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Reviews - December 1999; v.2, no.10 |
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Contents
 Reviews
Press Excesses vs. Press Freedoms Don’t Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us
Bruce Sanford's Don’t Shoot the Messenger is a well-written, thoughtful book about the changing relations of the public, the press, media corporations, and the law. He paints a picture of a public that is increasingly cynical and dubious about the press’ credibility; of a press nervously seeking for a return to journalistic ethics and principles in the face of corporate management concerned with market share and profit; of a media industry whose bottom line is the bottom line; and of a legal system increasingly hostile to the free press claims of the media. What is most frightening for me is that, while I disagree with significant parts of the author’s treatment, I basically agree with the accuracy of the general picture of public-press relations that he paints. Sanford divides his book into two parts. Part One explores the root causes of the public’s hostility towards the media, exploring "the ambiguities and contradictions inherent in our relationship with the media." (10) In Part Two, the author turns to the unintended legal consequences – "the unhappy consequences for a nation that has traditionally been strong and secure enough to tolerate (even encourage) its media to be bumptious and offensive." (10) Based on these inquiries, Sanford delivers his own personal message: "Shooting the messenger may be a time-honored emotional response to unwelcome news, but it is not a very effective method of remaining well-informed." (10) Hence the subtitle of the book: How Our Growing Hatred of the Media Threatens Free Speech for All of Us. Origins and Causes Using survey data over time, Sanford makes a convincing case that a canyon of distrust has developed between the public and the media. The public condemns media negativism, bias. and sensationalism, and increasingly questions its credibility. And yet, Sanford argues that media sensationalism and bias don’t really explain the public hostility. Media in the late 19th and early 20th Centuries, he argues, were just as sensationalistic as today, citing the yellow journalism of Joseph Pulitzer, Charles Dana, William Randolph Hearst, and E. W. Scripps. And the American public, even as it vigorously condemned the sensationalism, actively bought it. Indeed, this conflicted public response to the media’s sins is a major theme running throughout Part One. It was the early sensationalism that built the mass market for the media, and it is the public’s demand for sensationalism that sustains the modern market. As Sanford summarizes: "Sensationalism cannot account for our new hatred of the media. Ricki Lake and Geraldo are eternal. The reasons lie elsewhere." (46) Complaints of media bias as an explanation for public hostility to the media similarly fail for Sanford. He explores the press treatment of Dan Quayle and Hillary Clinton, and finds that it was generally divorced from the reality. But he does not accept that the reporting was a product of liberal bias in the press corps or an anti-Clinton conservative conspiracy. Sanford also provides an excessively long (and I believe slanted) treatment of the "poignant story" of the press’ mistreatment of Donna Rice, a pre-Lewinsky victim. Based on these accounts, he rejects bias as an explanation for the public-press gulf. There is no more bias in the media today, he asserts, than in the past. "The media’s stereotyping of public figures feeds images, fears and desires that are deeply engrained in the popular culture. When we blame the media for being biased, we forget that the reporting is designed to appeal to us." (72) Sanford thus arrives at what I believe to be the critical theme of Part One. The public, he argues, is responding to the realities of the corporate culture that now controls the American media. Sanford states: "What has changed, and the public clearly detects this even if it cannot properly label it, is the fading perception that the media have a higher role to play in American life than simply ‘business.’" (85) The public ethos of Pulitzer et al. has been replaced by the self-serving, profit-driven ethos of corporate management. Modern media corporations, generally publicly held, are concerned with business profits and shareholder returns, not with the well-being of the community, the informational needs of the public, or journalistic principles. In the prologue to his book, Sanford catalogs recent incidents in which the media settled lawsuits and apologized rather than fought, killed stories under pressure, and repudiated their own investigative process. His implication is that these actions were driven by concerns over costs and profits, not journalistic integrity. The media business provides the kind of "entertainment" that the public wants and buys, not what it needs. As Robert McChesney puts it in Rich Media, Poor Democracy: Communications Politics in Dubious Times (1999): "Good journalism is bad business, and bad journalism can be very, very good business." Sanford sees the millionaire celebrity journalists as another manifestation of the media business. Again, it is entertainment and promotions appealing to the mass market, not the clarity and authority of journalism, that produces the product. As Sanford puts it: "Journalism’s star system distracts, necessarily, from reporting." (107) Legal Consequences In Part Two, Sanford addresses the "unintended legal consequences" of the growing public hostility to the media. Early in the book he says: "A golden age that for fifty years saw the creation and expansion of a First Amendment right of the public to receive information has concluded." (9) I can only assume that this is simply hyperbole. Bruce Sanford is correctly recognized as an outstanding media advocate. He may be making his strongest case, but the evidence simply doesn’t support such an extreme position. Understood in a more moderate sense, as a need for concern over the danger of overreaction by the legal system to press excesses, his warning is justified and needed. Most of Sanford’s legal review focuses on newsgathering, but the "golden age" of First Amendment jurisprudence for the media involved freedom to publish the news. New York Times v. Sullivan (1964) dealt with the freedom to publish even false, defamatory speech concerning public officials, so long as it is not calculated falsehood. New York Times Co. v. United States (The Pentagon Papers) (1971) (national security) and Nebraska Press Ass’n v. Stuart (1976) (fair trial) condemned prior restraints on media publication. I would argue that this precedent remains firmly entrenched in our law. Annual reports compiled by the Libel Defense Resource Center confirm that media have been and remain successful in about 90% of all litigated libel cases. Some 80% of all libel claims are dismissed on motions. While the libel plaintiff tends to win at trial (which has been true for a long time), this is typically reversed on appeal. While the annual data vary, there has been no huge upsurge in large libel verdicts in recent years. There is simply no evidence that First Amendment libel law is being undermined in the lower courts. It is possible that the media corporate culture has spawned an increased willingness to settle libel claims. I would love to see data and a comprehensive discussion of this possibility. I have felt that it may be happening. But the author does not develop this thesis. Sanford cites the actions of Judge Elmer Friday as illustrative of the erosion of the prior restraint doctrine. During one trial, Judge Friday gagged both trial participants and the press, and after lifting the gag order against the press, locked reporters out of his courtroom during voir dire. (162-63) Indeed, because the Supreme Court in Nebraska Press did not adopt an absolute rule against gag orders on the media, lower court judges do occasionally issue such orders because of the alleged need to protect privacy or assure fair trials. But Sanford knows that gag orders issued by trial courts are routinely reviewed and reversed by appellate courts. The prohibition against prior restraints on press publication remains strong. I am not aware of evidence indicating that judges generally are increasingly closing voir dire. It is true that the press enjoys much less First Amendment protection in newsgathering than in publication, but this is not an erosion of established First Amendment law. Although newsgathering is constitutionally protected, it is not as protected as press publication. It is generally treated as an ancillary First Amendment right, protected only as a means of assuring the freedom to publish. There is no First Amendment privilege or defense available against enforcement of neutral, generally applicable tort and contract laws (See, e.g., Cohen v. Cowles Media Co. [1991]). Even a champion of the First Amendment such as Justice William Brennan accepted this publishing-newsgathering distinction. First Amendment values find expression in newsgathering cases through the interest balancing that often characterizes the application of the common law tort and contract principles to newsgathering activity. Don’t misunderstand me. I share Sanford’s concern that courts often undervalue the importance of investigative journalism in informing the public. I would even favor a limited First Amendment newsgathering privilege applicable to investigative reporting concerning businesses serving the public. But I don’t believe that the lower court treatment of tort and contract actions challenging media newsgathering activity provide much (if any) evidence, as Sanford claims, that courts are eroding established First Amendment principles. Nor do I find many of the newsgathering factual contexts as clear as does Sanford. For example, he is critical of the courts’ protection of privacy in the home in ride-along cases. But privacy in the home is an important social value deserving of legal protection. Also, unlike Sanford, I question the desirability, in the ride-along cases, of the media’s active cooperation with governmental search-and-seizure operations. I’m concerned that the independence of the press and its freedom to criticize government can be compromised by such arrangements. While I disagree with the result in Food Lion (144-146), the courts have limited the damages and restricted its impact on newsgathering. Increasingly, Food Lion is limited to its employment facts -- use of media personnel, faking credentials (with union assistance) to become employees subject to a duty of loyalty. It’s not even clear that there would have been liability if actual employees, armed with hidden cameras, had been used. A more satisfactory example of interest balancing in the newsgathering contexts with regard to First Amendment values is Judge Richard Posner's opinion in the Desnick case (147-149). Indeed, lower courts often protect investigative journalism of government or businesses, even when the press uses fraud and misrepresentation to expose abuses of the public trust. Results adverse to the press in newsgathering cases, while a source of concern and a warning on the need for self-restraint, should not be overestimated. Sanford also argues that there is an erosion of the First Amendment journalist’s privilege: "And then, in the mid-1990s, the slippage began." (166) But most of the cases he relies on involve non-confidential sources. While I believe constitutional privilege should extend to this context, many courts have traditionally disagreed. I don’t believe there has been a significant slippage in the protection of confidential sources. The media won about 60% of the privilege cases in 1998; North Carolina became the 31st state to adopt a shield law; the Second Circuit reversed its decision in Gonzales v. NBC (2d Cir. 1999), which had denied a First Amendment privilege for non-confidential material, albeit adopting a weakened version of constitutional protection. In short, I don’t find the slippage perceived by Sanford. Access to Courts & Judicial Records Sanford gives short shrift to an area in which lower courts have implemented and developed First Amendment media protection -- access to courts and judicial records. After an amazing decade of Supreme Court decisions fashioning a First Amendment right of access to judicial proceedings, the Supreme Court fell silent. But lower courts have developed and enhanced access-to-the-courts jurisprudence. And in the context of access to judicial records, where the Supreme Court accepted only common law rather than constitutional