gather media coverage from
two sources.59 For the conservative news coverage, I selected The Washington Times and
Fox News; for mainstream news coverage, The New York Times and The Washington
Post; for liberal news coverage, The Huffington Post and Democracy Now!60 I
supplement this analysis with coverage from other popular American newspapers and
news blogs.
Conservative Media Coverage
Conservative source Fox News focused on the impropriety of the protesters. In
their program, Fox News Sean Hannity and Alan Colmes showed a clip of some
protesters associated with Code Pink, who had access into the RNC, disrupting McCains
speech. Colmes and Hannity agreed, That shouldnt happen during his speech.61 The
emphasis on the protesters as interruptions to business as usual suggests an appeal to
<free speech> as governed by a particular code of decorum. The demonstrators were not

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exercising free speech; on the contrary, according to Fox News, they were violating codes
of political convention rhetoric.
Consider for a moment the protocol of political conventions. The pomp and
circumstance that has become associated with national party conventions began with the
gathering of a third party, the Anti-Masons, in 1831. One year later, the Democrats
nominated Andrew Jackson and Martin Van Buren in what would become the first
national convention of a major party. The Republicans followed suit in 1856. The history
of political power shaped what is now understood as traditional political convention
decorum. In his article Political Conventions as Legitimation Ritual, Thomas B. Farrell
writes, The optimal convention ritual begins with the statement and demonstration of
theme, progresses to the clustering of roles and generic personae, and culminates in the
anointing of the person who condenses, symbolizes, and enacts the theme.62
This traditional form of political convention elicits a traditional form of political
convention rhetoric. This traditional rhetoric is expressed in several ways. Farrell notes,
The statement and expression of theme is of initial importance to political
convention ritual. Traditionally, such statement has been the responsibility of
keynote and guest speakers. As the musical etymology of keynote suggests, one
responsibility of such a speaker is to sound the theme of the convention in a
responsive chordone which will set a proper mood for the proceedings. . . In
addition to articulating a central theme through ceremonial discourse, each
political convention ritual will display a cluster of role archetypes, to lend a sense
of historical continuity, generic permanence, and audience recognition. . . [and
finally] Whether any political convention effectively initiates its chosen

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candidates, and offers an effective strategy for gaining and using power will
depend upon the actual performance of the candidates themselves.63
This traditional form of political convention rhetoric defines the context and dictates the
rules for all those who engage in it. Such decorum is the key to legitimacy in this context.
When an individual or group challenges this decorum through a communicative habit
other than those pre-approved by traditional political convention decorum, that individual
or group runs the risk of being framed as uncivil, and therefore illegitimate.64 Hence, The
Washington Times dubbed the demonstrators party crashers.65
Conservative news sources relied almost entirely on statements by police and
governmental authorities, stressing the violence (possible more than actual) in the
demonstration.66 When covering the preemptive police raids, The Washington Times
Gary Emerling interviewed lawyers of those arrested and Ramsey County Sheriff Bob
Fletcher. Emerling notes that the RNC Welcoming Committee is a self-described
anarchist/anti-authoritarian organizing body that authorities say plans to disrupt the
convention by blockading delegate buses, breaching venue security and injuring police
officers.67 Interviews with Tom Walsh, a spokesman for St. Pauls Joint Information
Center a coordinated law enforcement hub set up for the convention, tell of police
interpretations of both the intent of the protesters and the inaccuracy of reports that
police destroyed media equipment.68 Even mainstream news privileges interviews with
the same characters. For example, in a The New York Times article by Colin Moynihan,
Walsh is given the final word in the article, At some point even a journalist has to
recognize that they are in violation of the law. Are they going to get arrested or are they
going to cover it from a distance?69 In such instances, priority is granted to official

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statements that implicate the protesters, even the journalists, in the need for excessive
police force, but never the police themselves.
News coverage focuses on the police attempt to target anarchists who had
allegedly discussed tactics to disrupt the convention, including stretching metal chains
across freeways and kidnapping delegates (neither of which ever occurred).70 Such
coverage privileges the voice of those already in power by representing challengers as
extreme, irrational, and violent. Such representation is reinforced by the repeated
references to anarchist (a devil term in the American political vocabulary) combined
with the threats of violence and mayhem. The reality of the altercation between the
protesters and the police that provoked these particular responses is denied, as is the
message of the organized march in general, which included 10,000 activists who were
never arrested at all. By focusing on the anarchists, conservative news coverage was able
to cast the entire demonstration as a growing, potentially dangerous disease. Fox News
producer Nate Fredman ran coverage of the protesters under the heading, Demonstrators
Plague RNC.71 Referring to the protesters as a plague casts the activists as not only
undesirable, but contagious. Although this metaphor grants protests power (the public is
figured as vulnerable to a spreading movement), it also frames the protests as diseaseridden. In this way, this coverage silences marginalizes perspectives and delegitimitizes
the protest.
Mainstream Media Coverage
Mainstream news sources similarly alluded to the sickening threat of the
embodied mob. Patrick Healy and Coin Moynihan of The New York Times write of CNN
political analyst Donna Braziles response to the pepper spray used by police, I got a

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strong whiffjust toxicand my head and throat are still hurting. Ill avoid the
protesters tomorrow.72 Despite the fact that the police were the ones using the pepper
spray, the protesters are the ones to avoid. This quote from a journalist serves to further
the distinction between the media representatives and the activists: the latter is clearly
invading the healthy space of democracy.
However, mainstream news coverage lent some credibility to the demonstration.
The Washington Post noted, The main protest yesterday was by the Poor Peoples
Economic Human Rights CampaignSome carried sunflowers and banged drums. Many
marchers wore face masks and goggles to mitigate the effects of pepper spray.73 The
language used conveys contrasting images of peace and violence, but this time from the
perspective of the protesters. Yet three days later, The New York Times columnist Jim
Dwyer compares the 2008 RNC arrests with the on-going litigation from wrongful arrests
at the 2004 RNC.74 He notes, The behavior of demonstrators could be a central issue.75
Although Dwyer concedes that the reliability of police intelligence could also be a part
of the litigation back-up, his either-or characterization of the behavior of demonstrators
versus the potential faulty paperwork of police assigns agency to the protesters (i.e., the
demonstrators had conscious intent, and should be handed down a punishment for their
wrongful behavior) while the police escape sentencing because there was a glitch in the
system (i.e., the police could not have known better).
Dwyers implicit judgment of the demonstrators is furthered by his privileging of
the discourse by police and political officials (a common news routine). In his interview
with New York City Mayor Michael R. Bloomberg, Bloomberg is quoted as saying,
You cant arrest 1,800 people without having somebody in the middle who shouldnt

