The Challenges of Free Speech

By Chris Finan, President of the American Booksellers Foundation for Free Expression

Why in the world would anyone defend a book like The Pedophile’s Guide to Love and Pleasure: A Child-Lover’s Code of Conduct?

A number of people asked me this during the recent controversy over Amazon.com’s decision to sell the book. (The book is no longer available from Amazon.) When I was quoted in an AP story saying the book appeared to be neither obscene nor child pornography and was therefore protected by the First Amendment, several outraged people wrote to me and members of the American Booksellers Foundation for Free Expression board to complain. How could we defend a book that hurts children?

Of course, it was never a question of defending the book. I was attempting to explain that people have the right to purchase any constitutionally protected work.

It took many years to establish this freedom. Our country has a long history of suppressing ideas that people consider harmful. Abolitionists were attacked by mobs and denied the right to present their petitions to Congress; and “sex radicals” were prosecuted under the Comstock Act for disseminating birth control information. More than 1,000 Americans were sentenced to long prison terms for criticizing American participation in World War I.

These suppressions threatened democracy by making it impossible to debate something as fundamental as war and peace. They led to the emergence of a free speech movement that ultimately convinced the U.S. Supreme Court to protect the right to advocate all ideas.

There are only a few narrow exceptions to the right of free speech. The Supreme Court has upheld the banning of books that are “obscene” or “child pornography.” It defines the former as “hardcore pornography” – material that, taken as a whole, appeals to prurient interest, is patently offensive to community standards and lacks serious literary, artistic, political or scientific value. Child pornography is material that visually depicts the sexual abuse of actual minors.

I have not seen The Pedophile’s Guide, but based on the descriptions of the people who have, it does not appear to be either obscene or child pornography. It contains no sexually explicit pictures, and while the Supreme Court’s definition of obscenity would allow the prosecution of works that consist only of text, it has not declared a book obscene since the 1960s when it finally lifted the ban on Tropic of Cancer and other erotic classics. In defining child pornography, the Supreme Court has made it clear that only visual material can violate the law.

So what is The Pedophile’s Guide? An AP reporter described it as “a semantic rant, arguing that the literal meaning of the word ‘pedophile’ isn’t a bad thing.” It also offers “guidelines” for pedophiles, including the advice that they obey the law by not engaging in sexual conduct with minors.

Would it matter if the book directly advocated sex with children? Not under current Supreme Court guidelines. In 1969, the Supreme Court declared that advocating illegal acts was protected, including calling for the violent overthrow of the government. A decade earlier, we had thrown Communists in jail for “teaching” revolution. To ensure that nothing like that happened again, the court ruled that only direct incitement to violence that is likely to lead to immediate lawless behavior can be banned. This is a very high hurdle for prosecutors, and it has almost never been attempted in a case involving a book.

But those who believe that the book will encourage crimes against children ask another question. Even if the book is legal, should a bookseller sell it?

Our answer is that it is up to booksellers to decide what to sell. While most would not carry The Pedophile’s Guide, others are philosophically committed to making available all First Amendment-protected books.

By agreeing to sell these books, booksellers are not advocating their points of view. They are expressing their commitment to providing the wide variety of books that their customers need to understand the world the world we live in and to debate the controversial issues of the day.