privilege, some lower courts have been willing to accept the press’s constitutional claims to access judicial records. In NBC Subsidiary (KNBC-TV) v. Superior Court (Cal. 1999), California extended the First Amendment-based right of public access to include civil, not just criminal, proceedings. The media do not always win access claims (especially in grand jury contexts), but this is definitely an area in which the courts have acted to protect newsgathering, and ultimately, publication. While I believe Sanford has painted a bleaker picture of the state of media law than is warranted, he is correct, I believe, in drawing attention to warning signs requiring attention. For example, I recently delivered a commentary critical of the new California anti-paparazzi law. (C. Thomas Dienes, Protecting Investigative Journalism, 67 Geo. Wash. L. Rev. ___ [1999]). Like Sanford (120), I believe this law to be an overreaction to press excesses. The law is discriminatory against the press, a vague and overbroad invasion of First Amendment protections. I am also concerned with what I believe to be an increasing use of gag orders, not against the media, but against trial participants, especially lawyers. This may be borne of concern over fair trial and privacy rights; it may be just a judicial reaction against press sensationalism. And as I indicated earlier, I believe there may be an increased willingness of media corporations to settle even weak libel claims. There are a number of such areas of concern implicating potential threats to press freedoms. Unfortunately, Sanford does not employ his extensive experience and formidable legal skills in exploring possible responses to the problems he identifies. Sanford does discuss the efforts of foundations and press groups to begin a dialogue on overcoming the public-press disconnect, on reinvigorating core principles of journalism, and on convincing media companies of the importance of these journalistic principles and values. (195-203) But the focus of Sanford in Don’t Shoot the Messenger is to shout a warning that can be heard and understood by all of us, and this he does very well. C. Thomas Dienes is Patricia Roberts Harris Research Professor of Law at The George Washington University Law School. He was General Counsel at U.S. News and World Report, and continues to serve as Legal Consultant to U.S. News, Atlantic Monthly, and Fast Company Magazine. He is a co-author of Newsgathering and the Law (2d edition, 1999) and Constitutional Law: Principles and Policies (5th edition, 1996). ———————————————————————Forgotten Men: The Bookleggers’ Role in the Fight for First Amendment Rights by Chris Finan Bookleggers and Smuthounds: The Trade in Erotica, 1920-1940
Americans have always loved pornography. There probably wasn’t any sexually explicit material on the Mayflower, but no 18th Century gentleman’s library would have been complete without something racy by Ovid, Boccaccio or Rabelais. Some of our Founding Fathers undoubtedly knew Fanny Hill, the infamous classic written in 1749. Even the Puritans had their pornography. Protestants didn’t believe for a minute that priests and nuns kept their vows of celibacy, and they spent many delicious moments imagining what went on behind the walls of convents. Between 1836 and 1860, they snapped up over 300,000 copies of the Awful Disclosures of the Hotel Dieu Nunnery of Montreal, the apocryphal tale of Maria Monk, who claimed that nuns were forced routinely to surrender to the lecherous desires of priests. Professor Jay A. Gertzman’s fascinating history, Bookleggers and Smuthounds: The Erotica Trade in the 1920s and 1930s, details the great variety of sexually explicit material that was available to our grandparents: gallantiana (books of dirty jokes and ballads, as well as novels and literary classics, that had erotic themes); sex pulps (racy books for both sexes); erotology and sexology (books of sexual information, including works designed to enhance sexual performance and serious sociological and anthropological studies of sex); "readers" and "Tijuana bibles." Only the readers and bibles would be thought "hardcore" today. The readers were slim books that featured between two and seven grainy photos or line drawings of "uncommon copulation positions, naked grinning women, or naked men and women fondling each other." The bibles, also known as "blue cartoons" or "little dirty books," were pocket-sized works that featured the sexual antics of characters from the comics, entertainers, or gangsters. Gertzman shows that both the trade in erotica -- and the movement to suppress it --
were well established when writers in the early 20th Century embraced realism
and began to portray sexual relations with unprecedented candor. It was in the 1920s
that the battle against sexually explicit material like The Lustful Turk
became a war over the proper limits of art in works like Ulysses and
Lady
Chatterley’s Lover. Bookleggers and Smuthounds describes
how literary works came to be protected from the proscription of the censors. Not surprisingly, pornography first became a "problem" in New York City, the nation’s capital of publishing and prostitution. The earliest prosecutions for obscenity occurred in the 1820s. By mid-century, newsstands and bookstores were selling guides to the city’s brothels as well as Fanny Hill, The Cabinet of Venus, and The Confessions of a Voluptuous Young Lady of High Rank. Anthony Comstock Takes A Stand It was in New York that the forces of decency at last began to make a stand. Anthony Comstock, a young dry-goods salesman who had moved there after the Civil War, was appalled by the sinfulness he saw around him. He founded the New York Society for the Suppression of Vice (NYSSV) in 1872, and in the same year persuaded Congress to ban the use of the mails to transmit "indecent" material, including any information about birth control and abortion. Comstock condemned all sexually explicit material. In his view, the depiction of sex was likely to lead men and women to give free rein to their sinful nature and destroy any chance of living the way God intended. It was this fear that led him to raid art galleries and remove paintings of nudes. Far from making himself ridiculous, Comstock became one of the nation’s most respected figures. Both Congress and the New York legislature invested him and his organization with special police powers to assist them in their important work. Comstock’s successor, John S. Sumner, was less colorful, but no less assiduous. He and his agents closely patrolled the city’s bookstores and publishing houses for pornography. They entered these businesses secretly, posing as customers, and often exerted considerable effort in persuading the owners that they were eager to buy "hot stuff." Once they had one piece of contraband, they called in the police to search for more. Sumner used the City Hall furnace to burn hundreds of thousands of books, magazines, and pamphlets. He also policed the city’s theaters and sent Mae West to jail for 10 days in 1926 for her play, Sex. He became the man to see. Producers sought his advice on shows they were considering; even H. L. Mencken consulted him on the expurgation of Theodore Dreiser's The Genius. (Sumner had suppressed the first edition in 1916.) But Sumner was unable to stem the tide of erotica. The business grew dramatically in the 1920s as new printing methods made it possible to add drawings and photographs to erotic texts, and lowered the costs of production. The sale of pornography grew further during the Depression as publishers cut prices to the bone. Moreover, while no established publishers were willing to risk Ulysses or Lady Chatterley’s Lover, there were men who believed in the importance of these books and were willing to risk prosecution to publish them. Many of them were immigrants or the children of immigrants, whose success soon provoked the old firms. One established publisher complained, "[T]hose cheap little publishers who have been springing up from nowhere. . . . They’re all goddamn Jews!" Jews and the Erotica Trade In fact, Jews were probably never a majority of those engaged in the erotica business. But the arrest records of the NYSSV attest to their prominence, and they are a major focus of Bookleggers and Smuthounds. In the 1880s, many of them were German Jews who were skilled in the printing trade. Later, Russian Jews assumed the role of "pariah capitalists," providing the money to publish forbidden works, and then playing cat-and-mouse games with Sumner and other moral policemen to get them into the hands of the eager American public. They had a lot in common with the bootleggers who were defying the Volstead Act, and were often called "bookleggers." Yet many of the bookleggers believed they had a higher calling than making money. Benjamin Rebhuhn and Esar Levine met as students at City College, and traveled together to Mexico in 1920 to observe the socialist reforms that had been implemented during the Mexican revolution. Like many young radicals, they were critical of prevailing sexual mores, and had become followers of the writer Frank Harris, who advocated sexual freedom in his four volume autobiography, My Life and Loves. Rebhuhn and Levine became bookleggers when they published the first volume of the Harris autobiography in the United States in 1926. They went on to become two of the biggest distributors of erotica in the 1930s. Samuel Roth was a poor boy from the Lower East Side who attended Columbia University on a scholarship. Roth was a writer whose poems and articles appeared in Nation, Harper’s Weekly and Poetry, but he was also a born entrepreneur who published an unauthorized edition of Ulysses several years before Random House published the first authorized edition. Roth was the country’s most prominent pornographer before the conviction that led to the Supreme Court’s landmark obscenity ruling in U.S. v. Roth (1957). The fight between the bookleggers and the smuthounds was hard fought. Sumner staged raids throughout the city, hitting not only the used bookstores and magazine stores on lower Fourth Avenue and the Bowery that had a long history of selling sexually explicit works but also upscale establishments in midtown like Frances Steloff’s Gotham Book Mart, where police seized 75 titles in a 1928 raid. Postal authorities also were active, conducting a series of stings against mail-order distributors. The Censors Lose the High Ground In the 1930s, however, the authorities began to lose the upper hand. In part, this was the result of the legal fight waged by bookleggers like Rebhuhn, Levine, and Roth, as well as young publishers like Thomas Seltzer, Horace Liveright, and Alfred A. Knopf. Often represented by Morris Ernst and the ACLU’s National Council on Freedom from Censorship, these men were responsible for several important precedents that narrowed the range of material that could be banned, including the decision upholding Random House’s right to publish Ulysses in 1933. In addition, the censors had begun to appear ridiculous. The public was increasingly unwilling to accept the view of sex that inspired the Catholic Church to lead a boycott of the works of Theodore Dreiser, Ernest Hemingway, William Faulkner, Erskine Caldwell, Ben Hecht, Sinclair Lewis, James Farrell, and John O’Hara. The censors’ attacks also drew attention to the works they were trying to suppress. When, in 1944, Sumner threatened Frances Steloff of the Gotham over the display in her window of a painting that included a nude female breast, she drew even bigger crowds by pasting Sumner’s calling card over the nipple with a card beneath it that read "CENSORED." Yet Gertzman shows that the new freedom did not protect everyone. Ernst and others had won their cases by arguing that some sexually explicit materials had socially-redeeming value. But many of the items sold by the bookleggers were intended solely for purposes of arousal, and the authorities continued to pursue them. Things actually became worse for the bookleggers when the courts ruled that prurient advertising could be banned. This meant that the bookleggers could be punished for "pandering" flyers and ads for the very books that were not illegal to sell! As a result, some of the biggest bookleggers left the business or went to jail. Levine and Rebhuhn were forced out of business by federal prosecutions. Roth fought on into the 1950s. Still, the 1957 Supreme Court decision that bears his name and approved a more liberal definition of obscenity actually upheld Roth’s conviction and sentence -- five years in prison and a $5,000 fine. Gertzman argues that the bookleggers were the victims of our fear of sex. He believes that