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have been arrested. Thats what the courts are there to find out afterwards.76 Dwyers
article concludes with a quote from Paul J. Browne, the chief spokesperson for the New
York City police department: The arrests were handled in an outstanding fashion, only
reinforced by what weve seen in St. Paul. There were efforts to stop the convention, hurt
people, destroy property and prevent delegates from getting to the convention. That did
not happen. We were able to do that without as much disruption as occurred in St.
Paul.77 Again, the characterization of the demonstrators through the eyes of the police
focuses on potential disruptions to the political convention and the potential threat to
individual bodies. The imagined threat bore little resemblance to the sunflower-wielding
protesters singing peacefully through the streets, wearing masks against from the
indiscriminate use of police pepper spray.
Liberal Media Coverage
Unsurprisingly, the liberal news coverage of the protests outside of the RNC was
more frequent than either the mainstream or conservative news coverage of the events.
However, the liberal news repeatedly and consistently framed the issue as one not of
freedom of assembly but of freedom of press. In other words, by making the story about
themselves, media outlets left behind the defense of the events they were covering.
Almost immediately upon Goodmans arrest, Dennis Moynihan and Mike Burke of
Democracy Now! petitioned citizens to call the St. Paul police as well as the ACLU, not
on behalf of the protesters, however, but on behalf of the journalists arrested:
Democracy Now! stands by Goodman, Kouddous and Salazar and condemns this action
by Twin Cities law enforcement as a clear violation of the freedom of the press and the
First Amendment rights of these journalists.78

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Democracy Now! took the lead in framing the arrests, with various media outlets
subsequently following suit. Robert Dardenne of the St. Petersburg Times writes,
The arrests of four journalists at the Republican National Convention highlight
issues vital to the future of both the press and democratic government. They also
signal to us, as citizens, that we should try harder to appreciate journalism for its
role in helping to maintain our freedoms rather than condemn it because it doesn't
always tell us what we want to hear.79
Associated Press assistant chief of bureau in Washington, David Ake, said, Covering
news is a constitutionally protected activity, and covering a riot is part of that coverage.
Photographers should not be detained for covering breaking news.80 We are concerned
that police in St. Paul prevented journalists from covering a breaking story, said
Committee to Protect Journalists Executive Director Joel Simon. All four journalists
were clearly there to do their jobs.81 Akes and Simons distinction between covering
news and participating in news was a point driven home again and again. Arresting
journalists prevents them from doing their jobs, and is therefore rendered as wrong.
However, the arrests of protesters (even those similarly mistaken as rioters) are treated as
less significant.
By emphasizing the manner of civility in which journalists exercise their First
Amendment rights, media personnel are assumed to be legal. For example, Toni
DAntoni with The Huffington Post chastises St. Paul officials, reasoning, Amy
Goodman is one of the most well-known and well-respected journalists in the United
States. She has received journalisms top honors for her reporting and has a distinguished
reputation of bravery and courage.82 DAntonis caricature of Goodman describes her as

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well-known and well-respected, suggests that not only is she not a nameless rebel
rouser, but she is also identified by her colleagues as a reputable journalist. The stress
on her reputation is made to prove that she is not just another face in the crowd of
protesters. She is somehow above the state of exception, almost as if she were part of
those who issued it in the first place.
Goodman in particular is touted as the embodiment of the decorum privileged in
<free speech>, that of civility. The Nations John Nichols notes, I was with Goodman
earlier this afternoon, as she was reporting on the major anti-war demonstration. She and
her crew were, as always, interviewing everyone they could in the calm, assured manner
that has made the daily Democracy Now! program a widely-watched and well-regarded
news programs on radio and cable television stations across the country.83 The
eyewitness account of Goodmans manners while at the protest is an attempt to craft an
argument that Goodman abided by the behavior and practice demanded during this state
of exception. Her calm speech separates her as a rational, objective observer amidst a
sea of potential terrorists (i.e., those who smashed windows, threw rocks, spit, etc). What
otherwise would have been a critique on the preemptive policing of civil rights
organizations and individual advocates devolved into a critique of the mistreatment of an
elite few.
Contrasting media coverage of Goodmans persona with the personae of the other
protesters reveals the ways in which a lack of civility is used to deny space and justify
suppression of protest. One man, St. Paul construction worker Alex Seasly, made an
argument in so many words for a time and place for such behavior: Im a Democrat
through and through, and Im about as liberal as you can getbut I want to shove a

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hockey stick ...well, you know. Its an embarrassment for the city. We dont treat visitors
like that, unless theyre on the ice.84 This line of reasoning suggests Goodmans release
makes sense, as she was let out of jail for essentially good behavior.
CONCLUSION
When the charges against Goodman and other members of the media were
dropped, two things happened. The first was the police attempted to demonstrate, with
limited success, that the system had worked: although Goodman et al initially were
mistaken as part of the mob, in the end, justice was served. Goodman and the other
members of the press were found out through the grace of the system to be innocent of
collaborating with those in the riot. They were released, and the charges were dropped.
The second, related consequence of the dropped charges against Goodman was
that any attempt to critique police behavior before the protests no longer worked.
Goodman became, to an extent, a token. Law explains,
Tokenism is likely to be found wherever a dominant group is under pressure to
share privilege, power, or other desirable commodities with a group which is
excluded. Tokenism is the means by which the dominant group advertises a
promise of mobility between the dominant and excluded classes. By definition,
however, tokenism involves mobility which is severely restricted in quantity [and
quality]The Token is a member from an underrepresented group who is
operating on the turf of the dominant group, under license from it. The institution
of tokenism has advantages for both the dominant group and for the individual
who is chosen to serve as a Token. These advantages obtain, however, only when

