Legal Commentary

Consider three conficts. 1) Narrative and dramatic themes and ideas do not change much over time, which is why so much old literature remains relevant today. 2) Lasting literature/threatre/movies/music/art all work by honestly capturing and portraying the moment, including accurate depictions of how people feel, think, and speak--however ugly it might be. 3) Words change over time, not only in meaning, but in what words cease to be acceptable in mainstream society. But what happens when #3 threatens to trump #1 and # 2? That is, what happens when society changes to the point that # 3 requires us simply to avoid a particular work, no matter how much it meets what we want from # 1 and # 2?

Two new controversies have sprung up recently surrounding objections to a single word and the future relevancy of the work containing that word.

Two weeks ago came an announcement that NewSouth Books would publish a joint edition of The Adventures of Tom Sawyer and The Adventures of Huckleberry Finn with the word "nigger" (which appears more than 200 times in Huck Finn) replaced with the word "slave." ("Injun" is also removed). The edition is created by Alan Gribben a Twain scholar and professor at Auburn University; he was moved to this project by encounters with many public school teachers in Alabama, who said they would love to teach both books, but simply could not do it in the modern classroom. The argument is that society has progressed to the point that we now have only two choices: Remove the word or remove the book (or at least remove it from the public-school classroom and save it for the college curriculum). Context no longer matters, nor does an honest portrayal of the ugly societal and racial attitudes of that time, even if (as with Twain) that was the point of the work. Plus does "slave" even make sense as a replacement word; in one passage, characters now speak about the "free [slave] from Ohio"?

Then last Wednesday, the Canadian Broadcast Standards Council ("CBSC") banned its member stations (more than 700 commercial broadcasters) from playing unedited versions of Dire Straits' 1985 hit Money for Nothing because the song uses the word "faggot" three times (see the great, if now technologically prehistoric, video after the jump).

The CBSC held that the word violates the Canadian Association of Broadcasters' Code of Ethics, which prohibits "abusive or unduly discriminatory material or comment" on various bases, including sexual orientation. Edited versions of the song are available and can be played, including one version that uses "mother" (which makes even less sense than slave, not to mention making a strong gesture at one of Carlin's Seven Words). Last Friday night, K97 Edmonton protested the decision by playing the unedited song nonstop for an hour. Again, in context of the song, the word makes sense. The "speaker" in the song is a working-class man expressing envy for the wealthy pop stars of "the MTV" with earings, make-up, and dyed/feathery who get paid lots of money for doing nothing, while "we've got to move these refrigerators." And the speaker expresses that envy in the language and vernacular you would be expect.

In other words, it honestly captures the mood. But, as with Huck Finn, the presence of the offensive word overwhelms its accuracy or the message the song is sending.

This is not to suggest, by the way, that Money for Nothing is the musical equivalent of Huck Finn. But, as Tom Scocca argues, the song contains one of the great guitar riffs of all time. And it captures (and satirizes) well the early days of MTV (back when people actually did play the guitar on the MTV, rather than talking about becoming pregnant at 16).

One commentator for the National Post argues that the Dire Straits case is true censorship, while the Huck Finn case is not. The difference? The latter involves a decision by a private publisher, while the former involves government telling private speakers what they can say. The CBSC is a non-governmental agency, created by the CAB, with authority only over member stations. But the Canadian Radio-television and Telecommunications Commission ("CRTC"), a governmental body, exercises licensing authority and is highly unlikely to license a commercial station that is not a CBSC member. Thus, the CBSC is exercising some form of joint or de facto government authority. And the CBSC decision ultimately may affect who receives a license from the government, thus giving broadcasters an overwhelming incentive to comply with CBSC orders.

I agree that the MFN case is problematic because of that government link. But I would not want to overstate those differences. The reason a U.S. publisher saw the need to publish a bowdlerized Huck Finn is that government-run schools refused to teach the book in its original form. No First Amendment problem there, since the school curriculum is a clear example of government speech. But there remains a free speech problem, in the sense of what sort of free-speech marketplace we want to have. Both cases thus are equally problematic at the level of governmental or other powerful interests pushing for the elimination of certain words.

More broadly, both cases present the conflict with which I began this post--when does sensitivity to particular words (which may be justified) overwhelm the broader message and the ability to accurately capture reality, particularly the reality of our past. And what do we do about it?