even those who fought for a liberalized definition of obscenity shared the censors’ view that prurient material is dangerous. Their willingness to draw a line between "art" and "pornography" perpetuated a false dichotomy that has kept us battling over the limits of sexual expression ever since, Gertzman says. This seems a little unfair. There is no doubt that booksellers, like everyone else in publishing, were often guilty of self-censorship. The most blatant example may have been the "gentlemen’s agreement" under which Boston booksellers met with representatives of the Watch and Ward Society to decide what novels they would sell during the 1920s. It doesn’t necessarily follow, however, that they agreed with the censors. As Gertzman’s book shows so clearly, they were under great pressure to conform, risking not only arrest, but the loss of community good will that was essential to the survival of their businesses. In the beginning, Ernst and the civil libertarians had no legal precedents to cite as they often argued their cases before hostile judges. We may wish that they had not made so many compromises, but there is no denying the importance of their achievements. It should be added that, on this point and several others, the structure of Gertzman’s book makes it difficult for him to prove his case. He has chosen to present his subject topically rather than chronologically. As a result, he frequently moves back and forth in time, challenging him to present a clear picture of the many people in his story, and to clarify the all-too-convoluted development of obscenity law in the 1920s and 1930s. Yet, Gertzman is certainly right about our deep fear of our instincts. Our fear does not end with sex. In the current panic over violence in the media, many people are advocating censorship in one form or another; they believe that the depiction of violence brings out "the animal" in us and creates more violence. This is not coming solely from William Bennett and the other heirs of Comstock. Many liberals are calling for the entertainment media to engage in self-censorship. The history of the bookleggers suggests that the censorship of violence is not only wrong, but futile. Bookleggers and Smuthounds is an important contribution to understanding the growth of free expression in the twentieth century. Chris Finan is president of American Booksellers Foundation for Free Expression, which was established by the American Booksellers Association in 1990. He received a Ph.D. in history from Columbia University, and is the author of Happy Warrior: A Life of Alfred E. Smith, to be published by Hill and Wang, a division of Farrar, Straus and Giroux. Editors’ Note: For Books-on-Law reviews of related interest, see David Lowenthal’s essay, "Why the Mass Media Must Be Censored," and our review of Robert C. Post, editor, Censorship and Silencing: Practices of Cultural Regulation (1998). ———————————————————————Six Degrees of "Me" by Keith Aoki The Control Revolution: How the Internet is Putting Individuals in Charge and Changing the World We Know
In the ironic mid-1990s parlor game "Six Degrees of Kevin Bacon," participants are humorously challenged to find a connection within six steps leading from a Kevin Bacon film appearance to a a dizzying array of other celebrities. Lately it seems as though Internet books are multiplying faster than websites – books filled with gushy "the-future's-so-bright-I-gotta-wear-cyber-sunglasses" hype. These books convey a similar message about Cyberspace – that the exponentially-growing Internet puts you within six degrees of anyone or anything else; the cyber-version of the game might be called "Six Degrees of ‘Me.’" Microsoft's ads insinuate a solipsistic vision of consumer sovereignty: "Where do YOU want to go today?" This theme of radically decentralized, wired self-empowerment is skillfully evoked and then usefully critiqued in Andrew L. Shapiro’s The Control Revolution: How the Internet is Putting Individuals in Charge and Changing the World We Know (1999). Andrew Shapiro's particular accomplishment is to write a comprehensive and thoughtful analysis of how the digital network environment differs from the traditional mass communications environment, and how those differences effect changes in both our sense of self and society. He enters rarefied company occupied by legal scholars such as James Boyle and Lawrence Lessig, who bring wit and analytical sophistication to Internet commentary. The Internet drastically increases our individual ability to make and effect choices about how we take in news and other information, how we engage each other in social interactions, education and work, and political life, and how we make decisions about allocating collective resources. In particular, Shapiro convincingly shows how the Internet purports to expand radically our control of our connections with the world. Paradoxically, however, the Internet often becomes a tool to segregate ourselves hermetically from unwanted, but sometimes invaluable experiences. In effect, we become kings and queens of infinite space bounded by a cyber-nutshell of our own making. What accounts for this paradox? For one, the rise of the World Wide Web in the 1990s has inspired much rhapsodic, near-hallucinogenic rhetoric. For example, cyber-gadfly John Perry Barlow – Grateful Dead lyricist, Wyoming cattle rancher, and co-founder of the Electronic Frontier Foundation – has theatrically mused that the Internet is the most significant development in human history since Gutenberg introduced moveable type. He later corrected himself to say he believed that the Internet was the most significant development since the discovery of fire. While Shapiro thinks there are radical changes wrought by what he calls the "Control Revolution," he parts company with those he calls "Panglossian futurists" as to whether those changes are universal or even desirable. What Shapiro manages to frame in his book is a more nuanced, ambivalent, and ultimately, more realistic appraisal of the political and social freight carried by the onward rush of digital technology. His book is usefully divided into four somewhat-Hegelian sections (like this review): (1) "We Have Revolution Now," (2) Resistance," (3) "Oversteer," and (4) "Balance." "We Have Revolution Now" Shapiro uses a variety of examples to show how the "Control Revolution" manifests itself to us. He describes how the Internet reverses the traditional print/broadcast mass media one-to-many equation, as well as the one-to-one equation of telephony, creating the possibly for decentralized many-to-many communications. Shapiro describes how traditional mass-media paradigms that underwrote the power of public and private gatekeepers, intermediaries, and arbiters who controlled our information supply is being supplanted by a new paradigm, in which instantaneous and unlimited input, feedback, and response are the rule rather than the exception. Under this new paradigm, if you're sick of pointy-headed, liberal, "nattering nabobs of negativity (to use Spiro T. Agnew’s words)" who control the East Coast Media, all you need to do is put on your pork-pie hat, get online and start raking muck like Matt Drudge. Shapiro uses the term "disintermediation to describe the movement of millions to online "day trading" – people who got rid of their stockbrokers and decided to invest for themselves. Musicians "disintermediate" their record companies, delivering music directly to their fans. Shapiro then considers the ultimate in "disintermediation:" To what extent does the Internet present the possibility of "disintermediating" politicians and the government from our lives that has been proposed by politicians such as Ross Perot and his idea of an electronic town meeting? Would such political disintermediation be a good idea, however? Ballot referenda have been the scourge of the West Coast states for decades, and government by Gallup Poll sounds distinctly unappealing. Yet, disintermediation may have some upsides, as well. If, as Stewart Brand has said, "information wants to be free," what is to stop political dissidents, such as the folks behind Independent Radio B92 in Belgrade, from using the Internet to webcast to the world even after Slobodan Milosevic cut off power to Serbia's radio and TV stations? While Shapiro concludes, with respect to changes wrought by the Internet, that "we have revolution now," he refuses to indulge in a vulgar techno-determinism. Importantly, Shapiro insists that technologies, whether the Internet or the printing press, are never capable of being separated from the politics of the societies in which they develop. Indeed, the "Control Revolution" that is occurring is profoundly indeterminate, and will need to be worked out in a series of never-ending, and sometimes brutally harsh, debates spread across different areas of society. "Resistance" On the Internet, everyone's voice theoretically is equally available, and information circulates ceaselessly and freely in the cyber-market of ideas – and a good thing it is. Or is there some ideological content to these sanguine visions of electronic frontiers and free flowing information? We often mask our true intent even from ourselves: when someone says, "it's not the money, it's the principle," we know more often than not, it's the money. Shapiro asks us to consider how claims that the Internet is egalitarian hide ways that it is inegalitarian. Rhetorical claims that information should be free hide ways that information is commodified and anything but free. Claims that the Internet is unregulable and beyond the reach of oppressive State regulation hide ways that regulation is hard-wired into, and permeates the very infrastructure of the Internet. On the corporate side of the ledger, Shapiro questions the implications of a company (such as Microsoft) aggressively pushing the "Control Revolution" through ad campaigns (such as their "Where do YOU want to go today?"), when they are simultaneously engaging in market behavior that inhibits robust competition, and thereby the range of information products from which consumers may have to choose. Shapiro reminds us of the ideological "it's not the money, it's the principle" point when discussing: Microsoft's bundling of its browser, Internet Explorer, with the Windows operating system; the rigging of the "search" button, so it would take users only to Microsoft-approved search engines; and the steering of users to familiarly branded, Microsoft-approved content. Ironically, the remedy for such marketplace conduct on the part of Microsoft has been to look to government enforcement of the century-old antitrust laws that were written to combat private abuses of industrial-age oil, steel, and railroad robber-barons. On the governmental side of the ledger, Shapiro shows how powerful interests have been extremely anxious about implications of the "Control Revolution." This anxiety is not necessarily malicious, but misconceived – apprehensive over children accessing X-rated websites, Congress acts rashly to stop "indecency" on the Net; worried about terrorists and drug dealers hiding their communications behind unbreakable codes, the NSA and the FBI want back-door cryptographic "keys" to such codes; anxious over "piracy on the cyber-seas," content-owners press Congress for enhanced copyright protection. Shapiro looks at the areas of speech regulation, encryption-export controls, and proposed expansion of the scope of copyright law as examples of governmental resistance to change. Each of these attempts was less than successful. In the area of speech regulation, the 1995 Communications Decency Act (CDA), a blatant attempt by Congress to "dumb down" the Internet to the level of an 8-year old child's sensibility in terms of indecency, was struck down by the U.S. Supreme Court in Reno v. ACLU (1997). The Clinton Administration's rules barring the export outside the U.S. of strong cryptographic computer programs hobbled the U.S. crypto-industry, and did absolutely nothing to stop the widespread development and availability of strong crypto on the Internet from foreign servers. The mid-1990s effort to drastically expand the scope of US copyright law so as to include an explicit digital transmission right stalled out in Congress partially because of resistance from Net activists, academics, and librarians. Shapiro points out, however, that, despite initial setbacks to each of those examples of resistance to the "Control Revolution," second-generation strategies have been subtler and perhaps more effective. Instead of a blatantly unconstitutional law banning "indecent" speech, the CDA spurred development of filtering programs like Net Nanny, CYBERsitter or