186

the defining constraints are respectedthey must not change the system they
enter.85
Although Goodmans arrest sounded the alarm bell for journalists across the nation, her
release crafted the perception that there was still an institutional interest in maintaining
law, order, and civil liberties: the St. Paul police were not biased in their application of
the law, and free speech was not in danger. Yet the problem of rhetorical discipline of
protests in the name of civility remains. Under the Minnesota state version of the USA
PATRIOT Act, eight protesters faced charges of terrorism. In April 2009, these charges
were reduced to two felony counts: conspiracy to riot and conspiracy to commit property
damage.86 A critical interrogation of their political engagement is never afforded.87
The media hype around Goodmans arrest leaves the nation focused on the
importance of maintaining freedom of press, yet loses substantial ground in the contested
terrain of <free speech>. The whole affair served to reaffirm a particular political powers
ability to define legitimate and illegitimate protest. Anarchists accused of vandalism were
completely excluded from the privileged rhetorical and literal space for <free speech>,
but so were the thousands of other protesters. Charged with failing to be polite, they
therefore do not deserve the space and the protection as journalists like Goodman.88
In this way, the codification of civility becomes a measure of legitimate political
participation that enables political institutions to maintain sovereignty by controlling both
the literal and metaphorical space of <free speech>. In a state of exception, police are
given more room for error and citizens are given less. In this case, using Goodman as a
token, enabled political and media establishments to argue convincingly that even in the

187

face of heightened policing of civil liberties, only those that adhere to refined, restricted
rules of political engagement may play.
In this chapter I examined representative media coverage in the month
surrounding the 2008 RNC protests. I argued that the codification of civility as a measure
of legitimate political participation enables political institutions to maintain sovereignty
by controlling both the literal and metaphorical space of <free speech>. The medias
rearticulation of the civility narrative within <free speech>, I believe, illustrates the
manner in which <free speech> is manufactured to justify coercive force against
individuals who do not consent to norms of decorum during a state of exception. While
media coverage initially may have discursively challenged the states infringement on
<freedom of speech>, such coverage quickly shifted to differentiate journalists from
protesters; the formers rights to <free speech> violated and the latter in violation of
<free speech>. Privileging the perspective of political leaders, the media portrayed
protesters as violating legal and normative codes of civility during a state of exception,
forcing the hand of law enforcement. Police behavior was attributed to an understandable,
but now publicly checked, overreaction. When the dust settled, <free speech> had
worked to reestablish public consent of the increased surveillance of public space.
A more critical conversation centered on the protesters actions as a response to
the preemptive hijacking of the literal and metaphorical space of <free speech> was shut
down. Through their actions, demonstrators attempted to gain control of <free speech>.
As Thomas Rosteck and Michael Leff note when they summarize Kenneth Burke,
Vulgarity is not simply the absence of culture. It is a competing perspective, a rival
version of piety. Thus, the systematic rejection of one perspective does not yield an

188

absence, but generates adherence to a new and equally systematic principle of order.89
Yet, framed by the public as illegitimate, vulgar and violent, activists lost ground, in
Gramscian terms, in a war of maneuver (physically trying to overcome governmentallycontrolled spaces) because they ultimately lost ground in a war of position (trying to
overcome the culturally-controlled spaces of <free speech>).
1

Stu Schutzman, The Battle of Michigan Avenue, ABC News, August 26, 2008,
http://blogs.abcnews.com/theworldnewser/2008/08/senior-producer.html (accessed March 23, 2010).
2
Activists were also present in Chicago because the nations wounds were still fresh from the
assassinations of civil rights leader Martin Luther King, Jr., cultural icon Andy Warhol, and New York
Senator Robert Kennedy. Anti-war organizations included the National Mobilization Committee to End
War in Vietnam, and the Students for a Democratic Society.
3
Although the protesters were given a permit to protest miles away from the convention site, they pressed
forward. On Sunday, August 25th, when Lincoln Park officially closed for the day, police descended on the
people in the park with tear gas and clubs. As the convention proceeded, the violence between the
protesters and the police escalated.
4
See Norman Mailer, Miami and the Siege of Chicago: An Informal History of the Republican and
Democratic Conventions of 1968 (Plume, 1986).
5
Jo Freeman, The Chicago Convention: A Baptism Called a Burial, Moderator, October 1968, 14-16,
http://www.jofreeman.com/sixtiesprotest/baptism.htm (accessed March 23, 2010). Freeman notes,
Although many people had been bused in from Eastern cities for the event, almost half the crowd of
several thousand were McCarthyites, Young Citizens for Humphrey, delegates, and other interested people
who had no intention of fighting the police.
6
Todd Gitlin, The Sixties: Years of Hope, Days of Rage (Toronto: Bantam Books, 1987), 331. David
Farber, Chicago '68 (Chicago: University of Chicago Press, 1988), 195.
7
The whole world is watching became the slogan protesters chanted during the 1968 battle with police
outside the Democratic National Convention. See John Calloway, Whole World Watching, Chicago Sun
Times, November 29, 1999,
http://web.archive.org/web/20050210085625/http://www.suntimes.com/century/m1968.html (accessed
March 23, 2010).
8
Schutzman.
9
See Alexander Bloom and Wini Breines, eds. Takin it to the Streets: A Sixties Reader (Oxford University
Press, 1995). See also Max Frankel, U.S. Study Scores Chicago Violence as a Police Riot, The New
York Times, December 2, 1968.
10
Freeman, 15.
11
Freeman, 15. Freeman notes, With no place to run many were injured by the billy clubs and others were
pushed through the plate glass windows of the hotel by the panic stricken crowd. The broken windows
were later attributed to vandalism.
12
Calloway.
13
See a summary of the Walker Report in Bloom and Breines.
14
Theodore Otto Windt Junior, Presidents and Protesters: Political Rhetoric in the 1960s (Tuscaloosa:
University of Alabama Press, 1990), 182-184. Windt observes that one way in which leaders of
establishments address challenges is by transforming the particular issue being agitated into a general
issue of authority and the credibility of the institution to act as its officers see appropriate.
15
Antonio Gramsci, Selections from the Prison Notebooks, ed. and trans. Quintin Hoare and Geoffrey
Nowell Smith (New York: International Publishers, 1971), 263.
16
Henri Lefebrvre, The Production of Space, trans. Donald Nicholson-Smith (Blackwell Publishing, 1974),
44.

