Beware the Teenie Weenie: Social Norms and Expressive Culture
posted by Neil Richards
I’ve been doing a lot of reading and thinking about intellectual freedom lately, as part of a project on the overlap between intellectual privacy rules and First Amendment values. I’ve also come across some pretty weird stuff, like this story from the German media about a children’s book deal that fell through. A famous German children’s book author was trying to get a book deal to publish a translated version of her illustrated children’s book in the US. Unfortunately, the deal didn’t happen after an irreconcilable disagreement arose over a picture appearing in a museum scene in the book. As the article puts it rather cheekily:
What could possibly have got the suits at [the publisher] so hot under the overly starched collar? A painting depicting a gratuitous Roman orgy being viewed by wide-eyed 5-year olds? A massive bronze phallus gawped at by an awestruck group of pre-teens? Hardly. Apart from a tasteful nude reclining in a slightly blurred watercolor in the background, the main offending artifact was a tiny male statue and its microscopic penis.
Apparently, the offending image was less than half a millimeter in size, but the publisher insisted on its removal for fear of a backlash from offended parents.
We could dismiss this as a fairly silly story about the lunacy of the publishing industry, but I think there is a serious issue here. This is not an issue of censorship, because the government is not involved in making the book unavailable. But one of the problems with the way we tend to think about speech, is that we are fixated on the model of legislative rules that get remedied (or not) by judges. If we’re really interested in promoting an expressive culture, we need to look beyond this judicial anti-censorship model.
The teenie weenie case points up the critical role of social norms in helping to define the contours of our expressive culture. Theories of free speech focus a great deal on legal rules even though most people’s decision to speak or not speak on questions is principally mediated by the concern of how others (employers, friends, strangers, book publishers) will act towards us depending upon what we say. The norms of the book publisher in this case meant that this book was not made available for the US market.
What’s the harm with that? Well, the ability to think for ourselves requires access to a wide variety of materials. When books aren’t published because they are offensive, we are deprived of what they offer. This case involves just one book, but the aggregated effect of small decisions like this really determines the intellectual space that our minds inhabit. The social norms which this decision seems to reflect would (if strong enough) push certain notions of art out of children’s literature, and could have an effect on how children come to see the world, the nature of art, and the human body. Publishers of books are in business to make money, but they should also realize (as reporters and librarians frequently do) that they occupy a social institution that has real effects on our expressive culture. Our expressive culture depends on publishers fulfilling their professional role as guardians of free speech as well as profit-maximizers. Wimping out because of possibly imaginary fears of angry parents does us all a disservice, at least if we care more about an open-minded culture than protecting people (even little ones) from the teenie weenie.
August 23, 2007 at 9:44 am
Posted in: Constitutional Law, Culture, First Amendment, Humor, International & Comparative Law, Weird
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Responses (4)
Sublime is better than slime - August 23, 2007 at 4:58 pm
“Wimping out because of possibly imaginary fears of angry parents does us all a disservice, at least if we care more about an open-minded culture than protecting people (even little ones) from the teenie weenie.”
Or it spares us being inundated with unpleasantness and frees up our minds to contemplate the sublime.
A.J. Sutter - August 23, 2007 at 9:17 pm
Well, there is plenty of other “unpleasantness” , including violent song lyics, moronic celebrity criminality and substance abuse, wall-to-wall TV coverage of same, etc., with which we are inundated and that folks scarecely complain about. One who is truly drawn to the sublime can always choose not to be distracted.
As for the role of publishers as guardians of free speech, these days that seems to be a challenge they take up only when they believe that there’s enough profit to be made from it, e.g. by wrapping gangsta rap in the red, white and blue. It used to be that a few best-sellers could support a noble but unprofitable backlist; the shift to making every book a profit center began no later than the 1980s. (See e.g. Andre Schiffrin’s The Business of Books.) While I share Neil’s disappointment, I can understand that for a non-blockbuster item like a translated children’s book, the benefits might not be worth the hassle, from the publisher’s view.
The larger issue is not the publisher’s norms, but the parents’. That there is more of a market for Anna Nicole journalism than for a book with a picture of a pipik in a museum is one of the wonderful contradictions of American society. (Also a marvelous naivete on the part of parents, who delude themselves into believing that kids are not already aware of pipiks and such.) Apparently, most people in the US don’t want an open-minded culture. As lawyers, we need to defend the right of an open-minded culture to exist, since defending the rights of the minority in a democracy is, no less than elections, constitutive of democracy. But that doesn’t mean that the majority will necessarily want to partake of the fruits.
Maryland Conservatarian - August 24, 2007 at 4:28 pm
“Well, the ability to think for ourselves requires access to a wide variety of materials.”
Careful – some may take this as a call for political thought diversity among law professors
Angie Hartford - August 25, 2007 at 11:02 pm
I’ve often wondered what the results would be of the buyers at Barnes & Noble following any political agenda. If they won’t buy a book, you’d have a very hard time getting it published.
With the continuing loss of independent bookstores, this becomes a more pressing (to me, at least) question each year.
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