SurfWatch, that "privatize" censorship, located at the level of the individual household or computer user. Such filtering – while unproblematic for an individual home – may also be used to filter out unwanted websites from a public library, a company's computers or even an entire country's computer system. While increasingly strong encryption programs are widely available, despite governmental attempts to restrict their use, encryption and related technologies allowing digital signatures and authentication of signatures increase the amount of electronic transactions that are capable of being monitored. And, while the mid-1990s’ attempt to expand the scope of copyright to the digital environment failed, two subsequent legal developments have given copyright owners much greater control over copyrights in cyberspace. First, there is the embrace by e-commerce lawyers of "clickwrap" licenses that create restrictive license terms for use of and access to online copyrighted materials (even though most people do not read, much less contractually agree to be bound by the digital equivalent of "fine print." Second, Congress passed the No Electronic Theft (NET) Act in 1997 and the Digital Millennium Copyright Act in late 1998, one effect of which was to create criminal liability on the part of anyone who attempts to circumvent or tamper with digital copyright management technology. This may include what Professor Pam Samuelson of Boalt Hall has called, "texts that ‘rat’ on you," informing copyright owners of unlicensed accesses to their copyrighted content – Big Brother meets Mickey Mouse. Why is libertarian rhetoric more persuasive in the context of arguing against governmental restrictions of strong encryption, but less so in the context of private copyright owners using encryption to "lock up" their private intellectual property? Shapiro describes the thrust and parry of trying to gain the upper hand in the "Control Revolution" with much nuance and texture. "Oversteer" Unwilling to indulge in a sanguine and unreflective cyber-libertarianism (as in "you will get my cryptographic key when you pry it out of my cold, dead fingers"), Shapiro examines the darker side of the Internet and the "Control Revolution" – that is, the tendency of both Internet companies and online users to overcompensate, or "oversteer" in response to resistance. Shapiro describes how important democratic and civic values may take a drubbing because of the ability of Internet users to personalize content. Put slightly different, because Internet users are able to filter out unwanted content and information, the Internet may become the ultimate social insulator. Unlike the print or broadcast media (or even the library), as we continue to be able fine-tune our content filters to ever subtler graduations, we embrace a selective and willful social blindness and amnesia to larger and more pressing social and political issues that are critical to the "meatspace" in which all Internet dwellers live (or at least park their bodies). Shapiro makes the valuable point that, to a great degree, the inability to filter out distasteful or unpleasant "content" in the real world and the traditional media (i.e., stories about homelessness, AIDs, wars, ethnic violence, environmental degradation, racism, etc.) creates the preconditions for coherent political debate and the existence of civil society. To the extent that the "Control Revolution" allows people to realize to an increasing extent the "liberal" ideal that has been in ascent since the Renaissance (the goal of "liberalism" was to "liberate" the individual from involuntary subordination of feudal and religious hierarchies), Shapiro asks what might be the limits of such a radical individualist Net epiphany? In a world in which we live in our well-insulated personalized, balkanized, and atomized "bubble-universes" – whether it be "model-railroaders," "Pokemon freaks," "depression-era glass collectors," "earth firsters," "Star Wars: The Phantom Menace fans," "radical pro-life activists," or any number of a potentially infinite menu of virtual "communities" composed of members of newsgroups, mailing lists, ftp sites, and interlinked horse-blindered personal webpages – the elevation of "Six Degrees of ‘Me’" to a solipsistic ruling idea – what chance is there for the shared consensual experiences of social life that create the significant (and sometimes messy) political interactions that are the necessary preconditions for self-governance? While the concern that citizens may choose to "check out" of the polity and seek privatized nirvanas in gated communities in the real world is a genuine worry in terms of bankrolling the public fisc, Shapiro articulately makes the case that this is a phenomena to worry about in the virtual world as well. Gated communities, whether virtual or real, draw troublesome boundaries between "us" (whom we care about and want to do well) and them (whom we don't really care about and have no purchase in our pocketbooks or sympathy). Ronald Collins and David Skover, writing in the different context of one-to-many mass media, have bemoaned "The Death of Discourse." Shapiro raises the specter that the context of many-to-many communications, represented by Internet communications, may herald a related, and equally disturbing, death of discourse. "Balance" Shapiro is willing to play the role of a cyberspace "Oscar the Grouch," by pointing out that the over-hyped and much-ballyhooed freedom and autonomy that seemingly underwrite and drive the "Control Revolution" may be contributing to tendencies that will bring into play their opposite values – constraint, subjugation, and dependency. Who would have thought a century ago that the technology of the automobile would produce the racially segregated geography of city and suburb that constitutes the contemporary American landscape, as well as bringing us to the edge of ecological catastrophe via global warming? It is important to retain our capacity to think critically about the unintended consequences of new technologies. Shapiro presciently describes an irony here: the most insidious chains are those that we undertake to assume in the name of our own voluntary choice. Shapiro offers a useful set of prescriptions and frameworks for approaching thorny Internet policy questions. We need to find ways to protect the privacy of consumer information in online transactions. We need to delimit the expansive scope of copyright and other property claims in the digital network environment, in order to strike a balance similar to that struck with copyright in the non-virtual world. We need to find ways to establish non-governmental organizations that are not market players, but also not traditional market regulators, to set standards and handle disputes in this newly globalized electronic environment in which traditional ideas of nation-state sovereignty are attenuated and transformed. Are we working more and enjoying it less, as the experiential compression of time and space proceed apace? As the digital revolution advances, should we be nostalgic for some of the qualities of the gatekeepers and intermediaries from the age of Gutenberg? Perhaps they allowed us to articulate our world in terms of "Six Degrees of ‘We,’" rather than the radical solipsism of "Six Degrees of ‘Me.’" Keith Aoki is a professor at the University of Oregon School of Law. He teaches and writes in the area of intellectual property law, focusing on the problems arising from global trade regimes such as the Trade Related Aspects of Intellectual Property (TRIPs) Accord and the World Trade Organization. Editors’ Note: For two Books-on-Law reviews of related interest, consider M. Ethan Katsh’s review of Mike Godwin’s Cyber Rights: Defending Free Speech in the Digital Age (1998), and Jon Weinberg’s review of Robert Corn-Revere’s Rationales & Rationalizations: Regulating the Electronic Media (1998). ———————————————————————The Unhappy Invert? by Nancy J. Knauer The Trials of Radclyffe Hall
When Radclyffe Hall sent The Well of Loneliness to her publisher in 1928, she described it as "a long and very serious novel entirely on the subject of sexual inversion," and announced that "nothing of the kind has ever been attempted before in fiction." (181) An accomplished British novelist, Radclyffe Hall was aware that her decision to write a sympathetic, if somewhat melodramatic, novel based on the life and loves of Stephen Gordon, a female invert, could "shipwreck" her career. (Una, Lady Troubridge, The Life of Radclyffe Hall [1963] p. 82.) It is doubtful, however, that Hall could have been prepared for the firestorm of protest and the sensational obscenity trials on both sides of the Atlantic that would follow its publication. The attendant media coverage moved the topic of female inversion into public discourse and accomplished Hall’s goal of "the deadly campaign of silence." (171) Despite the absence of any "unclean words" and despite its acknowledged literary merit, The Well was adjudged obscene under the Hicklin standard (Regina v. Hicklin [1868]) by courts in New York and London. The Hicklin standard, which remained the dominant standard for obscenity in the United States until 1957, asked "[w]hether the tendency of the matter charged as obscenity is to deprave or corrupt those whose minds are open to such immoral influences, and who might come in contact with it." (People v. Friede [1929]). Although the New York decision was overturned on appeal, the British decision was upheld and the book remained effectively banned as obscene libel in Britain until 1949. Commentators often mistakenly conclude that the ruling of the courts was that the theme of female inversion itself was obscene. It was Hall’s sympathetic treatment of the theme and her plea for tolerance, however, that were deemed to give the book its power to corrupt the young and weak-minded. Hall portrayed desire between women as an expression of a moral, innate, and god-given attribute. The prosecutors argued that it was precisely this high moral tone, combined with the novel’s uncontested literary quality, that made The Well such an exceedingly dangerous book. Throughout this century, the publishers of numerous novels – many now considered classics, such as Ulysses, The Rainbow, An American Tragedy, Lady Chatterley’s Lover, and Tropic of Cancer – found themselves in court defending their works against obscenity charges. Clearly, the London and New York trials of The Well have a place in the historical development of modern obscenity standards. In many ways, however, The Well stands apart. It was not simply another novel about the human condition that caught the censor’s eye when it pushed the boundaries of acceptable discussion of human sexuality. (It also was arguably not a work of enduring literary significance as are the titles mentioned above.) Hall’s purpose in writing The Well was very instrumental. Her goal was to inspire "dignity and courage" among inverts and "to bring normal men and women of good will to a fuller and more tolerant understanding of the inverted." (163) As such, The Well represents the first public articulation of a positive lesbian identity -- one that is based on the congenital theories of inversion of the early sexologists, such as Havelock Ellis and Richard von Krafft-Ebing, but that carries no stamp of degeneracy. The Well is an example of what Foucault termed a "reverse discourse." When viewed in this light, the trials and the media coverage take on a new importance. They represent not just an attempt to suppress sexuality, but offer an example of the socio-legal efforts to silence and stigmatize the emerging identity formation of "female invert." Similar legal efforts to silence and stigmatize the public deployment of a positive identity can be seen today in a variety of forms, such as the U.S. Military’s "Don’t Ask, Don’t Tell" policy and Britain’s Clause 28. For this reason, the vitriolic attacks in the press against The Well are eerily familiar -- homosexuality is characterized as a contagion that must be kept away from the young. Even Hall’s reliance on congenital theories has renewed currency as scientists hunt for the "gay gene," and it certainly could earn her a place in the essentialist/constructionist debate. Many of the key positions in this early skirmish continue to inform (and constrain) our contemporary views on the subject of same-sex desire and relationships. Unfortunately, a recent biography of Radclyffe Hall by Diana Souhami, The Trials of Radclyffe Hall, declines to draw any parallels between the furor over The Well and late 20th Century identity politics. Souhami [a writer who lives in London] seems much more interested in psychoanalyzing