189

17

See Justice Brennans opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). See Youngs
discussion of this spatial metaphor in Iris Young, Inclusion and Democracy (Oxford: Oxford University
Press, 2000).
18
Bowers, 56.
19
Bowers, 62.
20
Yi-Fu Tuan, Space and Place: The Perspective of Experience (University of Minnesota Press, 1977), 6.
21
Lefebrvre, 410.
22
Don Mitchell, Iconography and Location Conflict from the Underside: Free Speech, Peoples Park, and
the Politics of Homelessness in Berkley, California, Political Geography 11, no. 2 (March 1992): 152,
154. For further research, see Denis Cosgrove, Social Formation and Symbolic Landscape (London: Croom
Helm, 1984); Roy Rosenzweig, Middle Class Parks and Working Class Play: The Struggle Over
Recreational Space in Worcester, Massachusetts, 1870-1910, in The New England Working Class and the
New Labor History, ed. Herbert Gutman and Donald Bell (University of Illinois Press, 1987); Robert Sack,
Human Territoriality: Its Theory and History (Cambridge: Cambridge University Press, 1986),
23
Depending on the type of space, particular rules of time, place and manner of speech apply, and in some
instances, if there is proof of a compelling governmental interest (i.e., intent to riot), content-based
restrictions apply as well.
24
Robert Hariman, Decorum, Power and the Courtly Style, Quarterly Journal of Speech 78 (May
1992):163.
25
Hariman, 164.
26
The Huffington Post, Rep. Joe Wilson Yells Out You Lie! During Obama Health Care Speech, March
15, 2010, http://www.huffingtonpost.com/2009/09/09/gop-rep-wilson-yells-out_n_281480.html (accessed
March 23, 2010).
27
Carl Hulse, In Lawmakers Outburst, a Rare Breach of Protocol, The New York Times, September 10,
2009, http://www.nytimes.com/2009/09/11/us/politics/11Wilson.html (accessed March 23, 2010).
28
Hulse.
29
Maureen Dowd, "Boy, Oh, Boy," The New York Times, September 12, 2009,
http://www.nytimes.com/2009/09/13/opinion/13dowd.html?ref=opinion (accessed March 23, 2010). For
example, Dowd writes, But Wilsons shocking disrespect for the office of the president no Democrat
ever shouted liar at W. when he was hawking a fake case for war in Iraq convinced me: Some people
just cant believe a black man is president and will never accept it.
30
Please recall Chapter 2.
31
Haiman, The Rhetoric of the Streets: Some Legal and Ethical Considerations.
32
Haiman, The Rhetoric of the Streets: Some Legal and Ethical Considerations, 13.
33
Nina M. Lozano-Reich and Dana Cloud, The Uncivil Tongue: Invitational Rhetoric and the Problem of
Inequality, Western Journal of Communication 73, no. 2 (April-June 2009): 223-224.
34
Recall the statistics presented in the Introduction of this dissertation: Since 1997, the First Amendment
Center and the Center for Survey Research and Analysis at the University of Connecticut have conducted a
State of the First Amendment survey to poll how Americans view the First Amendment freedoms of
speech, press, assembly, religion and petition. Since 1997 to the latest survey results of 2009, only one of
the five freedomsspeechcontinues to be identified by more than half of those surveyed. As of 2009,
while 55% of those surveyed named speech, only 18% named religion, 16% named press and 14% named
assembly. Less than 4% named petition, a slight increase from the less than 1% in 2001. 39% could not
name any. First Amendment Center, State of the First Amendment Survey.
35
ACLU, Seattle Settles ACLU Lawsuit Over Violation of Free Speech Rights During WTO Protests,
September 14, 2006, http://www.aclu.org/free-speech/seattle-settles-aclu-lawsuit-over-violation-freespeech-rights-during-wto-protests (accessed March 23, 2010). According to the ACLU, in 2005, the U.S.
Ninth Circuit Court of Appeals ruled in the case that the protections of the Bill of Rights apply even during
a time of public unrest. See also Bob Young and Jim Brunner, City to Pay Protesters $250,000 to Settle
WTO Suit, The Seattle Times, January 17, 2004,
http://community.seattletimes.nwsource.com/archive/?date=20040117&slug=wto17m (accessed March 23,
2010). Young and Brunner note that 157 protesters were arrested for disobeying city-sanctioned no-protest
zones. In 2003, the city settled the lawsuit for $250,000.
36
Mark McGuire, "Policing Dissent," Nonviolent Activist, January 2006,
http://www.warresisters.org/nva/nva0106-4.htm (accessed March 23, 2010).

