NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
When I first saw the cover – yes, that cover – of the New Yorker, I expected the swift and nauseatingly self-righteous condemnation it received from the TV personalities and politically correct pundits. That’s par for the course in the knee-jerk, brain-dead, humor-free Oughts. But what caught me off guard, even in this Age of Cynicism, was that Barack Obama joined their ranks: his official campaign spokesman, Bill Burton, labeled the lampoon "tasteless and offensive."
Artist Barry Blitt’s brilliant illustration – which sought to satirize the naysayers who portray Obama as a flag-burning, unpatriotic Muslim and his wife as a black-power radical – cut to the core of today’s political paradox. The cover received so much attention, it has even led to meta-parodies, the most amusing of which was offered by the New Yorker‘s sister publication Vanity Fair, which depicted a wobbly, walker-wielding John McCain and his wife in the same setting and artistic style. Still, the Illinois senator’s heated, visceral attack of the parody led me to ask: how can Obama, such a brilliant student of American law, politics, and culture, not get the joke – or at least not recognize that the joke was on his enemies?
But then I realized I had failed to account for what can be called the Harvard Factor. The presumptive Democratic presidential nominee had, after all, been elected to the staff of the Harvard Law Review in the late 1980s and assumed the presidency of that august publication in 1990. By that time, the strictures of political correctness had seeped into all levels of American higher education and had utterly destroyed the sense of humor of so many college and university students. At the very least, this atmosphere stifled them from admitting (to anyone but their friends) that they even got a joke involving matters of gender, race, sexual orientation, religion, or any other hot-button issue at the center of the nation’s culture wars. And, as was predictable, the intellectual rot that began to infect the academy in the mid 1980s spread to the "real world" within a single generation. All of this displaced outrage, by Obama and many of his supporters, suddenly made sense.
The Harvard factor
Interestingly, it was Harvard Law School, regarded by many as the apex of legal education (and located in the heart of liberal Cambridge) that early grappled with the appropriateness of punishing students for engaging in satire and parody. With the eyes of the higher-education elite watching, the fabled law school established, in the early ’90s, that a written parody poking fun at a female member of the academic community is no different than punishable "sexual harassment."
The campus came to a near-standstill in 1992 – just one year after Obama had graduated – over a piece in the Harvard Law Review‘s annual April Fool’s Day issue, the Harvard Law Revue. In this parody, meant for circulation only among Law Review members, the editors mocked the scholarship of then-recently deceased New England School of Law professor Mary Joe Frug, who had been tragically stabbed to death near her Cambridge residence. At the time of her gruesome death, Frug was working on a comprehensive treatment of feminist legal philosophy, in which she insisted that the contemporary legal system "constructs" women’s sex and gender roles, and that rules permit not only the "sexualization" of the female body, but also its "terrorization." Her arguments, it could be (and was) reasonably argued, bordered on the bizarre, and her prose was laced with expletives. The majority of the Harvard Law Review‘s editors nonetheless favored publishing the unfinished draft of her work as a tribute to Frug. A vocal minority opposed the decision, arguing that the draft was sloppy and that Frug herself would not have considered it ready for publication. Still others argued that Frug’s theories and prose were ludicrous and did not belong in the prestigious academic journal.
For many of these reasons, a group of anonymous Harvard Law Review members parodied the sprawling manifesto in the annual Law Revue. To say the parody was scathing is an understatement: the writers made tasteless references to Frug’s violent death and cruelly attributed the satirical work to "Mary Doe, Rigor-Mortis Professor of Law." Holistically, however, the piece read as a stinging rebuke of the real Law Review‘s decision to publish Frug’s unfinished draft, and more generally, an unabashed lampoon of radical-feminist scholarship – all well within the bounds of traditional parody.