Hall’s sexual exploits, romantic triangles, and otherwise annoying and eccentric behavior than in providing her subject any sort of historical context or perspective. A reader who picks up The Trials of Radclyffe Hall with the hope of learning more about the obscenity trials will be disappointed. Souhami dismisses "the whole court process [as] a conceptual shambles, a philosophical fraud, silly and devoid of common sense." (222) As Souhami explains, Hall’s ‘trials’ referred to in the title "were not only legal, they were familial, behavioral, sexual and psychological." (xxi) A Government Conspiracy? Despite Souhami’s unprecedented access to papers related to the London obscenity trials and other previously unavailable biographical sources, her only new insight regarding the obscenity trials -- that the London proceedings were the result of a homophobic and misogynist government conspiracy to suppress the book -- is the direct result of her failure to understand the law and basic evidentiary rulings. Her assessment of the New York proceedings -- that the book was protected in the United States because of the First Amendment -- is just plain wrong. In her rush to uncover a conspiracy (and applaud the United States for its enlightenment), Souhami misses an opportunity to provide a more nuanced critique of how the Hicklin standard could work easily to silence formation of non-normative sexual identities. Nor does Souhami remark on the apparent paradox that The Well was banned in Britain where female homosexuality had never been criminalized, but allowed to be distributed in the United States, which had sodomy laws in effect in every state. This paradox is all the more striking given that New York enacted legislation in 1927 that banned dramatic productions that depicted perversity, including female homosexuality. Souhami persists with her conspiracy theory despite that fact that earlier biographers such as Michael Baker [Our Three Selves: The Life of Radclyffe Hall (1985)] and Sally Cline, as well as contemporary commentators such as George Bernard Shaw, understood that the legal standard of obscenity did not require any conspiracy to suppress a book with a sexually nonconforming and, therefore, immoral theme. The substance of Souhami’s claim is that "Government and the judiciary connived to secure a conviction and ban this book. The Home Secretary, the Lord Chancellor, the Director of Public Prosecutions, the Chief Magistrate, the Attorney General manipulated the procedures of law and disallowed any process, such as trial by jury or expert evidence, that might have served the interests of the defendants." (xvi) Even without reading the text of the Obscene Publications Act of 1857, Ms. Souhami should have been aware of Vera Brittain’s 1969 book on Hall, A Case of Obscenity?, which includes a very accessible essay on the evolution of British obscenity law. There, she would have found that the defendant had no right to a jury trial. At the London trial, the defense packed the courtroom with notable authors whom they intended to call as expert witnesses, presumably to establish the book’s literary merit, which, of course, was irrelevant to whether it had a tendency to deprave. When defense counsel asked his first witness whether he considered the book obscene, the judge promptly disallowed the question and refused to hear any additional expert testimony. Souhami considers this proof of the conspiracy and does not understand that the ultimate question of law -- whether the book was obscene -- was the province of the judge. She writes: "[The judge] was the court and therefore by some conceptual alchemy that transcended logic, his opinion transmuted into law . . . What [the judge] now pronounced was not opinion, prejudice, misogyny, homophobia, venom or crass stupidity. It was law." (225) Certainly, many of us might have had this reaction to legal rulings, but the critique in this case must rest ultimately with the larger legal structure and not with an individual jurist. Again, this is something that previous biographers have understood. Souhami’s treatment of the New York trials is even more garbled. She explains confidently that The Well was eventually not declared obscene because "unlike in England, the right to freedom of speech was enshrined in the Constitution of the United States." (243) The Supreme Court did not apply the First Amendment to sexually explicit literature until 1957, however, and in no event would the First Amendment safeguard obscenity. She also notes that, unlike his British counterparts, the American judge did not "manipulate the process of the law to ensure the outcome he desired." (244) It is difficult to see why Souhami trusts the New York Magistrate, given that the defendants were not entitled to a jury trial and the court allowed no expert testimony -- the same procedural inequities that Souhami used to "prove" the British conspiracy. "Contentious Theories"? Souhami derides Hall for ascribing to a theory of "lesbian identity about as empirically reliable as the paternity of Jesus Christ[.]" (167) She never shares with the reader, however, just which theories of lesbian identity are "empirically reliable" and do not demand a certain degree of faith from their adherents. Souhami’s mocking treatment of Hall’s reliance on a congenital theory of inversion seems harsh, given that it did represent relatively progressive scientific thinking about sexuality. (The only other option was the Freudian psychoanalytic model, which lacked the same rhetorical force.) Souhami describes how Hall selectively fashioned her understanding of her own sexual identity. "She took bits of [the sexologists’] writing that appealed to her, mixed these with Catholicism, spiritualism . . . and oddball ideas on endocrinology," resulting in "a theory of lesbian identity that has startled and dismayed readers of her classic novel down the decades." (xix) Indeed, however ridiculous, or perhaps simply unfeminist, Hall’s personal brand of inversion may seem in hindsight, it is not that far removed from the search for the gay gene, the examination of the ears of lesbians, and the evaluation of the size of the hypothalamus in the cadavers of gay men. In recent years, these scientific "discoveries" have met with considerable media coverage, and have been embraced by many in the gay and lesbian communities who sincerely believe that they were indeed "born that way" and that perhaps now they stand one step closer to classification as a suspect category. There is no question that The Well is a depressing tale. At the conclusion of the novel, Stephen pushes the love of her life, Mary, into the arms of a male suitor with the hope that Mary can lead a "normal life." The final paragraph of the book is a plea to God for tolerance and understanding on behalf of unhappy inverts everywhere. Souhami does not examine, however, why even with its "narrative of damnation," The Well was the most influential lesbian novel throughout the pre-Stonewall period and remains a lesbian classic. Countless personal histories attest to the important role The Well had in the formation of lesbian identity for generations of women, many of whom apparently found the congenital theories empowering. No matter how close Hall may have come to Souhami’s characterization of her as "anarchic, manipulative and obsessive," it is a mistake to dismiss Hall as a cigar-smoking, tweed-wearing, British eccentric, who preferred to be called John and who made unhealthy romantic choices. (xxi) This approach may yield an entertaining story, but it certainly does not begin to address the larger questions relating to Hall’s decision to write The Well, its reception by the law and the press, and its lasting impact on unhappy inverts everywhere. Nancy J. Knauer is a Professor of Law at Temple University. Her recent articles include "Heteronormativity and Federal Tax Policy" and "Same-sex Domestic Violence: Claiming a Domestic Sphere While Risking Negative Stereotypes." She is currently working on an article examining the socio-legal response to the publication of The Well of Loneliness. Editors’ Note: For a Books-on-Law review on a related topic, see Ruthann Robson’s review of David M. Estlund and Martha C. Nussbaum, editors, Sex, Preference and Family: Essays on Law and Nature (1997). ———————————————————————A Reply to Nancy Knauer by Diana Souhami Professor Nancy Knauer’s review of my book, The Trials of Radclyffe Hall, has much of the tone of the prosecutors of The Well of Loneliness: opinionated, humourless, and insulting. Like them, she seeks to rubbish a book that does not reinforce her views. The "Conspiracy Theory" Charge "Conspiracy theory" is a coded cliché. It implies the manipulation of facts to feed paranoia. According to Knauer, in my treatment of the source material relating to the trial of Radclyffe Hall’s book, I "rush to uncover a conspiracy," and I "persist" with my conspiracy theory despite the fact that "the legal standard of obscenity did not require any conspiracy to suppress a book." I do not use the word conspiracy, although it does not follow that because no conspiracy was "required" to ban The Well of Loneliness none took place. Radclyffe Hall herself referred to a conspiracy on the part of the English government and judiciary to suppress her book. Michael Rubinstein, the solicitor who acted for her, and who was also her friend, warned her against publicly airing this view after the trial, for fear of her being found in contempt of court. The new material that informs my book had been retained by the Home Office in London for seventy years since the trial of The Well in 1928. It was of personal memoranda -- exchanges and letters between the Home Secretary, the Director of Public Prosecutions, the Attorney General, the Chief Magistrate, the editor of Express newspapers and others. This material shows how these men of the Establishment schemed, manipulated and used the law to suppress this book. Their private exchanges show a distasteful display of prejudice. The reason for keeping this material from public scrutiny for so long seems to be that it shows the government and the law in an embarrassing light. A Biographer’s Project I devote more than a hundred pages to Radclyffe Hall’s book and its suppression. It is true that I do not dwell directly on "how the Hicklin standard could work easily to silence formation of non-normative sexual identities." I leave that to Professor Knauer as a sequel to "Heteronormativity and Federal Tax Policy" and other of her thrilling pieces. I am a biographer. I was interested in the machinations of these grand old men of England -- members of parliament, and the Garrick Club, holders of high judicial office. They used the Regina v. Hicklin rule (introduced in 1868 to ban an anti-papist pamphlet by a man called Hicklin) as a peg for their prejudice. My applauding of the fate of The Well in New York revolves mainly around the brilliance of the American publisher’s defence lawyer, Morris Ernst. I do not "explain confidently" that The Well was not declared obscene because of the First Amendment. Professor Knauer repeatedly distorts my argument by truncating quotation. On Page 243, what I actually wrote was: "It was a help to him [Ernst] that, unlike in England, the right to freedom of speech was enshrined in the Constitution of the United States." I was referring to his liberal thinking, his plea for freedom of thought, his quintessential fairness. With lawyers as with reviewers, it matters whom you get to represent your case. Muddled Logic I will let most of Professor Knauer’s clumsy insults pass. Her thinking stumbles along. To give a further example of her muddled logic: "Souhami derides Hall for ascribing to a theory of ‘lesbian identity about as empirically reliable as the paternity of Jesus Christ.’ She never shares with the reader, however, just which theories of lesbian identity are ‘empirically reliable.’" Of course I don’t. I subscribe to no such theories. Radclyffe Hall pathologized lesbianism in print. In fact, she and her glittering set in London, Paris, and New York – Natalie Barney, Romaine Brooks, Winnaretta Singer, Colette – with their fine houses, stylish lovers, inherited incomes, and sparkling careers needed no apologist for their affairs, loves, and sexual escapades. As for Knauer’s summing up of my book in her final sentence, it is untrue on two counts. I address in great detail the issues of Radclyffe Hall’s decision to write The Well of Loneliness and the book’s reception by the law. Those issues are at the heart of my biography. Knauer’s third point is true: I do "not begin to address the larger question [of The Well’s] lasting impact on unhappy inverts everywhere." That’s a problem for her lumbering cast of mind. Diana Souhami, a writer living in England, is also the author of a biography of Violet Trefusis, lover of Vita Sackville-West, and her mother, Alice Keppel, lover to Edward VII, entitled Mrs. Keppel and Her Daughter (1998). ———————————————————————Fixing Feminist Jurisprudence by Leslie Bender Our Lives Before the Law: Constructing a Feminist Jurisprudence