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37

News, "Judge Denies DNC Free-Speech Zone Challenge," WCVB-TV, July 22, 2004,
http://www.thebostonchannel.com/news/3564822/detail.html (accessed March 23, 2010).
38
News, "Judge Denies DNC Free-Speech Zone Challenge," WCVB-TV.
39
Tom Head, Newt Gingrich and Free Speech: A New Sedition Act, About.com,
http://civilliberty.about.com/od/freespeech/i/newseditionact.htm (accessed March 23, 2010).
40
Windt, 182-184.
41
Nancy Chang, Silencing Political Dissent: How Post-September 11Anti-Terrorism Measures Threaten
Our Civil Liberties (New York: Seven Stories Open Media, 2002), 44 and 45.
42
Lozano-Reich and Cloud, 224.
43
P.J. Huffstutter, Outside the GOP Convention, Protests, Violence and Arrests, Los Angeles Times,
September 2, 2008, http://latimesblogs.latimes.com/washington/2008/09/rnc-protests.html (accessed March
23, 2010). Typos of conservative and manners in original.
44
Joe Garofoli, More than 250 Protesters Arrested, San Francisco Chronicle , September 2, 2008.
According to Garofoli, St. Paul Police Department spokesman Tom Walsh commented, It wasn't chilling
enough. We had probable cause. We had obtained information in advance that some of these groups, maybe
10 or 12 of them, were planning to cause disruption and destruction. For us not to act on that would have
been irresponsible. It made today less violent because of the action we took.
45
Garofoli.
46
Huffstutter.
47
Garofoli.
48
Garofoli.
49
Garofoli.
50
Huffstutter.
51
Tom DAntoni, Amy Goodman Violently Arrested Today at RNC, The Huffington Post, September 1,
2008, http://www.huffingtonpost.com/tom-dantoni/amy-goodman-violently-arr_b_123062.html (accessed
March 23, 2010). It should be noted that no police officers were injured. See Glenn Greenwald, Scenes
from St. Paul -- Democracy Now's Amy Goodman Arrested, Salon, September 1, 2008,
http://www.salon.com/news/opinion/glenn_greenwald/2008/09/01/protests/index.html (accessed March 23,
2010).
52
The Committee to Protect Journalists reports there were 286 arrests. Committee to Protect Journalists,
Four Arrested Covering Protest at GOP Convention, September 2, 2008, http://cpj.org/2008/09/
four-arrested-covering-protest-at-gop-convention.php (accessed March 23, 2010). According to Huffstutter,
135 people faced felony charges and twenty-two people charged with misdemeanors refused to give their
real names. See Huffstutter. Also, according to the official Heffelfinger-Luger Report released in January
2009, During the four days of the convention, no one was seriously injured and there was limited property
damage.
53
Huffstutter. You can watch or listen to the arrests at http://www.democracynow.org/2008/9/2/stream.
54
See David Hinckley, Amy Goodman Busted Covering RNC Protest NY Daily News (2 September
2008). See also Robert Dardenne, Reporters Arrest Hurts Democracy, St. Petersburg Times (4
September 2008). http://www.tampabay.com/opinion/essays/article795274.ece. Dardenne writes, Various
accounts say Kouddous and Salazar went to an area in which they heard a disturbance, were told to leave,
and after they asked how they could get out, were arrested, carried off and jailed. Salazar was roughed up
by police officers, resulting in a bloody nose.
55
San Francisco Chronicle reporter Joe Garofoli interviews Amy Goodman upon release from prison. The
video of the interview with Goodman is found here:
http://link.brightcove.com/services/player/bcpid823619053?bctid=1768031771
56
Chris Williams, Reporters Arrested at GOP Convention: No Charges Associated Press (19 September
2008).
57
Todd Gitlin, The Media in the Unmaking of the New Left, in The Social Movements Reader: Cases
and Concepts, ed. Jeff Goodwin and James M. Jasper (Blackwell Publishing, 2003), 301.
58
Gitlin, 301.
59
The following sources were chosen in part because their high numbers of readership (i.e., the New York
Times is the third most widely distributed paper in the United States), and in part because they offer high
readership within their respective category (liberal, mainstream or conservative). For example, Technorati

191

ranks The Huffington Post, which was established in 2005 as an answer to The Drudge Report, the most
linked-to blog on the Internet. See http://technorati.com/blogs/top100.
60
The numbers of articles found for each news source are as follows. Relevant articles were identified by
the articles text (i.e., if the RNC protests were mentioned more than once, they were deemed relevant to
this project). The Washington Times, 19, 7 of which were relevant; Fox News 19, 2 of which were relevant;
The New York Times, 15, 6 of which were relevant; The Washington Post, 11, 1 of which was relevant; The
Huffington Post, 10, 10 of which were relevant and Democracy Now!, 12, 11 of which were relevant. It
should be noted that The Huffington Post and Democracy Now! were not accessible through Lexis-Nexis.
These results were found by key-word searching through The Huffington Posts archives online and
Democracy Now!s archives online. When Amy Goodman or Goodman was added to the list, the
numbers of articles significantly dropped in all news coverage except that of The Huffington Post and
Democracy Now!.
61
Sean Hannity and Alan Colmes, Fox Hannity & Colmes, Protesters Interrupt McCain Speech, Fox
News, September 5, 2008.
62
Thomas B. Farrell, Political Conventions as Legitimation Ritual, Communication Monographs 45, no.
4 (1978): 293.
63
Farrell, 293, 297, 301.
64
For example, in 1964, protesters confronted a political establishment whose physical building and
thematic forum were inaccessible to activists, both literally and conceptually. Civil rights activists had
developed an organization to target racist practices in the deep South, most notably Mississippi. One prong
of their project the Mississippi Freedom Democratic Party, developed to mirror and then challenge the
regular Mississippi Freedom Party. The Freedom Party members went to the 1964 Democratic National
Convention to contest the seating of the all-white members of the Mississippi Freedom Party, most of
whom were directly involved or complacent with acts of discrimination and violence, as legitimate
representatives of the state of Mississippi, and as loyal followers of the Democratic partys platform. After
the Freedom Party garnered substantial public support during the nationally televised testimony before the
Credentials Committee, Presidential nominee Lyndon Baines Johnson created a committee to deal with the
contestation. The committee was charged with discussing options for the Mississippi case behind closed
doors, while the DNC proceeded as originally planned. This strategic move denied the Freedom Party from
subsequent media attention, thereby controlling the political agenda of the convention. When the Freedom
Party members made attempts to reclaim media attention by peacefully occupying seats inside the
convention hall, the members were dubbed by the media as rebel rousers, defying traditional political
convention decorum.
65
Gary Emerling, Protesters Prepare to Crash Part; Ending Iraq War Tops List of Causes; At Least One
Group Threatens Mayhem, The Washington Times, August 29, 2008.
66
For more on deprecatory themes in media framing, see Gitlin, The Media in the Unmaking of the New
Left, 301.
67
Gary Emerling, Protest Leaders Arrested in Raids; Accused of Planning Riots, The Washington Times,
August 31, 2008. Emphasis added.
68
Gary Emerling, Protesters, Police Clash Outside RNC; More than 280 Face Charges in Mayhem, The
Washington Times, September 3, 2008.
69
Colin Moynihan, Questions Emerge Over Police Conduct in St. Paul, The New York Times, September
17, 2008.
70
Gary Emerling, More Held as Protests Continue; Tally Grows to 315, Expected to Rise, The
Washington Times, September 4, 2008.
71
Nate Fredman, prod., The O'Reilly Factor, Demonstrators Plague RNC, Fox News, September 3, 2008.
Emphasis added.
72
Patrick Healy and Colin Moynihan, As Throngs of Protesters Hit Streets, Dozens Are Arrested After
Clashes, The New York Times, September 2, 2008.
73
Holly Watt, Police Pepper-Spray and Arrest Protesters in Convention March, The Washington Post,
September 3, 2008.
74
Jim Dwyer, 04 Cases Still in Limbo After Arrests in St. Paul, The New York Times, September 6,
2008.
75
Dwyer.
76
Dwyer.