As the parodic piece (leaked from what was supposed to be a small group of readers) made its rounds throughout the campus, it provoked a firestorm, particularly among faculty members and female students. The president of the Law Review wrote an open letter apologizing to the offended parties. The editors originally responsible for publishing Frug’s actual manifesto also apologized for not protesting the parody before it was printed and circulated at the annual April Fool’s Day dinner of the Law Review staff. Finally, the authors apologized as well.
Then-dean Robert Clark initially declared that the school would not seek punitive measures. "I agree with those who think that the best response to offensive speech is not to curtail it forcibly," he said, "but to condemn it, and explain why it is wrong." Clark’s response gained approval from free-speech advocates, but it did not satisfy the enraged on campus.
Professor David Kennedy pressed the school’s disciplinary Administrative Board to bring charges against the parody’s authors and the Law Review‘s editors. He further recommended that the board look into whether those involved might be morally disqualified from becoming lawyers. Kennedy suggested, with apparent seriousness, that the piece posed a threat to women’s physical safety and well-being, writing to the Board:
Many women who received this [parody] anonymously in their student box experienced the document’s delivery as a direct threat of personal violence – murder of women is held out as trivial and quite palpably possible.
Remarkably, the Administrative Board appeared to agree, labeling the parody a form of "harassment." Yet it refused to punish the authors because "no law school rule imposes limits on the content of publications by students that would be applicable here." Thus, rather than absolve the accused students on grounds of academic freedom, the disciplinary body took refuge in the fact that, at that time, the law school did not have a formal code that would outlaw such a parody.
It came as no surprise when, the following year, Clark caved in to pressure and appointed a faculty committee to consider adoption of "sexual harassment guidelines." The final product was an 11-page speech code that forbade, among other things, "speech . . . or conduct of a sexual nature that (i) is unwelcome; and (ii) is abusive or unreasonably recurring or invasive; and (iii) has the purpose or effect of unreasonably interfering with an individual’s work or academic performance or creating an intimidating, demeaning, degrading, hostile, or otherwise seriously offensive working or educational environment at Harvard Law School" [emphasis added]. This and other provisions in the code seemed directly aimed at any future repetition of humor akin to the Frug parody.
In the law school’s radioactive atmosphere, even faculty members renowned for their advocacy of free speech felt the need to compromise. Professor Laurence H. Tribe, one of the nation’s leading constitutional scholars, voted for the guidelines, even though one could find arguments in his authoritative 1988 treatise, American Constitutional Law, to vote against it. Another vociferous defender of free speech, Professor Alan Dershowitz, announced that he preferred imperfect written guidelines to the otherwise inevitable exercise of "decanal [dean’s] discretion" in deciding when to punish speech transgressions. He was, in other words, voting for the guidelines to avoid far worse and unpredictable forms of censorship. This tells us much about the hurricane winds of censorship that were blowing across the Harvard campus, and just about everywhere in academia, then and now.
The authors of the Frug parody may have escaped punishment, but, with the introduction of these speech guidelines, Harvard sent a clear message: the next student to try such a stunt could be found guilty of serious charges, such as harassment and intimidation – which could prevent him or her from landing a decent job after graduation or that could even endanger obtaining a degree.
Today, the Law Review still puts out a written parody and conducts its annual dinner, while the Harvard Law School Drama Society produces an annual parody stage production. But none of the humor, especially that which is gender-related, has approached the frankness (or brutality, depending upon one’s point of view) of the Frug parody. One can argue, of course, that this is a good thing, depending upon one’s sense of the proper balance between social criticism and the need of some to be comfortable. Harvard Law, though, became undeniably less free than before the adoption of the guidelines.
Despite (or perhaps because of) this conscious effort on the Law Revue‘s part to avoid controversy, its annual parody seems to become both less biting and, ironically, equally or more subject to an "insensitivity" attack every year. The same trend has affected the Drama Society. Students harshly criticized the 2006 stage parody, for example, at a tense campus forum in March of that year, citing multiple instances of negative racial stereotypes. According to the independent student-run Harvard Law Record, two suggestions for reform arose repeatedly at the forum, both of which reveal either a disdain for, or fundamental misunderstanding of, parody: "prohibiting the portrayal of actual students (and perhaps professors) altogether and implementing an opt-in/opt-out system whereby students could choose to be parodied or not." (In other words, you can be criticized only if you want to be!)