Judith A. Baer describes Our Lives Before the Law as a "contrarian book" "born out of anger and hope." (i) Though the hope is thin, despite her concluding chapter's assertions to the contrary, the anger is palpable and simmering. Baer is angry at the law's failure to give women what we need to have – the same quality of life that men have – and she is angry at feminist jurisprudence for its failure to grasp how that should be done. Baer's intelligence and passion, as well as her formidable command of feminist scholarship and liberal jurisprudence, shine throughout her work. Her readers will get a clear and broad-based introduction to feminist jurisprudence. Unfortunately, Baer often falls prey to the sound-bite. For readers schooled in the layered thought of feminist jurisprudence, her representations of feminist scholars may seem more like caricatures than portraits. Her pithy technique will work best for students and lay readers who can use the book as an introduction to feminist legal theories. Yet, Baer sounds like she is talking to feminist jurists, urging us to revise our feminist theories and take a new approach to our work that will not be subject to the flaws plaguing current feminist legal scholarship. In Part I, "Using Women's Lives to Interpret Law," Baer answers the questions of whether law is male, what makes law male, and how law is male, by explaining feminism's critiques of law and patriarchy and illustrating why feminist jurisprudence to date has been far too unsuccessful. In Part II, "Women's Lives Through Law," she focuses on constitutional and public law issues like equality, reproductive freedom, and fetal protection policies to show how the law inaccurately interprets women's lives and needs. Then, in her last chapter, Baer proposes a revised feminist postliberalism, which she calls imperative jurisprudence, when it is applied to law. The great power of this book is Baer's concrete proposal, constructed from years of thinking about feminism and conventional public law theory. Whether or not one agrees with her, she ought to be credited for going beyond pure critique to designing a jurisprudential approach. This review contains a sketch of a few of her arguments, but I encourage scholars to read her interesting book to learn the subtleties of her reasoning and hear the force of her critique. Fixing Sexual Equality & Equality Law The crux of her argument is that for feminist critiques of law to succeed, they must presume sexual equality as their organizing principle and "extirpate, 'root and branch,' the male supremacy of conventional theory." (189) No doubt all feminist jurists think that is what they are doing. Baer finds their understanding of what sexual equality requires inadequate to the task. Feminism has too readily bought into the rhetoric of liberalism that explicitly debates about equal rights, while implicitly and without question imposing asymmetrical gender responsibilities. Challenging what is unsaid about responsibilities must be a focal point of an effective feminist legal analysis. And if men, acting in their own self-interest, give themselves rights, use an ethic of justice, and practice abstract reasoning, these must be desirable things. After all, if they were undesirable, men would have assigned them to women. Feminists who reject rights as alienating or inadequate – or seek to switch to an ethic of care and a more detailed, particularized reasoning – are taking the wrong approach. She argues that sexual equality requires more rights for women (positive rights derived from needs, as well as negative freedoms from coercion and interference), and gender symmetry in the allocation of responsibilities for tasks such as care-giving, child-rearing, domestic work, and reproduction. Applying Rawlsian-like principles of equality and justice to this "maintenance" work in our society will impose more of these responsibilities on men and on collective institutions (governments, corporations, employers, communities). (194) A rule of strict sexual equality will begin to undermine the male supremacy in law. Disappointingly, Baer doesn't adequately translate this theoretical approach into her separate chapter critiquing equality in law. For instance, Baer's challenges to the intent and state action requirements under 14th Amendment equal protection clause analysis reflect her critiques of liberalism's "free will" and "public-private distinction" (explained below) and restate familiar critical race and feminist critiques of equal protection. But, they do not incorporate her work on sexual equality. Given her powerful arguments about sexual equality, one would hope that her critique of legal equality would reconcile her theoretical position with an interpretation of 14th Amendment equal protection. Fixing Liberalism Despite its promise, the symmetrical reallocation of rights and responsibilities will not create sexual equality in law by itself. Law must also reject fundamental liberal assumptions about voluntariness, free will and choice, and abolish the public-private distinction. In Baer's view, conventional legal theory's parents are capitalism and liberalism, and capitalism and liberalism are direct heirs of male supremacy – making male supremacy the grandfather and genetic source-code for law. Free-will assumptions, written from liberalism onto law, often are not true for women, when one examines the contexts and conditions of their lives; yet, they are used to individualize responsibility and impose it on women. Baer supports her claims with examples of criminal prosecutions of pregnant women, attempts to limit women's reproductive freedom, evidence of women's vulnerabilities to male violence, evidence of women's economic destitution, and rhetoric about female sexuality in general. Discussions of women's free choices divert attention from male aggressiveness and irresponsibility, and from structural, societal, collective responsibilities. Likewise, the public-private distinction of liberalism hurts women and makes us unequal. Essential functions typically assigned to women (e.g., maintenance or "imperative" work like reproduction, housework, and child care) have been devalued and exempted from principles of justice through their relegation to the private realm. The public-private distinction must be abolished, so that these essential functions will be treated the same as other societal work and elevated to the same system of rewards and just distribution. Women cannot achieve sexual equality unless the public-private distinction becomes obsolete. Fixing Feminism Feminist jurisprudence has some arguments right – particularly those advocating the abolition of the public-private distinction – but has gone seriously awry on other points, including its acknowledgement of gender difference, its singular focus on women, and its conflation of the situation of women with its understanding of who women are. Feminism started out on the right foot, but lost its way in the 1980s and 1990s. Having once served to liberate women from their socially constructed roles, feminism today reinscribes women in those roles, if not by intention, certainly by effect. Baer reserves her harshest criticism for difference-feminism, which she labels "character jurisprudence," but she also calls to account dominance-feminism, which she entitles "situation jurisprudence." Baer praises "character" feminists for their contributions in valuing women's assigned work, but simultaneously chastises them for attaching these tasks to women, often in essentialist ways, and leaving women with primary responsibility for them, even though they are "imperative" for society to continue. Difference-feminism, when applied to law, replicates pre-feminist, protectionist legal arguments, and ends up being regressive. Baer prefers dominance-feminism, which she praises for recognizing women's vulnerabilities to male violence and law's role in supporting male power and domination; but, she concedes that this gender-power theory is regularly criticized by feminists and others, who blur descriptions of the "situation" of women (subjection to male dominance) with the "situated" (descriptions of women themselves). (62) People confuse male aggression with female passivity. Baer decides that this erroneous critique of situation jurisprudence is inevitable in a society that focuses on individuals rather than systems, structures, and institutions. If situation jurisprudence is going to be read as insulting to women and taking away our "agency," another approach must be adopted. So a feminist theory is needed that attacks gender-power dynamics and male supremacy, and does so in a way that places responsibility on men and institutions, not on women. The way to avoid the critique of situation jurisprudence is to theorize about human beings, not women or men. Paradoxically, after extensively discussing the ideas of many different feminist scholars, Baer ends up reducing them into this simple, dichotomous approach. I find the neat separation of feminism into these two schools of thought misleading, but acknowledge that this dichotomy is an accepted analysis of feminism. Nonetheless, she errs by labeling these two approaches for their "flaws," rather than their strengths. What I find interesting about Baer is that she is both right and wrong in her critiques of feminist jurisprudence. She misreads character jurisprudence in the same way she claims critics misread situation jurisprudence. Maybe her misinterpretations of character jurisprudence are as inevitable as critics’ misinterpretations of situation jurisprudence. If so, then she is right that something else is needed. Baer insists that we start theorizing about human beings rather than women. "A liberalism that includes women as rights-bearing human beings is a necessary component of feminist jurisprudence." (174) Fixing Abortion Law Baer's anger at law is exacerbated by the flawed decision in Roe v. Wade (1973) and the continuous assault on legalized abortion. She devotes much of her book to advocating for abortion rights. On the subject of reproductive freedom and choice within Roe's framework, she argues that the pregnant woman ought to be the party who decides whether her fetus is a human being or person, not the State, the Constitution, experts, or vocal groups. (135) She challenges legal theorists and anti-choice (or pro-life) "feminists" who impose more responsibilities and restrictions on women, but do not impose comparable additional responsibilities on society and men (e.g., granting women positive rights to support, health care, childcare, addiction treatment, job advantages). Anti-choice feminists are not feminists to Baer, because their positions are incompatible with sexual equality. They create single-sex burdens on women. As with her equality law argument, where she inadequately applies her theoretical sexual equality critique to law, here Baer inadequately applies her liberalism critique to her abortion law analysis. Like most of us who attempt to reconcile structural critiques with the individualism of liberal legal systems, Baer confronts the dilemma of calling for a theory that deals with structures and institutions, while at the same time emphasizing individual women’s own free choices and rights. Reconciling these two positions for the benefit of women is the difficult theoretical problem she hasn't yet solved for feminist jurisprudence. Fixing Feminist Jurisprudence with Imperative Jurisprudence Baer calls her solution "imperative jurisprudence," because she demands strict sexual equality in all the imperative, maintenance work that is necessary to sustain society and is a precondition for all the kinds of activities law seems to value. Our opening question should be: "What can people and society not do without?" Society cannot do without cleaning, cooking, child rearing, caregiving, or reproduction. Strict sexual equality must apply in the assignment of these essential functions that keep society going. Childbearing is the only exception, because the imperative function of reproduction cannot be reassigned. In the case of reproduction, "[i]nequalities can benefit the disadvantaged if those who are burdened with the necessary work can say no, and are rewarded rather than punished for