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77

Dwyer.
John Nichols, Amy Goodman, Others Detained Outside RNC, The Nation, September 1, 2008,
http://www.thenation.com/blogs/state_of_change/352466/amy_goodman_others_detained_outside_rnc
(accessed March 23, 2010).
79
Dardenne.
80
Hinckley.
81
Committee to Protect Journalists.
82
DAntoni.
83
Nichols.
84
Huffstutter.
85
Judith Laws, The Psychology of Tokenism, Sex Roles 1 (March 1975): 51-52. See also Dana Cloud,
Hegemony or Concordance? The Rhetoric of Tokenism in 'Oprah' Winfrey's Rags-to-Riches Biography,
Critical Studies in Mass Communication 13 (1996): 115-137.
86
See Naomi Wolf, End of America: Letter of Warning to a Young Patriot (Chelsea Green Publishing,
2007). See also Politics in Minnesota, "Gaertner Cancels the RNC 8s Furtherance of Terrorism Charges
as Case Continues," April 9, 2009, http://politicsinminnesota.com/blog/2009/04/gaertner-cancels-rnc-8sfurtherance-terrorism-charges-case-continues/ (accessed March 23, 2010).
87
Radical leftist news outlets attempted a critical analysis of the criminalization of protests. See Leslie
Rose, Fighting Against the Criminalization of Protest, Revolution, February 22, 2009,
http://revcom.us/a/157/RNC_pt1-en.html (accessed March 23, 2010).
88
This reinforces Windts perspective on how institutions control agitation, previously mentioned in this
Chapter: The leaders present themselves as defenders of civil liberties and law and order while describing
protesters as being lawless and irrational. Windt, 182, 184.
89
Thomas Rosteck and Michael Leff, Piety, Propriety, and Perspective: An Interpretation and Application
of Key Terms in Kenneth Burke's Permanence and Change, Western Journal of Speech Communication
53, no. 4 (Fall 1989): 328. For an extensive analysis of the relationship between social structure and
aesthetic norms, see Pierre Bourdieu, Distinction: A Social Critique of the Judgement of Taste (Cambridge:
Harvard University Press, 1984).
78

193

Conclusion: <Free Speech>: Struggling for the Street

There was once a time when you could be arrested for gathering on a public
street! Once thought of as the lesser of the Five Fundamental Freedoms,
Assembly has really gotten some major respect from the Supreme
CourtOriginally, the right to assemble was considered less important than the
[other] rightsGetting together to share ideas, coming together to share common
beliefs and act upon those beliefs has given the right to assemble major street
credit. Fighting for the right to vote, civil rights and protesting war is protected by
the right to assemble. Even going to church or helping with the American Red
Cross is protected. And know this: Picketing is protected when it is for a lawful
purpose and is conducted in an orderly manner and publicizes some type of
grievance. Many groups and organizations use assembly as a way to get the word
out. The right of every single United States citizen to peacefully parade and
gather, demonstrate support or opposition of public policy, and express ones
views is guaranteed by the freedom of speech and the right to peaceably
assemble. Illinois First Amendment Center1
On October 15, 2008, Sgt. Matthis Chiroux stood with hundreds of protesters
outside Hofstra University. Weeks earlier, the 24-year-old Iraq veteran and other
members of the Iraq Veterans Against the War had contacted Bob Schieffer, the
moderator for the 2008 presidential debates, to request admission to the hall to ask
Senators Obama and McCain about the inadequate care of U.S. veterans under the
Veterans Administration. New York University journalist Lee Carter writes, The
veterans imposed a 7 p.m. deadline, after which demonstrators said they would begin a
peaceful protest march right up to the gates of Hofstra University.2 After hearing no
response, the veterans began their peaceful march as planned. When police, in full riot
gear, stopped the men from reaching the gates, the veterans turned and crossed their
wrists behind their backs in preparation for arrest.3 They had previously discussed and
agreed among themselves that they would not resist arrest. That evening, ten veterans and
five civilian protesters were handcuffed and jailed.4

194

As police on horseback attempted to push the rest of the demonstrators away from
Hofstras gates and back across the street, former Army Sergeant Nick Morgan, another
young Iraq veteran, was pushed down, his face crushed under the hoof of a police horse.
Initially denied medical attention by arresting officers, Morgan had to undergo facial
reconstructive surgery to keep his crushed cheekbone from sinking into his face, and has
permanent nerve damage.5
The persecution of protest outside Hofstra is not unique. In 2009, the ACLU of
Pennsylvania had successfully sued to force the city of Pittsburgh to allow what became
an estimated 4,500 protesters to demonstrate in the streets of Pittsburgh in protest of the
G-20 summit.6 Like a scene from student protests at Berkeley in the sixties, when
students, journalists and activists would not disperse from their organized protest in
Schenley Plaza, police encircled the crowd of 500 and began using a Long Range
Acoustic Device, or sound cannon, and launching pepper spray at the demonstrators.7 The
New York Times reporter Colin Moynihan reports,
Plumes of white smoke could be seen rising near Bigelow Boulevard and officers
beating cadence on plastic shields with long batons marched down Forbes
Avenue, driving back students, onlookers and journalists. A block north, as
people scattered, officers fired projectiles at a young man riding a scooter down
Fifth Avenue, knocking him to the ground and arresting him.8
By the end of the two-day affair, approximately 190 arrests had been made. One activist,
Elliot Madison, twittered the police order to disperse. Police raided Madisons hotel in
Pittsburgh and his home in New York, charging him with hindering apprehension or
prosecution, criminal use of a communication facility, and possession of instruments of