The producers of the 2006 stage show offered a public apology to those who were offended. It was "nobody’s intention to hurt those parodied," they said, suggesting that even the parodists had lost sight of the function traditionally performed by parody – namely, ridicule directed to the object of scorn. "The Parody plans to take consideration of all suggestions in their re-examination of the Parody going forward," the apology stated, "and plans to address any concerns brought up by the HLS community in the future." As for the nature of the "future," that was also made clear: "Many students commented on the need for greater discussions on race, gender, and sexuality at HLS beyond the Parody context, and this open forum was a starting point for productive discussions to come." Sensitivity training, in other words, rather than biting political and social parody, was in the law school’s future.
All of this mush was coming from the university that, by siring the Harvard Lampoon – which in turn gave the world the National Lampoon (which begot Saturday Night Live), Conan O’Brien, and other comedic and satirical mainstays – arguably shaped American comedy as we know it today. Given the chilly reception to parody from both administrators and students on today’s college campuses, it is easy to see that many varieties of comedy – a treasured asset of American pop culture and a trusty tool in the crusade for free speech – could soon atrophy into irrelevancy.
The era of the Onion
In an age when theonion.com reportedly attracts more readers than Newsweek, and Jon Stewart and Stephen Colbert have become modern-day folk heroes, the political arts of parody and satire are, ironically, experiencing a renaissance among the young. But these parodies should come with a warning label to students: don’t try this on campus.
College students are encountering increasingly more trouble for using these time-tested, constitutionally protected, and, when done right, enormously effective literary devices. Students have been blacklisted by their peers, fired from campus jobs, and subjected to humiliating show trials before what can fairly be described as politicized kangaroo courts – all because of politically edgy attempts at humor that have violated the wrong person’s or group’s sacred cow.
In 2006, a number of students at Long Island University were fired from their resident-assistant positions because of a short film they posted on YouTube, in which they took hostage their dormitory’s unofficial mascot – a rubber ducky. According to news reports, the short film, which has since been removed from YouTube, parodied Al-Qaeda hostage-kidnapping films. After a Muslim student group complained and a local news channel ran the story, the provost decided that termination was appropriate.
At Brandeis University, the humor magazine Gravity was accused of racism when, in April 2007, it spoofed an ad campaign for Blackberry PDA electronic devices. In the parody, a man named "BlackJerry" offered his services for three-fifths the price of the mobile device – a heavy-handed reference to the legislative apportionment compromise in the Constitution that counted a slave as three-fifths of a person. During a confrontational and often-times emotional campus forum, students accused Gravity‘s staff of making light of slavery, thereby inflicting emotional distress upon African-American schoolmates. The blindsided humorists at first defended the ad, explaining that it was intended as a populist critique of how slavery still exists in corporate America. When this explanation did little to stem the attacks, the editorial board issued an effusive apology and agreed to demands issued by the student government, including mandatory "diversity training" sessions and the resignation of the entire editorial board, save one remaining editor who pledged to implement "a more effective editorial hierarchy" in the future, according to an article in the Justice, the student newspaper.
At around the same time as the Gravity debacle, a black student filed harassment charges against the editors of the conservative student newspaper at Tufts University, the Primary Source. At issue was a satirical Christmas carol, written from the point of view of an undergraduate-admissions officer, titled "O Come All Ye Black Folk," that harshly criticized race-based admissions. Muslim students followed suit, filing similar charges in response to a parody of Tufts’ "Islamic Awareness Week," which pointed out unflattering but verifiably true doctrines and practices of Islam. In May, a campus disciplinary body composed of students and faculty found the newspaper guilty of "harassment" and creating a "hostile environment," and imposed editorial restrictions on the newspaper. Under pressure from free-speech advocates, including the Philadelphia-based Foundation for Individual Rights in Education (disclosure: I serve as chairman of FIRE’s board), the university president lifted the penalty, but refused to vacate the finding that a violation occurred.