doing the work." (195) ‘Feminist jurisprudence must liberate women from performing assigned roles and reward them for performing assigned activities," like caregiving. (197) And, "[t]he right to the means of meeting human needs, at the very least, must join the traditional rights of liberal theory. Positive and negative rights must be envisioned as interdependent." (199) A focus on human beings, rather than women, a symmetrical reallocation of rights and responsibilities, elimination of conventional legal theory's concepts of "free will" and "the public-private distinction," and the addition of positive rights will set feminist jurisprudence on the correct course. Baer is right to be angry about how women have fared under law. I do not doubt that Baer's vision would greatly improve the quality of women's lives. Feminist jurists must attend to her concerns and consider whether her proposed solutions give us the hope we need for a feminist future. Leslie Bender is Professor of Law and Women's Studies at Syracuse University. She is co-author of Power, Privilege and Law: A Civil Rights Reader (West, 1995). Editors’ Note: For Books-on-Law reviews of related interest, see Mary-Christine Sungaila’s review of Cathy Young’s Ceasefire!: Why Women and Men Must Join Forces to Achieve True Equality (1999) and Judge Norma L. Shapiro’s review of Nancy Levit’s The Gender Line: Men, Women and the Law (1998). ———————————————————————A Reply to Leslie Bender by Judith A. Baer Leslie Bender has given Our Lives Before the Law the sort of critique she believes feminist theory should get. Her review emphasizes detail over theme, "layered thought" (whatever that means) over "pithy technique," trees over forest. I appreciate her fair and disinterested reading of my book, but the sacrifice of depth for breadth makes her review difficult to answer without descending to the level of "I did NOT!" versus "You did TOO!" Too much is asserted without argument: for example, her contention that I err by "labeling" two groups of theorists "for their ‘flaws,’ rather than their strengths." (I am not sure what this means; perhaps she intended to write "criticizing for" or "categorizing by"?) I think Professor Bender’s main criticisms, however, can be classified into to two sets of arguments. First, she asserts that I oversimplify, over-dichotomize, and distort the feminist theory I analyze, particularly what I call character theory. Second, she finds a lack of connection between my theoretical approach and my analysis of equal protection law and abortion rights. In my opinion, both criticisms rest on a misunderstanding of my arguments. I discuss each in turn. Professor Bender suggests that I reduce feminist jurisprudence to a "simple, dichotomous approach," that this "neat separation" of feminism into the dominance/difference or character/situation dichotomy is "misleading," and that my "representations of feminist scholars may seem more like caricatures than portraits." I agree that this common dichotomy, which I describe as "a subspecies of a hardy perennial in feminist theory" (40) is inadequate. But this criticism, as applied to my book, is inaccurate. I state that "feminist theory is far too rich and diverse to be contained within neat categories" (39), that the works I discuss do not comprise the whole of feminist jurisprudence, that my categories are not mutually exclusive, and that my primary concern "is not what sets these two groups of theories apart but what they have in common." (11) In Chapter 4, "How Is Law Male?" I defend dichotomization, like all classification, as "an indispensable pedagogical tool" (79), while acknowledging its dangers and shortcomings. A careful reading of my book – especially the sections on feminist epistemology, which Professor Bender largely ignores – will not support these criticisms. The charge of oversimplification and distortion is one I have encountered before. In the hands of pre-publication reviewers, it led to several rewritings of sections of Part I. If I "[misread] character jurisprudence in the same way she claims critics misread situation jurisprudence," then I think Professor Bender falls into the same error I find in the feminism of the 1980s and 1990s: a tendency to be too nice, to accept theory (feminist theory, at any rate) at face value, to take what authors "thought they were doing" as givens. I disagree with this approach, both in general and in particular. I think I have been scrupulously fair by choosing the best available work to criticize, rather than holding character theorists responsible for every bit of law-review silliness published in the mid-1980s. But I insisted on probing beyond scholars’ reassurances that they were not trying to reinforce traditional roles to explore the implications of such concepts as "ethic of care" (Carol Gilligan), "maternal thinking" (Sara Ruddick), "writing the feminine" – or even the"mamafesta" (Drucilla Cornell). However sincere these scholars are in their commitment to women, these concepts are embedded in what male supremacy has forced women to become; and however sincere the intention to include women, these ideas also imprison and exile. Character theory is attractive to the wrong people for the wrong reasons, and feminists should approach it critically rather than deferentially. Professor Bender’s other main criticisms of my book concern the relationship between the analysis and critique of Part I and the topical chapters of Part II. She suggests that I fail to "reconcile [my] theoretical position with an interpretation of 14th Amendment equal protection." But I do this – if, indeed, reconciliation is called for. I insist, for example, on a revision of equal protection doctrine which would reject a concept of self-defense that remains impervious to battered women who kill their abusers [but] yields to the claims of men who use deadly force against trespassing and harassment" (19-20), or child custody law which changes in response to fathers’ claims but refuses "to recognize that one learns to love a child by caring for it." (177) Similarly, Professor Bender finds fault with my application of my critique of liberalism to my analysis of abortion law. But the last three chapters of the book explore the relationship between rights and needs and locate abortion within the general context of reproductive rights issues for women. I categorically state that "if liberalism includes women, it must include the right to reproductive choice." (149) But I also insist that the inadequacy of liberalism as a bulwark of positive reproductive freedom and a defense against fetal protection policies call for the feminist post-liberalism that I have envisioned. In conclusion, I don’t think Professor Bender has accurately represented my book. I urge you, the readers of Books-on-Law, to read the book yourselves. It’s only 200 pages. Whatever else Professor Bender says about the book, she too finds it worth reading, and for that generous judgment I thank her. Judith A. Baer is professor of political science at Texas A&M University. She received her Ph.D. from University of Chicago in 1974. Our Lives Before the Law is her fifth book. She has published articles in several journals, including Political Research Quarterly, Utah Law Review, and Women and Politics. She was a fellow at the Woodrow Wilson International Center for Scholars in 1995-96, and a Fulbright Roving Senior Lecturer at Bogazici University, Istanbul, in 1997-98. ———————————————————————A Volley from the Right by Michael Grossberg The Family, Civil Society, and the State
The Family, Civil Society, and the State is a volley from the right in America's cultural wars. Most of the essays are polemics that rail against those accused of causing what all the authors conclude is the dismal plight of the American family at the end of the 20th Century. The authors are luminaries and lesser lights of the family-saving brigand of the political and intellectual right, including such figures as William Kristol, Michael Medved, Gertrude Himmelfarb, Elizabeth Fox-Genovese, David Blakenhorn, Mary Ann Glendon, Bruce C. Hafen, and Alan Carlson. The results are, with unfortunately only a few exceptions, quite predictable. And, predictably, they will comfort believers, infuriate opponents, and frustrate those in search of thoughtful analyses of very critical issues. Consequently, the volume is much more a summary statement of rightwing hopes and fears about American families than a useful contribution to current debates about family law and family policy. The book consists of published talks given at a conference sponsored by the American Public Philosophy Institute, which editor Christopher Wolfe identifies as a group of scholars sharing a commitment to natural law theory, broadly conceived. We believe that principles of practical reason, which include a recognition of objective human goods and moral norms rooted in them, can effectively be brought to bear on important social and political problems. Indeed, attempts to deal with the varied social pathologies of our time will inevitably be unavailing, unless they respect these fundamental truths about human life. (xiv) It is divided into five sections: "What is Distinctive in the Current Situation of the Family"; "Men, Women, Children in the Family Today"; "Law, Divorce, and the Family"; "The Market, the Media", and "The Family"; and "What Public Policy Can Do for the Family." And most of its twenty-four chapters are but eight or nine pages long, many without footnotes. A Problem of Intentions Most critical for readers is the unfortunate disconnection between the stated goals of the book and the actual contents of The Family, Civil Society, and the State. Wolfe’s introduction suggests that the volume will be a broad and judicious inquiry: "The exact place of the family in a healthy political community, and the appropriate ways to sustain it, are profoundly complicated and difficult questions. The contributors to this book cannot aspire to give complete answers to them. They do try to provide us with some of the essential elements of the right answers." (x) And he expresses the hope that the book "will be a valuable contribution to the ongoing reflection" on questions about American families. (xiv) Not only do the polemics that constitute most of the essays seem quite at odds with these sentiments, but random statements by the authors themselves suggest a different, though unexplained, set of goals for the book. Authorial comments suggest that the conference (and, thus, the book) was a closed gathering of the like-minded. Hence, Himmelfarb speaks of conference attendees as a "congenial group." (22) And Medved explains that remark by acknowledging that the chapters in The Family, Civil Society, and the State "tend to come to the same conclusions about what is happening to the family in the United States and they also reach the same conclusions -- which are inescapable -- about when that began to happen. Demographically, statistically, and in terms of real life the way people live in this country, things began to fall apart for the family sometime around 1960." (163) Such consensus is not surprising when we learn, again indirectly through the authors’ statements, that the conference’s agenda (and, thus, the book’s contents) were fixed by the organizers. Authors were apparently assigned topics, and even titles. Hence, Charles L. Glenn begins one of the more thoughtful chapters in the book by chafing at the title given him: "How Government Schools [May] Displace the Family." He writes: "‘Must Public Schools Replace the Family’ would be a more typical title than the one I have been assigned for a public policy conference in Washington." (219) Readers of this volume could better understand its organization and intent if its creators had explained how and why they organized their conference in a particular fashion and their rationales for including and excluding topics, titles, and participants. The Problem of Narrow Political Sectarianism Clarity of purpose is a critical issue in evaluating this book because of its stridency. Most of the chapters are given over to sermons that preach to the converted. Fox-Genovese again presents a narrow view of her discipline by reducing the vibrant and disparate field of family history to the singular goal of inventing past family diversity so as to legitimate contemporary family diversity. Himmelfarb once more rails against what she calls cultural relativism. Medved yet again charges the media, this time television, with destroying families. Throughout the book, the usual suspects -- feminists, hedonist divorce seekers, cultural elites -- are too often presented in simplistic fashion and