195

crime.9 By November, charges had been dropped, with little explanation other than
further prosecution of Madison would be unwise in the face of other pending
investigations.10
Looking back at the epigraph at the beginning of this chapter, one might wonder
how people are able to reconcile the notion that the right to assembly, one of the five
freedoms guaranteed to U.S. citizens by the First Amendment, has earned major street
credibility while witnessing an increase in quarantined protest zones, arrests of
nonviolent protesters and police violence. Reconciling such inconsistencies is in large
part the job of rhetorical critics. When only 14% of Americans can identify assembly as
part of the First Amendment, and less than 4% are able to name petition, it is little
wonder that public perceptions of protest (be they of presidential debates or racist
cartoons) are by and large negative.11 As Mary Ann Glendon notes, the ways in which we
talk about our legal rights inform our political agency, or our belief in the ability of our
actions and practices to influence and potentially change the political, economic and
social system in which we live.12
As this project argues, the <free speech> ideograph functions to govern sociallyagreed upon standards for the way in which First Amendment rights should be performed
(i.e., notions of civility and decorum, privileging of rational and deliberative debate).
Moreover, the <free speech> narrative can be utilized to maintain institutional legitimacy
by silencing dissent in times of crisis. For example, the epigraph at the beginning of this
chapter illustrates how the Illinois First Amendment Center couches the right to assembly
in qualifiers: conducted in an orderly manner and publicizes some type of grievance.
But when a state of exception is declared by political leaders (i.e., when Attorney General

196

John Ashcroft stood before the Senate Judiciary Committee in 2001 and made the
comment that critics of himself and of any legislation passed to help fight the War on
Terror only aid terrorists, for they erode our national unity and diminish our resolve),
such modifications can be manipulated for political purposes.13
This dissertation has demonstrated that the threat of terrorism becomes a means
for placing petition, assembly, and protest outside the purview of legitimate means of
political engagement. The rhetorical analysis of the American medias use of
international media to discuss the Danish cartoons controversy as a matter of free speech,
and more broadly, of democracy, reveals the way in which the traditional liberal free
speech narrative can be used for identification of perceived threats to American
democracy. The fight to frame public perception of <academic freedom>, a
contextualized iteration of <free speech>, becomes the ultimate example of how
malleable the abstraction, <free speech> really can be. And contrasting media coverage
of Democracy Now! host Amy Goodmans arrest (which became symbolic for the public
demand for freedom of press) with the little to no media attention of the other activists
present that week reveals the way in which the codification of civility becomes a measure
of legitimate political participation that enables political institutions to maintain
sovereignty by controlling both the literal and metaphorical space of <free speech>.
In this project, I have argued that <free speech> is an instrumental political act, as
opposed to a universal principle, capable of marginalizing, delegitimizing, and ultimately
silencing political dissent. Journalist Mohamed Khodr writes,
Freedom of Speech is an ever changing and evolving right that depends on time,
person, place, method of delivery, issue, and people involved. Since the time of

197

Socrates who was prosecuted for corrupting young minds to todays blasphemous
attacks on Islam, the Quran, and Islams Prophet; freedom of speech has always
been defined and determined by those in power.14
This cynicism is tempting. However, the <free speech> narrative is not just a tool for the
dominant. I believe that cast as a discursive tool in a hegemonic struggle, the <free
speech> trope offers the potential to open up spaces of protest and infuse ordinary
citizens with political agency. Todd Gitlin reminds us, The more closely the concerns
and values of social movements coincide with the concerns and values of elites in politics
and in media, the more likely they are to become incorporated in the prevailing news
frames.15 It behooves those interested in fostering change to embrace the <free speech>
narrative, and to advocate a return of assembly and petition to popular
understandings of <free speech>.
Beyond its scholarly impetus, my project advocates the rehabilitation of protest as
a legitimate means of political engagement. Ideographic criticism provides a means of
encouraging such credibility by offering a rhetorical history:
A rhetorical history is not only a description of the role that public discourse has
played in a communitys past, it is also an affirmative, critical reconstruction of
that past as it actively impinges on the present life of the community. It is thus a
vital engagement with the rhetorical culture from which both the past and the
present are constituted, and out of which the communitys future will emerge.16
Knowing the history of our cherished democratic language is a resource for linking our
present struggles to that legacy. The traditional, liberal <free speech> narrative is doubleedged, a matter of control but also of resistance.

198

Activists and rhetorical critics interested in social change should remember that it
is only when the lower classes do not want the old way, and when the upper classes
cannot carry on in the old wayonly then can revolution triumph.17 Such crises in
institutional legitimacy as times of war provide an opportune moment for activists and
critics to engage in hegemonic struggles over cultural discourses like <free speech>.
Gramsci notes, If the ruling class has lost its consensus, i.e. is no longer leading but
only dominant, exercising coercive force alone, this means precisely that the great
masses have become detached from their traditional ideologies, and no longer believe
what they used to believe previously, etc.18 Perhaps the struggle is best focused not on
contemporary codifications of civility and morality, but on how the history of protest
infuses <free speech>. From the U.S. Supreme Courts use of the statement by the
University of Cape Town and the University of the Witwatersrand in South Africa, issued
in response to apartheid policy, <free speech> is anything but neutral, and everything but
a moral absolute.
Once we recognize the use of <free speech> as an ideograph as opposed to a
moral absolute might we be able to see a change in public perception of legitimate
political engagement. Only then might we change media discourse from reports like this,
on the G-20 summit protests: On up to then, police had tolerated occasional taunts,
profanity and middle fingers flashed at them from the rowdier marchers. But then, as the
marchers continued to disrupt traffic, they finally ran out of patience, to a hypothetical
report like this: On up to then, demonstrators had tolerated free speech zones, arrests, and
police brutality. But then, as institutions continued to limit, violate and deny protest as a

199

legitimate means of political engagement to citizens, the activists finally ran out of
patience.19
In the conclusion of his book, Our Undemocratic Constitution, Levinson raises
the question, What is to be done?20 Although not a Leninist, his reference to Lenin is a
reference to one of many moments in history where humankind struggles under the
weight of political, economic and social oppression, and engages in some sort of
collective organizing in an effort to overcome it.21 Levinson asks his reader, If a critical
mass does indeed agree that our Constitution is seriously defective, then a campaign
would have the potential to capture national attention and forge a new
consciousnessWho knows where the spirit of critical reflection might lead?22 It is in
this spirit that this project began, and it is in this spirit that I hope this project will
continue. While I am not advocating writing a new Constitution or even a new First
Amendment, I am advocating a critical reflection of the history of <free speech> as it has
developed into contemporary practices today. Of that history, protest plays just as much a
part as speech, and politics inspired every marching footstep as well as every utterance. It
is my hope that this project encourages political action in the face of oppression disguised
as neutrality. Perhaps then, <free speech> will no longer be one more political strategy of
making war [on protesters] with the public's blessing.23
1