Similar complaints about the 2004 April Fool’s Day edition at the University of Scranton resulted in the small Jesuit college shutting down the student newspaper, the Aquinas. According to the Scranton Times Tribune, the spoof included a "fictitious reference to a priest caught fooling around with a woman during the screening of The Passion of the Christ" and a cartoon depicting a brawl between the former and current university presidents. The university changed the door locks of the newspaper office and removed all remaining copies of the spoof from campus. According to the school’s Web site, the Aquinas has not published an article since April 2004. University spokesman Gerry Zaboski defended the punishment by explaining that the newspaper, funded entirely by the college, was primarily an "opportunity for students really to explore and learn and apply what they have experienced in a classroom or what they may have an interest in doing in a real setting."
But one could argue that the editors of the Aquinas were punished for doing exactly that – applying their classroom experience and exploring a real-world career in parody. Works like A Modest Proposal and King Leopold’s Soliloquy are mainstays of introductory literature classes, even at religious colleges such as Scranton, and so parody, in theory, is fully protected by academic freedom. Scranton finds itself in the awkward position of defending a punishment that Swift and Twain would have vehemently opposed. Of course, it can be argued that a religious parochial institution should have the power to control the extent to which campus publications satirize the clergy and poke fun at church doctrines. But once a religious school chooses to portray itself as devoted to the liberal arts, as Scranton has, academic freedom makes some demands that religious observance might find uncomfortable.
In truth, it is unlikely that any of the aspiring comedians and social commentators in question are all racists or misogynists. In more than one instance, the authors of an offensive or "harassing" parody were themselves members of the ethnic group they were accused of maligning. It’s just that these students, raised on a television diet of South Park and Family Guy, seem to have made one crucial mistake: they thought edgy humor would be as well-received on a campus as it is on Comedy Central. The rash of free-speech controversies proves they were wrong.
For college administrators, dealing with this brand of humor is complicated by the fact that, by definition, parody requires adopting the form of the very thing it ridicules. This often leads to a basic disagreement that underlies the New Yorker‘s Obama-cover contretemps: does the satire perpetuate, or ridicule, the bigotry? For example, some students accused the Daily Princetonian of racism in 2006 over a faux letter to Princeton, written in broken English, from a fictitious person named Lian Ji. The parody was clearly referring to Jian Li, the Asian-American student who filed a civil-rights complaint against the university after he was waitlisted (he eventually enrolled at Yale, and has since transferred to Harvard). Most of the editors, including a few Asian-Americans, defended the piece, writing in an open letter that "[they] embraced racist language in order to strangle it." Princeton officials didn’t have much patience for this logic (the dean of student life told the New York Times that the editors showed "poor judgment" in publishing the parody), but unlike the University of Scranton, the school wisely allowed the controversy to run its course and did not punish the authors.
Conflating parody, harassment, and hate speech
Perhaps the greatest danger in punishing students for offensive parody is that tasteless (or even brilliant, for that matter) humor can all too easily be labeled "harassment" on our increasingly politically correct campuses. Harvard Law’s Administrative Board used that term liberally in its decision. Kennedy, the self-appointed leader of the anti-parody forces, went even further and equated the parody with a "terror" attack and a "direct threat of personal violence." This thinking equates speech with action, and insult with violence – it’s a classic device resorted to by the censor.
This same logical disconnect is evident in the ruling handed down by the tribunal at Tufts. The Committee on Student Life concluded that the parodic Christmas carol "targeted [black students] on the basis of their race, subjected them to ridicule and embarrassment, intimidated them, and had a deleterious impact on their growth and well-being on campus." The committee concluded that the parody of the Islamic Awareness Week flyer "targeted members of the Tufts Muslim community for harassment and embarrassment."