blamed for every family woe from illegitimacy and father-less homes to escalating divorce rates and household despondency. The problems that these polemics address are very real; it is the narrow and reductionist analyses that undermine the utility of the arguments. The essays are also undermined by the self-referential nature of the arguments. Far too many of them tend to cite each work of the other authors in the volume, and thus to reinforce the sense that the book is drawn from a closed evidentiary and analytical circle. Similarly, the authors make little attempt to include other perspectives. For example, philosopher Celia Wolf-Devine spends much of her essay critiquing the work of feminist scholar Susan Moller Okin. She contends that scholarship like Olkin’s produces a feminism and liberalism that dissolve the bonds of families. But readers must accept Wolf-Devine’s reading of Olkin’s work; the creators of the volume apparently did not think it worthwhile to ask Olkin herself for a response. Such a commentary would have expanded the discussion beyond its set congenial bounds by adding some discordant views and voices. The consequences of the narrow political sectarianism that dominates The Family, Civil Society, and the State is evident in the few essays that break out of the mold. Sociologist David Popenoe pens a thoughtful analysis of contemporary family demography. Legal scholar Mary Ann Glendon probes the complicated consequences for individuals and families of the rapid entry of women, especially wives and mothers, into the workforce. Legal scholar Bruce Hafen [formerly BYU Law] assesses the implications of what he maintains is the growing tendency to treat marriage as a private contract instead of a social institution. And Charles Glenn offers a critique of the impact of public schooling on American families that acknowledges the complexity of the school-family relationship and accepts a legitimate role for schools in the lives of children. These authors share the general political orientation of the volume, but present arguments in a manner much more likely to involve those outside its congenial group. Unlike most of the articles, their essays tend much more to engage rather than demonize opponents, to suggest the complications of family issues rather than portray families simply as the passive dupes of a liberal establishment, and to include a broad range of sources. More essays like these would have moved the book nearer its stated goals and made it a more useful volume for more readers. Examined & Unexamined Issues Despite the limitations of the book, a comparison of its chapters does raise a number of issues, some examined directly and others left unexamined. For example, the impact of the American economy on the nation’s families is one of the major recurring themes of the book. Competition, market changes, technological developments, and a number of related subjects are discussed in many of the essays; their authors often imply, if not declare, that that the economy and economic change generate many problems in American families. Mary Ann Glendon claims that the current organization of work undermines working women’s ability to function effectively in families. Diane Medved asserts that the emergence of a divorce industry that includes realtors, movers, and therapists has been one of the sources of family breakdown. Michael Medved contends that technological innovations such as television destroy families. Even Doug Bandlow’s defense of American capitalism acknowledges that, in a number of ways, the economy has a destructive impact on the kinds of families that the authors in this volume desire. A more rigorous and direct debate among the authors about the economy and families might have been illuminating. Another recurrent subject, however, is left largely unexamined. Over and over again, authors in this volume condemn what they label liberal elites (ensconced in the media, academy, and other bastions of power) for destroying the American family. As their brief biographies at the end of volume demonstrate, however, the authors of these essays are to be found in the same places as the elites they attack in universities, research centers, think tanks, and journals. Yet, there is no attempt at intra-elite analysis that might probe the sources and implications of this split among pundits, researchers, journalists, and scholars for our understanding of contemporary families. Similarly, little effort is made to analyze the implications of this singular focus on liberal elites for the volume’s governing ideas of causation and change. For instance, the late 19th Century’s family-saving predecessors of the current cadre heaped their ire on families themselves for destroying American households, especially working class and immigrant families and those considered deviants like the Mormons. The tendency of present-day family-savers, like most of those in this book, to claim that elites cause family change -- and, thus, to depict families as passive victims of elite manipulation-- goes unexplored. Such introspective analyses must be left to readers. In the end, The Family, Civil Society, and the State is most aptly considered a relic of today’s culture wars. It provides readers with a one-volume summary of the conservative right’s critique of contemporary family life, analysis of family problems, and agenda for family reform. Michael Grossberg is Professor of History at Indiana University and Editor of the American Historical Review. His research focuses on the relationship between law and social change, particularly the intersection of law and the family. He has published Governing the Hearth, Law and the Family in Nineteenth Century America (1985), A Judgment for Solomon: The d'Hauteville Case and Legal Change in Antebellum America (1996), and numerous articles on legal and social history, particularly on the history of legal professionalism and the methodology of legal history. He is currently working on a study of child protection in the United States. ———————————————————————A Reply to Michael Grossberg by Christopher Wolfe How should a reader evaluate a review that employs polemics to accuse a book of being polemical? There is much in Professor Michael Grossberg's review about the "right-wing," "family-saving" brigade, who "rail" at their opponents without providing "thoughtful analysis." Would we be surprised to find that the absence of "thoughtful analysis" might represent the absence of analysis along the lines of the reviewer's own ideological agenda? Professor Grossberg, it might be useful to point out just so the ideological lines are clear, was one of the signatories to the notorious "Historians’ Brief" in Webster v. Reproductive Health Services (1989). In that brief, a bevy of historians made assertions, on behalf of the pro-choice cause, about the history of abortion in America, some claims of which were clearly untrue, and contrary to evidence in James Mohr’s book, Abortion in America (Oxford, 1979), which was prominently relied on in the brief. (The sad history of this brief is told by John Finnis in Academic Questions [vol. 7, no. 4; Fall 1994].) Whether Professor Grossberg knew of these untruths, or didn’t know because he hadn’t read the brief carefully, or didn’t know even though he had read it closely, his joining of the brief suggests that he may fairly be viewed as a participant in, rather than a disinterested observer of, "the culture war." I would suggest that readers wishing to discover who the real polemicist is start by looking at Elizabeth Fox-Genovese's opening chapter in the book. Professor Grossberg dismisses it casually as presenting "a narrow view of her discipline," which also -- we are astonished to discover -- appears to be his discipline. Even a brief perusal of the article (and the footnotes that reveal her wide reading in the discipline) will reveal that it is an article of intellectual substance. Professor Grossberg’s refusal to treat it seriously is the typical resort of a scholar who reflects the dominant forces in a discipline attempting to maintain their hegemony by means of arrogant assertions unsupported by argument. The conference, he "deduces" from various statements in the book, was a "closed gathering" of "like-minded" people. Actually, it was an open gathering of largely like-minded people. In that respect, it looked rather like typical academic conferences on the family (or "families"), except that its contributors typically are not the ones invited to such conferences, which generally represent the typically liberal values dominant in social science academia. That also helps to explain why Celia Wolf-Devine's essay on Susan Moller Okin did not include a response by Professor Okin (as Professor Grossberg complains). A conference with such give-and-take would be a wonderful undertaking, and we have sponsored such exchanges. (See, for example, Natural Law, Liberalism, and Morality [Robert P. George, editor, Oxford University Press, 1996] and Natural Law and Public Reason [Robert P. George & Christopher Wolfe, editors, Georgetown University Press, forthcoming 2000].) But on this occasion the APPI decided to do something else just as defensible: namely, to provide solid scholarship to support a traditional perspective on the family, in order to counter the largely liberal scholarship that is dominant at most academic family conferences. (How often has Celia Wolf-Devine, or anybody like her, been invited to speak at conferences at which Professor Okin speaks, one wonders?) Most importantly, readers should know, Wolf-Devine’s essay is an extremely "thoughtful analysis" of John Rawls and Susan Okin, devoid of "polemics." Professor Grossberg also reads between the lines to discover that "the conference’s agenda (and, thus, the book’s contents) were fixed by the organizers. Authors were apparently assigned topics, and even titles." It will undoubtedly come as a shock -- yes, a shock -- to readers to discover that a conference agenda has been organized by the organizers, that they didn’t simply invite 15 or 20 people to say what was on their minds. Professor Grossberg follows up his discovery of this conspiracy by saying that the conference’s "creators should have explained how and why they organized their conference in a particular fashion." That purpose was -- as should be clear to anyone who read the introduction and the table of contents -- to provide a broad range of scholarship and commentary analyzing a wide range of family issues from a generally "traditional" perspective. Professor Grossberg’s review indicates that he saw very clearly what the purpose was. He just didn’t like it. Professor Grossberg, unfortunately, does not mention the fascinating exchanges between Marvin Olasky and John DiUlio and between William Galston and William Kristol. Nor does he mention -- surprisingly, given his dismay at the contributors’ references to liberal intellectual elites -- the chapter on "Family Values and Media Reality," which provides powerful evidence for a large gap between popular values and the values of a media elite overwhelmingly committed to an ethos of expressive individualism, an ethos increasingly reflected in prime-time television. If there is considerable attention to liberal intellectual elites in the book, that is partly because many of its contributors -- without denying the importance of other factors, such as economic changes -- focus on the way in which ideas have helped to bring about many of the current problems the family faces. And a focus on ideas will naturally lead to the intellectuals who play such an important role in developing and promoting ideas. Professor Grossberg pooh-poohs talk of liberal intellectual elites, pointing out that the authors of the book’s essays are in the same places (universities, research centers, think tanks, journals). But he neglects to point out that they are usually embattled minorities, especially in the first. Professor Grossberg has a right to his views, of course; but he doesn’t have a right to reduce opposing views to mere "polemics." Ultimately, of course, it will be for readers to judge whether The Family, Civil Society, and the State is more than polemics. I only regret that some readers, misled by reviews such as Professor Grossberg’s, and other readers who will not hear of the book because it will be quietly ignored by the "opinion-makers" who typically decide whether a book is "worth reading" and who do not find the views of this book congenial, will never have the chance to make that evaluation for themselves. Christopher Wolfe, a professor of political science at Marquette University, is the Editor of The Family, Civil Society, and |