Illinois First Amendment Center, The Right to Peaceably Assemble, Illinois First Amendment Center,
http://www.illinoisfirstamendmentcenter.com/assembly.php (accessed March 29, 2010). This excerpt was
written by the Illinois First Amendment Center as part of a campaign targeting children in public schools to
promote First Amendment rights and responsibilities through education designed to raise awareness of the
need to understand, preserve and protect the First Amendment of the United States Constitution.
2
Lee Carter, Iraq War Protesters Arrested at Hofstra University Gates, NYC Pavement Pieces, October
16, 2008, http://journalism.nyu.edu/pubzone/pavement/in/the-nation/iraq-war-protester-arrested-at-hofstrauniversity-gates/ (accessed March 29, 2010).
3
Carter.

200

Matthis Chiroux, Hooves of Fury Stampede Over Veterans/U.S. Constitution Oct. 15, Iraq Veterans
Against the War, http://www.ivaw.org/membersspeak/hooves-fury-stampede-over-veteransus-constitutionoct-15 (accessed March 29, 2010).
5
Now Public, Iraq Veteran Stomped by Police Horse at US Presidential Debate, October 24, 2008, page
#s, http://www.nowpublic.com/world/iraq-veteran-stomped-police-horse-us-presidential-debate (accessed
March 29, 2010).
6
Colin Moynihan, Protestors Dispersed After G-20 Meeting, The New York Times, September 26, 2009,
http://www.nytimes.com/2009/09/27/world/27protest.html?_r=3 (accessed March 29, 2010).
7
See Mark Kitchell, dir., Berkeley in the Sixties (1992). On Wednesday, May 21, 1969, students gathered
at Sproul Plaza on the Berkeley campus to hold a vigil for James Rector, a student bystander who was shot
to death by police during a rally at Sproul Plaza over Peoples Park. The day Rector died is known as
Bloody Thursday. National Guard troops surrounded the students with bayonets, while helicopters
dropped tear gas on the trapped crowd. See Time, Occupied Berkeley, May 30, 1969,
http://www.time.com/time/magazine/article/0,9171,840109,00.html (accessed March 31, 2010). One year
later, a similar incident resulted in the death of four unarmed students at Kent State.
8
Moynihan.
9
Amy Goodman, Watch What You Tweet, Truth Dig, October 6, 2009,
http://www.truthdig.com/report/item/20091006_watch_what_you_tweet/?ln (accessed March 29, 2010).
10
Friends of Tortuga, Tortuga House Update: Pennsylvania Drops All Charges Against Madison &
Wallschlager for Twittering, Friends of Tortuga, entry posted November 3, 2009,
http://friendsoftortuga.wordpress.com/2009/11/03/tortuga-house-update-pennsylvania-drops-all-chargesagainst-madison-wallschlager-for-twittering/ (accessed March 29, 2010).
11
First Amendment Center, State of the First Amendment,
http://www.firstamendmentcenter.org/sofa_reports/index.aspx (accessed March 18, 2010).
12
Mary Ann Glendon, Rights Talk: The Impoverishment of PoliticalDiscourse (New York: The Free Press,
1991).
13
Terry Eastland, General Ashcroft: Justice Goes to War, The Weekly Standard, December 17, 2001.
14
Mohamed Khodr, Bashing Islam is Freedom of Speech - Criticizing Israel is a Hate Crime, Media
Monitors Network, March 15, 2010, http://usa.mediamonitors.net/content/view/full/72401 (accessed March
29, 2010).
15
Todd Gitlin, The Media in the Unmaking of the New Left, in The Social Movements Reader: Cases
and Concepts, ed. Jeff Goodwin and James M. Jasper (Blackwell Publishing, 2003), 309.
16
Celeste Condit and John Lucaites, Crafting Equality: Americas Anglo-African Word (The University of
Chicago Press, 1993), 217-218.
17
Oskar Negt and Alexander Kluge, Public Sphere and Experience: Toward an Analysis of the Bourgeois
and Proletarian Public Sphere (University of Minnesota Press, 1993), 203. Bolded emphasis added;
italicized emphasis in original.
18
Antonio Gramsci, Selections from the Prison Notebooks, ed. and trans. Quintin Hoare and Geoffrey
Nowell Smith (New York: International Publishers, 1971), 276.
19
Lori Shontz, Cindi Lash, and Milan Simonich, Pittsburgh Protest Turns Ugly as Police Arrest 122,
Post-Gazette.com , March 21, 2003, http://www.post-gazette.com/localnews/20030321protestrp3.asp
(accessed March 29, 2010).
20
Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong and How We
the People Can Correct It (New York: Oxford University Press, 2006),168.
21
Levinson, Our Undemocratic Constitution, 168.
22
Levinson, Our Undemocratic Constitution, 180.
23
Kitchell.

201

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Vita
Adria Battaglia was born on May 12, 1981 in San Antonio, Texas, the daughter of
Susan Rose Battaglia and Alan Edward Battaglia. After completing her work at John
Marshall High School, San Antonio, Texas, in 1999, she attended Texas A&M
University, where she received a Bachelor of Arts and a Master of Arts degree in Speech
Communication.
In 2005, she entered the doctoral program in Communication Studies at the
University of Texas at Austin. She taught classes in the same department and also served
as the Graduate Course Coordinator for the departments Professional Communication
Course. During her doctoral work, she also taught at Austin Community College. Her
scholarship has been published in Free Speech Yearbook, a publication of the National
Communication Association. In August 2010, she will join the faculty as a visiting
assistant professor in the Department of Communication and Rhetorical Studies at Illinois
College in Jacksonville, IL.

Permanent address: 8423 Crooked Path, San Antonio, Texas 78752

This dissertation was typed by the author.

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