Under the First Amendment, the statement of a point of view, no matter how hateful, is protected speech, as long as it avoids true threats and the time, place, and manner of delivery are reasonable. If the editors of the Primary Source had telephoned black students repeatedly in the middle of the night and told them they were inferior, there would be a strong harassment claim. But there’s no disputing that "O Come All Ye Black Folk" was, at its core, political speech, and it was delivered in a traditional manner for such speech: print.
Some have argued that the Christmas carol at Tufts went beyond critiquing affirmative action and actually made racist statements (black students are called "boisterous," for example), or that the Harvard Law Revue Frug piece went beyond critiquing postmodernist feminism and insulted women in general. But even if these pieces did perpetuate racist or sexist stereotypes and held certain members of the community up to ridicule, the argument that they ought to be censored is still far-fetched, at least as far as Supreme Court jurisprudence is concerned. Racist and sexist language – so-called hate speech – may not be pleasant, but it is nonetheless legally protected in public places governed by the Bill of Rights. Private campuses, however, are allowed to make up their own rules as to what speech is and is not acceptable. Traditionally, this separation between town and gown has made our campuses more free than the "real world," since academic freedom has long been deemed more protective of speech than mere legal requirements provide. For academic freedom to offer less protection for speech is a breathtaking departure from long-standing assumptions about the nature and purpose of the academy. As the cynics now note in Cambridge, one may not safely say in Harvard Yard what is constitutionally protected in Harvard Square. The same may be said for just about every campus where there once was a hallowed hall of learning, now converted to a humorless hall of conformity.
Hustler and the Good Reverend Falwell
While campuses may be tightening the noose on political humor, parody, in particular, has the courts’ unmitigated support. In 1988, the Supreme Court decided in Hustler v. Falwell that the First Amendment protects a parodist or cartoonist who intentionally inflicts "emotional distress" on anyone who plays a role in American public life. In that landmark case, Hustler publisher Larry Flynt resorted to a fake Compari liquor ad to suggest that his ideological adversary, Reverend Jerry Falwell, had lost his virginity in a drunken encounter with his own mother in an outhouse.
"Were we to hold otherwise," wrote Chief Justice William Rehnquist, "political cartoonists and satirists" would be vulnerable to lawsuits. After all, "[t]he appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events – an exploitation often calculated to injure the feelings of the subject of the portrayal.
"The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided," continued the court. The opinion went on to discuss how the weapon of humor and exaggeration was in the past directed to such figures as William M. "Boss" Tweed in New York City, and even to such notables as George Washington, Abraham Lincoln, Theodore Roosevelt, and Franklin D. Roosevelt. "From the viewpoint of history it is clear that our political discourse would have been considerably poorer without" such vicious depictions, concluded Rehnquist in a decision that has clearly become anathema on campus, and now, sadly, in the political arena. Still, the decision was unanimous and sufficiently clear, so that the issue has not been cast into doubt in any subsequent case.
Media commentators, members of the chattering classes, and the presidential candidates themselves have got to shake the politically correct bonds that have suffocated much public and political discourse in recent years. They need to invite a more liberated and intelligent public discourse, consonant with the seriousness of the challenges facing our nation. If a presidential candidate cannot – or is afraid to – admit that he sees humor as well as a political point in the kind of parodic attack (on his own critics!) represented by the New Yorker cover, then we are still very far from recovering from the academic plague that leaked out of the campuses in the 1980s and still inhibits free speech outside of the ivy gates. If Obama wants to be the nation’s leader, he can start leading here. He needs to leave the atmosphere of censorship at the Harvard Law School and join the ranks of free men and women.
Harvey Silverglate, a Cambridge-based lawyer and writer, is co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses. His forthcoming book about the Department of Justice is due from Encounter Books early in 2009. He can be reached firstname.lastname@example.org. Jan Wolfe and Kyle Smeallie assisted in the preparation of this piece.Download file "5"